According to Section 38(2) of the Road Traffic Ordinance (Cap. 374 of the Laws of Hong Kong), "Any person who drives a vehicle on a road without due care and attention or without reasonable consideration for other persons using the road" is guilty of careless driving.
"Without due care and attention"
The court will consider:
Did the driver demonstrate the care and attention expected of a reasonable and prudent driver under the circumstances?
What is "reasonable"?
The court will handle this question from an objective perspective. For example, from an objective standpoint, it can be almost certainly said that running a red light does not meet the standard expected of a reasonable and prudent driver. Personal and non-objective factors, such as the driver's driving experience or their mood at the time, will not be considered. Therefore, even if the "Student" only holds a learner's driving license and has insufficient driving experience, they can still be charged with careless driving or a more serious offense. The "any person" in the ordinance also includes driving instructors. During driving lessons, instructors should demonstrate due care and attention.
"Without reasonable consideration for other persons using the road"
This applies only in situations where other road users are affected. However, injury or property damage is not a necessary element of this charge.
How to prove careless driving?
The court must properly consider all relevant facts and circumstances and obtain evidence of careless driving before convicting the driver.
Of course, anyone facing criminal charges has the right to remain silent. However, if the case shows basic evidence of carelessness, and the person charged with careless driving has a reasonable explanation for the accident, they should present their explanation to the court and provide relevant evidence to prove they were not careless. Otherwise, the court will likely infer careless driving.
Examples of careless driving:
Not maintaining a safe stopping distance and rear-ending
Reversing without proper observation
Unsafe overtaking
Hitting a pedestrian
Sentencing:
According to Section 38 of the Road Traffic Ordinance (Cap. 374), the maximum penalty for careless driving is a fine of HK$5,000 and imprisonment for 6 months. The court may also disqualify the person convicted of careless driving from driving under Section 69(1) of the same ordinance, with the court deciding the appropriate disqualification period. Generally, if the incident did not result in casualties, the court usually imposes a fine rather than imprisonment or disqualification. However, if careless driving leads to casualties, the court will not hesitate to impose the maximum (or near maximum) imprisonment sentence.
Example: Instructor's momentary distraction, learner driver kills pedestrian:
A 70-year-old driving instructor was teaching a "Student" to drive on a light goods vehicle. When the instructor's phone rang, he took it out to check. At this moment, a male pedestrian suddenly appeared on the road, and the vehicle couldn't brake in time and hit him. The male pedestrian suffered severe head injuries and died after three days. The "Student" and the instructor both pleaded guilty to one count of careless driving in Tsuen Wan Magistrates' Court.
The light goods vehicle was only half a meter away from the deceased. The student Defendant Li Kwong-wa (25 years old) was driving a light goods vehicle with the driving instructor Defendant Kam Ping-kwong (72 years old) for a lesson. When driving on Sheung Kok Street opposite to Tsz Kwai House in Kwai Chung Estate, they hit a pedestrian, Ng Yiu-kwong (60 years old), who was walking from the sidewalk onto the road. Ng was rushed to Princess Margaret Hospital by an ambulance for emergency treatment but died of his injuries three days later.
The student told the police that he was driving uphill at a speed of 15 to 20 kilometers per hour when Ng suddenly appeared, making it impossible for him to stop in time. The driving instructor said that when passing the scene, his phone rang, so he took it out to check. Ng suddenly appeared when the vehicle was only half a meter away from him. Even though they slammed on the brakes, they still hit Ng. The case was adjourned for sentencing, and both defendants were granted continued bail.
Li Yiu-pui, President of the Hong Kong Automobile Industry Association, stated that Students lack experience and have poor on-the-spot judgment. In case of emergencies during driving lessons, the brake pedal of the instructor can be very useful. The Transport Department stipulates that driving instructors must not use mobile phones while teaching. As for drivers over 70 years old, they can continue driving as long as they are certified medically fit by a doctor. The magistrate noted that the incident resulting in a death is typically an aggravating factor for sentencing. However, considering that both defendants pleaded guilty and their reports were positive, the magistrate sentenced each of them to 150 hours of community service order and a suspension of driving license for six months.
Case number: TWCC 3136/13
August 2024
Dr. Anthony Lai and Mr. Herbert Kwoon
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