Common Traffic Offences
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Common Traffic Offences



I. Driving

Defendants in most traffic offences are caught while driving vehicles.  But what exactly is “driving”?  What constitutes “driving” may look plain and obvious.  However, there are in fact many Court cases where defendants facing driving offences have tried to argue that they were not driving at the material time.  Consider the following scenarios:

  • Pushing and steering a vehicle?
  • Pushing without steering a vehicle?
  • Leaving a vehicle, with its engine running?
  • Sitting at the driver’s seat of a vehicle, with its engine off? 
  • Releasing the handbrake of a vehicle and let it go downhill?
  • Sitting in the driver’s seat of a vehicle while it was being towed?
  • Controlling a vehicle that was stuck in a traffic jam and motionless at the time?

Are the above acts “driving”?  There is no statutory definition of the word “driving”; and there is no fixed rule governing what constitutes the act of “driving”.  Each of the above scenarios will have to be considered in the light of its factual circumstances before one can decide whether or not there is “driving”. 

Generally speaking, the basic principles of what constitutes “driving” are: driving involves the driver having control over the movement of a vehicle, and driving happens when the driver deliberately sets the vehicle in motion. 

The following examples may serve to highlight the Court’s attitude towards what constitutes “driving”.

  • Pushing a vehicle with occasional adjustment of the steering wheel was not driving.
  • Pushing and steering a motorcycle was driving.
  • Temporarily leaving a vehicle with its engine running amounts to driving because driving is a continuous act.
  • A person in the driving seat of a vehicle, with its engine off but still warm, had driven the vehicle.  A conviction of driving while disqualified was therefore justified.
  • A person sitting in the driver seat of a stationary vehicle, with its engine running, was not driving, though he accidentally stepped on the accelerator and made the vehicle move forward.
  • Releasing the handbrake of a vehicle and letting it go downhill amounts to driving.
  • Sitting at the driver’s seat of a vehicle while it was being towed amounts to driving.
  • A driver controlling a stationary vehicle in a traffic jam was driving.

(However, it should be noted that the Court decides each case on its unique factual circumstances.  The above examples should not be treated as general principles.)



II. Careless Driving

A relatively serious but commonly seen offence involving driving is “careless driving”.  But how carelessly has to be one drive in order to constitute “careless driving”?

According to section 38(2) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), 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”.  Therefore, the essential question to ask is: what exactly is “without due care and attention” or “without reasonable consideration for other persons using the road”?

 

1. “without due care and attention”

When dealing with the question of whether a driver has driven “without due care and attention”, the Court will ask: whether the driver was exercising the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.  So the next question will naturally be: what is “reasonable”? 

The Court will answer the above questions from an objective perspective.  For example, if a driver went through a red light, it is almost certain from an objective point of view that such an act was not up to the standard of a reasonable and prudent driver.  Personal and non-objective factors such as the driver’s driving experience or state of mind will not be taken into account. 

That is to say, if this driver was an experienced one, he could not argue: “I am an experienced driver of good record and have always been driving reasonably and prudently; that act was merely a momentary lapse of mind.”  If this driver was an inexperienced one, he could not argue: “Sorry, I only obtained my driving licence two weeks ago; please excuse me for my inexperience”. 

Similarly, it does not matter whether the driver was going through the red light deliberately or absent-mindedly.  The Court will simply ask itself whether the act of going through the red light amounts to an act below the standard of a reasonable and prudent driver.  But of course the act of deliberately jumping a red light is definitely more serious and will likely constitute dangerous driving. 

2. “without reasonable consideration for other persons using the road

The phrase “without reasonable consideration” may sound similar to “without due care and attention”.  However, one should note that the charge “without reasonable consideration for other persons using the road” is applicable only if other road users are affected. 

But one should also note that injury or damage is not an essential element in this offence. The Court has ruled that there could be a failure to show reasonable consideration for other persons using the road when a driver drove at a slow speed (that is, substantially below the speed limit for that road) and did not pull in to passing bays to allow faster traffic to pass by. 

3. Proof of careless driving

Even though it may seem very obvious that a driver’s act constitutes “carelessness”, the Court cannot simply say: “the facts speak for themselves” and then convict a person of careless driving.  The court must duly consider all the factual circumstances related to the incident and find evidence of carelessness.  The facts may be so prevalent, however, that the Court can draw an irresistible inference that, in the absence of a reasonable explanation, there must have been careless driving.  For example, in the absence of a reasonable explanation, the Court has drawn an inference of careless driving in the following cases:

  • where a vehicle knocked down a pedestrian crossing the road;
  • where a vehicle crossed the centre line, i.e. the single broken line in the middle of a road, and caused an accident;
  • where a driver lost control of the vehicle and it led to a collision; and 
  • where a vehicle pulled out from a side road and collided with other vehicles on the main road.

Of course, anybody being charged with a criminal offence has the right to remain silent. Nevertheless, if there is some basic evidence which may suggest carelessness, and the driver charged with the offence of careless driving has an explanation for the incident, this driver should be prepared to speak up and give evidence in Court to explain the circumstances and prove the absence of carelessness, otherwise the inference of careless driving can be inevitable.

4. Some typical examples of careless driving

Since an objective perspective will be adopted when deciding whether or not there is “carelessness”,it is not difficult, by objective standards, to provide some examples of acts that are unreasonable and would be considered careless. Drivers may find the Road Users’ Code — published by the Transport Department — a useful and objective reference on “carelessness”. Section 109(5) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides that while failure to observe provisions of the Code does not necessarily lead to criminal liability, such failure may be relied upon in legal proceedings “as tending to establish or negate any liability which is in question in those proceedings”.  Since a driver is supposed to comply with the Road Users’ Code , a breach of the same may be considered prima facie (That is, evidence that looks sufficient to prove the case, unless substantial contradictory evidence is presented at trial) evidence of careless driving.

