Chapter Title: Capacity and Incapacitating Conditions

Book Title: Criminal Law in Hong Kong

Book Author(s): Michael Jackson
Published by: Hong Kong University Press

Stable URL: https://www.jstor.org/stable/j.ctt1xcrrj.11

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PART III
Defences

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 6
Capacity and Incapacitating
Conditions

INTRODUCTION

Criminal liability presupposes that the person who is being held liable is
responsible for his or her actions. Some defences challenge this assumption,
asserting that D does not (or did not) possess the necessary mental capacity
to be held ‘criminally responsible’. This assertion may be based on the
defendant’s youth — giving rise to the defence of infancy — or on the fact
that the defendant is (or was) suffering from mental abnormality — giving
rise to the general common law defences of insanity and automatism, and,
in the case of murder, the special statutory offence of diminished
responsibility. These defences are outlined in this chapter, along with two
related questions: whether the defendant is ‘fit to plead’, and how to deal with
or ‘dispose’ of someone found to be mentally abnormal. In addition, the
defence of intoxication will be considered here, although strictly speaking it
does not operate by depriving D of criminal capacity or responsibility.

INFANCY

Infancy, or young age, may affect criminal proceedings in a number of

ways. Of principal concern here is its effect on criminal responsibility, but
a child’s youth may also affect:

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 212 DEFENCES

• the nature of the proceedings — a special court, the Juvenile Court,1

established pursuant to section 3A of the Juvenile Offenders Ordinance
(cap. 226) (JOO), exists to hear and determine charges (other than
murder) laid against a ‘child’ (under 14 years — section 2 of the JOO)
or a ‘young person’ (aged 14 years or older but under 16 years —
section 3A(3) of the JOO).2 The special procedures to be followed in
Juvenile Courts are set out in section 8 of the JOO;
• his or her sentence upon conviction — there are, for example, restrictions
on the imprisonment or detention of ‘children’ and ‘young persons’ (see,
for example, section 11(1)(2) of the JOO; unless ‘the court considers that
no other method in which the case may be dealt with is suitable …’
(section 14(1) of the JOO) (see also section 109A of the Criminal
Procedure Ordinance (cap. 221) (CPO) re offenders aged 16 to 21 years)).
Section 15 of the JOO sets out in general terms the methods of dealing
with children and young persons found guilty of any offence; and
• the giving of evidence — prior to 1995, children under the age of
seven were prima facie incompetent to give sworn evidence unless it
was shown that they were capable of giving reliable factual testimony
(section 3(a) of the Evidence Ordinance; repealed on 28 July 1995),
and understood the nature of an oath. Since 1995, pursuant to section
4 of the Evidence Ordinance (cap. 8), the evidence of a child under 14
years of age in criminal proceedings ‘shall be given unsworn’. Under
section 79A of the CPO, ‘children’ (under 17 years, in the case of an
offence of sexual abuse; under 14 in any other case) are ‘vulnerable
witnesses’ and are entitled to special protection in giving evidence.

Criminal Responsibility and the Presumption of Incapacity

Two ages are relevant for the purposes of criminal liability: 7 years and 14
years.

1 By virtue of the Protection of Children and Juveniles Ordinance (PCJO) (cap. 213, Laws
of Hong Kong), the Juvenile Court also has exclusive jurisdiction to hear and determine
care and protection proceedings brought in relation to persons aged under 18 (the PCJO
recognizes a third category of young offender, in addition to ‘child’ and ‘young person’,
namely ‘juvenile’. In section 2, this is defined as ‘a person who is, in the opinion of a court
or a person exercising any power under this Ordinance, 14 years of age or upwards and
under the age of 18 years.’).
2 Note that, in addition to ‘child’, ‘young person’ and ‘juvenile’, under general Hong Kong
law, the terms ‘infant’ and ‘minor’ refer to ‘a person who has not attained the age of 18
years’ (see section 3 of the Interpretation and General Clauses Ordinance (cap. 1)).

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 CAPACITY AND INCAPACITATING CONDITIONS 213

Children under seven

The minimum age for criminal responsibility in Hong Kong is presently set
at seven years. Formerly a matter of common law, this rule is now stated in
section 3 of the JOO, which reads: ‘it shall be conclusively presumed that
no child under the age of 7 years can be guilty of an offence’. Children
under seven are said to be dolix incapax (not capable of crime). This means
not only that the child cannot be convicted, but also that no crime is
committed by the child, even though he or she may have committed the
actus reus of an offence.3 This can affect the liability of others. Suppose,
for example, a child under seven years takes property belonging to another;
this does not amount to ‘theft’ (contrary to section 9 of the Theft Ordinance
(cap. 339)), and the property is not ‘stolen’. Consequently, someone else
subsequently receiving the property does not ‘handle stolen goods’ for the
purposes of section 24 of the Theft Ordinance (Walters v Lunt [1951] 2 All
ER 645).
However, since a child under seven years is physically capable of
committing acts constituting the actus reus of an offence, the law may
choose to treat such a child as the innocent agent of another, who may be
liable either as a principal offender, or on the basis that he or she procured
the child to commit the actus reus of an offence, as in DPP v K & B ([1997]
1 Cr App R 36; discussed below, Chapter 8, p. 357).
In many jurisdictions, the minimum age of criminal responsibility is
set considerably higher than seven years: for example, 10 (England and
Wales, Australia), 12 (Canada), 14 (Germany, Japan and the PRC). Research
suggests that autonomous morality, which forms the basis of criminal
responsibility, in a child does not truly begin to develop until he or she is
12 or 13 years old, and a number of bodies in Hong Kong concerned with
children’s rights have recently advocated the case for raising the minimum
age in Hong Kong to 14 to reflect this (see, for example, Hong Kong
Committee on Children’s Rights, Position Paper: ‘The Age of Criminal
Responsibility’ (December 1997)).

Children aged 7 to 14 years

At common law, children aged 7 years or older but under 14 years are also
presumed to be dolix incapax — incapable of committing an offence (R v

3 A child under seven years may, however, be the innocent agent of another, who may be
liable as a principal offender; see below, p. 331.

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 214 DEFENCES

Owen (1830) 4 Car & P 236). However, this common law presumption is
rebuttable; to rebut it, the prosecution, in addition to proving actus reus
and mens rea, must prove beyond reasonable doubt that D knew his or her
acts were ‘seriously wrong’ and not merely ‘naughty’ or ‘mischievous’ (Gorrie
(1918) 83 JP 136; JM (a minor) v Runeckles (1984) 79 Cr App R 255). This
additional mental element is traditionally known as ‘mischievous discretion’.
It is not necessary to prove that D knew his or her actions were morally
wrong, although this would provide evidence that D knew his or her actions
were seriously wrong.
The need for this presumption has been queried in recent years. It was
reaffirmed as a rule of the common law by the House of Lords in C (a
minor) v DPP ([1996] 1 AC 1), although the Lords also recognized (at 39–
40, per Lord Lowry) that:

the time has come to examine further a doctrine which appears to

have been inconsistently applied and which is certainly capable of
producing inconsistent results, according to the way in which courts
treat the presumption and depending on the evidence to rebut it which
is available in each case … Whatever change is made, it should come
only after collating and considering the evidence and after taking
account of the effect which a change would have on the whole law
relating to children’s anti-social behaviour. This is a classic case for
parliamentary investigation, deliberation and legislation.

Subsequently, the presumption was abolished in the UK (see section 34

of the Crime and Disorder Act 1998). It remains part of the law of Hong Kong.
The presumption does not always require proof that a child knew his or her
actions were morally wrong, though proof of this would generally provide
strong evidence that D knew his or her actions were ‘seriously wrong’. On
the other hand, it is not enough simply to prove the intentional commission
of the acts alleged to constitute the offence (C (a minor) v DPP, above).
It is more difficult to prove mischievous discretion in a child aged near
seven years (B v R (1958) 44 Cr App R 1) than in a child near 14 years (C
(a minor) v DPP, above; Sheldon [1996] 2 Cr App R 50). In Chan Chi Wah
([1967] HKLR 241), a Hong Kong court convicted a girl aged 13 years and
8 months of two charges of possession of, and dealing in, dangerous drugs
under the Dangerous Drugs Ordinance (cap. 134). Pickering J concluded
that there was ample evidence before the magistrate to rebut the
presumption; using a phrase quoted by Parker LCJ in B v R, above, he
concluded (at 249), that there was ‘strong and pregnant evidence that [D]
understood what she did.’

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 CAPACITY AND INCAPACITATING CONDITIONS 215

Evidence tendered by the prosecution to establish mischievous

discretion may relate to the child’s home life and upbringing (e.g. that D
was from a respectable family and well brought-up; B v R, above); D’s
behaviour both after the offence (e.g. running away) and while being
questioned by the police (e.g. lying; see T v DPP [1989] Crim LR 498,
where T was charged with theft and his ‘honesty’ was in issue; IPH v Chief
Constable of South Wales [1987] Crim LR 42); D’s demeanour in court and
his or her mental capacity (JM (a minor) v Runeckles, above; JBH and JH
(minors) v O’Connell [1981] Crim LR 632), and even previous convictions
if they are relevant to D’s knowledge of right and wrong (R v B, R v A
[1979] 1 WLR 1185). It is not enough simply to show that D appreciated
what the consequences of his or her behaviour would be (IPH v Chief
Constable of South Wales, above), or that any normal child of D’s age would
have known that the acts were seriously wrong, for this would undermine
the presumption of incapacity itself (JBH and JH (minors) v O’Connell, above).
In general, it is not necessary for the prosecution to call the evidence of
independent sources (such as a psychiatrist or teacher or someone who
knows the defendant well) to attest to the defendant’s knowledge and
perception of the seriousness of his or her actions (L & Others v DPP [1996]
2 Cr App R 501).
If mischievous discretion is proved, then the child may be convicted of
any offence proved by the prosecution, including murder.

Fourteen years or older

Persons aged 14 years or older are treated as having full criminal
responsibility and therefore may be charged with and convicted of any
offence (Smith (1845) 1 Cox CC 260).

Determination of age
Where it is material, a person’s age may be determined by a court, after
considering any available evidence (section 106A of the CPO).

Presumption of Sexual Incapacity

The common law irrebuttably presumes males under 14 years of age to be

incapable of sexual intercourse or buggery (Eldershaw (1828) 3 C & P
398; Groombridge (1836) 7 C & P 582; Philips (1839) 3 C & P 736; Waite

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 216 DEFENCES

[1892] 2 QB 600; Williams [1893] 1 QB 320; evidence of physical capacity

to commit these acts is not admissible). Boys younger than 14 therefore
cannot be convicted, as a principal, of any offence requiring proof of sexual
intercourse (such as rape), or buggery. They may, however, be liable as a
secondary party for aiding, abetting, counselling or procuring such acts, or
for common assault or indecent assault arising out of such acts, and possibly
also for attempting to commit an offence involving sexual intercourse.
This presumption was statutorily abolished in England in 1993 (see
section 1 of the Sexual Offences Act 1993), but presently remains part of
the criminal law of Hong Kong.

MENTAL ABNORMALITY

Introduction4

Mental abnormality may affect criminal proceedings in several ways:

Liability
Firstly, it may be relevant to the determination of liability itself. A person
suffering from mental abnormality5 may lack the necessary mental capacity
to understand the nature, circumstances and consequences of his or her
actions. If so, then he or she may be neither a rational actor, nor morally
culpable or responsible for his or her actions and, as such, ought not to be
made criminally liable or responsible (unless perhaps the abnormality or
incapacity was self-induced). At the same time, the mere fact that D is
suffering from a degree of mental disorder in the eyes of doctors or
psychiatrists may not necessarily mean that he or she lacks sufficient legal
‘responsibility’ to bear criminal liability for his or her actions.
Hong Kong’s criminal law recognizes three defences based on mental
abnormality: insanity and automatism at common law, and the special
statutory defence to murder of diminished responsibility (provided for in

4 See generally: N. Walker, Crime and Insanity in England, Vol. 1 (Edinburgh University Press,
1968), Vol. 2 (Edinburgh University Press, 1993); R. D. Mackay, Mental Condition Defences
in the Criminal Law (Clarendon Press, 1995).
5 See generally Butler Committee, Report on Mentally Abnormal Offenders (1975) Cmnd 6244.

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 CAPACITY AND INCAPACITATING CONDITIONS 217

section 3 of the Homicide Ordinance (cap. 339)). These three defences,

which are considered in detail below, operate in different ways.
Automatism (or specifically, ‘non-insane’ automatism, to distinguish it
from those cases of automatism arising from a condition amounting to
insanity) involves an assertion that D was unconscious or suffering from
impaired consciousness at the time of the alleged offence, and therefore
was acting involuntarily. If properly raised, and not negated by the
prosecution, (non-insane) automatism leads to a complete acquittal (unless
the state of automatism was self-induced).
Insanity (including cases of ‘insane’ automatism) involves proof that D
was suffering from ‘a defect of reason, from disease of mind, as not to
know the nature and quality of the act he was doing or [that it] was wrong’.
This test, discussed below, derives from M’Naghten in 1843. Pursuant to
section 74(1) of the CPO, a finding of ‘insanity’ leads to a ‘special verdict’
of ‘not guilty by reason of insanity’, rather than a simple acquittal. Pursuant
to section 76, the judge hearing the case must then decide whether it is
necessary to order that D be admitted into a mental hospital for treatment
(a ‘hospital order’), or dispose of D in one of several other ways (see further,
below, pp. 235–6).
Diminished responsibility is a special defence to murder only. It requires
proof that D was suffering from an ‘abnormality of mind’ (arising from one
or more specific categories of cause, or ‘aetiology’) ‘substantially impairing’
(i.e. diminishing) D’s ‘mental responsibility’ for his or her acts. It leads to
only a partial acquittal: D will be acquitted of murder but convicted instead
of manslaughter (section 3(3) of the Homicide Ordinance (cap. 339)). Like
insanity, the burden of proving the defence of diminished responsibility
lies on D, on the balance of probabilities. Where D successfully raises
diminished responsibility, resulting in a conviction of manslaughter, the
trial judge may, in addition to the normal sentencing discretion, make a
hospital order, pursuant to section 45 of the Mental Health Ordinance (cap.
136) (MHO), for a specified or indefinite period (section 45(1) of the MHO).
Section 76A of the CPO provides that on a trial for murder, if D raises
either insanity or diminished responsibility, the prosecutor may adduce
evidence tending to prove the other defence. This enables a prosecutor to
prove insanity and secure a special verdict of ‘not guilty by reason of insanity’
(giving rise, in a murder case, to a mandatory hospital order), rather than
leaving disposal to the discretion of the sentencing judge.

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 218 DEFENCES

Non-prosecution and fitness to plead

Secondly, mental abnormality may affect the commencement or continuation
of criminal proceedings in two ways: non-prosecution and fitness to plead.

Non-prosecution
From the outset, the fact that a defendant is suffering from mental
abnormality may mitigate against his or her prosecution. This is recognized
in the Prosecution Policy — Guidance for Crown Counsel of the Department
of Justice, which states (p. 13):

Where there is evidence to establish that an accused or a person under

investigation was suffering from a mental disorder at the time the
offence was committed, Government Counsel may conclude that
prosecution will not be appropriate in the circumstances, unless it is
overridden by the wider public interest, including in particular the
gravity of the offence.

Murder, for example, would generally be prosecuted in the wider public

interest, although the prosecution may choose to accept a plea of guilty to
manslaughter on the basis of diminished responsibility, pursuant to section
3 of the Homicide Ordinance, in a clear case.

Fitness to plead6
If a person suffering from mental abnormality is prosecuted, but appears to
be ‘under disability’ at the beginning of or during the trial, it may become
necessary, independently of the effect of mental abnormality on liability, to
determine whether D is ‘fit to plead’, i.e. fit to stand trial. In R v Leung Tak-
choi ([1995] 2 HKCLR 32), Chan J, following English case law, defined
‘under disability’ as ‘the lack of ability to understand the charge against
[D], to give instructions to [D’s] lawyers, to challenge jurors, to understand
the evidence against him, and to give evidence in defence’ (at 42).
When it becomes necessary to determine whether D is ‘under disability’
(section 75(1) of the CPO: ‘under any disability such that apart from this

6 The law was substantially changed in 1999. For discussion of the prior law, see J. Chan,
‘Fitness to Plead’ (1988) 18 HKLJ 256.
7 Note 39 in J. Chan, ‘Fitness to Plead’ (1988) 18 HKLJ 256, remarks that there appear to be
very few cases in which fitness to plead has been raised by D.

