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.
In Hong Kong, “drink driving” is a criminal offence under the Road Traffic Ordinance (Cap. 374). A person commits an offence and is liable if he or she drives or attempts to drive or is in charge of a motor vehicle on any road while he is under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle. It is also a separate offence to, without reasonable excuse, fail or refuse to provide a specimen of breath, blood or urine when required by a police officer.
Prescribed limit
Exceeding any one of the following amounts constitutes “exceeding the prescribed limit”:
- Breath: not less than 22 micrograms of alcohol in 100 millilitres of breath (≥ 22 μg/100 mL breath);
- Blood: not less than 50 milligrams of alcohol in 100 millilitres of blood (≥ 50 mg/100 mL blood);
- Urine: not less than 67 milligrams of alcohol in 100 millilitres of urine (≥ 67 mg/100 mL urine).
When may the police require tests?
If you are involved in a traffic accident (whether you are at fault), commit a moving traffic offence, or are reasonably suspected of drink driving, a police officer may require you to undergo a roadside preliminary breath test. If the screening indicates you may be over the limit, you may be required to provide an evidential specimen of breath for analysis on an approved instrument, or a specimen of blood or urine for laboratory analysis. Failing or refusing to provide a specimen without reasonable excuse is itself a separate offence. The relevant powers and duties are set out in sections 39B and 39C of Cap. 374.
Common prosecution routes (overview)
- Driving, attempting to drive, or being in charge of a motor vehicle while exceeding the prescribed limit (sections 39 and 39A);
- Driving while under the influence of drink to such an extent as to be incapable of having proper control of the vehicle;
- Failing or refusing without reasonable excuse to provide a specimen (sections 39B and 39C).
Penalties and disqualification (three-tier system)
- Maximum penalty: a fine of up to HK$25,000 and imprisonment for 3 years. The court must also order mandatory disqualification, direct the offender to attend a Driving Improvement Course, and 10 points will be recorded under the Driving-offence Points System.
- Minimum disqualification periods are tiered by alcohol level (first offence / repeat offence):
- Tier 1: 22 to < 35 μg/100 mL breath (equivalents apply) → 6 months / 2 years;
- Tier 2: ≥ Tier 1 and < 66 μg/100 mL breath → 1 year / 3 years;
- Tier 3: ≥ 66 μg/100 mL breath → 2 years / 5 years.
Refusing to provide a specimen, or being “under the influence to such an extent as to be incapable of having proper control,” attracts a minimum disqualification period at Tier 3.
Points commonly overlooked
- “Not actually driving” still counts: even if the vehicle is not moving, a person on a road who is in charge of the vehicle and at or above the prescribed limit may be prosecuted.
- “No test, no case?”: refusing to provide a specimen without reasonable excuse is a distinct offence, and disqualification is treated as Tier 3.
Summary
In summary, while Hong Kong law prescribes clear limits, testing procedures and mandatory disqualification for drink driving, the safest and lawful course remains “don’t drink and drive,” and seek timely legal advice where needed.
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