While the above acts illustrate examples of careless driving, every case or accident is surrounded by its own facts and circumstances specific to that particular accident, and therefore those examples above are only for reference.  Generally speaking, drivers are recommended to follow the advice set out in the Road Users’ Code.

a. Failing to keep a safe distance and rear-end collisions

Every driver knows that it is essential to keep a safe distance while driving. The Road Users’ Code contains some discussion on stopping distances, which may be somewhat technical.  If we skip the technical part, the plain advice is: “Leave a big enough gap between you and the vehicle in front – big enough for you to stop safely if the vehicle suddenly slows down or stops…If you have to take panic action because you have insufficient room to act smoothly, you are either going too fast or driving too close to the vehicle in front.

The logical consequence of failing to keep a safe distance is of course a rear-end collision. While the mere fact of a rear-end collision cannot be irrefutable evidence of carelessness, the Court is entitled to infer carelessness from such a fact, and does so consistently.  In other words, unless there are some exceptional circumstances,  a driver who drives a vehicle into the one ahead would oftenbe considered careless.

b. Failing to check when reversing

The Road Users’ Code contains plain and straight-forward advice on reversing: “Before you reverse make sure that there are no pedestrians — particularly children — behind you…You must not reverse unless it can be done in safety…Only reverse if you can do so safely and without making other road users change speed or direction.”  In other words, a driver is required to take special care when reversing.  The fact that a vehicle causes an accident when reversing can be decisive regarding the “carelessness” of the driver.

c. Unsafe overtaking

Overtaking is generally allowed on a normal two lane road separated by a centre line, i.e. the single broken line in the middle of the road with short markings and long gaps.  However, since there is always the possibility of vehicles coming towards you on the other lane, a driver must adopt extreme care while overtaking.  The Road Users’ Code expressly stipulates: “Do not overtake unless you are sure you can do so without danger to others as well as yourself.”  Drivers causing an accident during overtaking should be prepared to accept liability for careless driving (if not dangerous driving).

d. Knocking down pedestrians

It is probably a truism to say that a driver must keep a vigilant eye on other road users, especially pedestrians, when driving.  The Road Users’ Code actually spells this out clearly: “Drivers have the legal and moral responsibility to take proper care to avoid accidents with pedestrians at all times and place—even if the pedestrian is jaywalking. Always try to give way to a pedestrian on the roadway.” The Court has repeatedly emphasized that a vehicle in the hands of an irresponsible driver can be an extremely lethal weapon.  A driver should therefore always be careful when driving, so as to avoid injuring or even killing innocent citizens.  Although a pedestrian could have suddenly dashed into the road giving the driver no practical chance to avoid hitting him the Court will need cogent (very convincing and compelling) evidence to prove that the pedestrian dashed out suddenly and that a collision was unavoidable, in order to exonerate the driver.

5. Sentences

Section 38 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides that the maximum penalty for careless driving shall be a fine of $5,000 and imprisonment for 6 months.  The Court is also empowered under section 69(1) of the same Ordinance to disqualify a driver from driving for such a period as the Court thinks fit.  For cases where no casualty or serious injury is involved, the Court will usually impose a monetary fine instead of imprisonment or disqualification.

There is no offence known as careless driving causing death or causing grievous bodily harm—contrary to dangerous driving charges, which do include dangerous driving causing death and grievous bodily harm, under section 36 and section 36A respectively of the of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong).  However, if the act of careless driving results in casualty, the Court will certainly take this into account when deciding the sentence.  It suffices to say that the Court has not hesitated to impose the maximum custodial sentence (or sentences close to the maximum) in careless driving cases where death occurred. 



III. Dangerous Driving

According to section 37(4) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) , a person drives dangerously if “the way he drives falls far below what would be expected of a competent and careful driver” and “it would be obvious to a competent and careful driver that driving in that way would be dangerous”.

Therefore, the essential question to ask is: what exactly is “dangerous”?

1. “dangerous”

“Dangerous” is a simple word and its meaning should be obvious.  However, what is dangerous to an ordinary driver may not be dangerous to a F1 racecar driver.  In order to avoid doubt, section 37(6) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) defines the word “dangerous”, when used in the context of dangerous driving, as referring to “danger either of injury to any person or of serious damage to property”.

2. obvious to a competent and careful driver that driving in that way would be dangerous

Section 37(7) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong contains useful guidelines for determining what would be expected of, or obvious to, a competent and careful driver in a particular case:

regard shall be had to all the circumstances of the case including-

  1. the nature, condition and use of the road concerned at the material time;
  2. the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and
  3. the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.

Since “dangerous”, or the danger, has to be “obvious to a competent and careful driver”, the Court has to adopt an objective test by considering the facts of each case from the perspective of a competent and careful driver.  Therefore, as in the case of careless driving, the subjective mindset of an individual driver is not important.

3. Some typical examples of dangerous driving

a. Racing

It is beyond dispute that racing is definitely an act which brings other road users into grave danger.  Once proof of racing is established, the Court will not hesitate to convict a driver of dangerous driving.  Apart from dangerous driving, a driver involved in racing should also be prepared to face the charge of racing under section 55 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), which provides that it shall be an offence for a person to promote or take part in a race between vehicles on any road.  Further, section 33 of the Offences Against the Person Ordinance (Cap.212 of the Laws of Hong Kong) also provides that “Any person who, having the charge of any carriage or vehicle, by wanton or furious driving or racing or other wilful misconduct, or by wilful neglect, does or causes to be done any bodily harm to any person shall be guilty of an offence triable either summarily or upon indictment, and shall be liable to imprisonment for 2 years.