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 CAPACITY AND INCAPACITATING CONDITIONS 219

Ordinance … would amount to a bar to his being tried’),7 the procedures

to be followed are set out in sections 75 and 75A of the CPO (as amended
by sections 3 and 4 of the Criminal Procedure (Amendment) Ordinance,
No. 37 of 1996).
Section 75(3) of the CPO provides that the question of D’s fitness to
be tried shall prima facie be determined by a jury (in the Court of First
Instance; otherwise, District Court Judge or magistrate; section 75(7) of
the CPO) as soon as it arises. However, the ‘court’ (meaning the Court of
First Instance or District Court acting in the exercise of its criminal
jurisdiction, or a magistrate — section 75(6) of the CPO) has the discretion
under section 75(2) of the CPO to postpone consideration of this question
‘up to the opening of the case for the defence’ if, ‘having regard to the
nature of the supposed disability’, the court is of the opinion that it is
‘expedient to do so and in the interests’ of D. This gives an accused an
opportunity of obtaining an outright acquittal (rather than a special verdict
pursuant to section 74 on a finding of insanity at trial; see section 75(6) of
the CPO), on any of the counts on which D is being tried, if the evidence
adduced by the prosecution fails to establish a prima facie case (Leung Tak-
choi [1995] 2 HKCLR 32: it was held that the mandatory requirement for
the making of a hospital order in relation to a person found to be ‘under
disability’ (now in effect mandatory in relation only to murder) was not in
breach of the provisions of Hong Kong’s Bill of Rights).
The question of whether D is ‘under disability’ must be based on the
written or oral evidence of two or more medical practitioners (section 75(5)
of the CPO). If the question of disability falls to be determined before or at
the time of arraignment, then a jury must be empanelled specifically to
decide this issue (section 75(4) of the CPO). If the question arises after
arraignment, it may be determined by ‘a separate jury or by the jury by
whom the accused person is being tried, as the court may direct’ (section
75(4)(b)(i) of the CPO). Where the question arises in the District or
Magistrates Court, it is determined by the same judge or magistrate by
whom D is being tried (sections 75(4)(a)(ii) and (b)(ii) of the CPO).
The burden of proving whether D is ‘under disability’ lies on D on the
balance of probabilities, except where the issue is, exceptionally, raised by
the prosecution or by the trial judge (Robertson, above). If raised by the
prosecution, it must prove D’s unfitness to plead beyond reasonable doubt.
If raised by the trial judge, the burden of proof is less clear. In Jimmy
Johnson ([1983] HKLR 344), the Court of Appeal suggested that if insanity
or diminished responsibility is raised by the prosecution or judge, the burden
is only on the balance of probabilities; this may also apply to unfitness to

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 220 DEFENCES

plead. However, a trial judge should raise the issue only if he or she
considers that there is a ‘real and substantial question’ as to D’s fitness to
plead (Keung Sai-chung [1986] HKLR 833). If necessary, the trial judge
may allow D to receive treatment for a temporary indisposition, without
requiring D’s fitness to plead to be determined.
If D is found to be fit to be tried, the trial should proceed, even though
D may not be able to act in his or her best interests (Robertson [1968] 1
WLR 1767). In Podola ([1960] 1 QB 325), P was found to be fit to plead,
and the trial proceeded even though he was suffering from a state of
hysterical amnesia, preventing him from remembering events at the time
of the alleged offence, since his mind was normal in other respects. Where
a trial on indictment proceeds after a finding that D is fit to plead, then it
may be necessary to empanel a separate jury from that which decided D’s
fitness to plead to hear the trial (section 75(4)(a)(i) of the CPO); in the
District Court or Magistracy, the judge or magistrate that determined D’s
fitness to plead may continue to hear the trial.
If D is found to be ‘under disability’, then, pursuant to section 75A(1)
of the CPO (as introduced in 1996: see section 4, No. 37 of 1996), ‘the
trial shall not proceed or further proceed’, and the ‘court’ (i.e. the jury (or
judge or magistrate) that found D to be ‘under disability’; section 75A(2) of
the CPO) must go on and decide whether it is satisfied on each count that
D ‘did the act or made the omission charged against him as an offence’ (see
further below). This is to be determined according to the evidence (if any)
already (or further) adduced by the prosecution, or (since D is ‘under
disability’ and therefore unable to instruct counsel, etc., in his or her own
defence) by a person ‘appointed by the court for the purpose of this section
to put the case for the defence’ (section 75A(1)(b)(ii) of the CPO). In Egan
([1997] Crim LR 225), the English Court of Appeal took the view that a
court is under a duty to appoint someone for this purpose, and that the
failure to do so, though a matter of form rather than substance, may
constitute a material irregularity. If not satisfied of this as respects any
count or counts, then the jury shall acquit D on that (or those) count(s)
(section 75A(1)(d) of the CPO; see also O’Donnell [1996] Crim LR 121).
Where the jury is satisfied that D is under disability but it is proved by
the prosecution that D did the act or made the omission, then pursuant to
section 76(2), the ‘court’ (section 75A(5) of the CPO) may act as follows.
Firstly, pursuant to section 76(2)(a) of the CPO, it may (‘must’ in the case
of murder — section 76(3) of the CPO) make an order (called a ‘hospital
order’ — section 2(1) of the MHO) that D be admitted to the Correctional
Services Department Psychiatric Centre or a mental hospital, if the court is

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 CAPACITY AND INCAPACITATING CONDITIONS 221

satisfied on written or oral medical evidence of two or more registered

medical practitioners (at least two of whom must have special expertise in
the diagnosis or treatment of mental disorder — section 2(2) of the MHO)
that it is ‘necessary in the interests or the welfare of the accused person or
for the protection of other persons’. Pursuant to Para 2, Schedule 4, CPO,
a person who is admitted under section 76(2)(a) ‘shall be treated for the
purposes of the [MHO] as if he had been so admitted in pursuance of a
hospital order made … under section 45 [of the MHO] without an
endorsement under [section 45(1A)].’ D is thereby governed by the
provisions of the MHO.
Alternatively, pursuant to section 76(2)(b), the court may make one of
three other orders set out in section 76(2)(b) ‘as it thinks most suitable in
all the circumstances of the case’: (1) a guardianship order (under Part IIIA
of the MHO); (2) a supervision and treatment order (under Part IIIB of the
MHO); or (3) an order for D’s absolute discharge. Guardianship orders and
supervision and treatment orders may be made only on the written or oral
evidence of two or more registered medical practitioners (approved under
section 2(2) of the MHO).

‘Did the act or made the omission charged’ The meaning of the expression
‘did the act or made the omission charged’ may not be finally decided (see
R.D. Mackay and G. Kearns, ‘The Trial of the Facts and Unfitness to Plead’
[1997] Crim LR 644). The general view is that it refers solely to the actus
reus of the offence charged against D and that it is unnecessary to consider
the effect (if any) of D’s mental abnormality on mens rea. This was the
view of the Hong Kong Court of Appeal in Tang Yau-chi ([1988] 1 HKLR
416; see also Huang Chen Sheng [1988] HKC 544) in relation to the use of
this expression in section 45(1)(a)(iii) of the MHO. Rejecting a submission
that ‘act’ requires proof of ‘some mens rea’, Power JA concluded (at 419):

We are satisfied that the legislature when it referred to the “act” in

s.45(1)(a)(iii) must have been referring to the actus reus and must
have intended that the magistrate have power to deal with a mentally
disordered person where no mens rea was proved.

However, in R v Egan ([1997] Crim LR 225), the English Court of Appeal

concluded that the phrase in the equivalent English Act ‘means neither
more nor less than proof of all the ingredients of what would otherwise be
an offence … .’ On a charge of theft, this meant that the prosecution had to
prove D had acted dishonestly and with intent to permanently deprive the
victim.

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 222 DEFENCES

If the narrower interpretation is adopted, then the only course open to

a defendant who wishes to challenge mens rea is to request the court to
postpone consideration of the issue of unfitness to plead until after the
prosecution case.

If condition improves and rights of appeal If a defendant is found unfit to

plead but to have done the act or made the omission, and is dealt with by
way of a hospital order, guardianship order or supervision and treatment
order, and his or her condition later improves so that he or she is no
longer considered to be under disability and can ‘properly be tried’ (4th
Schedule of the CPO), then he or she may be brought back to court for the
trial to continue.
There is a general right of appeal against a finding that D is unfit to be
tried, pursuant to section 83M of the CPO.

Disposal — ‘hospital’ and other orders

Thirdly, mental abnormality may affect the question of how to ‘dispose’ of
the defendant. This issue may arise not only where D successfully raises
insanity (or insane automatism), discussed below, or is found to be ‘unfit
to plead’, above, but also where D is convicted of an imprisonable offence
despite raising mental abnormality (including a conviction of manslaughter
by virtue of diminished responsibility; discussed below, p. 255). In each
case, the court must decide whether D’s mental condition necessitates
detention in a mental hospital, or continuing care or supervision and
treatment.
Until recently, the principal means of achieving control over mentally
disturbed offenders was by way of a ‘hospital order’, made either under Part
IV of the MHO or pursuant to section 76 of the CPO.8 However, amendments
to sections 74–77 of the CPO (enacted by the Criminal Procedure
(Amendment) Ordinance, No. 37 of 1996), along with amendments to the
MHO (enacted by the Mental Health (Amendment) Ordinance, No. 38 of
1996), following earlier English legislation (Criminal Procedure (Insanity
and Unfitness to Plead) Act 1991), conferred broader powers of disposal on
judges and magistrates upon conviction, including the power to make non-
custodial orders. Under section 44D of the MHO (added by section 2, No. 38

8 See generally, I. G. Cross and P. W. S. Cheung, Sentencing in Hong Kong (third edition,
2000, Butterworths), Chapter 27.

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 CAPACITY AND INCAPACITATING CONDITIONS 223

of 1996), for example, a judge may in some circumstances order D’s

supervision and treatment for a specified period of not more than two years,
rather than his or her detention in a mental hospital.
Pursuant to section 45 of the MHO, a judge or magistrate may, upon
the conviction of an offender for any imprisonable offence (other than one
with a sentence ‘fixed by law’, e.g. murder), make a ‘hospital order’ against
him or her (section 45(1)(a)(i) of the MHO). Pursuant to section 45(1)(a)(ii)
of the MHO, this power may also be exercised in relation to a person
merely ‘charged’9 before a magistrate with an act or omission punishable
by imprisonment provided that the magistrate is ‘satisfied that such person
did the act or made the omission’ (Tang Yau-chi [1988] 1 HKLR 416; Tam
Kit-nin [1982] HKC 40: ‘satisfied’ means beyond reasonable doubt).10
The judge or magistrate may make a hospital order only if he or she is
‘satisfied’ by the written or oral evidence of two registered medical
practitioners (at least one of whom must be a ‘medical officer’ — section 2(1)
of the MHO), firstly, that D is a ‘mentally disordered person’ (section
45(1)(b)(i) of the MHO), and secondly, that ‘the nature or degree of the
mental disorder from which [D] is suffering warrants his detention in the
Correctional Services Department Psychiatric Centre or a mental hospital
for treatment’ (section 45(1)(b)(ii) of the MHO). ‘Mental disorder’ is defined
for this purpose in the MHO as ‘mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or
disability of mind’ (section 2(1); ‘psychopathic disorder’ means ‘a persistent
disorder or disability of mind (whether or not including significant
impairment of intelligence) which results in abnormally aggressive or
seriously irresponsible conduct on the part of the person concerned’ —
section 2(1) of the MHO).11 Having satisfied himself or herself on these
two matters, the judge or magistrate may then, pursuant to section 45(1)(c)
of the MHO, make a hospital order if he or she is of the opinion that:

9 In Tang Yau-chi [1988] 1 HKLR 416, it was held that under section 45(1)(a)(iii) of the
MHO, a magistrate may even make a hospital order against someone who has been
acquitted, provided that he or she is satisfied, as stated, that the person did the act or
omission giving rise to the charge.
10 It has been held that if a magistrate makes an order under section 45 of the MHO, this
effectively terminates the criminal proceedings — Tam Kit-nin (1982) H Ct, Cr App
No. 1123 of 1981.
11 Note also section 2(5): ‘Nothing in subsection [2](1) shall be construed as implying that
a person may be dealt with under this Ordinance as suffering from mental disorder, or
from any form of mental disorder described in that subsection, by reason only of
promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.’

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 224 DEFENCES

having regard to all the circumstances including the nature of the offence
and the character and antecedents of such person, and to the other
available methods of dealing with him, … the most suitable method of
disposing of the case is by means of an order [under section 45].12

Where D is merely suspected of being a ‘mentally disordered’ person, a

court or magistrate may remand that person to a suitable place for
‘observation, investigation and treatment’ for an initial period up to 14
days which, with seven-day extensions, may last up to 42 days (section
51(1)(a) of the MHO). During this period, medical reports in support of
an application under section 45 may be prepared.
A hospital order made under section 45 may be for a specified period,
in which case it must not exceed the maximum term of imprisonment that
the judge or magistrate could have imposed in respect of the offence (section
45(1) of the MHO), or for an indefinite period (which may exceed the
maximum term of imprisonment) if psychiatrists cannot predict with
confidence how long D needs to be treated before he or she can be safely
released back into the community (Lung Fan-wa [1994] 3 HKC 106).
Where a hospital order has been made against a person under section
45 of the MHO, no additional sentence of imprisonment or fine or probation
order shall be made or imposed on that person (section 45(3) of the MHO).
A person who is serving a term of imprisonment may be transferred to
a mental hospital for treatment if it appears to the Chief Executive from
the report of a ‘medical officer’ (section 2(1) of the MHO) that the prisoner
is ‘mentally disordered … and that the nature or degree of the mental
disorder … warrants his detention in a mental hospital for treatment’
(section 52(1) of the MHO). A decision must be made within 14 days after
transfer as to whether to receive the prisoner into the mental hospital,
pursuant to the provisions of section 36 of the MHO (sections 52(2) and
(3) of the MHO).
There is a general right of appeal against a hospital order by any person
who is ‘aggrieved’ by the making of the order (section 48 of the MHO).

12 Section 45(2) of the MHO prohibits the making of a hospital order unless the judge or
magistrate is also satisfied that arrangements have been made for admission within 28
days of the making of the order.

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 CAPACITY AND INCAPACITATING CONDITIONS 225

Insanity

Introduction
A person suffering from mental abnormality or disability at the time when
he or she allegedly committed an offence13 may raise the defence of insanity.
A successful plea of insanity does not lead to a simple acquittal; instead, if
the jury trying the issue finds that D is legally ‘insane’ but ‘did the act or
made the omission charged’, then pursuant to section 74 of the CPO, it
must return a special verdict of ‘not guilty by reason of insanity’.14 Pursuant
to section 76 of the CPO, the judge (or magistrate; section 76(5) of the
CPO) must then make either an order authorizing D’s admission into a
mental hospital for detention and treatment (i.e. ‘hospital order’) (this is
mandatory where the offence carries a ‘fixed sentence’, e.g. murder), or
one of the three other orders mentioned in section 76(2)(b): (1) a
guardianship order, (2) a supervision and treatment order, or (3) an order
for D’s absolute discharge.
Prior to 1996, insanity automatically led to a hospital order. For that
reason, and also because of the narrowness of the definition of insanity in
the criminal law, insanity was only rarely raised as a defence.15 Prior to
1963, insanity was most often raised in murder cases, principally as a means
of avoiding the (then) mandatory death penalty that murder carried upon
conviction, but even this limited use declined with the enactment in that
year of the special statutory defence of diminished responsibility (section 3
of the Homicide Ordinance; section 2 of the Homicide Act 1957 (UK)).
Insanity remains important, nonetheless, because it overlaps with and
operates as a significant limitation on the related defence of automatism
(below, p. 237).

The M’Naghten Rules

Hong Kong’s present law on insanity as a criminal defence is based on

M’Naghten ((1843) 10 Cl & Fin 200; [1843–60] All ER Rep 229) in which
the Law Lords laid down (at 210) that for the purposes of the criminal law:

13 If D were to become insane after conviction, this would affect sentencing. A judge may
then make a hospital order under section 45 of the MHO, discussed above, p. 222.
14 Prior to 1972, the special verdict was ‘guilty but insane’. However, this was treated as an
acquittal; see Felstead [1914] AC 534.
15 One English study found that between 1975 and 1990, a special verdict was returned in
only 49 cases; see R. D. Mackay, ‘Fact and Fiction about the Insanity Defence’ [1990] Crim
LR 247. See also J. Chan, ‘Fitness to Plead’ (1988) 18 HKLJ 256.

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 226 DEFENCES

… [E]very man is presumed to be sane and to possess a sufficient

degree of reason to be responsible for his actions, until the contrary
be proved … ; and … to establish a defence on the ground of insanity,
it must be clearly proved that, at the time of the committing of the
act, the party accused was labouring under such a defect of reason,
from disease of the mind, as not to know the nature and quality of the
act he was doing; or, if he did know it, that he did not know he was
doing what was wrong.

This view of mental abnormality and its effect on legal responsibility remains
the basis of the criminal defence of insanity in Hong Kong, despite obvious
advances in medicine and psychiatry over the past 150 years.

The presumption of sanity

M’Naghten laid down the common law presumption of sanity. This is a
rebuttable presumption of law. If D alleges insanity, then D exceptionally
bears the legal burden of rebutting the presumption of sanity and proving
his or her insanity on the balance of probabilities (Woolmington [1935] AC
462).
The issue of insanity may also be raised by the prosecution or the trial
judge. Firstly, section 76A of the CPO provides that if D asserts in answer
to a murder charge that he or she was suffering from diminished
responsibility, the prosecution may instead seek to prove insanity, and may
adduce or elicit evidence for this purpose. Further, as a matter of common
law, it appears that if D puts his or her mental state in issue at trial without
raising insanity, for example by pleading automatism, then the prosecution
may raise insanity (or diminished responsibility, on a murder trial) and if
necessary call evidence (see Lord Denning in Bratty v A-G for Northern
Ireland [1963] AC 386, at 411–2; cf. Dickie [1984] 1 WLR 1031). This was
also the view of the Court of Appeal in Jimmy Johnson ([1983] HKLR 344,
at 349–50). So far as the trial judge is concerned, the Court of Appeal in
Jimmy Johnson held that the trial judge may raise insanity (or diminished
responsibility) and leave it to the jury, calling witnesses if necessary, not
only where D puts his or her mental state in issue at trial and there is medical
evidence supporting insanity (or diminished responsibility), but also where
D may have chosen not to put his or her mental state in issue in this way,
and even against D’s express wishes (Jimmy Johnson, above; following Chan
Ming-luk [1962] HKLR 651 (FCt); Lo Tin [1963] HKLR 903; cf. Kooken
(1982) 74 Cr App R 30 and Thomas (Sharon) [1995] Crim LR 314). The
standard of proof remains on the balance of probabilities (Jimmy Johnson).

