OVERVIEW
In Hong Kong, drink driving is a serious criminal offense governed primarily by Sections 39, 39A, 39B, and 39C of the Road Traffic Ordinance (Cap. 374). The law targets both driving over a specific legal limit and driving while physically impaired by alcohol, carrying mandatory disqualification periods and potential prison terms upon conviction.
STATUTORY PROVISIONS
Sections 39, 39A and 39J of the Road Traffic Ordinance (Cap. 374)
The relevant part of the current statutory provision states:
“A person who drives or attempts to drive, or is in charge of, a motor vehicle on any road while the proportion of alcohol in his breath, blood or urine exceeds the prescribed limit commits an offence.”
STATUTORY THRESHOLDS
Alcohol Limits
The prescribed limit is 22 micrograms of alcohol per 100 millilitres of breath, 50 milligrams per 100 millilitres of blood, or 67 milligrams per 100 millilitres of urine. The three statutory penalty tiers are:
Alcohol Concentration Tiers
Above the prescribed limit but below 35 micrograms / 80 milligrams / 107 milligrams
35 to below 66 micrograms / 80 to below 150 milligrams / 107 to below 201 milligrams
66 micrograms / 150 milligrams / 201 milligrams or above
SECTION 39B
Random Breath Tests
Under section 39B of the Road Traffic Ordinance (Cap. 374), a police officer in uniform may require a person who is driving, attempting to drive or in charge of a motor vehicle to provide a breath specimen for a screening breath test. The power permits random testing without any accident or prior suspicion of drink driving.
Police may conduct random breath tests at roadblocks or during other traffic-enforcement checks. A screening test may also be required where a driver has been involved in a traffic accident, committed a moving traffic offence or is suspected of drink driving.
If the screening result indicates that the prescribed limit may have been exceeded, the driver may be required to provide an evidential breath specimen, or a specimen of blood or urine, for analysis. Failing to provide the required screening specimen without reasonable excuse is itself an offence.
SECTIONS 39B AND 39C
Failing to Provide a Specimen
The Road Traffic Ordinance creates separate offences for failing to cooperate with the preliminary screening process and the later evidential-analysis process. In each case, the prosecution must establish that a lawful requirement was made and that the person failed to comply without reasonable excuse.
- Section 39B(6)—screening breath test: A person commits an offence if, without reasonable excuse, they fail to provide a breath specimen when required for a screening breath test under section 39B. The specimen must be sufficient to enable the test to be carried out and must be provided in a way that allows the test's objective to be satisfactorily achieved.
- Section 39C(15)—evidential analysis or laboratory test: A person commits an offence if, without reasonable excuse, they fail to provide a breath specimen for analysis, fail to provide a blood or urine specimen for laboratory testing, or fail to consent to the laboratory testing of a blood specimen when lawfully required under section 39C.
- The police must give the applicable statutory warning that failure to provide the required specimen may render the person liable to prosecution. Whether a claimed medical or other reason amounts to a reasonable excuse depends on the evidence and circumstances.
- In HKSAR v Ng Kit Lung, HCMA 128/2024, the appellant failed on three attempts to provide sufficient evidential breath specimens and pleaded guilty under sections 39C(1)(a) and 39C(15). In his appeal against sentence, the Court retained a two-week imprisonment term but suspended it for two years. The two-year disqualification and driving-improvement-course order remained in place. The court stressed that immediate custody is not automatic and that sentence depends on the proved circumstances and culpability.
- In Secretary for Justice v Amina Mariam Bokhary CAAR 10/2010, the Court of Appeal confirmed that failure to provide a screening breath specimen is a serious offence but held that immediate imprisonment is not the inevitable sentence in every case. The appropriate sentence depends on the circumstances of the individual case.
DISQUALIFICATION FRAMEWORK
The 3-Tier Penalty System
The applicable alcohol tier determines the statutory minimum period of driving disqualification. A previous conviction for a drink-driving-related offence can cause the later conviction to be treated as a second or subsequent conviction regardless of the alcohol tier involved previously.
Minimum Driving Disqualification
6 months
2 years
1 year
3 years
2 years
5 years
DRIVING IMPROVEMENT COURSE
Mandatory Driving Improvement Course
Under section 72A(1A) of the Road Traffic Ordinance (Cap. 374), a person convicted of a specified serious traffic offence, including a drink-driving-related offence, must be ordered to attend and complete a driving improvement course at their own cost.
Where the course requirement applies, the driver remains disqualified until both the applicable minimum disqualification period has expired and the course has been completed. Completion is therefore required before the driving licence can be issued, reissued or renewed.
Maximum Penalty
Maximum Penalty
- For the drink-driving offences addressed by sections 39 and 39A of the Road Traffic Ordinance (Cap. 374), the maximum penalty is a fine of HK$25,000 and imprisonment for 3 years.
- Disqualification: For excess-alcohol offences, the minimum disqualification on a first conviction is 6 months at Tier 1, 1 year at Tier 2 and 2 years at Tier 3; for a second or subsequent conviction it is 2 years, 3 years and 5 years respectively. Driving while incapable of proper control, and specified failures to provide a specimen without reasonable excuse, are treated at Tier 3 for minimum-disqualification purposes. Completion of a driving improvement course is mandatory.
- Driving-offence Points: A conviction incurs 10 driving-offence points. Please see the Transport Department's official points table.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.