However, sometimes it may be difficult to establish whether there is really a race among vehicles.  Let’s assume that you were driving in the middle of the night at a speed well above the prescribed limit on a meandering road in a car which has been adapted for higher speed, together with a group of cars also adapted for higher speed.  Some of the drivers in this group made some dangerous maneuvers by overtaking each other, but you did not.  Are you racing?  Well, even if you have not been caught overtaking, it is likely that you will still be considered to be racing because of all the circumstantial evidence: the time, the place, the high speed and the fact that your vehicle and the other vehicles have been adapted for high speed. These circumstances all objectively indicate the activity of racing; and therefore the Court will likely convict you of racing and dangerous driving.

b. Jumping or running red lights deliberately

Jumping or running red lights represents an act which is obviously below the standard of what would be expected of a competent and careful driver.  But is it so “far below” the standard as to constitute dangerous driving?  If a driver jumps a red light only absentmindedly, could it be only careless driving instead of dangerous driving?  The Court will look into the facts of each case to decide whether dangerous (or careless) driving is present.  But if a case involves deliberately jumping a red light, the driver should not expect anything less than a dangerous driving conviction.  While it may be difficult, if not impossible, to prove whether or not a driver has deliberately jumpeda red light, the Court is entitled to draw inference from the way of driving.  For example, if a driver drove through more than one red light, the Court would not find it difficult to draw an inference that such way of driving arose from a deliberate act.

c. Excessive speeding

For most speeding cases, the driver will only receive a “speeding ticket”.  If this driver promptly settles the “speeding ticket”, probably no charge of dangerous driving will be laid.  Actually, even if a vehicle is driven in excess of the speed limit by 45 km per hour, the driver may probably face a deduction of 10 points under the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong), a fine of $1,000 as prescribed by the Fixed Penalty (Criminal Proceedings) Ordinance (Cap.240 and a disqualification of 6 months under section 41(3) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong).  But what about excessive speeding for an extended period of time?  Such an act of driving is clearly not a momentary lapse of attention.  Unless there were some special reasons for the excessive speed, the Court has, in various cases, treated this kind of driving as blatantly irresponsible behavior and convicted the driver of dangerous driving.

d. Driving an overloaded vehicle

The offence of dangerous driving may not be limited to the manner of driving.  According to section 37(5) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), a person “is also to be regarded as driving dangerously…if it would be obvious to a competent and careful driver that driving the motor vehicle concerned in its current state would be dangerous”.  That is to say, driving a vehicle that is obviously unsuitable to be used on the road could amount to dangerous driving.  For example, the Court has held in a number of cases that driving an overloaded vehicle in certain circumstances constitutes dangerous driving.

4. Proof of dangerous driving

As shown in the case of careless driving, the Court will adopt an objective test in deciding whether or not the act of driving in question is dangerous.  It effectively means that each case before the Court will have to be scrutinized in the light of the factual circumstances related to the accident.  The Court would take into account all relevant facts, (whether they are apparently dangerous or not) and all reasons given by the driver, to ascertain whether or not there is dangerous driving.

Ms. R drove through 2 red lights at the speed of 100 km per hour and then collided with a stationary vehicle on the opposite side of the road.  Upon being charged with dangerous driving, Ms. R argued that trees blocked her view of the red lights, and then she lost control of the vehicle and it dashed into the other side of the road although she had tried her best to keep it on the right side of the road.  Assuming that is true, would Ms. R be able to get away with the charge?

If Ms. R’s view of the red lights was indeed blocked by trees, she should slow down her vehicle in order to ascertain the prevailing light signal.  Every sensible driver should consider that proceeding with an unclear view is potentially dangerous.  Further, the fact that Ms. R had driven through 2 red lights at an excessively high speed also reinforced the impression that she was driving in a manner that showed no regard for the safety of other road users.  The consequence of Ms. R’s act of driving, i.e. crashing into a stationary vehicle on the opposite side of the road, is another fact from which the Court would likely draw an adverse inference against her in this case.  A “competent and careful driver” should be well aware that loss of control of a vehicle is a predictable consequence of driving at such excessive speed.  Even though Ms. R might have tried her best to control the vehicle, that itself cannot avail her in defending herself against the charge of dangerous driving.

5. Sentences

a. The statutory sentences

The statutory sentences in respect of dangerous driving can be grouped under 3 major categories: dangerous driving, causing death by dangerous driving, and causing grievous bodily harm by dangerous driving.  The test for “dangerous” is the same under all 3 categories; but the sentences are different:

  • Dangerous Driving, under section 37 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong):
    • on conviction on indictment, to a fine of $20,000 and to imprisonment for 3 years;
    • on summary conviction, to a fine of $10,000 and to imprisonment for 12 months; and
    • disqualification for at least 6 months for a first conviction and for at least 2 years for a subsequent conviction.
  • Causing death by dangerous driving, under section 36 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong):
    • on conviction on indictment, to a fine of $50,000 and to imprisonment for 10 years;
    • on summary conviction, to a fine of $20,000 and to imprisonment for 2 years; and
    • disqualification for at least 2 years for a first conviction and of at least 5 years for a subsequent conviction.
  • Causing grievous bodily harm by dangerous driving, under section 36A of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong):
    • on conviction on indictment, to a fine of $50,000 and to imprisonment for 7 years;
    • on summary conviction, to a fine of $20,000 and to imprisonment for 2 years; and
    • disqualification for at least 2 years for the first conviction and of at least 5 years for a subsequent conviction.

