Should the law on voluntary intoxication and criminal ...

[LRC Law Reform Essay Competition 2021]

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Should the law on voluntary intoxication and criminal liability be reformed

in Hong Kong? If so, why and how? If not, why not?

Introduction

In Hong Kong, a number of offences such as careless driving and violence are

often committed when the offender is in a state of intoxication.1 How far is our

law satisfactory in deterring offenders and ensuring public safety?

The objective of this essay is to discuss whether the law on voluntary

intoxication and criminal liability should be reformed in Hong Kong. It argues

that the law is in need of reform because the current approach to determining

whether and how voluntary intoxication is relevant to the proof of mens rea

lacks certainty and consistency.

In the discussion below, Part 1 examines the current state of law. Part 2 explains

why the law is in need of reform by identifying its problems. Part 3 surveys the

laws of overseas jurisdictions. Finally, recommendations are given in Part 4.

1. Current state of law on voluntary intoxication and criminal liability

‘Voluntary intoxication’ refers to the situation in which a defendant induces

himself2 into a state of intoxication by consuming alcohol or drugs.

When a defendant voluntarily intoxicates himself and then allegedly commits an

offence, it is not a defence for him to say that he has been intoxicated. To be

clear, there is no defence of voluntary intoxication. The issue that arises from a

case involving an intoxicated defendant is whether the defendant had the

requisite mens rea at the time of offence. A defendant may adduce evidence of

intoxication to challenge the proof of mens rea, but in most cases it is for the

prosecution to prove beyond reasonable doubt that the defendant had the

requisite state of mind at the time of offence.3

Currently, the law on voluntary intoxication and criminal liability in Hong

Kong is governed by case law, a majority of which are cases decided by English

courts. As illustrated in scenarios (i) to (iv) below, whether and how voluntary

intoxication is relevant to the proof of mens rea depends on these factors:

whether the defendant has intentionally, recklessly or non-recklessly intoxicated

1 Hong Kong Police Force, Traffic Report (2019) 28; see also ‘Alcohol, Violence and Addiction in Hong Kong’

(The Cabin Hong Kong, 25 August 2015) <https://www.thecabinhongkong.com.hk/blog/alcohol-addiction-

treatment/alcohol-violence-and-addiction-in-hong-kong/> accessed 14 December 2020. 2 Except for referring to specified persons, gender pronouns are used interchangeably in this essay. 3 Sheehan & Moore [1975] 1 WLR 739; Fung Chun-wai [1982] HKLR 302.

Entry No 2


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himself; effect of the intoxication; what offence has been committed; and

whether any defence which relates to the defendant’s state of mind applies.

Scenario (i):

Defendant has intentionally intoxicated himself in order to commit an offence

This scenario is exemplified by AG for Northern Ireland v Gallagher4. That

case concerned a defendant who wanted to kill his wife and knew that he would

become violent after consuming alcohol. On his way to his wife’s house, the

defendant bought a knife and a bottle of whiskey. He drank the whiskey and

then used the knife to kill his wife. The House of Lords held that the defendant

was guilty of murder. Despite the defendant killed his wife while intoxicated, he

formed an intention to kill before the intoxication, and he in fact drank alcohol

to give himself ‘Dutch courage’ to do the killing.5

Accordingly, if voluntary intoxication is within a person’s premeditated plan to

commit an offence, the evidence of intoxication has no significance.

Scenario (ii):

Defendant has recklessly intoxicated himself and then committed an offence

A defendant is found to have recklessly intoxicated herself if she knows that the

alcohol or drug is likely to cause her prone to committing an offence but persists

in consuming it.6 In such a case, whether the defendant can adduce the evidence

of intoxication in denying that she has the requisite state of mind at the time of

offence depends on whether the offence concerned is a ‘basic intent offence’ or

a ‘specific intent offence’.