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 CAPACITY AND INCAPACITATING CONDITIONS 227

Even so, it would only be in exceptional circumstances that a trial

judge would adopt this course, when the ‘interests of justice’ outweigh the
rights of the individual to insist upon his or her own line of defence.

The elements of insanity

In accordance with the M’Naghten Rules, insanity requires proof of three
matters: ‘defect of reason’, ‘disease of mind’ and ignorance of the nature
and quality of D’s act or that it is wrong.

Defect of reason

It must be proved that D was suffering from a ‘defect of reason’. Prima

facie, this is a broad concept; it is narrowed down for the purposes of
insanity by the additional requirement that the defect of reason have one
of the two specified effects: D did not know the nature and quality of his
or her act, or did not know that it was wrong. This excludes conditions
such as ‘irresistible impulses’, where D is aware of what he or she is doing
and knows it is wrong, but cannot stop himself or herself. In Clarke ([1972]
1 All ER 219), it was held that D must prove actual impairment of D’s
powers of reasoning; mere confusion or absent-mindedness at the time of
the alleged offence would not suffice. D may thus rely on evidence of
confusion or absent-mindedness to negate mens rea without being at risk
of an insanity verdict. Clarke, for example, negated the mens rea of theft
by calling medical evidence showing that she was suffering from diabetes
and depression, resulting in absent-mindedness.
‘Defect of reason’ includes the absence of reason, such as when D is
unconscious or suffering from automatism. For this reason, a state of
automatism arising from a ‘disease of mind’ is treated as insanity and called
‘insane automatism’, to distinguish it from automatism strictly speaking
(called ‘non-insane automatism’).

Disease of mind

The defect of reason must arise from a ‘disease of mind’. ‘Disease of mind’
is a legal, not a medical, concept. It is not enough simply to ask whether D
was suffering at the time of the alleged offence from mental disorder or
disability. Instead, the question is whether the particular mental abnormality
or disorder relied on by D amounts to a ‘disease of mind’, and this is initially
a question of law for a trial judge to decide. If, in his or her view, it qualifies

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 228 DEFENCES

as a ‘disease of mind’, the jury (in a jury trial) or judge must then decide
whether it has been proved on the balance of probabilities that D was in
fact suffering from that condition at the time of the alleged offence.
The meaning of ‘disease of mind’ remains a matter of common law.
There are various criteria, some of which focus on the nature and origins
of D’s mental abnormality, and others which instead reflect the policy of
the criminal law that those suffering from mental abnormality should not
be held criminally responsible but at the same time should be subject to
continuing state control by hospitalization and treatment. Four English
cases set the parameters of ‘disease of mind’: R v Kemp ([1957] 1 QB 399),
Bratty v A-G for Northern Ireland ([1963] AC 386), R v Quick & Paddison
([1973] QB 910) and R v Sullivan ([1984] AC 156).
In Kemp ([1957] 1 QB 399), K, for no apparent reason, hit his wife
over the head with a hammer. Charged with causing grievous bodily harm,
K raised automatism, asserting that he was suffering from the on-set of
arteriosclerosis (hardening of the arteries), a condition which could cause
congestion of blood in the brain, resulting in a ‘blackout’, i.e. temporary
unconsciousness. It was submitted that since arteriosclerosis was physical,
not mental, in nature, and since it had not yet caused physical degeneration
of K’s brain, it did not amount to a ‘disease of mind’. Devlin J rejected
these submissions. Ruling that ‘disease of mind’ is concerned with the ‘mind’,
not the brain, and that ‘mind’ is used ‘in the sense that [the term] is
ordinarily used, [meaning] the mental faculties of reasoning, memory and
understanding…’, he stated (at 407) that, ‘[t]he condition of the brain is
irrelevant and so is the question of whether the condition of the mind is
curable or incurable, transitory or permanent.’ What matters, he concluded,
is whether the condition is capable of affecting the mental faculties of
reasoning, memory and understanding. This may be so whether the condition
is physical (or organic) in nature, or mental (or functional), permanent or
transitory.
Arteriosclerosis, although a physical disease, was said (at 408) to be
‘capable of affecting the mind in such a way as to cause a defect, temporarily
or permanently, of its reasoning [and] understanding’, and was therefore
held to amount to a ‘disease of mind’. If K’s arteriosclerosis had caused a
blackout as alleged by K, this ‘defence of reason’ arose from a disease of
mind and therefore amounted at best to ‘insane automatism’, rather than
simple automatism. A verdict of insanity was duly returned by the jury
(compare Charlson [1955] 1 WLR 317).
In Bratty ([1963] AC 386), B was alleged to have strangled an 18-year-
old female to death. Charged with murder, B adduced evidence that he

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 CAPACITY AND INCAPACITATING CONDITIONS 229

suffered from psychomotor epilepsy and may have been in a state of

automatism at the time of the killing. Only insanity was left to the jury;
this was rejected and B was convicted of murder. B appealed, contending
that automatism, which would have entitled him to an absolute acquittal,
should have been left to the jury. The House of Lords rejected this
contention, holding that a defendant cannot raise ‘non-insane’ automatism
where, as here, the only alleged cause of the state of automatism is a disease
of mind. The only defence that B was entitled to raise based on his
psychomotor epilepsy was insanity (or insane automatism).
One of the Law Lords, Lord Denning, applying Kemp, also offered an
alternative view of ‘disease of mind’ (at 412):

It seems to me that any mental disorder which has manifested itself

in violence and is prone to recur is a disease of the mind. At any rate
it is the sort of disease for which a person should be detained in
hospital rather than be given an unqualified acquittal.

This test puts the issue of social protection in the forefront in defining
‘disease of mind’. While it represents in many respects the prevailing policy
of the criminal law relating to mental abnormality, it is far from satisfactory
as a test, for there are many conditions which qualify as ‘diseases of mind’
but do not, even when they have manifested themselves in violence,
necessitate compulsory detention in a mental hospital for treatment. A
glaring example of this is diabetes.16 An insulin-dependent diabetic who
fails to inject insulin (resulting in high blood-sugar — ‘hyperglycaemia’) or
who, having injected insulin, fails to eat properly (resulting in low blood-
sugar — ‘hypoglycaemia’) may suffer a diabetic (hyperglycaemic or
hypoglycaemic) coma or state of unconsciousness, during which involuntary
physical acts may occur (these may appear to be of an aggressive nature, as
where the diabetic involuntarily lashes out at a person seeking to administer
treatment). Despite the possibility of recurrence, it is unlikely that a mental
hospital would consider it necessary to detain a diabetic for treatment. By
Lord Denning’s test, a diabetic coma should not constitute a ‘defect of reason
from disease of mind’ — yet hyperglycaemia has been held to amount to a
disease of mind (Hennessy [1989] 1 WLR 287). In contrast, hypoglycaemia

16 In 1994, it was estimated that more than 250,000 persons in Hong Kong suffered from
diabetes (‘Experts Call for Diabetes Fight to be Stepped Up’, South China Morning Post, 25
January 1994).

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 230 DEFENCES

(caused by the administration of insulin) has been held not to amount to a

disease of mind, since it is caused by an external, not internal, factor.17
A distinction between internal and external causes was introduced in
Quick & Paddison ([1973] QB 910). Quick, a male diabetic working as a
nurse in a psychiatric hospital, was charged with assaulting a disabled patient
occasioning actual bodily harm (contrary to section 47 of the Offences
Against the Person Act 1861; Hong Kong: section 39 of the Offences Against
the Person Ordinance). Q called medical evidence establishing his diabetes
and that he had been admitted on several occasions to hospital suffering
from hypoglycaemia. Q submitted that he had not eaten properly on the
day of the assault, and suggested that his conduct may have occurred while
he was suffering from an episode of hypoglaecemia. The trial judge ruled
that this amounted to a disease of mind, and that Q’s only defence was
insane automatism (or insanity). To avoid a special verdict and (the then)
mandatory hospital order, Q pleaded guilty and then appealed. The English
Court of Appeal quashed his conviction on the ground that a distinction
needs to be drawn between ‘internal’ and ‘external’ causes of mental
abnormality. Only internal causes, it was said, could constitute a disease of
mind for the purposes of the law of insanity (at 922):

In our judgment, the fundamental concept is of a malfunctioning of

the mind caused by disease. A malfunctioning of the mind of transitory
effect caused by the application to the body of some external factor
such as violence, drugs, including anaesthetics, alcohol and hypnotic
influences cannot fairly be said to be due to disease.

Hypoglycaemia, it was held, is caused not by diabetes itself, but by a

diabetic’s injection of insulin — an external factor; it may therefore be
relied on to raise (non-insane) automatism (subject to whether Q’s alleged
coma was self-induced; discussed below, p. 245).
This distinction between internal and external factors has become of
considerable significance, for it is usually this aspect of the meaning of
disease of mind that is crucial in deciding whether D may raise (non-insane)
automatism, rather than insanity. Hennessy, above, illustrates this. H, an
insulin-dependent diabetic, alleged that he had failed to take either insulin
or food, leading to hyperglycaemia, aggravated by stress, anxiety and
depression caused by recent events in his life. These latter matters, he

17 It is, therefore, necessary for a judge to direct a jury on the distinction between
hyperglycaemia and hypoglyecemia — Bingham [1991] Crim LR 433.

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 CAPACITY AND INCAPACITATING CONDITIONS 231

argued, were ‘external’ factors. While in this state, it was asserted, he hit
the victim over the head with a VCR. The trial judge ruled that neither
hyperglycaemia nor these additional factors gave rise to non-insane
automatism, whereupon H pleaded guilty. On appeal, the English Court of
Appeal affirmed that H’s hyperglycaemic state was caused by an internal,
not external, factor and amounted to a disease of mind. In relation to the
proposed external factors, the Court concluded (at 294):

Stress, anxiety and depression can no doubt be the result of the

operation of external factors but they are not, it seems to use, in
themselves separately or together external factors of the kind capable
in law of causing or contributing to a state of automatism. They
constitute a state of mind which is prone to recur. They lack the
feature of novelty or accident, which is the basis of the distinction
drawn by Lord Diplock in Sullivan.

A similar view — that stress and such like are not generally external
factors — was adopted in an earlier Canadian case, Rabey ((1977) 37 CCC
(2d) 461), where it was stated (at 482, per Martin JA) (subsequently
approved by a majority in the Supreme Court of Canada: [1980] 2 SCR
513, at 519–20):

[T]he ordinary stresses and disappointments of life which are the

common lot of mankind do not constitute an external cause
constituting an explanation for a malfunctioning of the mind which
takes it out of the category of a “disease of the mind”.

This view was subsequently referred to with approval in Burgess ([1991] 2

QB 92), in which the English Court of Appeal held that sleepwalking is a
malfunctioning of mind caused by internal, not external, factors and
therefore amounts to a disease of mind. Accordingly, the only defence open
to Burgess based on sleepwalking was insanity.
In 1983, in R v Sullivan ([1984] AC 156), the House of Lords was
invited to reconsider the meaning of ‘disease of mind’. Sullivan, like Bratty,
suffered from psychomotor epilepsy; in S’s case, he suffered seizures once
or twice a week. During one such seizure, he struck an elderly male friend.
The trial judge ruled, following Bratty, that the only defence open to S was
insane automatism, i.e. insanity; thereupon, S pleaded guilty to assault
occasioning actual bodily harm. On appeal to the House of Lords, Lord
Diplock, delivering the judgment of the Lords, rejected the opportunity to
restate the law and reaffirmed both the M’Naghten Rules and the policy of

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 232 DEFENCES

social protection entailed in the current definition of insanity. On disease

of mind, he concluded (at 172):

[T]he meaning of the expression “disease of the mind” as the cause of

a “defect of reason” remains unchanged for the purposes of the
application of the M’Naghten Rules. I agree with what was said by
Devlin J. in Kemp that “mind” in the M’Naghten Rules is used in the
ordinary sense of the mental faculties of reason, memory and
understanding. If the effect of a disease is to impair these faculties so
severely as to have either of the consequences referred to in the latter
part of the rules, it matters not whether the aetiology of the impairment
is organic, as in epilepsy, or functional, or whether the impairment
itself is permanent or is transient and intermittent, provided that it
subsisted at the time of commission of the act. The purpose of the
legislation relating to the defence of insanity, ever since its origin in
1880, has been to protect society against recurrence of the dangerous
conduct. The duration of a temporary suspension of the mental
faculties of reason, memory and understanding, particularly if, as in
[Sullivan’s] case, it is recurrent, cannot on any rational ground be
relevant to the application by the Courts of the M’Naghten Rules,
though it may be relevant to the course adopted by the Secretary of
State to whom the responsibility for how the defendant is to be dealt
with passes after the return of the special verdict of “not guilty by
reason of insanity”.

Referring to Quick & Paddison, he added (at 172):

I do not [exclude] … the possibility of non-insane automatism (for

which the proper verdict would be a verdict of “not guilty”), in cases
where temporary impairment (not being self-induced by consuming
drink or drugs) results from some external physical factor such as a
blow on the head causing concussion or the administration of an
aesthetic for therapeutic purposes.

Acknowledging ‘reluctance’ about labelling S as ‘insane’, Lord Diplock

nonetheless concluded (at 173) that ‘it does not lie within the power of the
courts to alter [the label of insanity]. Only Parliament can do that. It has
done so twice; it could do so once again.’

Not knowing the nature and quality of the act or that it is wrong
The defence of insanity is established only if the defect of reason suffered
by D causes him or her not to know either the nature and quality of the act
that he or she was doing, or that it was wrong.

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 CAPACITY AND INCAPACITATING CONDITIONS 233

If D’s conduct occurs while D is unconscious or in a state of automatism,

then this requirement will necessarily be satisfied; a person who is
unconscious clearly does not know what he or she is doing, or that it is
wrong. On the other hand, if D knew what he or she was doing and knew
that it was wrong, but could not stop himself or herself from acting in that
manner — what is called an ‘irresistible impulse’ — this in itself would not
give rise to the defence of insanity. In Pang Bing-yee ([1984] HKLR 298),
for example, the defence unsuccessfully attempted to call psychiatric
evidence to establish that P, who was charged with murdering a child in
her care, herself had been beaten as a child causing her psychological damage
and giving rise to a personality disorder (called ‘battered baby syndrome’),
giving rise to uncontrollable behaviour. P’s appeal against conviction on
the grounds that this evidence should have been admitted to challenge
mens rea was rejected by the Court of Appeal (at 304):

The applicant was fully aware of the nature of her acts, there was no
suggestion of any recklessness, mistake or lack of a conscious mind.
It is the ability to appreciate the effect of those acts which she attempted
to call into question. The acts were clearly voluntary ones. The issue
of intent was intermingled with that of credibility in that both lay for
the consideration of the jury. Murder being a crime of specific intent,
uncontrollable impulse, if it exists, does not go as far as a defect of
reason sufficient to negative intent by rebutting the presumption of
insanity.

An irresistible impulse may, in some cases, be shown to be a symptom

of an underlying condition capable of impairing a person’s knowledge or
ability to distinguish between right and wrong, in which case reliance may
be placed on the underlying condition.

‘Nature and quality’ In Codere ((1916) 12 Cr App R 21), ‘nature and quality’
was taken to refer to the physical nature of the act, not its moral character.
It covers, for example, the case of ‘a madman who cut a woman’s throat
under the idea that he was cutting a loaf of bread’ (Kenny, Outlines, 76).

‘Wrong’ In M’Naghten itself, there are suggestions that wrongfulness would

not be established if it is shown either that D knew his or her actions were
legally wrong, or that D knew other persons would generally consider his
or her actions wrongful, whether or not D knew they were legally wrong.
However, in Windle ([1952] 2 QB 826), the English Court of Criminal
Appeal appeared to restrict ‘wrong’ to only the first of these two meanings

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 234 DEFENCES

— ‘legally wrong’. W induced his wife, who was considered certifiably insane
and suicidal, to kill herself by taking 100 aspirins. On trial for murder,18 W
called medical evidence that he was suffering from a condition known as folie
a deux, a form of communicated insanity. However, there was no suggestion
that W did not know his acts were legally wrong, W himself having said to
the police, ‘I suppose they will hang me for this.’ The trial judge ruled that
insanity could not be left to the jury, and W was accordingly convicted of
murder. His appeal was dismissed, the court ruling (at 833–4) that:

Courts of law can only distinguish between that which is in accordance

with the law and that which is contrary to law …. The law cannot
embark on the question and it would be an unfortunate thing if it
were left to juries to consider whether some particular act was morally
right or wrong. The test must be whether it is contrary to law. … In
the opinion of the Court there is no doubt that in the M’Naughten
Rules “wrong” means contrary to law and not “wrong” according to
the opinion of one man or a number of people on the question whether
a particular act might or might not be justified.

This view has not been universally adopted. In Stapleton ((1952) 86 CLR
358), for example, the High Court of Australia held that ‘wrong’ includes
morally wrong and declined to follow Windle. The effect of the ruling in
Windle is to widen the defence of insanity, since a person who knows that
his or her conduct is morally wrong (i.e. wrongful in the eyes of ordinary
people) but does not know that it is legally wrong is still entitled to raise
insanity.

Insane delusions
If D acts under the partial influence of an insane delusion (i.e. a mistaken
idea or belief arising because of D’s mental abnormality), D may still be
able to raise the defence of insanity. In M’Naghten itself, the Lords expressed
the view (at 211) that:

[this] must depend on the nature of the delusion: but making the
same assumption as we did before, namely that [D] labours under
such a partial delusion only, and is not in other respects insane, we
think [D] must be considered in the same situation as to responsibility

18 Prior to 1967, suicide was an offence in the nature of ‘self-murder’; someone who assisted
another to commit suicide was therefore liable as a party to murder; discussed below, see
Chapter 10, p. 525.

