Careless driving is unfortunately a common offence in Hong Kong. This article will discuss three topics: (i) what constitutes careless driving; (ii) proving / disproving careless driving; and (iii) consequences of careless driving.
What constitutes careless driving?
Careless driving is a criminal offence under s.38 of Cap. 374 (Road Traffic Ordinance). According to this section, a person drives carelessly if “on a road he drives a vehicle without due care and attention or without reasonable consideration for other persons using the road”.
What is “without due care and attention”?
The test for whether the driver drove “without due care and attention” is whether the defendant exercised the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances of the case.
The standard of care and attention of a “reasonable and prudent driver” is an objective standard. That means the same standard applies to all defendants, regardless of their driving skill and experience. If the driver was in fact exercising the degree of care and attention that a reasonable and prudent driver would exercise, then he or she would not be convicted.
“Without reasonable consideration for other persons using the road”
Note that this section is only relevant if other persons using the road are actually affected. The phrase “other persons using the road” can include passengers in a vehicle driven by the defendant. Note that there does not need to be damage or injury caused for this section to apply.
Proving / disproving careless driving in court
Based on the facts of the case, the court could draw the irresistible inference that, without reasonable explanation, the driver must have been careless. Some examples where an inference of careless driving has been drawn in the absence of a reasonable explanation:
- A vehicle hit a pedestrian who was crossing the road
- A vehicle crossed the center line and led to an accident
- The driver lost control of the vehicle and it resulted in a collision with another vehicle
As such, if there is some evidence of carelessness, the driver should be ready to provide an explanation to show that his or her driving was not careless.
According to section 109 of Road Traffic Ordinance, a driver’s violation of the Road User’s Code may be relied upon by the prosecution as tending to establish liability in a criminal proceeding (such as in a proceeding that involves careless driving). However, note that violating the code does not of itself render that person liable to criminal proceedings.
Consequences of careless driving
According to section 38(1) of the Road Traffic Ordinance, the maximum sentence of careless driving is 6 months of imprisonment and a $5000 fine. According to section 69(1) of the same ordinance, the court can also disqualify the driver for any period as it thinks fit.
If the careless driving did not lead to death or serious injury, the court will usually impose a monetary fine, and will not imprison or disqualify the defendant.
It should also be noted that if the careless driving led to damage or personal injury, the driver may bear civil liability aside from criminal liability.
