Thailand Law Journal 2013 Spring Issue 1 Volume 16

Getting Drunk In Singapore And Malaysia

By A. P. SlMESTER*

At the level of principle and policy, there is a deep tension within the criminal law of intoxication. On the one hand, alcohol and drugs have a long-recognised association with unruly and dangerous behaviour, of the very kind that criminal law is designed to deter. In the early common law, drunkenness was regarded as an aggravating factor¹, reflecting a perceived need for social protection against the kinds of casual violence that drunkenness so often fuels. In some jurisdictions, being intoxicated can be a criminal offence in its own right², especially when it leads to unlawful acts by the defendant³.

On the other hand, it is also a long-standing principle that act us non facit ream nisi mens sit rea. The general rule in criminal law is that a person's behaviour does not become criminal unless it is perpetrated with 'mens red': i.e. with a specific mental element such as intention, rashness, or the like.⁴ Rightly so. Requiring a mens rea element helps to ensure that defendants are not convicted of an offence unless they are at fault for committing it. When a blameless-morally innocent person is convicted of an offence, she is a victim too. A criminal conviction is it sell harmful. In this sense, mens rea elements help to protect the public from unfair convictions when things go wrong, even as the criminal legal system operates to protect the public from the wrongful acts of others.

The need to balance these two interests generates real difficulties in the context of intoxication. If D goes to a bar and voluntarily drinks so much that he no longer knows what he is doing, and while in that state attacks and injures another person, prima facie he lacks mens rea for the harm inflicted. In turn, this means that D does not satisfy the elements of the offence of voluntarily causing hurt under the Penal Code and its international variants, including the Singaporean⁵ and Malaysian Penal Codes. He does not satisfy the elements of the offence because he lacks the requisite awareness that injury is likely.⁶ Yet at the same time, the need to protect the public is clearly engaged here. Moreover, there is a sense that D at fault. The intoxication is self-inflicted. He is, in a direct causal sense, responsible for what happened next.

The law of intoxication mediates this tension. It does so by allowing for the conviction of voluntarily intoxicated defendants who inflict harm while lacking mens rea for that harm. However, as we shall see, the existing law in Singapore and Malaysia is extremely opaque, and much in need of legislative revision. This is not surprising. The formulation of intoxication rules has been problematic throughout the world, and the common law has been unsatisfactory both before and after Lord Macaulay drafted his penal code for India. In the discussion that follows, the interpretive difficulties faced locally are very much in common with those faced in interpreting the Penal Code itself, and indeed in the common law. To navigate those difficulties, we need to be willing to rethink our approach to the interpretation and application of the intoxication rules.

I. Historical Background to the Singaporean Provisions:
Actual Mens Rea Versus Capacity

It is helpful first to set out the text and background of the Indian and Singaporean provisions, which are contained in ss. 85 and 86 of the respective Penal Codes. (The Malaysian provisions are in substance the same as Singapore's,⁷ and for convenience I will use the Singaporean Penal Code to represent both.) The Indian provisions remain as they were originally enacted in 1860, as follows:

Act of a person incapable of judgment by reason of intoxication caused against his will.

 85. Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law: provided that the thing which intoxicated him was administered to him without his knowledge or against his will.

Offence requiring a particular intent or knowledge committed by one who is intoxicated.

86. In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.

These original provisions specifically mention a test of incapacity. By contrast, the intoxication rules for Malaya and Singapore were revised in 1935, following the decision in Director of Public Prosecutions v. Beard⁸ The relevant provisions now read as follows:

Intoxication when a defence.

85.- (1) Except as provided in this section and in section 86, intoxication shall not constitute a defence    to any criminal charge.
(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and-
(a)the state of intoxication was caused without his consent by the  malicious or negligent act of another person; or
(b) the person charged was, by reason of intoxication, insane, temporarily or otherwise, at the time of such act or omission.

 Effect of defence of intoxication when established.

86.- (1) Where the defence under section 85 is established, then in a case falling  under section 85(2)(a) the accused person shall be acquitted, and in a case falling   under section 85(2)(b), section 84 of this Code and sections 314 and 315 of the Criminal Procedure Code shall apply.