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 CAPACITY AND INCAPACITATING CONDITIONS 235

as if the facts with respect to which the delusion exists were real. For
example, if under the influence of his delusion [D] supposes another
man to be in the act of attempting to take away his life, and he kills
that man, as he supposes in self-defence, he would be exempt from
punishment. If [D’s] delusion was that the deceased has inflicted a
serious injury to his character and fortune and he killed him in revenge
of such supposed injury, he would be liable to punishment.

In certain respects, this was unnecessary, for a person who acts under
an insane delusion as to the facts would not generally know the nature and
quality of his or her act, thereby fitting within the test of insanity. In other
respects, it is inadequate. For example, if D insanely thinks that he is
Ghengis Khan and is thereby entitled to rape and kill at will, even though
he knows that these acts are legally wrong, D is neither insane within the
M’Naghten Rules, for he knows the nature and quality of his acts and that
they are wrong, nor suffering from such an insane delusion as would afford
him a defence. This seems wrong, highlighting one of the many perceived
deficiencies in the criminal law’s present treatment of insanity.

Verdict and appeal

Special verdict and hospital order

Pursuant to section 74 of the CPO, where evidence is given at trial that D
was ‘insane’ and the ‘jury’ (or District Court Judge or Magistrate;19 section
75(6) of the CPO) is ‘satisfied’ that D ‘did the act or made the omission
charged’ as the offence (this is for the prosecution to prove beyond
reasonable doubt) but was ‘insane’ in M’Naghten’s sense at the time of those
actions (this is for the defence to prove on the balance of probabilities),
then it must return the ‘special verdict’ of ‘not guilty by reason of insanity’.20

19 It is unclear whether the defence of insanity is available in England before justices in the
Magistrates’ Court; see Horseferry Rd Magistrates’ Court, ex p. K [1996] 3 All ER 769, DPP
v Harper (1997) The Times, 2 May; discussed in T. Ward, ‘Magistrates, Insanity and the
Common Law’ [1997] Crim LR 796.
20 Section 75 of the CPO: ‘Where in an indictment any act or omission is charged against
any person as an offence, and it is given in evidence on trial of such person for that offence
that he was insane, so as not to be responsible according to law for his actions at the time
when the act was done or the omission made, then, if it appears to the jury before whom
such person is tried that he did the act or made the omission charged, but was insane as
aforesaid at the time when he did or made the same, the jury shall return a special verdict
that the accused person is not guilty by reason of insanity.’

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 236 DEFENCES

This verdict is not a complete acquittal. Pursuant to section 76 of the

CPO, the judge or magistrate hearing the case must then act as follows:
either (1) make an order authorizing D’s admission into a mental hospital
for detention and treatment (i.e. ‘hospital order’) (this is mandatory where
the offence carries a ‘fixed sentence’, e.g. murder), or (2) make one of
three other orders mentioned in section 76(2)(b)(i)(ii)(iii): a guardianship
order, a supervision and treatment order, or an order for D’s absolute
discharge.
If D raises insanity, and the ‘jury’ is satisfied that D is ‘insane’, but it is
not proved that D ‘did the act or made the omission charged’ in accordance
with section 74(1) of the CPO, then D is entitled to an outright acquittal
(section 75A(1)(b) of the CPO; see also O’Donnell [1996] Crim LR 121).
Where an order is made under section 76(2)(a) of the CPO, then D
must be admitted into either the Correctional Services Department
Psychiatric Centre or a designated mental hospital within 28 days of a
hospital order being made. Admission thereunder is treated as an admission
under section 45 of the MHO, and D’s detention and treatment thereafter
are subject to the provisions of the MHO (section 76(2), Fourth Schedule,
Para. 2, CPO).
An order for D’s admission pursuant to section 76 is indefinite in
operation in the sense that D may be detained until such time as he or she
is discharged (or removed out of jurisdiction; see section 44 of the MHO)
in accordance with the provisions of the MHO (section 43). The general
power to discharge a patient lies in the hands of the medical superintendent
of the mental hospital in which D is detained (see sections 42–42B of the
MHO).

Appeal
There is a general right of appeal against a special verdict, pursuant to
section 83J of the CPO. If an appeal against a special verdict under this
section is allowed, the Court of Appeal may substitute a conviction (section
83K(4)(a) of the CPO), acquit D (section 83K(4)(b) of the CPO), or, if it
considers that D was under disability at trial or is suffering from mental
disorder requiring detention in a mental institution, acquit D but make a
hospital order (section 83L(1)(2) of the CPO).

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 CAPACITY AND INCAPACITATING CONDITIONS 237

Automatism

Introduction

D’s conduct must generally be voluntary before it will lead to criminal

liability (above, Chapter 3, p. 68). It follows that D ought to be acquitted
if his or her conduct was ‘involuntary’, since neither mens rea nor actus
reus can be proved. ‘Involuntary’ conduct may result from the effect of
outside forces, such as a push, or from D’s lack of conscious control over
his or her own conduct, as where D ‘acts’ while suffering concussion after
being hit over the head. Involuntary conduct, or ‘automatism’ as it is
commonly known, was explained by Lord Denning in Bratty v A-G for
Northern Ireland [1963] AC 386 (at 409):

An involuntary act in this context — some people nowadays prefer to

speak of it as “automatism” — means an act which is done by the
muscles without any control by the mind, such as a spasm, a reflex
action or a convulsion; or an act done by a person who is not conscious
of what he is doing such as an act done whilst suffering from
concussion or whilst sleepwalking [emphasis added].

Automatism overlaps with insanity when D’s lack of conscious control

or unconsciousness is caused by a ‘disease of mind’ (above, p. 227). It is
common, therefore, to distinguish between a state of automatism caused
by a ‘disease of mind’, which is called ‘insane automatism’ and treated in
the same way as insanity, and automatism strictly speaking, called ‘non-
insane automatism’.
Once automatism is properly raised, the prosecution bears the legal
burden of disproving involuntariness, i.e. it must prove beyond reasonable
doubt that D’s conduct was voluntary.

Necessity for total lack of control or unconsciousness

According to Bratty, a plea of automatism may arise only where D had no
conscious control at all over his or her actions, or was unconscious. Mere
failure to remember doing the act, and conduct caused by an irresistible
impulse will not in themselves amount to automatism.
On occasion, it has been suggested that something less than total lack
of control, what can be called no ‘effective’ control, and something less
than unconsciousness, i.e. ‘impaired’ consciousness, may also suffice. In
Burgess ([1991] 2 QB 92), for example, B raised automatism based on

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 238 DEFENCES

sleepwalking, one of the conditions noted by Lord Denning in Bratty, above.

Rejecting this submission on the basis that B’s sleepwalking was caused by
internal factors and could therefore give rise only to a defence of insane
automatism, the English Court of Appeal commented (at 98) that:

[Burgess] plainly suffered from a defect of reason from some sort of

failure (for lack of a better term) of the mind causing him to act as he
did without conscious motivation. His mind was to some extent
controlling his actions which were purposive rather than the result
simply of muscular spasm, but without his being consciously aware
of what he was doing.

In general, however, the authorities support the necessity for a total

lack of conscious control or unconsciousness (see, for example, Isitt [1978]
RTR 211: not automatism merely because D’s mind was ‘not working in
top gear’; Broome v Perkins [1987] RTR 321: partial control of a vehicle
negated automatism; see also Hill v Baxter [1958] 1 QB 277 and Roberts v
Ramsbottom [1980] 1 All ER 7). This was affirmed by the English Court of
Appeal in A-G’s Reference (No. 2 of 1992) ([1993] 2 WLR 982).21 In this
case, D, a professional heavy goods lorry driver, was charged with two
offences of causing death by reckless driving (contrary to section 1 of the
Road Traffic Act 1972 (now amended); Hong Kong: section 36 of the Road
Traffic Ordinance (now amended)). D’s vehicle crashed into a stationary
van displaying its hazard lights, crushing the two deceased between the
van and another vehicle in front of it. D admitted having seen the flashing
lights, but argued that he had been driving for six out of the preceding 12
hours, and called medical evidence in support of a condition described as
‘driving without awareness’. According to this evidence, a driver experiencing
repetitive stimuli on long journeys on straight flat featureless motorways
may unknowingly enter a trance-like state in which forward vision becomes
focussed just ahead of his or her window screen, although peripheral vision
continues to send signals which are dealt with subconsciously, enabling
the driver to steer within highway lanes. The appearance of an obstruction
in front of the vehicle would usually cause the driver to regain full
awareness. It was conceded that the driver would still be in control of the
vehicle, and there would be subconscious motivation to his or her steering;

21 Sullivan states that the English Court of Appeal ‘re-asserted that a state of automatism
consists of the absence of consciousness or a consciousness so vestigial or distorted as to
render D an instrumentality rather than an agent’ (G.R. Sullivan, ‘Involuntary Intoxication
and Beyond’ [1994] Crim LR 273, note 7).

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 CAPACITY AND INCAPACITATING CONDITIONS 239

‘unawareness’ was therefore not total. D was acquitted at trial, but on appeal,
the Court of Appeal held that non-insane automatism ought not to have
been left to the jury in this case. In the view of the Court, automatism can
arise only where there is a total destruction of voluntary control on the
driver’s part; impaired, reduced or partial control is not enough. Since
‘driving without awareness’ amounted only to reduced or imperfect
awareness, no proper evidential foundation for automatism had been laid.
This view of automatism has been adopted in Hong Kong (R v Chan
Tak Kwong [1997] 1 HKC 478).

Raising automatism

Where automatism is raised by the defendant, three questions arise for

consideration. Two of these fall to be decided by the judge before the defence
can be left to the jury and were set out by Lord Lane CJ in Burgess, above
(at 96):

The first is whether a proper evidential foundation for the defence of

automatism has been laid. The second is whether the evidence shows
the case to be one of insane automatism, that is to say, a case which
falls within the M’Naghten Rules, or one of non-insane automatism.

The third question, which arises only in a case of non-insane automatism,

is whether the state of automatism was self-induced.
The burden of disproving automatism, once there is a proper evidential
foundation for it, lies on the prosecution beyond reasonable doubt (Bratty
v A-G for Northern Ireland [1963] AC 386, followed in Fung Mui Lee [1996]
1 HKC 72).

Proper evidential foundation

A claim of automatism is easily made and difficult to disprove. For this
reason, the courts have held that automatism should be put to the jury as
an issue only if D has established a proper evidential foundation for the
claim of involuntariness. This is consistent with the presumption of mental
capacity, which, in the normal course, the prosecution will rely on to
presume that D’s actions were both conscious and voluntary (Bratty, above;
Hill v Baxter, above; see also Yeung Pak-lun (1982) Crim App No. 782 of
1981).
In general, this evidential burden will not be satisfied simply by
testimony from D that he or she was unconscious, or had a ‘blackout’, or

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 240 DEFENCES

does not remember the events in question. Normally, medical evidence

must be adduced to satisfy this burden, but regard may also be had to
other evidence, such as D’s general behaviour, and D’s character and mental
capacity (Yeung Pak-lun, above).
It is for the trial judge to determine whether the necessary evidential
foundation has been laid before leaving automatism to a jury (Burgess,
above, at 96, per Lord Lane CJ).
The nature of this evidential burden was fully considered by the Hong
Kong Court of Appeal in Mohammad Hussain.

Mohammad Hussain [1993] 1 HKCLR 1

Facts
Hussain was convicted by a jury of attempted rape, and sentenced to
four years’ imprisonment. The prosecution alleged that H, aged 33,
had accosted the complainant, a woman aged 74, one morning, pulled,
pushed and dragged her against her will for a distance of between 800
and 1000 metres, to a place under a traffic flyover where he threw her
to the ground, pulled down both her trousers and underwear and his
own and lay on top of her. The complainant alleged that H had tried
unsuccessfully to insert himself into her, and to kiss her. When two
passers-by approached and shouted at H, H allegedly got to his feet,
pulled up his trousers, pointed to the woman and said ‘friends’. H was
pinned to the ground when he tried to escape, and was tied up until
police assistance was obtained. H smelt of alcohol.
H, unmoving, was carried to a police vehicle and taken to, first, a
police station and then, after banging his head five or six times against
the wall, to a hospital. The examining doctor did not consider him to
be under the influence of alcohol, and there were suggestions that H’s
behaviour after arrest might have been play-acting.
In evidence, H said that he remembered consuming about four
cans of beer that morning before going for a walk, but had no memory
of events thereafter until ‘coming to’ in hospital. H called medical
evidence in an attempt to show that he may have suffered a
hypoglycaemic coma, i.e. a state of (non-insane) automatism, though
his behaviour (especially a number of seemingly purposeful, motivated
acts) was said to be more consistent with simple intoxication than with
hypoglycaemia (H did not rely on intoxication as such, since attempted
rape has been held to be a basic intent offence for which self-induced
intoxication is no defence; see below, p. 257). A medical witness called
by the prosecution strongly rejected the suggestion that H may have
been suffering from automatism.

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 CAPACITY AND INCAPACITATING CONDITIONS 241

The trial judge, after hearing argument, ruled (in the absence of
the jury) that a proper evidential foundation for automatism had not
been laid and refused to leave automatism to the jury. H appealed
against this ruling.

Decision
Appeal dismissed. Having considered the medical evidence, the Court
of Appeal agreed that it fell far short of laying a proper foundation for
the issue of automatism to be left to the jury. The trial judge had correctly
withdrawn the issue of automatism from the jury.
Fuad VP, giving the judgment of the Court of Appeal, emphasized
that, unlike insanity, a defendant carries no burden of proof in relation
to automatism (at 7):

It is well settled that where the defence put forward arises not
from “a disease of the mind” but is based upon what is sometimes
called “non insane automatism”, no burden is assumed by the
defendant to establish automatism; rather the burden is on the
prosecution to negative such a defence. But there is an evidential
burden on the defendant in that he must lay a proper foundation
for that defence … and thus be able to point to evidence from
which it may reasonably be inferred that his act was not voluntary.
The question whether such a foundation has been laid is a question
of law for the judge.

After considering the relevant authorities and the medical evidence,

Fuad VP continued (at 17):

It is, of course, a serious matter to withdraw an issue of fact from

the jury and it is only when it is demonstrably justified that an
appeal court will endorse such a course. However, we accept the
point made by [counsel for the prosecution] that the authorities
impose a duty upon the judge not to allow the issue of automatism
to be left to the jury unless the evidential burden … has been
discharged. When the evidence as a whole is, in the opinion of
the judge, insufficient for that purpose, it would not be right for
him to allow the issue to go to the jury because he was confident
that on the strong direction he intended to give, the jury would
reject it. … It is not surprising that in the real world, the courts
have insisted upon an adequate foundation of evidence before a
defence which could so easily be feigned warrants consideration.

He concluded (at 18):

When one examines the evidence of the lay witnesses, the picture
given is that of a man, who, although he might well have been

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 242 DEFENCES

under the influence of alcohol to a certain degree (and who

probably would not have acted as he did had he not been) was
fully conscious, or at least very much more than dimly aware, of
what he was doing … . [T]he fact that a doctor who has been
told the relevant facts and the apparent state of [H] is not able to
exclude the remote possibility that [H] was hypoglycaemic, and
that this state led to automatism, cannot, in our judgment, amount
to medical evidence from which it might reasonably be inferred
that [H’s] acts at the material time were involuntary to the extent
which would found the defence of automatism. The harsh truth
was that the medical evidence was adverse to the defence sought
to be advanced. We reached the conclusion, as a matter of law,
that the medical evidence, when considered with the rest of the
testimony the jury heard, fell far short of laying a proper foundation
for the issue of automatism to be left to the jury.

Insane versus non-insane automatism

In Bratty ([1963] AC 386), the House of Lords held that where the cause
of an alleged state of automatism is a ‘disease of mind’ within the M’Naghten
Rules (above, p. 227), then the only defence that D may raise based on that
alleged state of automatism is ‘insane automatism’, i.e. insanity. D cannot
choose to treat it as non-insane automatism. Applying the insanity rules,
the burden of proving insane automatism rests upon the defendant, on the
balance of probabilities, and, if proved, leads to the same result, namely, a
special verdict of ‘not guilty by reason of insanity’ (section 74 of the CPO)
and the same consequential orders (above, p. 235).
If the state of automatism is not caused by a ‘disease of mind’ within
the M’Naghten Rules, or if there is more than one cause, one or more of
which does not constitute a disease of mind, D may properly raise (non-
insane) automatism and may be entitled to an absolute acquittal.
In determining whether the cause of the state of automatism is a disease
of mind, the distinction between ‘internal’ and ‘external’ factors is usually
crucial (discussed above, p. 230). Non-insane automatism will usually be
traced to external factors. Examples of this include: (1) concussion, resulting
from a blow to the head (Budd [1962] Crim LR 49); (2) hypoglycaemia —
this condition, involving abnormally low levels of blood-sugar, arises when
an insulin-dependent diabetic injects insulin and then fails to eat adequately,
and is treated as the result of an external factor, the injection of insulin,
not diabetes itself (Quick & Paddison, above; Bailey [1983] 1 WLR 760,
discussed below, p. 246); and (3) the administration of a prescribed
anaesthetic (Quick & Paddison, above, at 356).

