b. Driving motor vehicle with any concentration of specified illicit drug (section 39K of the Road Traffic Ordinance (Cap. 374))

b. Driving motor vehicle with any concentration of specified illicit drug (section 39K of the Road Traffic Ordinance (Cap. 374))

It is an offence to drive, attempt to drive, or in charge of a motor vehicle on any road while any concentration of illicit drugs specified in Schedule 1A of the Road Traffic Ordinance is present in the offender’s blood or urine.  These specified illicit drugs are heroin, ketamine, methamphetamine, cannabis, cocaine, and ecstasy (MDMA).  

Under section 39K(8) of the Ordinance, if the circumstances at the material time were such that there was no likelihood of the accused driving the motor vehicle so long as any concentration of a specified illicit drug was present in his blood or urine, he is taken not to have been in charge of a motor vehicle.   For example, a person is asleep in the motor vehicle but the ignition key was in the safe-keeping of someone else, or the circumstances was that it was clear that the accused would not be driving.  This defence usually applies to the “being in charge of a motor vehicle” limb of the offence. 

It is a defence to this offence if the accused can prove that the specified illicit drug present in his blood or urine was prescribed for, administered, or supplied to him by a medical practitioner, registered dentist, registered pharmacist, or someone acting under their direction or supervision, that he did not know and could not reasonably have known that the lawfully obtained specified illicit drug would render him incapable of having proper control of a motor vehicle if taken in accordance with advice, and that he had consumed the drug in accordance with the advice. 

Sentencing 

The maximum penalty is a fine of $25,000 and imprisonment for 3 years if tried on an indictment.  On a summary conviction, the maximum sentence is a fine of $10,000 and imprisonment for 6 months on first offence, and a fine of $25,000 and imprisonment for 12 months on subsequent offences. 

If 5 years have passed since the last conviction for the same offence, or an offence under section 39J, 39L, 39O(1) (failure to undergo preliminary drug test), or 39S (failure to provide specimen of blood or urine), the court may deal with the offence as if it is a first offence. 

There is a mandatory disqualification from driving upon conviction for this offence.  On first conviction, the disqualification period is not less than 2 years.  On subsequent conviction, the disqualification period is not less than 5 years. The court may order a shorter period of disqualification if there are special reasons. Special reasons must be special to the facts constituting the particular case, amounting to mitigating or extenuating circumstances not providing a defence to the charge but directly connected with the commission of the offence that the court should properly take into consideration when imposing punishment.  Circumstances peculiar to the offender is not a special reason. 

Usually, the court will order that the offender complete a driving improvement course at his own cost before he can drive again.