If the offence is a ‘specific intent offence’, the defendant can adduce the

evidence of intoxication. However, if the offence is a ‘basic intent offence’, the

defendant cannot adduce the evidence of intoxication. This is known as the

Majewski rule. 7 The table below shows how offences have been judicially

classified so far:8

Basic intent

offences

Assault occasioning actual bodily harm9

Common assault10

4 [1963] AC 349. 5 Ibid, 379. 6 R v Bailey [1983] 1 WLR 760, 765D. 7 DPP v Majewski [1977] AC 443. Hong Kong courts essentially follow the Majewski rule, see for example:

HKSAR v Lin Peng, HCMA 547/2015 (7 March 2017); HKSAR v Michael Karl Corbin, HCMA 122/2010 (29

July 2010); HKSAR v Lam Kin Chung, HCMA 908/2008 (2 June 2009). 8 David Ormerod and Karl Laird (eds), Smith, Hogan, & Ormerod’s Criminal Law (OUP 2015) 321. 9 Bolton v Crawley [1972] Crim LR 222.


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Criminal damage while being reckless as to whether

property would be damaged and/or whether life would be

endangered under section 60(1) and/or (2) of the Crimes

Ordinance (Cap 200)11

False imprisonment12

Kidnapping13

Maliciously wounding or inflicting grievous bodily

harm14

Manslaughter15

Rape16

Sexual assault17

Taking a conveyance without consent or lawful

authority18

Specific

intent

offences

Burglary with intent to steal19

Criminal damage with intent to cause damage and/or

endanger life under section 60(1) and/or (2) of the Crimes

Ordinance (Cap 200) 20

Endeavouring to obtain money on forged cheque21

Handling stolen goods22

Murder23

Robbery24

Theft25

Wounding or causing grievous bodily harm with intent26

10 n 7 above. 11 R v Coley [2013] EWCA Crim 223. Hughes LJ said at [57] in obiter that voluntary intoxication should not be

a defence to crimes involving subjective recklessness. 12 R v Hutchins [1988] Crim LR 379. 13 Ibid. 14 Bratty v AG for Northern Ireland [1963] AC 386. 15 R v Lipman [1970] 1 QB 152. 16 R v Grewal [2010] EWCA Crim 2448. 17 R v Heard [2008] QB 43. 18 R v MacPherson [1973] RTR 157. 19 R v Durante [1972] 1 WLR 1612. 20 R v Caldwell [1982] AC 341 (on section 1(1) and (2) of the Criminal Damage Act 1971). 21 n 7 above. 22 Ibid. 23 DPP v Beard [1920] AC 479. 24 As a corollary of theft. 25 Ruse v Read [1949] 1 KB 377. 26 n 14 above.


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However, it shall be noted that if the reckless intoxication has caused the

defendant to be labouring under a mistaken belief at the time of offence and the

defendant sought to rely on such mistaken belief to establish a defence, no

distinction is to be made between basic intent offences and specific intent

offences.27 In other words, invariably, the defendant cannot adduce the evidence

of intoxication to establish any defence based on mistaken belief. For example,

if an intoxicated defendant intentionally causes grievous bodily harm to another

person V and raised self-defence on the basis that he mistakenly believed that V

was attacking him when V just barely touched him, the defendant cannot rely on

the evidence of intoxication even though causing grievous bodily harm with

intent is a specific intent offence.

Another point to note is that it is not clear from case law whether the Majewski

rule should be applied to determine secondary liability. If an intoxicated

defendant did not foresee the possibility that an offence might be committed

during the course of a joint enterprise, 28 should he be allowed to adduce

evidence of intoxication? How about in a case which involves an intoxicated

defendant who allegedly aided or abetted the principal of an offence? No

answers have been given by the courts.

Scenario (iii):

Defendant has not recklessly intoxicated himself and then committed an offence

If a defendant has intoxicated herself by taking a drug which is not known to be

dangerous, she has not been reckless. 29 It appears that this scenario is not

relevant to cases concerning intoxication by alcohol because it is generally

known that alcohol has adverse effect to the human mind.

