ISSUE

• Whether Chun can raise the defence of

intoxication to escape him from criminal
liability arising from the incident.
 LAW

• The general rule provide under section 85(1) is that intoxication shall not constitute a defence
to any criminal liability. It is obviously not in the public interest for criminals to escape liability
simply by asserting they were so drunk they did not know what they were doing. The law is
generally more accommodating to those who have not voluntarily put themselves into an
intoxicated state.

• Section 85(2) provides that intoxication can only be a defence in the following circumstances :

(1) at the time of the act or omission complained the accused did not know that such act or
omission was wrong or did not know what he was doing; and
(2) the state of intoxication was caused without his consent by the malicious or negligent act of
another person, or the person charged was, by reason of intoxication insane, temporary or
otherwise, at the time of such act or omission.
• Intoxication, in its operation as a defence in the circumstances enumerated in section 85, is excusatory
in nature. The essence of the defence is that the accused:

(a) being in a state of intoxication;

(b) the state of intoxication was caused without his consent by the malicious or negligent act of another
person;
(c) state of his intoxication rendered him insane;
(d) did not know that his act or omission was wrong or not know what he was doing.

• In DPP v Majewski, the appellant had taken a substantial quantity of drugs over a 48 hour period. He
then went to a pub and had a drink. He got into a fight with two others. The landlord went to break up
the fight and the appellant attacked him. When the police arrived, he assaulted the arresting officer.
Another officer was struck by the appellant when he was being driven to the police station. The next
morning he attacked a police inspector in his cell. He was charged with four counts of occasioning actual
bodily harm and three counts of assaulting a police constable in the execution of his duty. The appellant
claimed he had no recollection of the events due to his intoxication. He was found guilty on all counts
and appealed contending that he could not be convicted when he lacked the mens rea of the offences
due to his intoxicated state.

• The appeal was dismissed by the court. Conviction upheld. The crime was one of the basic intent and
therefore his intoxication could not be relied on as a defence.
 APPLICATION

• In section 85(1) of the Penal Code it is stated the general rule

that intoxication cannot be a defence for any criminal charge.
Relating to the case, Chun may raise the defence of
intoxication if and only if he establishes the elements of
intoxication under section 85(2). The first element is that he is
being in a state of intoxication. During the incident, Chun was
drunk when he hit Tzu thus he fulfill the first element. The
second element is that the state of intoxication was caused
without his consent by the malicious or negligent act of
another person.
• In the problem, Chun voluntarily drank too much and continued drinking
despite advice from friends that he should stop. Therefore, the second
element is not established. Thirdly, the state of intoxication rendered him
insane. In the problem, Chun can be said to be sane as he managed to leave
the dinner party and went back to his car. It is an intended act that he grabbed
the baseball bat and went inside to hit Tzu. Chun did not fulfill the third
element. The last element is that he did not know that his act or omission was
wrong or not know what he was doing. In the case, Chun claimed was not
conscious of his action. Therefore, the fourth element is established.

Since 3 out of four elements of intoxication under section 85(2) is not

established, Chun therefore cannot rely on the defence of intoxication.

By the virtue of the case DPP v Majewski also, Chun may not apply for
intoxication for defence as his action of going back into the dinner party with a
baseball bat after being asked to leave is an intended act to harm Tzu.
 CONCLUSION
• Chun cannot rely on the defence of
intoxication to escape him from criminal
liability.