R v OGrady1 and R v Bailey2 are illogical decisions

and should no longer be followed in Hong Kong (HK). Do you agree?

A. Introduction
The courts of HK are bound by OGrady and Bailey. However, the courts have not had
the chance to seriously consider its logic. In fact, it seems that Bailey was only very
briefly considered in HKSAR v Tang Yuk Wa3 but was not commented on.
According to OGrady, there is no defence of mistake as to the use of excessive force in
self-defence when the mistake is caused by self-induced intoxication. In Bailey, the Court
of Appeal (CA) maintained that self-induced automatism could negate specific intent
whereas self-induced automatism other than by alcohol or drugs is a defence to crimes of
basic intent unless sufficient recklessness can be proven to establish the mens rea (MR)
for that offence.
In light of the criticisms regarding the abovementioned decisions, I will analyze the
logicality of the decisions and conclude whether HK courts should continue to follow
them.

[1987] 3 All ER 420.

[1983] 2 All ER 503.
3
[2007] HKCU 968.
1
2

B. OGrady
Two approaches must be borne in mind while considering the logic of OGrady:
I. Present Law: Subjective-Definitional Approach
According to Section 101A of the Criminal Procedure Ordinance, a person may use
such force as is reasonable in the circumstances in the prevention of crime.... This
involves an objective assessment. However, it is rather subjective because what is
reasonable depends on Ds state of mind. This includes Ds honest instinctive reaction 4
and mistaken beliefs5. The lawfulness of Ds conduct is then assessed against the
definitional elements of murder, AR, for which MR is required.
II. OGradys New Rule: Objective-Defence Approach
This approach, as devised by Lord Lane, extends the objective Caldwell recklessness by
excluding the relevance of unreasonable mistakes regarding force by analogy with
Majewski.6 Mistake is relevant to the question of defence 7, and because Lord Lane
separates mistake and intent, intoxicated mistakes are inadmissible. In effect, self-induced
drunken mistake in self-defence cannot be defence- D can even be liable for murder so
long as D had the intent to kill/cause grievous bodily harm (GBH). Therefore,
mistaken self-defence as a separate defence to true self-defence8.

R v Man Wai Keung [1992] 1 HKCLR 89.

R v Williams (1983) [1987] 3 All ER 411.
6
Marianne Giles, 'Self-Defence and Mistake: A Way Forward' [1990] 53 MLR 187, 199.
7
ibid 192.
8
Giles (n6) 197.
4
5

III. O Grady- Logical

a. No Escape of Liability
Lord Lane opined that the innocent victims interests prevail when Ds conduct is selfinduced, and that citizens need legal protection from unprovoked violence. 9 Lord Lanes
concern was the loophole in the subjective-definitional approach: Because self-defence is
a highly subjective test, a voluntarily intoxicated D can claim that he believed that
excessive force was reasonably necessary to defend himself based on his subjective
perception of the attack, and ultimately acquit himself of both murder and manslaughter.
Therefore, Lord Lanes creation of the objective-defence approach is logical, for it allows
no leeway to the drunken D and guarantees protection over citizens.
b. Prevents the Justification of Intoxication
Since self-defence is a justification10 whereby excessive force in self-defence is justified
as being morally right, it would be contradictory to entitle D to justify his excessive force
when such was a result of a mistake arising from his own voluntary intoxication.
Therefore, logically, by disallowing subjectivity in judging D, the court can prevent selfinduced intoxication from becoming a morally right act.
c. Prevents an Unworkable Law
Lastly, it is suggested that Lord Lane would find the law unworkable if the jury was
entitled to consider Ds intoxicated mistake in murder, but not in manslaughter.11

DPP v Majewski [1976] 2 All ER 142, 152.

Michael Jackson, Criminal Law in Hong Kong (HKU Press, Hong Kong) 279.
11
ibid 273.
9

10

IV. OGrady- Illogical

a. Misconceived Concerns and Redundancy
Lord Lanes concerns regarding the present definitional approach are unjustified and
misconceived12. The definitional approach can in fact does not acquit D of all liability as
voluntary intoxication is irrelevant in assessing liability for basic intent offences 13.
Reducing oneself by drugs is a reckless course of conduct, and such recklessness is
transferred to the commission of excessive force. 14 Thus, ...a condition of
drunkedness...has the effect of reducing murder to manslaughter15
Evidently, OGradys new rule has brought confusion because it is inconsistent 16 with
existing rules that can address the same concerns on its own. Additionally, the distinction
between the existence of an attack and force reasonably necessary to self-defend does not
make much difference in practice17 because they are inextricably linked. Therefore, a new
approach is illogical and redundant.
b. Creates an Absolute Liability Offence
Lord Lane finds no need to distinguish between specific and basic intent offences.
Consequently, MR is no longer directly relevant and intoxication is inadmissible even in
basic intent crimes. This can be seen as a roundabout way of creating an offence of
absolute liability18 where murder and manslaughter were never one to begin with.
c. Murder is No Longer Unlawful
Lord Lane held that mistake and intent should be considered separately. However, they
both relate to whether D had the intention to act unlawfully: evidence of mistaken belief
allows courts to infer whether D had the necessary MR.19 OGradys requirement of the
Giles (n6) 197.
Majewski (n9)
14
R v Kingston [1995] 2 AC 355, 369.
15
DPP v Beard [1920] AC 479.
16
Gavin Dingwall, 'Intoxicated Mistakes About The Need for Self-Defence' [2007] 70 MLR 127, 128.
17
Giles (n6) 193.
18
Giles (n6) 196.
19
Dingwall (n16) 133.
12
13

intent to kill/cause GBH is extremely different from an intent to murder, since a D who
intends to kill may intend to do so lawfully.20 Therefore, OGrady is illogical as it
changes the definition of murder by removing the unlawfulness element from murder.
d. Inherits the Problems of Objectivity
OGradys objective approach is based off Caldwell recklessness21 that has been
overruled in HK for being problematic22. In effect, OGrady has inherited its problems,
as reflected in its harshness and its undermining of the presumption of innocence.
Moreover,it is unethical to convict a man of a crime requiring a guilty state of mind
when...he lacked it.23
Although Lord Lane has pointed out the competing interests between an honest yet
drunken defendant and the victim, the objective-defence approach illogically places all
weight to the victims interests and neglects the intoxicated defendants.