In R v Hardie30, the defendant started a fire in a house after he took some

Valium pills not on medical prescription and which, unknown to him and

generally, had sedative effect. He was convicted of criminal damage with intent

to cause damage (a basic intent offence) at trial. However, his appeal against

conviction was allowed by the English Court of Appeal, which held that even

though a drug is not taken on medical prescription, the Majewski rule has no

application if the drug is ‘wholly different in kind from drugs which are liable to

cause unpredictability or aggressiveness’31; and thus, the trial judge should have

directed the jury to consider whether the defendant had been reckless in taking

the Valium pills.

27 R v O’Grady [1987] QB 995. See also R v Hatton [1973] AC 443. 28 R v Chan Wing Siu [1985] AC 168, affirmed in HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640. 29 n 6 above. 30 [1985] 1 WLR 64. 31 Ibid, 70.


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Therefore, if an intoxication has not been reckless, the Majewski rule is not

applicable and the defendant can adduce evidence of intoxication even if the

offence concerned is a basic intent offence.

Scenario (iv):

Defendant’s voluntary intoxication caused him to commit an offence in the state

of insanity or automatism

Voluntary intoxication may operate cumulatively with defences which relate to

the defendant’s state of mind.

If the defendant’s voluntary intoxication has caused a ‘disease of the mind’ such

that he was under a defect of reason at the time of offence, he can rely on the

defence of insanity.32 In these circumstances, whether or not the defendant was

intoxicated at the time of offence is not material because it suffices to prove that

the defendant was then insane.

Meanwhile, if as a result of voluntary intoxication the defendant was in a state

of automatism and then committed an offence, he could rely on the defence of

automatism if the intoxication was not reckless, or if the intoxication was

reckless and the offence concerned is a basic intent offence.33

2. Problems of the current state of law: inconsistencies and uncertainties

Based on the discussion above, the current state of law on voluntary

intoxication and criminal liability is in need of reform because it has these four

problems:

(a) The Majewski rule has not been applied consistently across all cases in

which reckless intoxication is involved

According to the Majewski rule, a defendant who has recklessly intoxicated

himself and then committed an offence cannot adduce evidence of intoxication

if the offence concerned is a basic intent offence. He can do so if the offence is

a specific intent offence. However, when it comes to establishing a defence

based on mistaken belief, defendants are not allowed to adduce evidence of

reckless intoxication, whether or not the offence concerned is a basic intent

offence or a specific intent offence.

32 n 23 above. 33 R v Burns (1973) 58 Cr App R 364.


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The differentiation has been criticised by many academics. In essence, their

argument is that not allowing defendants to rely on the state of intoxication in

establishing a defence based on mistaken belief contradicts the approach taken

with regard to mistakes in self-defence.34 Under the general law of self-defence,

if a defendant has made a mistake that she was under attack by another person,

she will be judged based on the facts as she believed them to be, and the judge

or the jury shall decide whether the defendant’s reaction to the threat was

reasonable.35 In principle, as the academics argued, this approach should be

adopted uniformly because there is no logical distinction between a defendant

who formed a mistaken belief because of intoxication, and a defendant who

formed a mistaken belief because of reasons other than intoxication.

Indeed, it appears that the differentiation is grounded on policy rather than legal

principles. In R v O’Grady36, Lord Lane CJ identified two competing interests

that the court had to consider when determining whether a defendant should be

entitled to raise self-defence based on a drunken mistaken belief, ‘On the one

hand the interest of the defendant who has only acted according to what he

believed to be necessary to protect himself, and on the other hand that of the

public in general and the victim in particular who, probably through no fault of

his own, has been injured or perhaps killed because of the defendant’s drunken

mistake.’ In the end, the balance was tilted towards the latter interest because

the court was more concerned with the need to ensure public safety.

