b. Disqualification

b. Disqualification

Sections 39, 39A, 39B and 39C of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) make it mandatory for the Court to disqualify an offending driver from driving for a certain period of time. 

The disqualification period for offences under section 39 (driving a motor vehicle under the influence of drinks or drugs), section 39B (failing to provide a specimen of breath for a screening breath test) and section 39C (failure to provide a specimen for analysis or laboratory test) are the same, being:

• disqualification for at least 2 years for a first conviction and for at least 5 years for a subsequent conviction under any of sections 39, 39A, 39B and 39C.

The disqualification period for the section 39A offence (i.e. driving a motor vehicle with an alcohol concentration above prescribed limit) is a bit complicated. In 2010, a 3-tier system was introduced to correlate the disqualification period with the alcohol level found in the offender. Section 39A(1A) specifies that the proportion of alcohol in a person’s breath, blood or urine be:

1. tier 1 if it exceeds the prescribed limit but is less than-
   1. for breath, 35 micrograms of alcohol in 100 millilitres of breath;
   2. for blood, 80 milligrams of alcohol in 100 millilitres of blood; or
   3. for urine, 107 milligrams of alcohol in 100 millilitres of urine;
2. tier 2 if it exceeds tier 1 but is less than-
   1. for breath, 66 micrograms of alcohol in 100 millilitres of breath;
   2. for blood, 150 milligrams of alcohol in 100 millilitres of blood; or
   3. for urine, 201 milligrams of alcohol in 100 millilitres of urine;
3. tier 3 if it exceeds tier 2.

Section 39A(2A) further provides that the period for which an offender is to be disqualified will be:

1. for a first conviction, a period of not less than-
   1. 6 months if the proportion of alcohol in the person’s breath, blood or urine is tier 1;
   2. 12 months if the proportion of alcohol in the person’s breath, blood or urine is tier 2;
   3. 2 years if the proportion of alcohol in the person’s breath, blood or urine is tier 3; and
2. for a second or subsequent conviction (regardless of the proportion of alcohol in the person’s breath, blood or urine on any previous conviction), or a conviction subsequent to a conviction under section 39, 39B or 39C, a period of not less than-
   1. 2 years if the proportion of alcohol in the person’s breath, blood or urine is tier 1;
   2. 3 years if the proportion of alcohol in the person’s breath, blood or urine is tier 2;
   3. 5 years if the proportion of alcohol in the person’s breath, blood or urine is tier 3.

For drug-related driving offences, the law takes a more serious approach in terms of the disqualification period:

• section 39J (i.e. driving motor vehicle without proper control under influence of specific illicit drug): disqualification for at least 5 years for a first conviction and for at least 10 years for a subsequent conviction; and if the accused has been convicted for the same offence previously, the Court may even disqualify him for life.
• section 39K (i.e. driving motor vehicle with any concentration of specified illicit drug): disqualification for at least 2 years for a first conviction and for at least 5 years for a subsequent conviction.
• section 39L (i.e. driving motor vehicle without proper control under influence of drug other than specific illicit drug): disqualification for at least 6 months for a first conviction and for at least 2 years for a subsequent conviction.
• section 39O (i.e. failure to undergo preliminary drug test): disqualification for at least 5 years for a first conviction and for at least 10 years for a subsequent conviction.
• section 39S (i.e. failure to provide specimen of blood or urine or failure to give the necessary consent to provide the specimen for test of drug): disqualification for at least 5 years for a first conviction and for at least 10 years for a subsequent conviction.