b. Dangerous driving involving alcohol or drugs

Due to the increasing number of cases involving driving under the influence of alcohol or drugs, the statutory sentence was enhanced in 2010 by expressly stating that the maximum fine and term of imprisonment for the offence of dangerous driving (including that of causing death and causing grievous bodily harm) shall be increased by 50% if:

  • the proportion of alcohol in the driver’s breath, blood or urine exceeds the following:
    • for breath, 66 micrograms of alcohol in 100 millilitres of breath;
    • for blood, 150 milligrams of alcohol in 100 millilitres of blood; or
    • for urine, 201 milligrams of alcohol in 100 millilitres of urine; or
  • any amount of certain specified drugs (including the most common ones such as heroin, ketamine, cannabis, cocaine, etc.) is present in the driver’s blood or urine.

c. The Court’s attitude

The sentence to be imposed by the Court would largely depend on the facts of each individual case.  While facts may differ from case to case, the following words by the Honourable Mr. Justice Ma (now the Chief Justice of the Court of Final Appeal) can probably serve as a an illustrative guide to the Court’s attitude towards sentencing in dangerous driving cases:

In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly.  This is important to bear in mind because, while it may be true in some instances not to treat violators of traffic laws as true criminals, nevertheless for offences such as dangerous driving causing death, the offender may not necessarily be seen in quite such a benevolent light…In assessing the overall seriousness of a crime, culpability is often the dominant factor.  It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence.  Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence.…One major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or of his passengers (or, we would add, of pedestrians) or with a degree of recklessness.” (Court of Appeal Review Case No.2 of 2006)

In this same case, the Honourable Mr. Justice Ma also expressly approved certain aggravating factors as laid down in the UK case of R v Cooksley (2003):

  • consumption of drugs (including legal medication known to cause drowsiness) or alcohol;
  • excessive speed, racing, competitive driving or “showing off”;
  • disregard of warnings from fellow passengers;
  • a prolonged, persistent, and deliberate course of very bad driving;
  • aggressive driving, e.g. driving much too close to the vehicle in front, persistent inappropriate attempts to overtake or cutting in after overtaking;
  • driving while unavoidably distracted, e.g. by reading or by use of a mobile telephone (especially if hand-held);
  • driving when knowingly suffering from a medical condition that significantly impairs driving skills;
  • driving when knowingly deprived of adequate sleep or rest;
  • driving a poorly maintained or dangerously loaded vehicle, especially where that has been motivated by commercial concerns;
  • other offences committed at the same time, e.g. driving without ever holding a licence, driving while disqualified, driving without insurance, driving while a learner without supervision, taking a vehicle without consent, driving a stolen vehicle;
  • previous convictions for motoring offences, particularly offences involving bad driving or the consumption of excessive alcohol before driving;
  • more than one person killed as a result of the offence, especially if the offender knowingly puts more than one person at risk or the occurrence of multiple death is foreseeable;
  • serious injury to one or more victims in addition to any death(s);
  • behaviour at the time of the offence, e.g. failing to stop, falsely claiming that one of the victims was responsible for the crash or trying to throw the victim off the bonnet by swerving in order to escape;
  • causing death in the course of dangerous driving in an attempt to avoid detection or apprehension; and
  • committing the offence while on bail.

Therefore, in cases where the Court finds any of the above aggravating factors, the Court will not hesitate to impose an immediate custodial sentence, even when there is no serious injury or death.  The rationale is: citizens have to be protected from drivers whose way of driving poses a great risk of dire or even tragic consequences. 



IV. Driving under the Influence of Drink or Drugs

1. Elements of the offence

According to section 39 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), “A person who drives or attempts to drive or is in charge of a motor vehicle on any road while he is under the influence of drink or drugs to such an extent as to be incapable of having proper control of the motor vehicle commits an offence”.

That sounds simple and straight-forward.  However, upon a detailed examination of the wording of this section 39, we may find certain elements of this offence problematic:

a. “in charge of a motor vehicle

Let’s consider this hypothetical situation: your friend parked a car at the roadside, gave you the car key and asked you to keep an eye on it for a few minutes; well, it’s true that you just had a few glasses of whisky and you might be at that moment arguably in charge of that car; but why should you be criminally liable simply for being in charge of a stationary vehicle?

Section 39(4) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) may come to your rescue.  It provides that “A person is deemed not to have been in charge of a motor vehicle if he proves that at the material time the circumstances were such that there was no likelihood of his driving the motor vehicle so long as he remained under the influence of drink or drugs to such an extent as to be incapable of having proper control of the motor vehicle”.  However, given the fact that you have the car key with you, you may have to provide more circumstantial evidence to show that there is no likelihood of you driving the car.

b. “…or drugs

It would not be difficult to identify some notorious substances like heroin, ketamine or marijuana as drugs.  But what about some common flu medicine which most people know may cause drowsiness?  One should note that the offence under this part of section 39 does not require the driver to be aware of the nature of the drugs.  The core issue is: whether or not the intake of such substance would take away the driver’s ability to control the vehicle.  In other words, it does not matter whether the drug is the notorious ketamine or a common flu medicine; if the driver is affected by the drug to the extent that he is incapable of having proper control of the vehicle, he is guilty of the offence. 

c. “incapable of having proper control of the motor vehicle

This is probably the most difficult part of section 39: how do we determine whether a person is “incapable of having proper control of the motor vehicle”?  Of course, there can be objective evidence (usually supported by a medical report) such as an erratic manner of driving, the occurrence of an accident, the driver smelt of alcohol or was unable to walk in a straight line, etc.  But all these require evidence to prove and can be subject to heated argument from the defendant.

