c. Driving motor vehicle without proper control under the influence of drug other than specific illicit drug (s.39L of the Road Traffic Ordinance (Cap. 374))

c. Driving motor vehicle without proper control under the influence of drug other than specific illicit drug (s.39L 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 under the influence of a drug other than illicit drug specified in Schedule 1A of the Road Traffic Ordinance to such an extent as to be incapable of having proper control of the motor vehicle.  Those specified illicit drugs are heroin, ketamine, methamphetamine, cannabis, cocaine, and ecstasy (MDMA).  

If the circumstances at the material time were such that there was no likelihood of the accused driving the motor vehicle so long as he remained under the influence of the non-specified drug to such an extent as to be incapable of having proper control of the motor vehicle, 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. 

A person is considered to be under the influence of a non-specified drug to such an extent as to be incapable of having proper control of the motor vehicle if his ability to drive properly is for the time being impaired and the concentration of the non-specified drug present in his blood or urine would usually result in a person being unable to drive properly.  This is usually proved by the accused’s manner of driving, his physical condition, the report of any a doctor having conducted an examination on the accused, or by the written opinion of an authorised police officer having carried out an Impairment Test on the accused. 

It is a defence to this offence if the accused can prove that the non-specified drug present in his blood or urine was: 

1. prescribed for, administered, or supplied to him by a medical practitioner, registered dentist, registered Chinese medicine practitioner, registered pharmacist, or someone acting under their direction or supervision;  
2. a pharmaceutical product that is registered under the Pharmacy and Poisons Regulations (Cap. 138A) that did not require a prescription for its sale; or  
3. a proprietary Chinese medicine as defined and registered under the Chinese Medicine Ordinance (Cap. 549); 

and he did not know, and could not reasonably have known, that the lawfully obtained non-specified 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 non-specified 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, 39K, 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 6 months.  On subsequent conviction, the disqualification period is not less than 2 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.