a. “in charge of a motor vehicle”
Let’s consider this hypothetical situation: your friend parked a car at the roadside, gave you the car key and asked you to keep an eye on it for a few minutes; well, it’s true that you just had a few glasses of whisky and you might be at that moment arguably in charge of that car; but why should you be criminally liable simply for being in charge of a stationary vehicle?
Section 39(4) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) may come to your rescue. It provides that “A person is deemed not to have been in charge of a motor vehicle if he proves that at the material time the circumstances were such that there was no likelihood of his driving the motor vehicle so long as he remained under the influence of drink or drugs to such an extent as to be incapable of having proper control of the motor vehicle”.
Sections 39J(8) and 39L(7) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) contain similar provisions which endorse the defence of “no likelihood” of driving under the influence of “specified illicit drug” and “non-specified drug” respectively.
But well, in the above hypothetical situation, given the fact that you have the car key with you, you may have to provide more circumstantial evidence to show that there is no likelihood of you driving the car.
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