The law governing intoxication and criminal liablity in Malaysia are found in Se

ction 85 and 86 of the Penal Code.

Two preliminary points need to be noted about these two provisions. First, secti
on 85 and 86 are found in that portion
of the Penal Code entitled "General Defences." This fact is reinforced by the wo
rdings in the section themselves
which is "except as provided by these section intoxication cannot operate as a d
efence to any criminal charge."
Therefore, the succesful raising on intoxication would absolve the accused of th
e offence(s) of which he or she
is charged with and he or she should be acquitted. Secondly, the present Section
85 and Section 86 based on the English
Law as to drunkness.
Generally, subject to the qualifications set out in the both section of 85 and 8
6 of the Penal Code,
both voluntarily and involuntarily intoxication may absolve the accused from any
criminal liability.
Voluntarily intoxication is recognised for this purpose under paragraph (b) of S
ection 85 (2) and sub-section (2) of Section 86.
On the other hand, involuntarily intoxication is covered under Section 85 (2) (a
) of the Penal Code.
If we look into Section 107 of the Evidence Act, the legal burden proving the ex
istence of circumstances
exempting criminal liablity will fall on the accused raising the defence of into
xication.
The standard of proof required is on a balance of probabilities.
In principle, by reading Section 86 (2) together with Section 299 and Section 30
0 of the Penal Code, it would
appear that the defence of intoxication operates a a complete defence and not as
a mitigating factor of punishment.
However, there are two local decisions in Tan Hung Song v R [1951] MLJ 181
and in the case of Suba Singh v Public Prosecutor [1962] MLJ 122, where both the
courts regarded intoxication only as mitigating
factor, not as a complete defence, reducing the verdict of murder under Section
300 to one of culpable homicide
not amounting to murder under Section 299 of the Penal Code.
This observation of the court seems to suggest that the intoxication
would have negatived the mens rea of intention in Section 300. Thus, there shoul
d have been an acquittal under Section 86 (2)
unless of course one admits the possible interpretation that whilst the intoxica
tion negatived the intention required
in Section 300, it did not the same thing with the lesser degree of intention re
quired under Section 299 of the Penal Code.
Furthermore, if the case fall under voluntary intoxication as section 85 (2) (a)
, the accused shall be acquitted as what provided under Section 86 (1).
However, if the case fall under involuntary intoxication as Section 85 (2) (b),
the accused shall be ordered as a person of unsound mind as under Section 84.
Plus, the person of unsound mind could be could be acquitall on the ground of me
ntal disorder or convicted and put in a safe custody.