Getting drunk in Singapore and Malaysia

Abstract

Just as in the Indian Penal Code, the intoxication provisions contained in ss. 85 and 86 of the Singaporean and Malaysian Penal Codes are described as 'General Exceptions', suggesting that they operate as affirmative (or 'supervening') substantive-law defences to criminal liability. It is argued in this article, however, that the primary function of these provisions is not to create a distinct legal defence. Rather, it is to enable the courts to convict persons who do not satisfy the mens rea requirements of a crime, when their lack of mens rea is because of intoxication. The sections permit us to treat such defendants as having mens rea when in fact they do not. As such, the provisions are mainly inculpatory, not exculpatory. They assist the prosecution, not the defendant. This claim will be defended both in principle and in terms of statutory interpretation. This article also discusses certain exceptions, where intoxication does operate as a true supervening defence.