Section 39A of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) was passed in 1995 to overcome this unsatisfactory situation.  This section makes it an offence for any person “who drives or attempts to drive a motor vehicle, or is in charge of a motor vehicle, on any road with the proportion of alcohol in his breath, blood or urine exceeding the prescribed limit”; and “prescribed limit” is defined under section 2 of the same Ordinance as:

  • 22 micrograms of alcohol in 100 millilitres of breath;
  • 50 milligrams of alcohol in 100 millilitres of blood; or
  • 67 milligrams of alcohol in 100 millilitres of urine.

In light of this legislation, once there is proof of the alcohol level by way of breath, blood or urine, the prosecution could simply lay a charge under section 39A instead of section 39 in most drunken driving cases and does not have to worry about how to prove whether the driver is “incapable of having proper control of the motor vehicle”. 

However, section 39A deals only with alcohol, not drugs.  For cases related to taking drugs while driving, the prosecution would still have to produce sufficient evidence to show that the driver is “incapable of having proper control of the motor vehicle”.

2. Obligation to submit to screening breath tests and provide specimens for analysis

a. Obligation to submit to a screening breath test

The major statute governing the obligation to submit to a screening breath test is found in section 39B of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong).  It basically provides that a police officer in uniform may require anyone who is driving or attempting to drive or is in charge of a motor vehicle to provide a specimen of breath for a screening breath test; and it shall be an offence if anyone without reasonable excuse fails to provide the specimen of breath when required.  In other words, it empowers a police officer in uniform to conduct random breath testing whether or not there is any accident involved. 

1. Mr. D, while driving, was stopped by the police for a random breath test.  Mr. D, who had just attended a rave party, was perfectly aware that the alcohol level in his body definitely exceeded the statutory prescribed limit.  In the hope of getting away with the charge of drink driving under section 39 or 39A of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), he made up an excuse: “The breath test tools may be infectious” and refused to take the screening breath test.  Would his plan work?

The answer here is yes and no at the same time.  Mr. D’s plan may enable him to get away with a drink driving charge.  However, he would at the same time contravene section 39B, which provides that it shall be an offence if any person “without reasonable excuse, fails to provide a specimen of breath when required”.  The excuse of being afraid of infection would not work unless there is medical evidence to prove that Mr. D is suffering from some kind of obsessive phobia.  As a matter of fact, the sentence for failing to provide a specimen of breath is equivalent to or even more serious than that for “driving a motor vehicle under the influence of drink or drugs” or “driving with alcohol concentration above prescribed limit”.  It is therefore really pointless for a driver to refuse to take a screening breath test.

Note that according to section 39B(5), the police officer must “warn a person at the time of requiring a specimen for a screening breath test…that a failure to provide it may render him liable to prosecution”.  A failure to give the warning would therefore invalidate a charge under section 39B.

If one refuses to provide the specimen, that of course constitutes failure. But the word “failure” here does not simply means refusal.  By section 39B(10), a person fails to provide the required breath specimen unless the specimen “is sufficient to enable the test to be carried out; and is provided in a way to enable the objective of the test to be satisfactorily achieved”.

2. Ms. D had a few drinks at a bar and then drove home.  She was stopped on the way by the police for a random breath test.  Ms. D knew that she couldn’t refuse to do the test.  But she deliberately blew around the mouth piece instead of into it.  Would her plan work?

That wouldn’t work.  Ms. D’s act of blowing around the mouth piece will not be “sufficient to enable the test to be carried out”.  She has therefore failed to provide the required breath specimen.

b. Obligation to provide specimens for analysis

In addition to the power to require a person to submit to a screening breath test, a police officer may require a person to provide specimens of breath for analysis or to provide a specimen of blood or urine for a laboratory test; and it shall be an offence if anyone without reasonable excuse fails to provide the specimen when required.  Section 39C of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides that “A police officer may require a person whose screening breath test indicates that the proportion of alcohol in that person's breath is likely to exceed the prescribed limit or who fails to provide a specimen for the screening breath test with reasonable excuse-

  1. to provide 2 specimens of breath for analysis by means of an approved breath analysing instrument; or
  2. to provide a specimen of blood or urine for a laboratory test.”

While section 39B of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) caters primarily for the random breath testing that usually takes place on the road, this section 39C deals with the situation where the police may require a specimen of breath, blood or urine at a breath test centre, police station, or hospital. It should be noted that:

  • 2 specimens of breath will be taken; and only the one with the lower alcohol level reading will be used as evidence against the accused person. (section 39D)
  • If there is a medical reason why a specimen of breath cannot be provided, the police officer shall decide whether a specimen of blood or urine should be taken. (section 39C(2))
  • However, if specimen of blood is to be taken from a person, the consent of this person must be obtained. (section 39C(11))
  • A warning given to the accused person by the police officer at the time a specimen is required is also essential for section 39C to be operative: “A police officer shall warn a person at the time of requiring a specimen under this section that a failure to provide it may render him liable to prosecution”. (section 39C(18))
  • The test for “failure” is similar to that under section 39B, i.e. a person fails to provide the required breath specimen unless the specimen “is sufficient to enable the analysis or laboratory test to be carried out; and is provided in a way to enable the objective of the analysis or laboratory test to be satisfactorily achieved”. (section 39C(19))

1. Ms. A’s vehicle hit the rear of the vehicle in front.  The police officer who arrived at the scene found Ms. A unsteady on her feet, her voice slurred, and her breath smelt of alcohol.  Due to Ms. A’s condition as such, the police officer found that no screening breath test could be conducted at the scene.  Ms. A was later transferred to a hospital where she was still in an apparently drunken state.  A police officer then required her to provide a specimen of urine for a laboratory test.  Ms. A, seeing that no female police officer was present, refused to provide the urine specimen.  The police officer and the doctor at the hospital then sought Ms. A’s consent to provide a blood specimen; she again refused by saying: “I don’t trust your doctor and your equipment.  How do I know if your needle is contaminated with AIDS or not?  I won’t give blood to you.”  Eventually no breath, urine, nor blood specimen was taken.  Was Ms. A entitled to make the above refusals?