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 CAPACITY AND INCAPACITATING CONDITIONS 243

By contrast, states of automatism resulting from epilepsy, as in Bratty

and Sullivan, or arteriosclerosis, as in Kemp, or hyperglycaemia, as in
Hennessy, are all treated as ‘insane automatism’, since they are all taken to
be caused by internal factors, and thus amount to a ‘disease of mind’.
It is not always easy to make this determination, or to justify why one
state of automatism and not another may be relied on as non-insane
automatism. Diabetic comas provide the clearest example of this:
hyperglycaemia is treated as insane automatism because it results from the
failure of the diabetic’s body to produce insulin (i.e. diabetes), whereas
hypoglycaemia is treated as non-insane automatism because it arises from
the injection of insulin (which D needs to do only because he or she is a
diabetic). Sleepwalking, which was referred to by Lord Denning in Bratty
(at 409) is another example. In Parks, a decision of the Canadian courts, it
was held that sleepwalking is not necessarily a ‘disease of mind’ if it is
caused merely by the fact of sleep, rather than by some other internal
disorder. Parks was charged with murder after he allegedly drove a car 23
kilometres at night along a busy highway to his in-laws’ house where he
entered, climbed the stairs and fatally stabbed his mother-in-law and
seriously injured his father-in-law. He then drove to a police station and
handed himself in. Evidence that P suffered from sleepwalking was left to
the jury as non-insane automatism, and P was acquitted of murder and
attempted murder. On appeal by the prosecution, the Ontario Court of
Appeal concluded ((1990) 56 CCC (3d) 449, at ) that sleep is a ‘normal
condition’ and that ‘the impairment of [P’s] faculties of reason, memory
and understanding was caused not by any disorder or abnormal condition
but by a natural, normal condition — sleep.’
A contrary view was taken by the English Court of Appeal in Burgess,
above (at 100), on the basis that although sleep is a normal condition, ‘the
evidence in [this] case indicates that sleep-walking, and particularly violence
in sleep, is not normal.’
Burgess was then cited by the prosecution to the Supreme Court of
Canada in appealing Parks ([1992] 2 SCR 871, (1992) 95 DLR (4th) 27),
but the Supreme Court dismissed the appeal, taking the view that the
medical evidence adduced at P’s trial was different in nature to that adduced
in Burgess. Whereas P’s dissociative state was said to be caused by sleep,
not some other internal condition, and was said to be unlikely to recur, the
medical evidence in Burgess suggested that B’s sleepwalking was likely to
recur (echoing Lord Denning’s view of ‘disease of mind’ in Bratty, above,
p. 229). The Supreme Court therefore did not exclude the possibility that
sleepwalking could be treated as a disease of mind, but this was not so, in

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 244 DEFENCES

its view, in P’s case. P was therefore entitled to an absolute acquittal (this
despite the degree of control in P’s conduct which would generally make it
inconsistent with the requirement in the English and Hong Kong cases
that there be a total absence of control).
Psychological trauma and its consequential dissociative states also pose
difficulties. In general, such states are viewed as internally caused and give
rise only to insane automatism (or possibly diminished responsibility; see
below, p. 250). In Rabey ((1977) 37 CCC (2d) 461), also a Canadian case,
R alleged that he was in a dissociative state caused by the psychological
trauma or ‘blow’ of being rejected by a girl with whom he was infatuated.
At trial, he was acquitted of causing bodily harm with intent to the girl on
the ground of automatism. On appeal, it was held that R’s dissociative state
could not be treated as the result of external factors and therefore could
not be treated as non-insane automatism. The Supreme Court of Canada
approved the view of Martin J in the Ontario Court of Appeal that ‘the
ordinary stresses and disappointments of life which are the common lot of
mankind do not constitute an external cause’. R’s extreme reaction — his
dissociative state — to these events had to be treated, said the court, ‘as
having its source primarily in [his] psychological or emotional makeup’; as
such, this amounted only to insane automatism, or insanity. This view was
adopted and endorsed by the English Court of Appeal in Burgess, above (at
98):

the possible disappointment or frustration caused by unrequited love

is not to be equated with something such as concussion

and also in Hennessy, ([1989] 1 WLR 287, at 294):

although stress, anxiety and depression could undoubtedly result from

external factors, thus giving rise to a case of automatism, stress, anxiety
and depression in themselves were not separately or together external
factors of the kind capable in law of causing or contributing to a state
of automatism.

These conditions, it was suggested, lacked the feature of ‘novelty or accident’,

a criterion suggested by the House of Lords in Sullivan, above, as being of
importance in determining whether a condition should be viewed as a
disease of mind.
This feature of novelty or accident was found to exist in R v T ([1990]
Crim LR 256) in which T was charged with robbery (contrary to section 8
of the Theft Act 1968; Hong Kong: section 10 of the Theft Ordinance

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(cap. 210)), and assault occasioning actual bodily harm (section 47 of the
Offences Against the Person Act 1861; Hong Kong: section 39 of the
Offences Against the Person Ordinance). There was evidence that at the
time of her arrest, T was in a dissociative state. T alleged that she had been
raped three days previously. Medical and psychiatric evidence was presented
at trial to the effect that T was suffering from ‘post traumatic stress disorder’,
caused by the rape. The English Court of Appeal held that T’s dissociative
state in this case had been caused by an external factor — the rape — and
therefore did not amount to ‘disease of mind’. Accordingly, it was held,
non-insane automatism could properly be left to a jury in this case.

Self-induced automatism

Even if there is a proper evidential foundation for non-insane automatism,

automatism may still fail to assist a defendant if, like intoxication, it was
‘self-induced’. This was recognized in Quick & Paddison, above, by Lawton
LJ who stated (at 922):

A malfunctioning of the mind of transitory effect caused by the

application to the body of some external factor such as violence, drugs,
including anaesthetics, alcohol and hypnotic influences cannot fairly
be said to be due to disease. Such malfunctioning, unlike that caused
by a defect of reason from disease of mind, will not always relieve an
accused from criminal responsibility. A self-induced incapacity will not
excuse … nor will one which could have been reasonably foreseen as a
result of either doing, or omitting to do something, as, for example,
taking alcohol against medical advice after using certain prescribed
drugs, or failing to have regular meals while taking insulin [emphasis
added].

This statement is too wide in two respects, mirroring the law relating to
voluntary intoxication. Firstly, D may rely on self-induced automatism if D
is charged with a ‘specific intent’ offence. Secondly, even where D is charged
with a ‘basic intent’ offence (the meaning of ‘specific’ and ‘basic’ intent is
discussed below in relation to voluntary intoxication, p. 257), D may still
rely on a state of non-insane automatism unless it results from the use of
alcohol or dangerous drugs, or was otherwise recklessly induced by D.
These two qualifications were recognized by the English Court of Appeal
in Bailey ([1983] 1 WLR 760; subsequently applied to intoxication in Hardie,
below, p. 267).

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 246 DEFENCES

Bailey [1983] 1 WLR 760

Facts
Bailey, a diabetic, was charged alternatively with wounding with intent
(contrary to section 18 of the Offences Against the Person Act 1861;
Hong Kong: section 17(a) of the Offences Against the Person Ordinance),
and malicious wounding (contrary to section 20 of the Offences Against
the Person Act 1861; Hong Kong: section 19 of the Offences Against
the Person Ordinance). Both charges related to injuries inflicted by B
when he struck his ex-girlfriend’s new boyfriend on the head with an
iron bar. At trial, B called medical evidence in an attempt to establish
that he may have had a sudden, brief hypoglycaemic attack, resulting
from his failure to eat sufficient food to counteract the effects of an
earlier insulin injection. However the medical evidence did not fully
support this defence, for it was to the effect both that B during 30 years
as a diabetic had never suffered a hypoglycaemic coma, and also that
such comas do not come and go in the sudden, brief manner alleged
by B, particularly when it was admitted that B had drunk sugar-water
shortly before the alleged onset of the hypoglycaemic coma. At trial,
the Recorder, relying on Quick & Paddison, ruled that automatism was
not available as a defence to B since any such state of automatism was
self-induced by B’s failure to take sufficient food after taking insulin. B
appealed.

Decision
The Recorder had misdirected the jury in two respects. Firstly, it was a
misdirection not to draw a distinction between ‘specific intent’ and
‘basic intent’ offences. Automatism may be relied upon to negate liability
for a specific intent offence such as wounding with intent, even if it is
self-induced. Automatism, self-induced or not, should have been left to
the jury provided that a proper evidential foundation for it had been
laid.
Secondly, there was a misdirection even in relation to malicious
wounding. Although this is a basic intent offence, and voluntary
intoxication prima facie cannot be relied on to negate mens rea for the
reason recognized in Majewski ([1977] AC 443; discussed below,
p. 261), namely, that ‘the conduct of the accused is reckless and
recklessness is enough to constitute the necessary mens rea in assault
cases where no specific intent forms part of the charge’, nonetheless,
this does not apply if the state of automatism is not caused by the
voluntary consumption of alcohol or dangerous drugs. Here, the cause
of the alleged state of automatism was B’s failure to take sufficient food
after injecting insulin, and this could be raised to negate liability even

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 CAPACITY AND INCAPACITATING CONDITIONS 247

for malicious wounding, unless the prosecution proved beyond

reasonable doubt that B was ‘reckless’ in doing, or failing to do, the
acts leading to the state of automatism.
Griffiths LJ explained this on the basis that (at 764–5):
It is common knowledge that those who take alcohol to excess or
certain sort of drugs may become aggressive or do dangerous or
unpredictable things; they may be able to foresee the risks of
causing harm to others, but nevertheless persist in their conduct.
But the same cannot be said, without more, for a man who fails
to take food after an insulin injection. If he does appreciate the
risk that such a failure may lead to aggressive, unpredictable and
uncontrollable conduct and he nevertheless deliberately runs the
risk or otherwise disregards it, this will amount to recklessness.

Accordingly, provided that a proper evidential foundation had been

laid, B was entitled to rely on the possibility of a hypoglycaemic episode
to negate liability for malicious wounding, unless the prosecution proved
that B was subjectively reckless as to the consequences of failing to eat
properly after injecting insulin. On this, Griffiths LJ concluded (at 765):

[W]e certainly do not think … it is common knowledge, even

among diabetics, that “aggressive, unpredictable and
uncontrollable conduct” is a consequence of a failure to take food;
and there is no evidence that it was known [to Bailey]. Doubtless
he knew that if he failed to take his insulin or proper food after it
he might lose consciousness, but as such he would only be a
danger to himself unless he put himself in charge of some machine
such as a motorcar, which required his continued conscious
control.

Despite these misdirections, B’s appeal was dismissed. Having regard

to the medical evidence, the Court of Appeal concluded (at 765) that it
was:

very doubtful whether [Bailey] laid a sufficient basis for the defence
to be considered by the jury at all. But even if he did we are in
no doubt that the jury properly directed must have rejected it.

If D is charged with a specific intent offence, and D negates liability

for that offence by relying on non-insane automatism, D may still be
convicted of any underlying basic intent offence if the prosecution proved
that the state of automatism was caused by alcohol or dangerous drugs, or
that D was reckless when he or she did the acts leading to the state of
automatism.

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 248 DEFENCES

Where there are two or more possible causes for a state of automatism,
one of them being alcohol or dangerous drugs, it appears that reliance may
still be placed on the other cause, even perhaps if it is itself a result of D’s
voluntary intoxication (Stripp (1978) 69 Cr App R 318: D successfully
relied on concussion caused by a blow to S’s head, even though D suffered
this blow only because he was drunk and fell over).

Diminished Responsibility

Introduction

In addition to the general defences of insanity and automatism, a person

charged with murder may raise the special statutory defence of diminished
responsibility. Diminished responsibility results in an acquittal of murder
but conviction instead of manslaughter.
The defence of diminished responsibility was enacted in Hong Kong in
1963 in section 3 of the Homicide Ordinance (cap. 337) (following the
enactment of a similar defence in England in section 2 of the Homicide Act
1957). It was introduced partly to alleviate some of the restrictions on the
defence of insanity, and also to enable a person charged with murder to
avoid the then mandatory death penalty upon a conviction of murder.
Diminished responsibility, like insanity, has been criticized in recent
years,22 and there have been some calls for its abolition.23
Pursuant to section 3(2) of the Homicide Ordinance, the burden of
proving diminished responsibility lies upon D. The standard of proof is on
the balance of probabilities (Dunbar [1958] 1 QB 1).
Where there is clear evidence that D was suffering from mental
abnormality within the scope of the defence of diminished responsibility,

22 See, for example, Butler Committee’s Report on Mentally Abnormal Offenders (1975, Cmnd
6244) which considered that the expressions ‘abnormality of mind’ and ‘mental
responsibility’ in section 2(1) of the Homicide Act 1957 (Hong Kong: section 3(1) of the
Homicide Ordinance) were imprecise and caused difficulties for doctors, judges and juries.
23 The Butler Committee (Report on Mentally Abnormal Offenders (1975, Cmnd 6244))
recommended that the mandatory sentence of life imprisonment for murder should be
abolished and a trial judge given a sentencing discretion, in which case diminished
responsibility could be abolished. However, the Criminal Law Revision Committee, in its
fourteenth report on Offences Against the Person, recommended that diminished
responsibility should not be abolished, despite the imprecision noted by the Butler
Committee. In its view, a person suffering from diminished responsibility should not suffer
the stigma of a murder conviction.

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 CAPACITY AND INCAPACITATING CONDITIONS 249

then the prosecution may accept a plea of guilty to manslaughter, rather

than compel D to defend himself or herself at trial.24 However, this should
be done only when there is clear evidence of mental imbalance (Cox (1968)
52 Cr App R 130, Vinagre (1979) 69 Cr App R 104).
Section 3(2) of the Homicide Ordinance refers only to ‘the defence’
raising diminished responsibility, but it appears that both a trial judge and
the prosecution may also raise the issue in certain circumstances. This at
least was the view of the Court of Appeal in Jimmy Johnson ([1983] HKLR
344; see also Chan Ming-luk [1962] HKLR 651 and Lo Tin [1963] HKLR
903; compare Kooken (1981) 74 Cr App R 30), concluding that if the
‘interests of justice’ demand it, a trial judge may raise diminished
responsibility (or insanity) of his or her own motion and call medical or
psychiatric witnesses to give evidence as to D’s mental state. It appears that
this discretion may be exercised even if D has not expressly put his or her
mental state in issue (e.g. by pleading automatism), and even against D’s
express objections (compare Campbell (1987) 84 Cr App R 255: the English
Court of Appeal suggested that a judge cannot raise or leave diminished
responsibility to a jury without D’s consent; see also Weekes [1999] Crim
LR 907: leave to adduce pre-existing psychiatric evidence on appeal). In
considering the ‘interests of justice’, a matter of prime importance is whether
a decision to call evidence concerning D’s mental state against D’s wishes
may impinge on the possibility of D securing an outright acquittal,
particularly where D has given exculpatory evidence and evidence as to D’s
mental state might undermine D’s credibility (Jimmy Johnson, at 353).
It is less clear whether the prosecution may raise diminished
responsibility. Certainly, if D raises insanity in a murder trial, the
prosecution may, if it wishes, lead evidence to prove that D was in fact
suffering from diminished responsibility, and vice versa (section 76A(1) of
the CPO; UK: section 6 of the Criminal Procedure (Insanity) Act 1964).
Where diminished responsibility is raised by the trial judge or
prosecution, it seems that the evidence called in support must prove
diminished responsibility on the balance of probabilities (Jimmy Johnson, at
357).

Nature of the defence

Section 3(1) of the Homicide Ordinance states:

24 This is common practice in England; see S. Dell, ‘Diminished Responsibility Reconsidered’

[1982] Crim LR 809.

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 250 DEFENCES

Where a person kills or is a party to the killing of another, he shall

not be convicted of murder if he was suffering from such abnormality
of mind (whether arising from a condition of arrested or retarded
development of mind or any inherent causes or induced by disease or
injury) as substantially impaired his mental responsibility for his acts
and omissions in doing or being a party to the killing.

Diminished responsibility may be raised by both the actual killer and a

person who was ‘a party to the killing of another’. Where there is more
than one person charged with murder, whether as a principal or party, the
fact that one of them successfully pleads diminished responsibility, thereby
reducing that party’s liability to manslaughter, will not affect the liability
of the other parties for murder (section 3(4) of the Homicide Ordinance).
Diminished responsibility requires proof of three elements: abnormality
of mind, the cause (‘aetiology’) of the abnormality, and substantial
impairment of mental responsibility.

Abnormality of mind
The meaning of ‘abnormality of mind’ was considered in Byrne in 1960.

Byrne [1960] 2 QB 396

Facts
Byrne was convicted of murdering a young woman whom he had
strangled and mutilated. At trial, medical evidence was adduced to the
effect that B was a sexual psychopath, who suffered from violent
perverted sexual desires which he found difficult, perhaps even
impossible, to control, but that otherwise he was more or less ‘normal’.
The jury were directed that such perverted sexual desires did not
fall within the scope of the (then new) defence of diminished
responsibility. B appealed.

Decision
Appeal allowed. A verdict of manslaughter was substituted, but B’s life
sentence was confirmed.
The court held (at 403) that ‘abnormality of mind’ means ‘a state
of mind so different from that of ordinary human beings that the
reasonable man would term it abnormal.’ ‘Abnormality of mind’, it was
said, is:

wide enough to cover the mind’s activities in all its aspects, not
only the perception of physical acts and matters and the ability to

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 CAPACITY AND INCAPACITATING CONDITIONS 251

form a rational judgment whether an act is right or wrong, but

also the ability to exercise will power to control physical acts in
accordance with that rational judgment.

Accordingly, B’s difficulty in controlling his violent sexual impulses

could amount to an ‘abnormality of mind’, and diminished responsibility
should have been left to the jury.