(2)Intoxication shall be taken into account for the purpose of determining whether    the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

Interpretation.
(3)For the purposes of this section and section 85 "intoxication" shall be deemed to include a state produced by narcotics or drugs.   

Similar revisions were rolled out in many British colonies at around the same time⁹.   Unfortunately, the 1935 revisions failed to fettle matters, partly because of the unsatisfactory nature of Beard itself. In Beard, the English judges had suggested that thekey question was whether, because of intoxication,  D lacked the to formthe metis rea required for the offence:¹⁰

where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime. If he was so drunk that he was incapable of forming the intent required he could not be convicted...

Beard was at first very influential and similar language to the formulation can be found in Public Prosecutor v. Seah Eng Joo¹¹ and Ismail bin U K Abdul Rahman v. Public Prosecutor¹². Compare for example, the analysis in Public Prosecutor v. Daniel Lo Kiang Heong:¹³

On the issue of intoxication, I found that there was no evidence adduced by the accused to support his submission that his level of intoxication was so high that he was not aware of what he was doing. While he did smell of alcohol, he was alert enough at that time to be able to answer questions and to inform the officers of his encounter with his assailant in the bar. He was not in a state of drunken stupor that he completely passed out.

*Professor, Faculty of Law, National University of Singapore; Fellow, Wolfson College, University of
Cambridge. I am grateful to the anonymous reviewer for valuable comments, especially concerning terminology. Special thanks, too, go to Stanley Yeo for a range of suggestions and advice which greatly improved this article.

1 See e.g., N. L. A. Barlow, "Drug Intoxication and the Principle of Capacitas Rationalis" (1984) 100 Law
Q. Rev. 639.

2 At least when in public: see e.g.. Licensing Act, 1872 (U.K.), 35 & 36 Viet., c. 94, s. 12; Powell v. Texas,
392 U.S. 514(1968).

3 See e.g., s. 323A( 1) of the German Penal Code.

4 'Mens rea' is used here as a synonym for 'mental element', rather than 'fault element'. Helping to        establishing culpability is not the only function of mens rea:Winnie Chan & A.P. Simester, "FourFunctions of Mens Rea" (2011) 70(2) Cambridge LJ. 381. See also J. Gardner, "Wrongs and Faults"in A. P. Simester, ed., Appraising Strict Liability (Oxford: Oxford University Press, 2005) at 51, for a    helpful distinction between the 'fault principle' and the 'metis rea principle' in criminal law.
5 Penal Code (Cap. 224, 2008 Rev. Ed. Sing.) [Singaporean Penal Code]. Where references to the Penal
Code are not country-specific, they are common to both the Indian Penal Code and the Singaporean Penal Code.

6 According to the terms of s. 321, "Whoever does any act with the intention of thereby causing hurt to  any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said 'voluntarily to cause hurt'".

7 Contrast the law in Brunei, which remains the same as that of India: cf. Public Prosecutor v. Abdul Muhin bin Hj Moksin [1989] 2 M.L.J. 279 (H.C.).

8 [ 1920] A.C. 479 (H.L.) [Beard]. For a helpful discussion of the historical background, see (jerry Ferguson,
"Intoxication" in Wing-Cheong Chan, Barry Wright and Stanley Yeo, eds., Codification, Macaulay and
the Indian Penal Code (Burlington, VT: Ashgate, 2011) at 257 [Ferguson].

9 See e.g., the criminal codes of Kiribati, s. 13; Malta, s. 34; Tanzania, s. 14; Tonga, s. 21; Tuvalu, s. 13; Soloman Islands, s. 13; and Zambia, s. 13.

10 Beard, supra note 8 at 499 (Lord Birkenhead L.C.).

11 [1961] M.LJ. 252.

12 [1974] 2 M.L.J. 180 (Sing. CA).

13 [2007] SGDC 47 at  para. 61(emphasis added); although nothing turned on this way of putting the matter.