Ms. A’s refusal to provide the urine specimen is probably justified under those circumstances.  But given that she was being asked to provide her blood specimen in a hospital and in the presence of a medical practitioner, her refusal to provide a blood specimen probably would not stand up as a reasonable excuse.  In such circumstances, Ms. A would likely be liable for failing to provide a specimen under section 39C of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong).

3. Sentence

a. Fines and imprisonment

The penalties in respect of fines and imprisonment are largely the same for offences under section 39 (i.e. driving a motor vehicle under the influence of drink or drugs), section 39A (i.e. driving a motor vehicle with an alcohol concentration above the prescribed limit), section 39B (i.e. failing to provide a specimen of breath for a screening breath test) and section 39C (i.e. failure to provide a specimen for analysis or laboratory test) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), being:

  • on conviction on indictment to a fine of $20,000 and to imprisonment for 3 years;
  • on summary conviction on a first offence to a fine of $10,000 and to imprisonment for 6 months and on any subsequent conviction under any of sections 39, 39A, 39B and 39C to a fine of $20,000 and to imprisonment for 12 months.

b. Disqualification

Sections 39, 39A, 39B and 39C of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) make it mandatory for the Court to disqualify an offending driver from driving for a certain period of time. 

The disqualification period for offences under section 39 (driving a motor vehicle under the influence of drinks or drugs), section 39B (failing to provide a specimen of breath for a screening breath test) and section 39C (failure to provide a specimen for analysis or laboratory test) are the same, being:

  • disqualification for at least 2 years for a first conviction and for at least 5 years for a subsequent conviction under any of sections 39, 39A, 39B and 39C.

The disqualification period for the section 39A offence (i.e. driving a motor vehicle with an alcohol concentration above prescribed limit) is a bit complicated. In 2010, a 3-tier system was introduced to correlate the disqualification period with the alcohol level found in the offender. Section 39A(1A) specifies that the proportion of alcohol in a person’s breath, blood or urine be:

  1. tier 1 if it exceeds the prescribed limit but is less than-
    1. for breath, 35 micrograms of alcohol in 100 millilitres of breath;
    2. for blood, 80 milligrams of alcohol in 100 millilitres of blood; or
    3. for urine, 107 milligrams of alcohol in 100 millilitres of urine;
  2. tier 2 if it exceeds tier 1 but is less than-
    1. for breath, 66 micrograms of alcohol in 100 millilitres of breath;
    2. for blood, 150 milligrams of alcohol in 100 millilitres of blood; or
    3. for urine, 201 milligrams of alcohol in 100 millilitres of urine;
  3. tier 3 if it exceeds tier 2.

Section 39A(2A) further provides that the period for which an offender is to be disqualified will be:

  1. for a first conviction, a period of not less than-
    1. 6 months if the proportion of alcohol in the person’s breath, blood or urine is tier 1;
    2. 12 months if the proportion of alcohol in the person’s breath, blood or urine is tier 2;
    3. 2 years if the proportion of alcohol in the person’s breath, blood or urine is tier 3; and
  2. for a second or subsequent conviction (regardless of the proportion of alcohol in the person’s breath, blood or urine on any previous conviction), or a conviction subsequent to a conviction under section 39, 39B or 39C, a period of not less than-
    1. 2 years if the proportion of alcohol in the person’s breath, blood or urine is tier 1;
    2. 3 years if the proportion of alcohol in the person’s breath, blood or urine is tier 2;
    3. 5 years if the proportion of alcohol in the person’s breath, blood or urine is tier 3.

c. Drink driving vs failure to provide a specimen

It should now be obvious that the penalty for failure to provide a specimen is equivalent to or more serious than that for drink driving.  This arrangement is most sensible because it would be contrary to the intent of the law if a driver could avoid disqualification and/or imprisonment by refusing to give a sample of breath, urine or blood.  The Court has pointed out in various cases that the penalty for failure to provide specimens of breath, urine or blood should have sufficient deterrent effect, so that no one can try to avoid the drink driving offence by deliberately failing to provide a specimen.



V. Some other offences

1. Related to driving licences

a. General

For the purpose of the issue of driving licences, motor vehicles are divided into 13 classes, the most common ones being private cars, motorcycles and light goods vehicles.  A person may drive a vehicle on the road only when holding a licence for the class to which such vehicle belongs.  Driving without the right licence will commit the driver to a fine of $5,000 and imprisonment for 3 months upon a first conviction, and to a fine of $10,000 and imprisonment for 6 months upon the second or subsequent conviction (sections 42(1) and 42(4) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).

Even if one has obtained the relevant driving licence, one may commit another offence unless one has physical possession of the licence at the time of driving. According to section 42(2) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), “no person shall drive a motor vehicle on a road unless he has with him at the time he is driving his driving licence”. 