Diminished responsibility thus has a broader scope than insanity since

insanity does not include an inability to exercise self-control.
‘Abnormality of mind’ has also been held to cover such conditions as
obsessive jealousy (Gomez (1964) 48 Cr App R 310) and ‘battered woman
syndrome’ (Ahluwalia [1992] 4 All ER 889).
The expressions ‘partial’ and ‘borderline’ insanity have sometimes been
used to explain abnormality of mind, but this has also been criticized. In
Seers ((1984) 79 Cr App R 261), medical evidence was adduced to show
that S suffered from chronic reactive depression. On appeal, the English
Court of Appeal accepted that this psychiatric condition, though nothing
like ‘insanity’ in a popular sense, could constitute an abnormality of mind
for the purposes of diminished responsibility, and held that the trial judge
had wrongly undermined S’s plea of diminished responsibility by referring
to ‘partial’ or ‘borderline’ insanity. S’s conviction of murder was set aside
and a verdict of manslaughter substituted.
Similarly, in Chiu Cheung ((1986) Cr App No. 119 of 1986), the trial
judge rather unfortunately told the jury that D did not have to be a ‘raving
lunatic’ in order for him to establish diminished responsibility. The Court
of Appeal upheld D’s conviction, though noting (at 3) that this was not a
‘felicitious’ expression:

there is danger in suggesting, as is sometimes done, that diminished

responsiblity is “on the borderline of insanity”, for that phrase is not in
the statute and may not be understood by everyone in the same sense.

The Court of Appeal also rejected a submission that the trial judge had
erred by referring only to D’s ‘ability’ to control his acts and not also D’s
‘difficulty’ in controlling them. ‘This’, it was held (at 3), was ‘merely a
matter of degree.’
It is for the trial judge to determine whether, on the medical evidence
adduced, D may be suffering from a condition amounting to an abnormality
of mind and, if so, leave it to the jury to determine whether the defendant
was in fact suffering from such an abnormality of mind (Byrne, above).

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 252 DEFENCES

A temporary loss of control arising from ‘intense passion’, such as would

equally give rise to the defence of provocation, will not suffice (HKSAR v
Leung Wai Chung [1999] 2 HKC 471, CA).

Medical cause or aetiology of the abnormality

The ‘abnormality of mind’ must arise from one of the causes specified in
section 3(1): a condition of ‘arrested or retarded development of mind’,
‘any inherent cause’, or ‘induced by disease or injury’.
It has been argued that these expressions are grounded in legal, rather
than psychiatric, concepts (see RD Mackay, ‘The Abnormality of Mind Factor
in Diminished Responsibility’ [1999] Crim LR 117), though the Hong Kong
Court of Appeal thought otherwise, at least in relation to ‘inherent causes’,
in Lo Pun-man ((1986) Cr App No. 320 of 1986). The medical expert called
by the defence in this case drew on both genetic and environmental factors
in assessing whether D suffered from an abnormality of mind arising from
‘inherent causes’. The Court rejected an argument that the trial judge ought
to have directed the jury on the legal meaning of ‘inherent causes’ (at 6):

the words “inherent causes” are ordinary English words which have
not been given any specific overlay of legal meaning and must be
given their ordinary meaning by the jury. This being so, it was
unnecessary for the Judge to have given any explanation as to the
words themselves.

Accordingly, it was open to the jury to accept and act upon the medical
evidence as they saw fit, and environmental or external factors could
therefore be relied on if they were proved to have caused a specific medical
or psychiatric condition (see also Chan Yu-keung [1987] HKLR 276).

Necessity for medical evidence In general, expert evidence must be adduced

of the medical cause, or ‘aetiology’, of D’s abnormality of mind, establishing
that D’s case fits within one or more of the specified causes (Byrne, above;
also Lai Kuen [1972] HKLR 442, Ho Wai-Leung [1977] HKLR 93). In Lau
Man-cheung ([1986] HKLR 1172), the Court of Appeal upheld this view, in
accepting that the question of whether D is suffering from an ‘abnormality
of mind’ is a question for the jury, but that its aetiology is a matter for
expert evidence (see HKSAR v Tsang Chin Tak [1999] 4 HKC 845: in general,
this means psychiatric evidence; a psychologist may not be acceptable for
this purpose). The Court further held (at 1176) that although section 3
does not stipulate that medical or other expert evidence must be adduced:

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 CAPACITY AND INCAPACITATING CONDITIONS 253

as a matter of common sense and practicality, a jury cannot in the

absence of medical evidence reasonably find in favour of an accused
in relation to the cause of any mental abnormality as required by the
words appeared in parenthesis in [section 3(1)].

Where medical evidence has been adduced, the jury is bound to consider
it, together with all other evidence, including the nature of the killing, D’s
conduct before, at the time of and after the killing, and any history of
mental abnormality. Having considered all the evidence, including the
medical evidence, in a broad common sense way, the jury is entitled to
reject the medical evidence unless the medical evidence is all one way and
there is nothing in the evidence as a whole to cast any doubt upon the
medical evidence (Walton [1977] 3 WLR 902, Chiu Sau Wah (1997) Crim
App No. 182 of 1996, CA).

‘Inherent causes’ ‘Inherent causes’ include not only functional mental

illness arising from genetic or hereditary conditions, but also, in exceptional
cases, personality or psychiatric disorders caused by external or
environmental factors (Sanderson (1994) 98 Cr App R 325).
In Ahluwalia ([1992] 4 All ER 889), for example, medical evidence
(not adduced at trial) was produced on appeal to show that years of marital
violence and abuse may have caused A, an Asian woman, to suffer from a
psychiatric condition commonly known as ‘battered woman syndrome’. The
English Court of Appeal was willing to allow such a condition to be brought
within the scope of the defence of diminished responsibility and quashed
A’s conviction of murder. At A’s retrial, the prosecution accepted A’s plea
of guilty to manslaughter on the grounds of diminished responsibility.
Other similar conditions relied on in this way include premenstrual
tension (Coles [1980] 144 JPN 528), jealousy (Miller Times, 16 May 1972;
Asher Times, 9 June 1981) and rage (Byrne, above; compare HKSAR v Leung
Wai Cheung [1998] 1 HKLRD 196).

Intoxication and diminished responsibility In general, an abnormality of

mind arising from mere intoxication will not give rise to a claim of
diminished responsibility, since the use of alcohol or drugs does not fall
within any of the conditions specified in section 3(1) of the Homicide
Ordinance (Inseal [1992] Crim LR 35, Tandy [1989] 1 WLR 350, HKSAR v
Leung Wai Chung [1998] 1 HKLRD 961; in O’Connell [1997] Crim LR 683,
the English Court of Appeal similarly rejected a submission that reliance
could be placed on the effects of a sleeping pill).

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 254 DEFENCES

However, alcoholism may be relied on if, as stated in Tandy, above, it

has reached a level at which D’s brain has been ‘injured’ or ‘diseased’ (at
356) ‘by the repeated insult from intoxicants so that there is gross
impairment of … judgment and emotional responses’, or if ‘the alcoholism
has reached a level where, although the brain has not been damaged to the
extent stated, [D’s] drinking has become involuntary, that is to say, [D] is
… no longer able to resist the impulse to drink’ (see also Lo Pun-man
(1986) Cr App R 320 of 1986: the Court of Appeal referred to Tandy and
acknowledged (at 8) ‘that a case might arise where an accused would
establish that a craving for drink or drugs was such as to produce in itself
an abnormality of mind’). In this second situation, it must be proved that
D is ‘compelled’ by his or her alcoholism to drink (e.g. while suffering
withdrawal symptoms). If D can resist the impulse to drink but chooses
not to, then diminished responsibility will not be available; any abnormality
in this situation is produced not by D’s alcoholism, but by the intoxicating
substance itself (see further: G.R. Sullivan, ‘Intoxicants and Diminished
Responsibility’ [1994] Crim LR 156).
On occasion, the evidence may show that D was both intoxicated and
also suffering from some other medical condition relevant to diminished
responsibility. The attitude of the courts in this situation has been to direct
a jury to disregard the effect of the intoxicating substance(s) and consider
only the remaining condition(s) in assessing whether diminished
responsibility has been proved (Gittens [1984] 3 WLR 377; Lo Pun-man,
above, at 8). In Egan ([1992] 4 All ER 470), the English Court of Appeal
emphasized (at 478) that the ‘vital question [is whether D’s] abnormality
of mind was such that he would have been under diminished responsibility
drink or no drink.’ The court approved a direction to this effect (proposed
by Professor J.C. Smith in a commentary on Gittens in [1984] Crim LR
554) in the following terms (see also Atkinson [1985] Crim LR 314):

have the defence satisfied you on the balance of probabilities that if

the defendant had not taken drink (i) he would have killed as he in
fact did? and (ii) he would have been under diminished responsibility
when he did so?

In Egan, the claim of diminished responsibility by a mentally subnormal

defendant failed on the basis that it was not at all clear that E, who had
been drinking heavily prior to the brutal killing, would have acted likewise
if he had not been drinking.

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 CAPACITY AND INCAPACITATING CONDITIONS 255

Substantial impairment
The abnormality of mind must ‘substantially impair’ D’s ‘mental
responsibility for his acts and omissions in doing or being a party to the
killing’. This is a question of degree and is for the jury to decide (Chiu
Cheung, above). Impairment need not be total, but it must be more than
trivial or minimal (Lloyd [1967] 1 QB 175).
Although the determination of whether D is ‘substantially impaired’ is
a question for the jury, in practice, it is common for medical experts to be
asked whether in their opinion the mental abnormality discussed in their
evidence can substantially impair mental responsibility.

Disposal
If diminished responsibility is successfully raised, D will be convicted of
manslaughter. The trial judge, in addition to his or her normal sentencing
discretion, has the power, under section 45 of the MHO (discussed above,
pp. 222–4), to make a hospital order against the defendant if this is the
most suitable method of disposing of the case having regard to D’s proven
mental abnormality. There is a general right of appeal under section 48 of
the MHO.

INTOXICATION

Intoxication refers to the mental and physical condition brought about by

the consumption of alcohol or drugs or related substances (e.g. glue) (or a
combination of these), whereby a person’s cognitive faculties (i.e. a person’s
higher mental processes such as thought, reasoning and perception) may
be impaired, or a person’s mood may be altered, for example by a loosening
of normal inhibitions or self-control.
In some instances, intoxication may constitute an element of an offence.
For example, section 39 of the Road Traffic Ordinance (cap. 374) creates
an offence of driving a motor vehicle ‘while under the influence of drink or
drugs’. Similarly, section 28 of the Summary Offences Ordinance (cap. 228)
creates two offences, one of being found ‘drunk’ in any public place (section
28(1); liable to a fine of HK$50), and a second of being ‘drunk and
disorderly’ in any public place (section 28(2); liable to a fine of HK$250 or
imprisonment for two months).

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 256 DEFENCES

More commonly, intoxication is raised as a ‘defence’. Correctly speaking,

intoxication is not per se a defence; a defendant cannot simply say: ‘I only
committed the offence because I was drunk [or drugged] and would never
have acted in that way if I had been sober.’ (R v Kingston [1995] 2 AC
355). Rather, intoxication operates by challenging mens rea: D asserts that
he or she lacked the necessary mens rea for the alleged offence because his
or her mind was affected by alcohol or drugs so as not to know what he or
she was doing, or not appreciate or intend the likely consequences or
circumstances attending D’s conduct.25 Related to this, D may assert that
he or she acted in the manner constituting the alleged offence because of a
mistaken view of relevant facts or circumstances, this mistake arising because
of D’s intoxicated state of mind. This may essentially involve a denial of
mens rea, as where D asserts that he or she drunkenly took the wrong
bicycle, thereby lacking the necessary dishonesty and intention to
permanently deprive for theft (contrary to sections 9 and 2(1) of the Theft
Ordinance). Alternatively, it may involve the assertion of a ‘defence’ such
as self-defence or duress, as where D asserts that he or she used force
because he or she drunkenly (but mistakenly) thought that V was attacking
or threatening D. D’s conduct is prima facie intentional, but his or her
intoxicated mistake is relied on to raise self-defence or duress.
D may also assert the reverse, that the consumption of alcohol or drugs
caused D to ‘blackout’, i.e. to lose conscious control over his or her actions.
This involves a denial of actus reus as well as mens rea, and overlaps with
and may be alternatively viewed as automatism rather than intoxication
(above, p. 245). In either case, the rules, particularly those applying to
evidence of a self-induced state, are broadly the same.
Exceptionally, intoxication may be relevant and give rise to insanity
(above, p. 227) or diminished responsibility (above, p. 253). This will
usually be where D is an alcoholic or drug addict, and prolonged use of
alcohol or drugs has caused physical damage to D’s brain or other organs
causing a malfunctioning of the mind, amounting to a ‘disease of mind’ for
the purposes of insanity under the M’Naghten Rules, or perhaps an
‘abnormality of mind’ for the purposes of diminished responsibility within
section 3(1) of the Homicide Ordinance.

25 If D is in fact an alcoholic, this may give rise instead to the defence of insanity or, in a
murder case, diminished responsibility.

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Intoxication and Mens Rea

The law relating to intoxication in the criminal law is primarily concerned

with the effect of voluntary intoxication on mens rea. The law in this area,
which allows evidence of voluntary intoxication to be adduced in some
cases but not in others, is far from straightforward, as was recently
acknowledged by the House of Lords in Kingston ([1995] 2 AC 355) where
Lord Mustill observed (at 369): ‘This area of the law is controversial, as
regards the content of the rules, their intellectual foundations, and their
capacity to furnish a practical and just solution.’

Voluntary intoxication

A state of intoxication is voluntary, or ‘self-induced’, if D knowingly

consumes or uses alcohol, drugs (other than on prescription which is treated
as involuntary intoxication; see below, p. 268) or other intoxicating
substances (e.g. glue). This is so even if D did not know the precise nature,
or strength, or likely effect of the intoxicating substance (Allen [1988] Crim
LR 698).
The rules that have developed to deal with voluntary intoxication rely
on a number of incompletely drawn distinctions — in particular, ‘specific’
versus ‘basic’ intent offences, and alcohol and dangerous drugs versus ‘non-
dangerous’ drugs — to determine in which cases evidence of voluntary
intoxication may be adduced and in which cases it cannot.26 Summarizing
these rules, voluntary intoxication may not be relied on to negate mens rea
(and thus negate criminal liability) unless:
(1) the offence charged against D is a ‘specific intent’ offence (following
Majewski, below), or requires proof of ‘intention’ (following the
alternative approach adopted by the House of Lords in Caldwell, below).
If it is a ‘basic intent’ offence or may be proved by ‘recklessness’, then
evidence of D’s self-induced state of intoxication may not be relied on.
If D is charged with a specific intent offence or one requiring proof of
intention, and successfully relies on voluntary intoxication to negate

26 In 1993, the English Law Commission released a consultation paper on Intoxication and
Criminal Liability (Law Commission, Paper No. 127, 1993) with various suggestions for
reform. For commentary, see G. Virgo, ‘The Law Commission Consultation Paper on
Intoxication and Criminal Liability — (1) Reconciling Principle and Policy’ [1993] Crim
LR 415. See also G. Orchard, ‘(2) Surviving without Majewski — A View from Down Under’
[1993] Crim LR 426.

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 258 DEFENCES

the mens rea of the offence, D may still be convicted (subject to (2)
below) of any underlying basic intent offence; or
(2) D’s state of intoxication is caused by the consumption or use of
something other than alcohol or dangerous drugs (‘dangerous drugs’
for this purpose are drugs generally known to cause aggressive,
unpredictable or uncontrollable behaviour. In this case, D may adduce
evidence of his or her state of intoxication to negate mens rea, except
where the offence is a basic intent or recklessness offence, and the
prosecution proves beyond reasonable doubt that D was ‘reckless’ in
taking or using the intoxicant. This rule, derived from Hardie ([1985]
1 WLR 64) is discussed below (p. 267).

Development of the rules

Prior to the early nineteenth century, in England, voluntary intoxication
was ‘never an excuse for criminal misconduct; … [it was] rather an
aggravation than a defence’ (Beard [1920] AC 479, at 494, per Lord
Birkenhead LC). By the beginning of the twentieth century, this attitude
had softened, allowing voluntary drunkenness to be raised as a ‘defence’
for some offences, but not others. In Beard, this was explained by the House
of Lords, quashing B’s conviction of murder and substituting a conviction
of manslaughter, on the basis that B’s self-induced state of drunkenness
was relevant where ‘a specific intent is an essential element in the offence’,
but not otherwise. From this arose the purported distinction between
‘specific’ and ‘basic’ intent offences, with voluntary intoxication being
relevant to the former, but not to the latter. Further, as Beard illustrated,
successfully raising voluntary intoxication to negate liability for a ‘specific
intent’ offence (e.g. murder or wounding with intent, contrary to section
17(a) of the Offences Against the Person Ordinance) does not also negate
liability for any underlying ‘basic intent’ offence (e.g. manslaughter, or, in
the case of wounding with intent, malicious wounding, contrary to section
19 of the Offences Against the Person Ordinance).
In Lipman ([1970] 1 QB 152), in 1970, the English Court of Appeal
confirmed that these rules applied not only to voluntary drunkenness, but
also to a state of intoxication caused by the voluntary consumption of drugs.
Accordingly, L, who killed his girlfriend while suffering hallucinations after
taking LSD, was entitled to rely on his drugged state to avoid liability for
murder but not to avoid a conviction of manslaughter.
This approach to voluntary intoxication was affirmed by the House of
Lords in 1975 in DPP v Majewski ([1977] AC 443), despite their

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acknowledgement of the difficulty of defining ‘specific’ and ‘basic’ intent

consistently with the practical treatment of various offences in the courts.
Several of the Lords emphasized that judicial policy underlies this approach.
Lord Salmon, for example, stated (at 482) that the present rules are
‘founded on common sense and experience rather than strict logic’, and
Lord Elwyn-Jones LC observed (at 474):

If a man of his own volition takes a substance which causes him to

cast off the restraints of reason and conscience, no wrong is done to
him by holding him answerable criminally for any injury he may do
while in that condition.

