Apart from the continuous efforts by the government to increase the awareness of drivers, Road Traffic Ordinance (Chapter 374) (“RTO”) was recently amended in order to combat drug driving more effectively in Hong Kong. This article aims to discuss the legal issues involving drug driving.   Offences on drug driving The Road Traffic (Amendment) Ordinance 2011 commenced on 15th March 2012 and the following offences on drug driving were introduced in RTO. 1.          Under Section 39K of RTO, a person who drives, attempts to drive or is in charge of a motor vehicle with any concentration of a specified illicit drug present in his blood or urine commits an offence, whether or not his driving ability is impaired.   2.          Under Section 39J of RTO, a person who drives, attempts to drive or is in charge of a motor vehicle under the influence of any specified illicit drugs to such an extent of being incapable of having proper control of the motor vehicle commits an offence.   3.          Under Section 39L of RTO, a person who drives, attempts to drive or is in charge of a motor vehicle under the influence of drugs other than the specified illicit drugs to such an extent of being incapable of having proper control of the motor vehicle commits an offence.   In Schedule 1A of RTO, the specified illicit drugs include heroin, cocaine, cannabis, ketamine (commonly called “K”), methamphetamine (commonly called “ice”) and MDMA (commonly called “ecstasy”). Unlike drink driving, there is no prescribed limit on the concentration of the drugs.  It is significant to note that under Section 39K of RTO, a driver commits an offence with any concentration of specified illicit drug and it is not necessary to prove the influence of such specified illicit drug on his driving ability.  According to Sections 39J and 39L of RTO, a driver is under the influence of a specified illicit drug or non-specified drug to such an extent as to be incapable of having proper control of the motor vehicle if (a) the driver’s ability to drive properly is for the time being impaired; and (b) the concentration of the specified illicit drug or non-specified drug present in the driver’s blood or urine would usually result in a driver being unable to drive properly. Police Enforcement The new amendments to RTO also empower police officers to conduct preliminary drug tests (including drug influence recognition observation, impairment test and rapid oral fluid test) on drivers who are suspected of driving under the influence of drugs. It is an offence if the driver fails to undergo preliminary drugs tests or fails to provide specimens of blood and/or urine for analysis without reasonable excuse. The police may also require a driver to surrender his driving licence for 24 hours if (a) the driver fails to undergo the preliminary drug tests or fails to provide specimen of blood and/or urine for analysis without reasonable excuse; or (b) the driver are assessed with driving impairment after the preliminary drug tests. Defence It is a defence for a person charged with Section 39K of RTO if the specified illicit drug taken are prescribed, administered or supplied by a healthcare professional. For Sections 39J and 39L of RTO, it is a defence if (a) the drug taken is lawfully obtained; (b) the drug is used in accordance with the advice given by healthcare professional or instructions of the drug manufacturer; and (c) the driver did not know or could not reasonably have known that the drug taken would render the driver incapable of having proper control of a motor vehicle. Civil liability and insurance consequences In addition to committing an offence under RTO and facing criminal prosecution, a person who drives under the influence of drugs will be liable to pay damages in respect of death of or bodily injury to any victim and damage to property where such death, injury or damage arises out of an accident caused by drug driving.  It is common to find a “drug driving” exclusion clause in motor vehicle insurance policy, which operates to exclude the insurers’ responsibility to provide indemnity in the event the vehicle is driven by person under the influence of drugs.  Therefore, in the event of drug driving, even if the insurers are still obliged by law to pay the victims in the traffic accident, the insurers can take action to recover all the money they had paid the victims (including all damages and legal costs) from the driver. Conclusion Similar to drink driving, drug driving can cause dire consequences.  A person should avoid taking drugs before driving. If taking drugs cannot be avoided, the driver should make sure that the drugs taken does not impair his driving ability and should consult healthcare professionals if in doubt.

IMPORTANT: The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

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Ray Lee Partner, Head of Insurance & Personal Injury T: (852) 2107 0355 E: ray.lee@onc.hk

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Published by ONC Lawyers © 2012