Persons contravening this section will be liable to a fine of $1,000 upon a first conviction, and to a fine of $2,000 upon the second or subsequent conviction (section 42(5) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).

b. Permitting a vehicle to be driven by an unlicensed person

Obviously, no person may drive a motor vehicle on a road without holding the relevant driving licence.  But it is also a criminal offence to allow someone without the right licence to drive. Under section 42(3) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), “no person shall suffer or permit a motor vehicle to be driven by a person who is not the holder of a driving licence of the class to which such vehicle belongs”. Therefore, before you lend your car to a friend, make sure this friend has the right licence.

c. Driving while disqualified

A more serious offence related to driving licences is “driving while disqualified”.  A person committing this offence “is liable to a fine of $10,000 and to imprisonment for 12 months”; and unless there is any special reason for committing the offence, the Court shall order a further disqualification of at least 12 months in the case of a first conviction, and at least 3 years in the case of the second or subsequent conviction (section 44 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).

2. Related to registration marks and vehicle licences

a. Registration marks

Every motor vehicle is given a registration mark (vehicle licence plates); and that mark must be displayed on the vehicle.  The mark must also comply with certain requirements in respect of its display, colours, construction, fitting and illumination.  Details of such requirements can be found in Schedule 4 of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap.374E of the Laws of Hong Kong).  General requirements include:

  • The letters and numerals of a registration mark (not being a personalized registration mark) shall be displayed in either one or two rows;
  • All letters and numerals shall be not less than 8 cm and not more than 11 cm high;
  • The registration mark shall be displayed on a reflex-reflecting number plate;
  • The registration mark shall be displayed on the front and on the back of a motor vehicle in a vertical position, so that every letter and numeral of the registration mark is vertical, and is easily distinguishable; and
  • No letter or numeral of a registration mark shall be capable of being detached.

1. The owner of a vehicle displayed its registration mark “HE 1107” as “HE110 7”, having the implication of “Hello 7”.  Was that a contravention of the law?

There was a real legal case where the Court ruled that to present “HE 1107” as “HE110 7” would contravene the requirement that a registration mark is to be “easily distinguishable”.

b. Vehicle licences

No motor vehicle is allowed to be driven or used on a road unless it is registered and licensed.  Regulation 25 of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap.374E of the Laws of Hong Kong) prescribe that “no motor vehicle shall be upon or used on any road unless a valid vehicle licence in respect of the vehicle is displayed”.  Persons contravening this regulation will be liable to a fine of $2,000 and imprisonment for 3 months upon a first conviction, and to a fine of $5,000 and imprisonment for 6 months upon the second or subsequent conviction.  By comparing this against the penalties for other offences in the same Regulations, most of which impose a fine of $2,000, one can easily see that the law takes a serious view of this offence.

1. I forgot that the Vehicle Licence of my car had expired and I renewed it a few days later. I left the car in my own parking lot and had not driven it in those few days. Did I commit any offence?

Probably no one would have noticed in that few days that the Vehicle Licence of your car had expired.  But from a strictly legal perspective, Regulation 25 of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap.374E of the Laws of Hong Kong) prescribes that “no motor vehicle shall be upon…any road unless a valid vehicle licence in respect of the vehicle is displayed”.  The word “upon” means that mere parking—not necessarily driving—of a vehicle without a valid licence on a road would give rise to the offence.  Further, the word “road” is given a broad definition in the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) as to comprising almost any place—including a parking lot; and section 118 of the same Ordinance prescribes that virtually all regulations made under the Ordinance shall apply to private roads as they apply to roads.  In such circumstances, you have committed an offence under Regulation 25 of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap.374E of the Laws of Hong Kong).

3. Related to traffic lights and signs

It is probably superfluous to emphasize that a driver must comply with traffic lights and signs.  However, it is worth noting that there is a major but common misconception among drivers in Hong Kong that it is okay to go through an amber light.  That is simply not true.  Regulation 17(1)(e) of the Road Traffic (Traffic Control) Regulations (Cap.374G of the Laws of Hong Kong) expressly stipulates that “where an amber light signal is provided it shall, when shown alone, indicate the prohibition that vehicular traffic shall not proceed beyond the stop line or, if the stop line is not for the time being visible or there is no stop line, beyond the light signals, except in the case of any vehicle which when the light signal first appears is so close to the stop line or light signals that it cannot safely be stopped before passing the stop line or light signals”.  Hence, one should stop before the light signals upon seeing the amber light unless it is not safe to do so.

Another common mistake frequently committed by drivers is the disregard of the “Stop” sign.  Octagonal “Stop” signs are usually placed on minor roads at their junction with major roads; and drivers are supposed to stop completely at the “Stop” sign before they enter the junction.  However, drivers tend to slow down before the sign and then proceed forward, thereby ignoring the rule that they are compelled to bring the vehicle to a complete standstill.

The maximum penalty for failure to comply with traffic lights and signs is a fine of $5,000 and imprisonment for 3 months for a first conviction, and a fine of $10,000 and imprisonment for 6 months for a subsequent conviction.  However, it would normally be the case that a penalty under the Fixed Penalty System would be imposed unless the incident leads to serious injury or damage. 

4. Related to speed limits

Again, it is probably superfluous to emphasize that a driver must drive within the relevant speed limit, which is 50 km/hour on any road except where otherwise specified.

While section 41 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides that the offence of speeding be subject to a penalty of $4,000, the offence is in most cases dealt with under the Fixed Penalty System, except where the extent of the excess speed would lead to a different monetary penalty:

  • $320: speeding of up to 15 km/hour over the speed limit;
  • $450: speeding of more than 15 km/hour but not more than 30 km/hour over the speed limit;
  • $600: speeding of more than 30 km/hour but not more than 45 km/hour over the speed limit; and
  • $1,000: speeding of more than 45 km/hour over the speed limit.