The problem of courts making decisions based on policy reasons is obvious:

legal certainty is compromised. Inconsistencies as to how mistakes in self-

defence are treated render this area of law incoherent and thus difficult to

understand. Consequently, juries may find it hard to adjudge cases involving

drunken mistaken belief, and defendants (particularly those who represent

themselves) may not be able to articulate their defences.

(b) Doctrinal basis that underpins the distinction between ‘basic intent offence’

and ‘specific intent offence’ is unclear

Not only is the application of the Majewski rule problematic, the rule itself is in

fact also questionable. While the distinction between ‘basic intent offence’ and

‘specific intent offence’ is crucial for determining whether a defendant who has

recklessly intoxicated himself can adduce evidence of intoxication, to date no

satisfactory explanation for the distinction has been given.

34 Smith, Hogan, & Ormerod’s Criminal Law (n 8) 326. See also Michael Jackson, Criminal Law in Hong Kong

(HKU Press 2003) 274. 35 R v Gladstone Williams (1984) 78 Cr App R 276. 36 O’Grady (n 27) 1000.


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Attempts made by judges and academics to justify the distinction are to no avail.

Lord Simon, for example, argued that the method of distinguishing between the

two kinds of offence is to enquire whether the offence has a mens rea which

goes beyond the actus reus (specific offence) or not (basic offence).37 With

respect, this view is flawed because it fails to explain why murder, an offence

which has a mens rea (intent to kill or cause grievous bodily harm) that does not

go beyond the actus reus (act of killing), is a specific intent offence. Although

some other academics argued that the distinction lies in whether the offence is

one where recklessness (basic intent offence) or other forms of state of mind

(specific intent offence) constitutes sufficient mens rea,38 their argument was

rejected by the English Court of Appeal in R v Heard39 (in obiter dictum).

Thus, the way to distinguish between basic intent offence and specific intent

offence remains unclear. If one wants to know which category an offence

belongs to, one can only go through a large body of case law. This is hardly

acceptable by a society which calls for its law to be certain and accessible by its

members.

(c) Lack of criteria for determining the nature of a drug renders the distinction

between reckless intoxication and non-reckless intoxication ambiguous

The distinction between reckless intoxication and non-reckless intoxication is

important as it decides whether or not the Majewski rule applies.

In R v Hardie40, the court held that since Valium is not generally known to

cause unpredictability and aggressiveness, the taking of it does not render the

defendant reckless. However, in coming to this conclusion, the court simply

(and without any justification) relied on knowledge of the defendant and

perhaps that of a layperson. Is there any chance which medical evidence may be

accepted? Should the test of knowledge be subjective or objective?

Unfortunately, the court has not laid down any general guidelines for future

courts to follow. The lack of criteria for determining whether a drug is

dangerous or not renders the distinction between reckless and non-reckless

intoxication obscure.

(d) Relevance of voluntary intoxication to proof of secondary liability remains

uncertain

37 DPP v Morgan [1976] AC 182, 216D. 38 Ibid. See also Christopher Ellis, ‘The Mental Element in Crime’ in Archbold Hong Kong 2020 (Hong Kong

Sweet & Maxwell 2020) paragraph 16-77. 39 n 17 above, [31]. 40 n 30 above.


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So far, the courts have only articulated the law on voluntary intoxication and

criminal liability as applied to defendants who are principals to the offences.

What is the rule to be applied if the defendant (who has been voluntarily

intoxicated) is allegedly an accessory who aided or abetted the principal of an

offence, or was a party to a joint enterprise? Should the Majewski rule be

applied equally? These are questions which the courts have yet to resolve.

Allowing these unanswered questions to linger is unsatisfactory because they

create uncertainties which render the law unable to guide people’s conduct.

3. Overseas jurisdictions

Having explained why the current law on voluntary intoxication and criminal

liability in Hong Kong is in need of reform, this part surveys the laws of

overseas jurisdictions with a view to searching for a possible direction of reform.