This was re-emphasized in Kingston ([1995] 2 AC 355) by Lord Mustill

who stated (at 369) that ‘such evidence [of self-induced intoxication] is
excluded as a matter of policy.’
Various explanations have been offered to justify this policy. One offered
by Lord Elwyn-Jones LC in Majewski (at 474–5) is that:

[D’s] course of conduct in reducing himself by drugs and drinks to

that condition … supplies the evidence of mens rea, of guilty mind
certainly sufficient for crimes of basic intent. It is a reckless course of
conduct and recklessness is enough to constitute the necessary mens
rea in assault cases … . The drunkenness is itself an intrinsic, an
integral part of the crime [of assault], the other part being the evidence
of the unlawful use of force against the victim. Together they add up
to criminal recklessness.

Lord Mustill in Kingston observed (at 369) that this was one of two different
‘rationalizations’ for the present law:

[The first is] that the absence of the necessary [intent] is cured by
treating the intentional drunkenness (or more accurately, since it is
only in the minority of cases that the drinker sets out to make himself
drunk, the intentional taking of drink without regard to its possible
effects) as a substitute for the mental element ordinarily required by
the offence. The intent is transferred from the taking of drink to the
commission of the prohibited act. The second rationalisation is that
the defendant cannot be heard to rely on the absence of the mental
element when it is absent because of his own voluntary acts. … it
may be said that [D] is estopped from relying on his self-induced
incapacity.

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 260 DEFENCES

The notion that a defendant should not be able to adduce evidence of

intoxication where it is self-induced because the act of consuming or using
alcohol or drugs is intrinsically ‘reckless’ was taken one step further in
MPC v Caldwell ([1982] AC 341). There, the House of Lords used
‘recklessness’ as the basis of the rules excluding evidence of voluntary
intoxication, not merely as the rationale for the rules. ‘Classification into
offences of specific and basic intent,’ said Lord Diplock for the majority (at
356), ‘is irrelevant where being reckless whether a particular harmful
consequence will result from one’s act is a sufficient alternative mens rea.’
According to this, voluntary intoxication will be relevant and admissible in
evidence only where the prosecution must prove intention as the mens rea
of the offence, for example, in murder. If recklessness suffices, then D’s
voluntary state of intoxication will be treated as irrelevant to the
determination of liability.
When evidence of intoxication is admissible, it is not necessary to show
that D was so intoxicated as to be incapable of forming any intent at all
(although this was how the test was formulated in Beard). Instead, in most
cases, the correct question is simply whether the prosecution has proved
the relevant mens rea against D, despite the evidence of D’s intoxication
(voluntary or involuntary) (Cole [1993] Crim LR 300; this approach was
correctly followed in Ip Chong Fun [1996] 1 HKC 597, CA: unfortunately,
the head note wrongly asserts both that the question is whether D was so
intoxicated as to be unable to form the requisite specific intent and that
the defendant bears the onus of proving this). If the prosecution proves
that D had the requisite intent, then D may be liable despite his or her
state of intoxication. This is encapsulated in the expression, ‘a drunken
intent is nevertheless an intent’ (Sheehan & Moore [1975] 1 WLR 739;
Fung Chun-wai [1982] HKLR 302; Yeung Ka Wah (1992) Cr App No. 306
of 1991), recently reaffirmed by the House of Lords in Kingston, above, in
which K was convicted of indecent assault despite evidence that K had
been surreptitiously drugged by his co-defendant.

‘Specific’ versus ‘basic’ intent

The rule that voluntary intoxication is only admissible to negate a ‘specific’

intent offence was suggested in Beard ([1920] AC 479, in 1920. Lord
Birkenhead LC, delivering the judgment of the House of Lords, reviewed
the authorities, and concluded that B was entitled to adduce evidence of
his self-induced intoxication on a murder charge because (at 499):

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These decisions establish that where a specific intent is an essential

element in the offence, evidence of a state of drunkenness … should
be taken into consideration in order to determine whether he had in
fact formed the intent necessary to constitute the particular crime.

It is not entirely clear what Lord Birkenhead LC meant here by the

term ‘specific intent’, but it was applied by the court to quash B’s conviction
of murder and substitute a conviction of manslaughter. The term ‘basic
intent’ was subsequently adopted to describe offences such as manslaughter
not requiring proof of a ‘specific intent’, and in relation to which voluntary
intoxication is treated as irrelevant.
This approach to voluntary intoxication was affirmed by the House of
Lords in DPP v Majewski in 1976.

DPP v Majewski [1977] AC 443

Facts
Majewski was convicted of six counts of assault occasioning actual
bodily harm (contrary to section 47 of the Offences Against the Person
Act 1861; Hong Kong: section 39 of the Offences Against the Person
Ordinance) and assaulting a police officer in the execution of duty
(Hong Kong: contrary to section 36(b) of the Offences Against the Person
Ordinance). The assaults giving rise to these charges had variously
occurred in a bar and later at the police station after arrest. M wished
to rely on evidence that he was intoxicated at the time as a result of
taking a mixture of barbiturates, amphetamines and alcohol. At trial,
the judge directed the jury that M’s intoxication was irrelevant if the
jury were of the view that it was self-induced. M appealed, relying in
particular on section 8 of the Criminal Justice Act 1967 (Hong Kong:
section 65A of the CPO) which, he contended, required all evidence
relating to his state of mind, including, it was submitted, evidence of
intoxication whether voluntary or involuntary, to be taken into account.
M’s appeal was dismissed by the Court of Appeal, and he further
appealed to the House of Lords.

Decision
Appeal dismissed. The Lords held that there is a substantive rule of
common law that voluntary intoxication is only relevant in respect of
specific intent offences. If D is charged with a basic intent offence,
such as assault occasioning actual bodily harm or assaulting a police
officer in the execution of duty, then voluntary intoxication cannot be
relied upon to avoid or negate liability. This rule, it was held, is

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unaffected by section 8 [section 65A], which impliedly requires only

relevant evidence to be considered; since voluntary intoxication is
irrelevant in assessing liability for a basic intent offence, section 8 does
not require the evidence to be considered. Accordingly, the trial judge
had correctly directed the jury.

The meaning of ‘specific’ and ‘basic’ intent was considered at some

length in Majewski. Lord Simon, for example, suggested (at 479) that a
‘specific intent’ offence is one which requires the prosecution in general to
prove that ‘the purpose for the commission of the act extends to the intent
expressed or implied in the definition of the crime’. An example of this is
the offence of ‘maliciously’ wounding ‘with intent to cause grievous bodily
harm’, contrary to section 17(a) of the Offences Against the Person
Ordinance (section 18 of the Offences Against the Person Act 1861). This
offence requires proof not only that D ‘maliciously’ (i.e. intentionally or
recklessly; see below, Chapter 11, p. 595) by his or her conduct (‘the
commission of the act’) wounded the victim, but also that D’s ‘purpose’ in
committing the act causing the wound was ‘the purpose or intent expressed’
in the offence, namely, that D intended to cause grievous bodily harm. D
would not, for example, be liable under section 17(a) if his or her ‘purpose’
or intent in doing the act causing the wound was merely to push forcefully
and recklessly past the victim in a queue.
Section 17(a) involves what is known as an ‘ulterior intent’ — the offence
expressly requires two elements of mens rea, the first, ‘maliciously’, relating
to the actus reus (‘wounding’), and the second being additional or ulterior,
i.e. ‘intent to cause grievous bodily harm’. Offences requiring proof of an
ulterior intent are commonly classified as ‘specific intent’ offences, but Lord
Simon emphasized that this is not necessarily so (as illustrated by aggravated
arson, contrary to section 60(2) of the Crimes Ordinance, discussed in
Caldwell below); ‘ulterior intent’ and ‘specific intent’ are not the same.
Lord Simon contrasted this with the various assault charges laid against
Majewski, which were ‘basic intent’ offences as previously explained by
him in DPP v Morgan ([1976] AC 182, at 216):

By “crimes of basic intent” I mean those crimes whose definition

expresses (or, more often, implies) a mens rea which does not go
beyond the actus reus. The actus reus generally consists of an act and
some consequence. The consequence may be very closely connected
with the act or more remotely connected with it; but with a crime of
basic intent the mens rea does not extend beyond the act and its
consequence, however remote, as defined in the actus reus.

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Common assault, he explained, qualifies as a basic intent offence because

the mens rea of assault, namely, intention or recklessness, extends only to
D’s act and its consequences, i.e. D’s physical act causing the victim’s
apprehension; or in Lord Simon’s words (at 216), ‘The actus reus of assault
is an act which causes another person to apprehend immediate and unlawful
violence. The mens rea corresponds exactly.’
In reality, these definitions are flawed. For example, murder — the
original ‘specific intent’ offence considered in Beard — could be said to be
a basic intent offence: its mens rea (intention to kill or to cause grievous
bodily harm) ‘corresponds exactly’ with its actus reus (conduct causing
death, or the killing).
Some commentators have therefore argued that the search for a
theoretically sound distinction is illusory. Smith and Hogan, for example,
have suggested (Criminal Law, ninth edition, p. 222) that:

The only safe conclusion seems to be that “crime requiring specific

intent” means a crime where evidence of voluntary intoxication
negativing mens rea is a defence; and the designation of crimes as
requiring, or not requiring, specific intent is based on no principle
but on policy. In order to know how a crime should be classified for
this purpose we can look only to the decisions of the court.

In practice, many offences have been judicially considered and classified

into specific and basic intent offences. Specific intent offences include, for
example, theft, burglary, wounding or causing grievous bodily harm with
intent to cause grievous bodily harm, handling stolen goods, murder, and
some categories of attempt.
The category of basic intent offences includes unlawful wounding,
common assault and battery, indecent assault (at least where D’s conduct
is unambiguously indecent), assault occasioning actual bodily harm, rape
(in Khan [1990] 1 WLR 813, it was held that attempted rape is also a basic
intent offence), and criminal damage. It also includes manslaughter, whether
of the voluntary or involuntary type.
Furthermore, in practice, evidence of voluntary intoxication is often
adduced as part of the surrounding circumstances in which the alleged
offence occurred, especially if there is any issue as to whether D’s
intoxication was voluntary or involuntary. How is this to be reconciled
with the rule that voluntary intoxication is irrelevant to the determination
of liability for a basic intent offence? One view is that having heard such
evidence, the jury or judge should then disregard it in determining whether
the prosecution has proved the mens rea of the basic intent offence beyond

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reasonable doubt (this was the view adopted in relation to a charge of rape
in Woods (1982) 74 Cr App R 312, at 314, per Griffiths LJ). Another view
is that this creates a highly artificial situation, in which a jury or judge is
obliged to draw inferences as to D’s state of mind on the assumption that
D was sober, when there has been evidence that D was in fact intoxicated.
It is also difficult to see why this is not a breach of section 65A of the CPO,
despite Majewski to the contrary.
According to a second view, the substantive rule of law affirmed in
Majewski has the effect of relieving the prosecution, once evidence of
voluntary intoxication is adduced in relation to a basic intent offence, of
the burden of proving the mens rea that would normally have to be proved
for that offence; all that the prosecution has to prove is the commission of
the actus reus elements (i.e. the offence is effectively treated as a strict
liability offence). Proponents of this view maintain that since the prosecution
no longer has to prove mens rea (intention or foresight), and the evidence
of D’s voluntary intoxication is relevant only to that issue, there is no breach
of section 65A. On this view, D would be better off by not introducing
evidence of intoxication at all, for the prosecution would then be obliged
to prove mens rea beyond reasonable doubt in the normal way; of course,
D would then have no ready ‘defence’ to challenge the inference that he or
she possessed the necessary mens rea.27

Intention versus recklessness

In 1982 in MPC v Caldwell ([1982] AC 341), the House of Lords proposed
an alternative formulation of these rules relating to voluntary intoxication,
based on whether the offence in question may be proved by recklessness,
rather than according to whether it is a ‘specific’ or ‘basic’ intent offence. C
was charged with two offences, arson and aggravated arson (respectively
contrary to sections 1(1)(3) and 1(2) of the Criminal Damage Act 1971;
Hong Kong: sections 60(1)(3) and 60(2) of the Crimes Ordinance). At
trial, C accepted that his self-induced state of intoxication could not be
relied on in relation to arson, since this was undoubtedly a basic intent
offence. However, he argued that aggravated arson requires proof of an
additional purpose, namely, that he caused criminal damage by fire, with a
view to ‘intentionally or recklessly endangering life’, that this was an ‘ulterior

27 For a discussion of Commonwealth approaches, see S. Gough, ‘Surviving without

Majewski?’ [2000] Crim LR 719.

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intent’, and that aggravated arson was therefore a specific intent offence.
This argument was rejected by the House of Lords on the basis that the
mens rea of both arson and aggravated arson expressly includes both
intention and recklessness. Accordingly, C could be convicted of aggravated
arson, along with arson, upon proof beyond reasonable doubt that C was
‘reckless’. ‘Recklessness’, the Lords concluded, may be established for this
purpose by C’s ‘recklessness’ in making himself intoxicated, as recognized
in Majewski (provided that a defendant is charged alternatively on the basis
of intention or recklessness; if the charge states merely that D ‘intended’ to
cause property damage or ‘intended’ thereby to endanger life, then unless
amended, ‘intention’ would have to be proved; voluntary or self-induced
intoxication could then be raised to challenge the prosecution’s assertion
that D acted with ‘intention’). Formulating this as a simple rule, the Lords
concluded (at 355) that ‘self-induced intoxication is no defence to a crime
in which recklessness is enough to constitute the necessary mens rea’. Since
this applied to aggravated arson, subject to the qualification below relating
to intoxication by non-dangerous drugs, C was not entitled to rely on the
evidence of his self-induced intoxication.28
According to this formulation, voluntary intoxication may be adduced
in evidence to negate mens rea only if the offence in question requires
proof of ‘intention’ or ‘knowledge’, as with murder. D’s ‘recklessness’ in
becoming intoxicated cannot in such a case in itself be said to establish the
mens rea of the offence, i.e. ‘intention’ or ‘knowledge’.
It is not entirely clear from Caldwell whether this formulation, based
on the distinction between offences requiring proof of intention and those
which may be proved by recklessness, is to be viewed as an alternative to
Majewski’s rules based on specific and basic intent, or is meant to replace
those rules. Lord Diplock in Caldwell (at 355) appeared to favour the former
view:

[The question of whether an offence is to be classified as one of

‘specific’ intent] is not, in my view, a relevant enquiry where “being
reckless as to whether the life of another would be thereby endangered”
is an alternative mental state that is capable of constituting the
necessary mens rea of the offence with which [D] is charged.

This suggests that the two approaches may both still be part of the
law. An example of this would be the offence of manslaughter: it cannot be

28 See also P. W. Ferguson, ‘Reckless Intoxication’ (1985) 49 Jnl of Crim Law 295.

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simply said that recklessness is always enough to constitute the offence of

manslaughter. This may be so in the case of constructive manslaughter
where the prosecution’s case is based on D’s commission of an assault or
battery, both of which may be proved by recklessness. However, this may
not be so in a gross negligence case. Accordingly, it may be necessary to
fall back on the accepted classification of manslaughter as a basic intent
offence to conclude that evidence of D’s voluntary intoxication should be
excluded from consideration.

Intoxication other than by alcohol or dangerous drugs

In Majewski and Caldwell, the defendants’ states of intoxication were caused
by the voluntary consumption or use of alcohol, or of drugs generally known
to cause aggressive, unpredictable or uncontrollable behaviour — ‘dangerous
drugs’. What if intoxication arises from the consumption or use of other,
‘non-dangerous’ drugs or substances, such as a sedative or sleeping pill?
Case law has recognized a limited exception for this type of case, whereby
evidence of intoxication may be adduced to negate liability regardless of
whether the offence is a basic intent offence or may be proved by
recklessness, unless the prosecution proves that D was reckless in taking
or using the intoxicating substance.
This exception is founded on an assumption that whereas everyone
knows or is taken to know the risks associated with alcohol and ‘dangerous
drugs’, this is not necessarily true of other substances. ‘Recklessness’ in
taking the substance cannot therefore be assumed, but must be proved by
the prosecution before the rule excluding evidence of voluntary intoxication
applies. This exception was recognized in Bailey ([1983] 1 WLR 760;
discussed above, p. 246), in connection with automatism. In that case, the
English Court of Appeal accepted that a diabetic should be allowed to raise
the possibility that he suffered a hypoglycaemic coma arising from his failure
to eat adequately after injecting insulin, even in relation to a basic intent or
recklessness offence, unless the prosecution can prove that the diabetic
appreciated or realized his failure to eat adequately might lead to aggressive,
unpredictable and uncontrollable conduct and deliberately ran that risk or
otherwise disregarded it. In Hardie, this approach was adopted by the English
Court of Appeal in relation to voluntary intoxication.

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R v Hardie [1985] 1 WLR 64

Facts
Hardie was convicted of aggravated arson (contrary to section 1(2) of
the Criminal Damage Act 1971; Hong Kong: section 60(2) of the Crimes
Ordinance). It was alleged that H lit a fire in his room in an apartment,
knowing that the woman he had recently broken up with and her
daughter were in another room.
H sought to rely on evidence that he had taken several tablets of
valium, a sedative drug, belonging to the woman, before starting the
fire and therefore may not have appreciated the risks associated with
his conduct. The trial judge, following Caldwell, ruled that since the
valium was self-administered, the evidence relating to its effect on H
was irrelevant and ought to be disregarded. H appealed.

Decision
Appeal allowed. H’s conviction of aggravated arson was quashed. The
Court of Appeal accepted that although valium is a drug and was
deliberately taken by H other than on prescription, nonetheless (at 70):

the drug is … wholly different in kind from drugs which are liable
to cause unpredictability or aggressiveness. It may well be that
the taking of a sedative or soporific drug will, in certain
circumstances, be no answer, for example in a case of reckless
driving, but if the effect of the drug is merely soporific or sedative
the taking of it, even in some excessive quantity, cannot in the
ordinary way raise a conclusive presumption against the admission
of proof of intoxication for the purposes of disproving mens rea in
ordinary crimes, such as would be the case with alcoholic
intoxication or incapacity or automatism resulting from the self-
administration of dangerous drugs.