ibid
Giles (n6) 200.
22
Sin Kam-wah v HKSAR [2005] 2 HKLRD 375.
23
Majewski (n9) 166.
20
21

C. Bailey
I. Subjective Approach
The CA in Bailey adopted a subjective approach as specific intent can be negatived even
if Ds incapacity of mind is self-induced. Conversely, Bailey is distinguished from
Majewski in basic intent offences as it recognizes material distinctions between ...a man
who consumes alcohol or takes dangerous drugs and one who fails to take sufficient food
after insulin to avert hypoglycemia. Thus, self-induced automatism is a defence to a
basic intent offence unless it is proven that D was sufficiently subjectively24 reckless to
establish MR.
II. Bailey- Logical
a. Equivalence Between Recklessness and Basic Intent MR
The CA held that if D was reckless when he failed to consume sufficient food, that is,
where D knew that his inaction might make him aggressive, unpredictable or
uncontrolled, which may cause some injury to others, then D is liable for assault.
In effect, Ds blameworthiness in his recklessness is substituted into the MR of assault. It
is argued that Ds blameworthiness should be equivalent to the MR of assault in order to
justify the substitution for a fair criminalization. 25 In Bailey, it seems that the two are
equivalent. Therefore, this decision will give rise to a fair criminalization.
b. Avoids the Problems of Objective Tests
The subjective approach in Bailey is able to counteract the problems of objective tests, as
mentioned in the previous section.

John Rumbold, Martin Wasik, 'Diabetic drivers, Hypoglycaemic Unawareness, and Automatism' [2011]
Crim LR, 4.
25
John Child, 'Automatism is Never a Defence' [2014] NILQ 167, 179.
24

c. High Degree of Leniency

In present law, evidence of self-induced intoxication is inadmissible in basic intent
offences as recklessness derives from the act of becoming drunk 26, while Bailey holds that
evidence of voluntary automation by other than drugs or alcohol is admissible in basic
intent offences, such that Ds liability would be negated unless sufficient recklessness can
be proved. There is clearly a much higher degree of leniency in Bailey.
This leniency is logical and justified. Firstly, it is simply not common knowledge among
citizens or diabetics that aggressive behaviour results from the failure to take food after
insulin injections. Secondly, voluntarily automatism by alcohol or drugs is more morally
culpable27 than that by other than alcohol or drugs.
III. Bailey- Illogical
a. Overly Specific Foresight
The CA held that recklessness is found where the accused knows that his actions/inaction
are likely to make him aggressive, unpredictable or uncontrolled with the result that he
may cause some injury to others, and knows that remedial action is needed. That being
so, it is hard to imagine that any diabetic that does not consume enough food would have
such specific foresight. Accordingly, this would allow many defendants to avoid liability
and this degree of leniency leaves innocent citizens legally unprotected.
b. The Difficulty of Ascertaining Common Knowledge
According to the CA, it is common knowledge to anyone that alcohol may make one
aggressive or do dangerous things, thus those who take alcohol are likely to foresee risks
of causing harm to others, while on the contrary, aggressive or unpredictable conduct is
not common knowledge among diabetics.
The CA clearly differentiates the two form of self-induced automatism using common
knowledge. However, how do courts determine whether a risk is common knowledge?
26
27

Majweski (n9) 172.

The Law Commission, 'Intoxication and Criminal Liability' [2009] Law Comm. No. 314 , 15.

Not only did the CA not account for this, common knowledge varies in different societies
and generations. Thus, this principle is not easy to apply.
c. Redundant Defence?
Earlier, it was argued that the blameworthiness between Ds recklessness and the MR of
assault must be equivalent. However, while there are merits to that, the CA in Bailey had
practically required the same recklessness as the principle offence of assault. As such, the
defence of self-induced automatism is quite redundant as Baileys approach is essentially
charging D of assault through causation.28
Further, Bailey did not provide standards to ascertain an equally blameworthy test as
pointed out in R v Hardie29, where the CA found that they are unable to find the
appropriate direction with regard to the elements of recklessness...nor...a model
direction, for circumstances will vary infinitely and model directions can sometimes lead
to more rather than less confusion. Therefore, not only is Bailey illogical, it is also
unworkable regarding other basic intent offences.

28
29

Child (n25) 183.

[1984] 3 All ER 848.

D. Conclusion
To sum, OGradys decision creates a very objective approach while Bailey gives rise to a
very subjective test. While both decisions have logical points, their respective illogicality
heavily outweighs any logic. For example, the major flaw in OGrady is that its rationale
is based on a misconceived concern that ignores the capabilities of the subjectivedefinitional approach in present law. Whereas in Bailey, the required recklessness brings
about too much leniency and the CA left no guidance to future courts in terms of
ascertaining the required recklessness or common knowledge.
I believe that the extreme objectivity in OGrady and the extreme subjectivity in Bailey
has led to a serious imbalance between the competing interests- too much protection over
the innocent victims interests in the former, while too little protection over the automated
defendant in the latter. Moreover, the redundancy in the principles of both decisions
further suggest that perhaps they should not be followed.
Therefore, in light of the all of the abovementioned arguments, I agree that OGrady and
Bailey are illogical decisions and should no longer be followed in HK.