As reflected in the discussion below, overseas jurisdictions have taken varied

approaches in determining whether evidence of voluntary intoxication is

relevant to the proof of mens rea.

United Kingdom (‘UK’)

The UK law in this area is substantially similar to that of Hong Kong. Yet, it is

worth to note that the UK Law Commission has previously issued two reports,

one in 1995 (‘the 1995 report’)41 and the other in 2009 (‘the 2009 report’)42.

In the 2009 report, the UK Law Commission pointed out that the UK law was in

need of reform because unsatisfactory distinction has been drawn between

dangerous and soporific drugs,43 the references to basic intent offences and

specific intent offences is ‘ambiguous, misleading and confusing’,44 and the test

to be applied if an intoxicated defendant is charged on the basis that he was an

accessory was uncertain. 45 As such, the UK Law Commission viewed that

legislation should be enacted to codify existing law and clarify uncertainties.46

Canada

In Canada, there was a similar distinction between ‘specific intent offence’ and

‘general intent offence’ (instead of ‘basic intent offence’). ‘Specific intent

offence’ is an offence that ‘involves the performance of actus reus, coupled

with an intent or purpose going beyond the performance of the questioned act’;

41 UK Law Commission, ‘Intoxication and Criminal Liability’ (Law Com No 229, 1995). 42 UK Law Commission, ‘Intoxication and Criminal Liability’ (Law Com No 314, 2009). 43 Ibid, paragraph 1.25. 44 Ibid, paragraph 1.28. 45 Ibid, paragraph 1.29. 46 Ibid, paragraph 3.16.


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whereas ‘general intent offence’ is an offence which requires the prosecution to

prove an intent to commit the immediate act.47

The Canadian courts used to follow the Majewski rule. Their position changed

after the Supreme Court of Canada’s decision in R v Daviault48. In that case, it

was held that sections 7 (right to life, liberty and security and right not be

deprived thereof except in accordance with principles of fundamental justice)

and 11 (presumption of innocence) of the Canadian Charter of Rights and

Freedom required an exception to the Majewski rule. The result was that while it

remains that a defendant who has committed a specific intent offence can

adduce evidence of intoxication, where basic intent offences are involved,

voluntary intoxication may offer the defendant a defence if she was in a state of

extreme drunkenness such that it is akin to insanity or automatism at the time of

offence.

The turn taken by the Supreme Court of Canada was largely driven by a liberal

interpretation of the Canadian Charter of Human Rights. In fact, the decision

was controversial49 and later triggered a legislative response which limits the

defence to cases of violence in which the defendant departs markedly from the

standard of care generally recognised by the Canadian society.50

United States (‘US’)

The law on voluntary intoxication and criminal liability in the US is mainly

governed by the American Model Penal Code (‘the Code’). Section 2.08(1)

provides that voluntary intoxication does not provide a defence unless it

negatives an element of the offence. This position is the same as that of Hong

Kong. However, instead of distinguishing between basic intent offences and

specific intent offences, the US chose to draw a line between offences requiring

recklessness and offences requiring intent. Section 2.08(2) of the Code reads:

‘When recklessness establishes an element of the offense, if the actor, due to

self-induced intoxication, is unaware of a risk of which he would have been

aware had he been sober, such unawareness is immaterial.’ According to this

section, evidence of voluntary intoxication is only relevant to offences which

include recklessness as an element.

Meanwhile, the US court has held that defendants cannot rely any mistaken

belief which was induced by voluntary intoxication in support of self-defence

47 R v Bernard [1988] 2 SCR 833, 863. 48 [1994] 3 SCR 63. 49 See for example criticisms by academics: Stephen Gough, ‘Surviving without Majewski?’ [2000] Criminal

Law Review 719; Dennis Baker and Rainer Knopff, ‘Daviault Dialogue: The Strange Journey of Canada’s

Intoxication Defence’ (2014-2015) 19 Review of Constitutional Studies 35. 50 Section 33.1 of the Canadian Criminal Code.