Accordingly, ruled the Court (at 70), the jury should have been directed:

that if they came to the conclusion that, as a result of the valium,

[H] was, at the time, unable to appreciate the risks to property
and persons from his actions they should then consider whether
the taking of the valium was itself reckless.

Since there was no evidence that it was actually known to H, or

even generally known, that the consumption of valium in the quantity
taken might make a person aggressive or incapable of appreciating
risks to others, it was not possible for the Court of Appeal to conclude
that H had been ‘reckless’ in taking the valium.

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‘Recklessness’ in this context appears to mean subjective recklessness.

D either must have foreseen that he or she might become aggressive,
uncontrollable or unpredictable as a result of taking the substance in
question, yet deliberately took that risk or disregarded it, or, where D finds
himself or herself in charge of something requiring continual conscious
control, e.g. a motor vehicle, must have foreseen that he or she might lose
consciousness as a result of taking the substance, yet deliberately took that
risk or disregarded it.
For this purpose, ‘risk’ appears to be general in nature; it is not necessary
to prove that D foresaw the particular risk required for the offence in
question (e.g. risk of causing property damage, risk of inflicting unlawful
personal violence, etc.). The burden of proving recklessness is on the
prosecution.
Like the general rule itself, this exception poses a considerable problem.
It requires the jury to hear evidence showing that D was intoxicated, while
also considering whether D was reckless when he or she took the
intoxicating substance. If so, how is a judge to direct the jury? One response
is that having decided that D was ‘recklessly’ intoxicated, the jury must
then entirely exclude the evidence of D’s intoxication from its mind in
assessing whether the necessary mens rea of the offence is proved beyond
reasonable doubt. This requires a jury to determine whether D may have
been intoxicated at the time of the alleged offence, and then assess liability
as if D were sober, a somewhat artificial solution. The alternative view,
mentioned above, is that if the jury find that D was recklessly intoxicated,
it must then find D guilty of any offence proved by recklessness, so long as
the prosecution has proved the actus reus elements beyond reasonable doubt
— in other words, mens rea becomes irrelevant (compare Woods (1982)
74 Cr App R 314).
If a defendant chooses not to raise the issue of self-induced intoxication
when charged with a specific intent offence because it would be incompatible
with another defence that he or she wishes to raise, for example, self-defence,
there may be no need for the trial judge to give directions on the issue of
self-induced intoxication (Groark [1999] Crim LR 669).

Involuntary intoxication
Intoxication is involuntary if (1) it arises from the use of a prescription
drug in accordance with the prescription, or (2) D is unaware that he or
she is taking an intoxicating substance, as where D’s food or drink is secretly
spiked or laced with alcohol or drugs. The mere fact that D was involuntarily

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intoxicated does not necessarily entitle D to be acquitted: if the prosecution

can prove beyond reasonable doubt that D acted with the necessary mens
rea for the offence charged, then D may still be convicted — ‘a drunken
intent is still an intent’. This view of involuntary intoxication was recently
affirmed by the House of Lords in Kingston, prior to which there was only
limited authority for the second of the above categories of involuntary
intoxication — principally, a dicta in Pearson’s case ((1835) 2 LEW 144, at
145): ‘voluntary drunkenness is no excuse for crime. If a party be made
drunk by stratagem or the fraud of another, he is not responsible’.

R v Kingston [1995] 2 AC 355

Facts
Kingston and a co-defendant, both of whom had paedophiliac
homosexual tendencies, were jointly convicted of indecent assault on
a 15-year-old boy. K’s defence was that he had been secretly drugged
by his co-defendant and then taken into a bedroom where the victim,
previously drugged by the co-defendant, was asleep. The co-defendant
invited K to abuse the boy sexually, which K did. Unknown to K, his
actions were photographed and audio-taped by his co-defendant, with
a view to blackmailing K later.
In the light of the taped evidence, K accepted that he had acted
with what appeared to be the necessary intent for indecent assault, but
he argued that since this intention was formed because of and while he
was under the intoxicating influence of the secretly administered drugs,
it should not suffice as mens rea. The trial judge rejected this submission
and directed the jury that a ‘drugged intent is still an intent’. K appealed
successfully to the English Court of Appeal which held ([1993] 3 WLR
676, at 683, per Lord Taylor CJ) that K’s ‘intent’ did not amount to a
‘criminal intent’. The Court of Appeal’s rationale for this was that:

the purpose of the criminal law is to inhibit, by proscription and

by penal sanction, anti-social acts which individuals may otherwise
commit. Its unspoken premise is that people may have tendencies
and impulses to do those things which are considered sufficiently
objectionable to be forbidden. Having paedophiliac inclinations
and desires is not proscribed; putting them into practice is. If the
sole reason why the threshold between the two has been crossed
is or may have been that the inhibition which the law requires
has been removed by the clandestine act of a third party, the
purposes of the criminal law are not served by nevertheless holding
that the person performing the act is guilty of an offence. A man
is not responsible for a condition produced “by stratagem, or the

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 270 DEFENCES

fraud of another.” If therefore drink or drugs, surreptitiously

administered, cause a person to lose his self-control and for that
reason to form an intent which he would not otherwise have
formed, it is consistent with the principle that the law shall
exculpate him because the operative fault is not his. The law
permits a finding that the intent formed was not a criminal intent
or, in other words, that the involuntary intoxication negatives the
mens rea [emphasis added].

The Crown appealed to the House of Lords.

Decision
Appeal allowed. Lord Mustill, delivering the unanimous judgment of
the Lords, emphasized that the case concerned ‘disinhibition’ (i.e. it
was alleged that the effect of the drugs was to reduce K’s ability to
resist temptation, to the point where through no fault of his own K’s
desires overrode his ability to control them), rather than an assertion
that K was so intoxicated that he lacked intent. The issue, therefore,
was whether a defendant who is disinhibited and forms an intent as a
result of being secretly intoxicated, can rely as the Court of Appeal had
concluded on his or her absence of moral fault or blame to obtain an
acquittal (rather than merely as a mitigating factor in sentencing), either
on general principles (i.e. mens rea presupposes or equates to moral
fault), or specifically in relation to an ‘intent’ induced by involuntary
intoxication.
Rejecting the argument from general principle, Lord Mustill
concluded (at 366) that ‘the absence of moral fault on the part of [the
defendant] [is not] sufficient in itself to negative the necessary mental
element of the offence.’
Turning to the specific argument that a defendant is entitled to be
acquitted if he or she was involuntarily intoxicated, Lord Mustill (noting
the lack of modern authority specifically on involuntary intoxication)
concluded (1) that ‘involuntary intoxication’ is not recognized under
the common law as a defence in itself entitling a defendant (including
one who forms intent because of disinhibition) to an acquittal, and (2)
that it was not appropriate for the Lords to create any such new defence
in this case. Instead, involuntary intoxication operates within and as an
aspect of the general law of intoxication, with the important qualification
that the rules recognized in Majewski restricting reliance on self-induced
intoxication are irrelevant. Lord Mustill observed (at 370):

Once the involuntary nature of the intoxication is added the two

theories of Majewski [as to why self-induced intoxication cannot
be relied on] fall away, and the position reverts to what it would

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 CAPACITY AND INCAPACITATING CONDITIONS 271

have been if Majewski had not been decided, namely that the
offence is not made out if the defendant was so intoxicated that
he could not form an intent. Thus, where the intoxication is
involuntary Majewski does not subtract the defence of absence of
intent; but there is nothing in Majewski to suggest that where
intent is proved involuntary intoxication adds a further defence.

The essential issue therefore, when D asserts that he or she was involuntarily
intoxicated and calls evidence to that effect, is whether D nonetheless had
the relevant mens rea for the offence in question, something which the
prosecution must prove beyond reasonable doubt.

Intoxication and Mistake

Apart from affecting the ability to form, or the actual formation of, the
necessary state of intention or recklessness required for an offence,
intoxication may also affect D’s mind by making D believe, mistakenly,
that there is something in the circumstances which would justify or excuse
D in acting in a manner which might otherwise amount to an offence. D
may, for example, mistakenly believe that another person is threatening to
kill D if D does not beat up someone; in other words, a mistake giving rise
to duress (for duress, see Chapter 7, p. 300). Or D may use force against
another in the mistaken belief that the other is about to attack D — a
mistaken belief giving rise to self-defence (for self-defence, see Chapter 7,
p. 279). Can D rely on such a mistake to raise a defence, if the mistake is
caused by D’s intoxication?
If it is a case of involuntary intoxication, then D ought to be entitled to
rely on the mistake and any defence founded on it.
If D’s mistake is caused by voluntary intoxication, the legal position is
less clear. In the first place, the particular defence may require D’s mistake
to be a ‘reasonable’ mistake (e.g. duress or necessity). In this case, D will
not be entitled to rely on a mistaken belief caused by intoxication since the
mistake would obviously not have been made by a sober person and is
therefore unreasonable.
If the defence raised by D may be founded on an honest mistaken
belief, even an unreasonable mistake, as is true of self-defence, the position
is more controversial. In principle, the rules should be the same as those
for voluntary intoxication negating mens rea, i.e. evidence of D’s intoxicated
mistaken belief ought to be admissible on the question of whether D may
have made the mistake alleged, giving rise to a defence, if the offence

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 272 DEFENCES

allegedly committed by D is a specific intent offence, but not if basic intent,

or, applying Caldwell, if intention and not merely recklessness must be
proved, or if the intoxicating substance is a sedative or other non-dangerous
drug (unless D was reckless in taking the drug).
Present authority based on the decision of the English Court of Appeal
in O’Grady has taken a contrary view, wholly excluding reliance on an
intoxicated mistake to found a defence, regardless of the offence.

O’Grady [1987] QB 995

Facts
O’Grady was charged with the murder of a male friend. O accepted
that he had killed the deceased, but adduced evidence that he had
gotten into a drunken fight with the deceased and, mistakenly believing
that he was in danger, fatally struck the deceased.
At trial, the jury were directed that O’s intoxicated mistaken belief
was relevant to murder, but not to manslaughter, whereupon O was
convicted of manslaughter. O appealed, contending that Williams
(Gladstone) ([1987] 3 All ER 411) obliged the jury to take his mistaken
beliefs both as to whether there was an attack and also as to the severity
of the attack into account in deciding whether he acted in lawful self-
defence, even if the mistake was made because of his drunken state.

Decision
Appeal dismissed. On the question of whether O could rely on his
drunken mistake, Lord Lane CJ, delivering the judgment of the Court,
concluded (at 999):

We have come to the conclusion that where the jury are satisfied
that the defendant was mistaken in his belief that any force or the
force which he in fact used was necessary to defend himself and
are further satisfied that the mistake was caused by voluntarily
induced intoxication, the defence must fail. We do not consider
that any distinction should be drawn on this aspect of the matter
between offences involving what are called specific intent, such
as murder and offences of so called basic intent, such as
manslaughter … and (at 1001). [W]e have therefore come to the
conclusion that a defendant is not entitled to rely, so far as self-
defence is concerned, upon a mistake of fact which has been
induced by voluntary intoxication [emphasis added].

In relation to manslaughter, a basic intent offence, this is

uncontroversial: voluntary intoxication would not be admissible in evidence

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 CAPACITY AND INCAPACITATING CONDITIONS 273

to negate liability for manslaughter, nor, applying O’Grady, would D be

entitled to rely on self-defence founded upon an intoxicated mistake.
However, Lord Lane CJ in the above passage suggested that this would
also apply for specific intent offences, such as murder (and that the trial
judge’s direction was in effect too favourable to D). This is difficult to
understand. Not only was it unnecessary to the actual decision, but it creates
anomalous results. If D asserts that he never formed the requisite intention
to kill or cause grievous bodily harm for murder, D would be entitled to
support this assertion with evidence of voluntary intoxication and, unless
intention is proved beyond reasonable doubt, must be acquitted of murder,
though he will be convicted instead of the underlying ‘basic intent’ offence
of manslaughter. Why then should it be, as Lord Lane CJ asserts, that if D
accepts that he intended to cause grievous bodily harm but only because of
his mistaken belief (caused by intoxication) that the deceased was trying
to kill him, D may not rely at all on this mistake to found self-defence and
avoid liability for murder? Perhaps Lord Lane CJ was concerned that the
law would be unworkable if the jury were entitled to hear about and consider
D’s intoxicated belief in assessing D’s assertion of self-defence on a charge
of murder, but then exclude the same evidence from their minds in assessing
D’s liability for manslaughter. One response to this arguably lies in the
view that mens rea becomes irrelevant and need not be proved in relation
to a basic intent offence once evidence of D’s intoxication is adduced.
According to Williams (Gladstone) ([1987] 3 All ER 411), an assertion of
self-defence based on a mistake effectively involves a denial that D intended
to use ‘unlawful’ force, an aspect of mens rea in offences against the person.
If D adduces evidence that he made a mistake because he was intoxicated,
then this relieves the prosecution of the burden of proving mens rea; the
jury need decide only whether D’s conduct caused the victim’s death.
Anomalous or not, Lord Lane CJ’s view was subsequently adopted by
the English Court of Appeal in O’Connor ([1991] Crim LR 135): D could
adduce evidence of voluntary intoxication to negate the mens rea of murder,
but could not rely on a mistaken belief resulting from that state of
intoxication to raise self-defence as a defence to murder (see also Richardson
& Irwin [1999] Crim LR 494: intoxicated mistaken belief that victim had
consented to horseplay resulting in injury to victim — D liable if ‘would
have realised no consent had he not been drinking’).
The approach in O’Grady is to be contrasted with that in Jaggard v
Dickenson ([1981] QB 527), in which it was held that for the purposes of
the basic intent offence of criminal damage (contrary to section 60(1) of
the Crimes Ordinance; UK: section 1(1) of the Criminal Damage Act 1971),

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 274 DEFENCES

D may rely on an intoxicated mistaken belief — for example, that the

owner of property would consent to damage being done to his or her
property — to establish a ‘lawful excuse’ under section 64(2) of the Crimes
Ordinance (UK: section 5(2) of the Criminal Damage Act 1971). The
Divisional Court concluded that this was the only interpretation consistent
with section 5(3) of the Criminal Damage Act 1971 (section 64(3) of the
Crimes Ordinance) which reads: ‘For the purpose of this section, it is
immaterial whether a belief is justified or not if it is honestly held’. Mustill J
stated (at 532):

Parliament has specifically isolated one subjective element, in the shape

of honest belief, and has given it separate treatment in its own special
gloss in section 5(3). This being so, there is nothing objectionable in
giving it special treatment as regards drunkenness in accordance with
the natural meaning of its words.

This also creates a somewhat anomalous situation. If D honestly, but

drunkenly, believes the owner would consent to the property damage done
by D, D may rely on this as giving rise to a ‘lawful excuse’. However, if D
honestly, but drunkenly, believes that the property is his or her own, this
would neither provide D with a ‘lawful excuse’ within the meaning of the
statutory provisions, nor, applying the general rules regarding voluntary
intoxication, provide a basis for challenging mens rea.
O’Grady and Jaggard v Dickenson must also be contrasted with the law
relating to rape. In Morgan ([1976] AC 182), the House of Lords held that
a defendant cannot be convicted of rape if he may have honestly, though
unreasonably, believed that the woman consented to sexual intercourse.
The reasonableness or otherwise of his belief is relevant only as evidence
in assessing whether D did honestly believe in the existence of consent.
When rape was codified in 1978 (section 118 of the Crimes Ordinance,
following section 1 of the Sexual Offences (Amendment) Act 1976 (UK)),
this common law rule was expressly adopted in section 118(4) of the Crimes
Ordinance, which reads:

It is hereby declared that if at trial for a rape offence the jury has to
consider whether a man believed that a woman was consenting to
sexual intercourse, the presence or absence of reasonable grounds for
such a belief is a matter to which the jury is to have regard, in
conjunction with any other relevant matters, in considering whether
he so believes.

It has been held that voluntary intoxication is not a ‘relevant matter’

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 CAPACITY AND INCAPACITATING CONDITIONS 275

within the meaning of section 118(4), and that a mistaken belief in consent
resulting from D’s voluntary intoxication cannot be relied upon to negate
mens rea (Woods (1982) 74 Crim App R 312, at 314, per Griffiths LJ; see
also Fortheringham (1989) 88 Crim App R 206).

Intoxication and ‘Dutch Courage’

If D forms the intention to commit a particular ‘specific intent’ offence,

such as murdering X, and then makes himself or herself intoxicated to
lessen his or her inhibitions and gain the ‘courage’ to carry out his or her
intentions, D will not be entitled to rely on his or her intoxication to negate
mens rea in the event that D actually commits the offence. This rule was
adopted in Attorney General for Northern Ireland v Gallagher ([1963] AC
349) in which G was convicted of murdering his wife. The Lords rejected
G’s defence that he was either insane or intoxicated at the time of the
killing, there being evidence that he had formed the necessary intention to
kill his wife and had purchased a knife at an earlier stage. Lord Denning,
differing slightly from the other Lords in his analysis of the case, stated
(at 382):

If a man, whilst sane and sober, forms an intention to kill and makes
preparation for it, knowing that it is a wrong thing to do, and then
gets himself drunk so as to give himself Dutch Courage to do the
killing, and whilst drunk carries out his intention, he cannot rely on
this self-induced drunkenness as a defence to a charge of murder, nor
even as reducing it to manslaughter. He cannot say that he got himself
into such a stupid state that he was incapable of an intent to kill … .
The wickedness of his mind before he got drunk is enough to condemn
him, coupled with the act which he intended to do and did do.

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