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unless such mistaken belief is reasonable.51 This rule is similar to that followed

by Hong Kong courts.52

Australia

Australian law differs significantly from Hong Kong law as the Australian

common law courts have refused to follow Majewski. In R v O’Connor53, the

High Court of Australia rejected the distinction between basic intent offences

and specific intent offences for the reason that it was illogical, and held that

evidence of intoxication may be admissible for the purpose of deciding whether

the defendant’s act was voluntary and whether the defendant possessed the

requisite state of mind at the time of offence.54 As Barwick CJ said, ‘if the

evidence is capable of raising a doubt either as to voluntariness or the existence

of an actual intent, the jury should be told that if that evidence raises in their

minds a reasonable doubt as to voluntariness or actual intent, it is for the Crown

to remove that doubt from their minds to satisfy them beyond reasonable doubt

that the accused voluntarily did the act with which he is charged and that he did

so with the actual intent appropriate to the crime charged.’55

4. Recommendations

In light of the different approaches adopted by overseas jurisdictions, it is

submitted that codification offers a possible direction of reform to Hong Kong

because it brings greater legal certainty, and the process of legislation can

enhance the legitimacy of the law.

The codification should aim to consolidate settled principles and clarify

uncertainties. Radical transformation of the law is not preferred as it would

require the judiciary to abandon a long line of cases and developed practices.

One may note that the UK Law Commission’s proposal to abolish the Majewski

rule in the 1995 report was not well-received by legal practitioners’ bodies in

the UK. 56 Learning from the UK’s experience, codifying the law while

preserving established common law rules is indeed the better approach. In this

regard, the following recommendations are made:

(a) The Majewski rule should be codified

51 United States v Weise 89 F3d (1996). 52 See Scenario (ii) under Part 1 above. 53 (1980) 146 CLR 64. 54 Ibid, 104. 55 Ibid, 88. 56 n 42 above, paragraphs 3.6 to 3.15.


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The enacted legislation should make clear that where a defendant has recklessly

intoxicated himself, he cannot adduce evidence of intoxication at trial to

challenge the proof of mens rea if the offence is a basic intent offence. However,

the defendant can do so if the offence is a specific intent offence.

It is unnecessary to define ‘reckless’ as the approach to determining whether

there has been reckless intoxication is context-specific, in that it depends on the

defendant’s knowledge and circumstances under which the intoxication

occurred. Yet, there is a need to define ‘basic intent offence’ and ‘specific intent

offence’, part (b) below discusses how the two kinds of offences can be

distinguished.

(b) The test to distinguish between basic intent offences and specific intent

offences should be clarified

In R v Heard 57 , the English Court of Appeal rejected the view that the

distinction between basic intent offences and specific intent offences lies in

whether the predominant mens rea of the offence is intention, knowledge or

dishonesty (specific intent offence) or otherwise (basic intent offence). The

court came to such conclusion based on their view that the offence of

‘intentional touching’ under section 3(1)(a) of the Sexual Offence Act 2003 is a

basic intent offence;58 and that it is more accurate to distinguish the two kinds of

offences by asking whether the mens rea of an offence requires proof of

purpose which goes beyond the actus reus element (specific offence) or not

(basic offence). 59 With respect, the court’s reasoning is flawed. Given the

offence is worded ‘intentional’ touching, it should be regarded as a specific

intent offence as it requires proof that the defendant has intended the touching

to occur.60 Also, the approach counter-proposed by the court is unsatisfactory

because it fails to explain why murder, an offence which does not require any

purposive element that goes beyond the actus reus element, has been recognised

as a specific intent offence.61

Therefore, the proper approach to determining whether an offence is a basic

intent offence or a specific intent offence is to look at its predominant mens rea.

Basic intent offences are offences in which recklessness constitutes sufficient

mens rea, and specific intent offences are offences which require proof of other

forms of state of mind including knowledge of certain state of affairs and

intention as to consequence.

57 n 17 above. 58 Ibid, [31]-[32]. 59 The counterproposal was built upon Lord Simon’s view in DPP v Morgan: n 37 above, 216D. 60 Smith, Hogan, & Ormerod’s Criminal Law (n 8) 320-322. 61 Smith, Hogan, & Ormerod’s Criminal Law (n 8) 318. See also Part 2(b) above.


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In addition to laying down the proper approach, the legislation should list out

what offences have already been judicially classified as basic intent offences

and specific intent offences respectively. This ensures that the law is easily

accessible to not just judges and legal practitioners but also members of the

public.

(c) Reconsider whether the Majewski rule should apply equally to defences

based on mistaken beliefs induced by voluntary intoxication

Under the present law, a defendant seeking to establish self-defence cannot rely

on any mistaken belief induced by voluntary intoxication whether the offence is

a basic intent offence or a specific intent offence.62 As discussed in Part 2(a)

above, this approach is problematic because it is inconsistent with the general

law of self-defence. There may be policy reasons to disallow a defendant to

adduce evidence of intoxication if the intoxication has caused her to form a

mistaken belief at the time of offence, but this should be an issue for the

legislature to decide, not the courts.

(d) Lay down the test for determining the nature of the drug concerned

As mentioned, to date there are no standardised rules which assist the courts to

determine whether a drug is generally known to cause unpredictability and

aggressiveness.63 This leaves the distinction between reckless and non-reckless

intoxication obscure.

It is submitted that the question which the court should ask is what a reasonable

person in the defendant’s position should know. A test which is purely objective

(asking if the drug concerned is objectively known to cause unpredictability and

aggressiveness) is not preferred because it is unrealistic to expect every member

of the public to possess the same level of medical knowledge. The better way is

to take into account circumstances of individual defendants.

Should there be a test for determining the nature of the drug concerned, it will

be easier to differentiate between reckless and non-reckless intoxication.

(e) Clarify the relevance of voluntary intoxication to proof of secondary liability

Based on existing legal principles, there is no reason why principals and

accessories should be treated differently in terms of how mens rea is to be

62 See Scenario (ii) under Part 1 above. 63 See Part 2(c) above.


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proved.64 Therefore, it is submitted that the Majewski rule should apply equally

to cases involving secondary liability. This means that if a defendant has aided

or abetted a principal of offence in a state of intoxication, evidence of

intoxication should not be admissible if the offence concerned is a basic intent

offence. The same applies if the defendant has allegedly participated in a joint

enterprise.

Conclusion

To ensure public safety, defendants who have committed offences in the state of

intoxication should not be able to get away from punishment easily. But at the

same time it is a cardinal principle under criminal law that only defendants who

possessed the requisite state of mind at the time of offence should be found

guilty. How should the balance between these two concerns be struck? This is

the issue which the law of voluntary intoxication and criminal liability aims to

tackle.

This essay has argued that the Hong Kong law on voluntary intoxication and

criminal liability is in need of reform because the distinction between basic

intent offences and specific intent offences under the Majewski rule remains

unclear, the Majewski rule has been applied inconsistently, and there are

uncertainties as to how the nature of a drug is to be determined, as well as how

evidence of voluntary intoxication is relevant to the proof of secondary liability.

In light of these problems, it is suggested that legislation should be enacted to

codify established common law rules and clarify uncertainties.

It is hoped that through codifying the Majewski rule, reconsidering whether this

rule should apply to defences based on mistaken belief induced by voluntary

intoxication, laying down the test for determining the nature of a drug, and

clarifying the test to be applied for the purpose of distinguishing between basic

intent offences and specific intent offences, as well as the relevance of

voluntary intoxication to the proof of secondary liability, the law of Hong Kong

can more effectively deter offenders and protect members of the public.

#524710

64 See also n 42 above, paragraphs 3.92 to 3.103.

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