Drivers should note that for speeding of more than 45 km/hour, the driver will face not just fiscal penalty, but also disqualification for at least 6 months unless there is a special reason (section 41 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong))

5. Related to alteration of vehicles

The Road Traffic (Construction and Maintenance of Vehicles) Regulations ( Cap.374A of the Laws of Hong Kong) contain various requirements for the construction and maintenance of vehicles, including dimensions, weight, power, braking efficiency, tyres, etc.

Section 53(2) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides that “no person shall alter or cause or permit to be altered a motor vehicle or trailer so as to render its condition such that the use thereof on a road would contravene any provision of this Ordinance as to the construction, weight, equipment, brakes, steering gear or tyres thereof”.  The maximum penalty for contravening this provision is a fine of $20,000.

Reading these 2 provisions together, one can clearly see that the Government takes a serious view of the alteration of motor vehicles.  Probably most drivers will not consider altering or modifying the engines of their vehicles so as to turn them into powerful racecars.  But drivers may be tempted to add some fanciful fittings to their beloved vehicles. Since this subject can be substantially technical, the Transport Department has published guidelines for the general public’s reference, being:

Drivers who intend to alter or modify their vehicles are advised to read these 2 guidelines and to consult the vehicle manufacturer or agent for their advice / endorsement before carrying out any alterations.

6. Related to the use of mobile phones

The use of mobile phone in Hong Kong is very common.  Yet common sense dictates that driving while using a mobile phone can be dangerous.  It is therefore essential to have statutory control over a driver’s use of a mobile phone while driving.  The relevant law is found in Regulation 42(1)(g) of the Road Traffic (Traffic Control) Regulations (Cap.374G of the Laws of Hong Kong) . 
It provides that if a motor vehicle is in motion, the driver shall not “use a mobile telephone while holding it in his hand or between his head and shoulder” nor “use, while holding it in his hand, any accessory to a mobile telephone”.  The penalty for contravening this Regulation is a fine of $2,000.

1. Ms. M understands that it is illegal to hold and talk on a mobile phone while driving.  But she is unsure about using the speaker-phone function?  And what about using a hand-free device?  Does the law prohibit the use of such function or device?

The gist of this offence is the “holding” of the mobile phone or its accessory.  Therefore, if Ms. M uses her hand to hold and use her mobile phone (even while using the speaker phone function) or hold and use its accessory (which includes a hand-free device) while driving, she has committed the offence.  But even if she does not “hold” the phone or the hand-free device and talks while driving, there must be a moment—no matter how short that moment is—that Ms. M will have to touch the phone or the hand-free device to activate it.  For example, she may have to pick up the phone (thus holding it) to key in numbers for an outgoing call or to press the “Answer” key to receive incoming calls.  Hence, at that moment, Ms. M might be contravening Regulation 42(1)(g).  Well, in the case of answering a call by pressing the “Answer” key on a phone without actually picking it up and then using the hand-free device to communicate, this is unlikely to constitute “holding”.  Such strict interpretation of this Regulation is probably not what the lawmakers intend.  Instead, this Regulation was enacted to allow drivers to use a hand-free device.  Ms. M should not worry too much about this.  However, picking up a mobile phone and keying in numbers to make an outgoing call certainly amounts to “holding”, even though the keying process may take only a very short while.

7. Related to private roads

Private roads can be quite common in Hong Kong.  For example, roads inside university campuses and housing estates are private roads. 

The distinction between “road” and “private road”, however, is somewhat meaningless in the context of a traffic offence.  The reason is: sections 117 and 118 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) make it clear that all major traffic offences are applicable to private roads as well as roads.  Section 119 of the same Ordinance also expressly provides that in criminal proceedings involving a traffic offence, it shall be sufficient for the prosecution “to show that the place where that offence was committed was either a road or private road, without showing that the place was one or the other”.

1. Mr. R is a very rich man owning a large piece of land and several luxurious sport cars.  Can he let his 10-year old son drive one of his sport cars on that piece of private land?  Let’s assume further that that piece of land is completely barren and there is virtually no road at all.  Can he argue that he has not done anything wrong on any road (irrespective of whether it is a private road) because there is no road?

Sections 117 and 118 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) expressly stipulate that all major traffic offences shall apply to private roads as they apply to roads.  If Mr. R thinks he can do anything he wants with his sport cars on his private land (or private road), he is wrong.  Further, under section 2 of the same Ordinance, both “road” and “private road” are given such wide definitions that they include almost all kinds of places where a vehicle can be used.  As a matter of fact, definitions of both “road” and “private road” include “place”.  Therefore, the “no-road” argument cannot work.

8. Related to expressways

Even though Hong Kong is a small place, there are quite a number of expressways designed to carry high volumes of traffic at a higher speeds.  Due to this specific nature, the Road Traffic (Expressway) Regulations (Cap.374Q of the Laws of Hong Kong) expressly spell out certain laws governing the use of vehicles on expressways.  Generally speaking:

  1. Only those vehicles with engine cylinder capacity of at least 125 cubic centimeters are allowed on an expressway (Regulation 4 of the Road Traffic (Expressway) Regulations (Cap.374Q of the Laws of Hong Kong)).
  2. Drivers holding only a learner’s driving licence shall not drive on an expressway (Regulation 5 of the Road Traffic (Expressway) Regulations (Cap.374Q of the Laws of Hong Kong)).
  3. No driver shall stop a motor vehicle or cause it to remain at rest on an expressway except in the case of breakdown, mechanical defect, lack of fuel, accident, illness or other emergency, or to permit a person to help another in view of the above circumstances (Regulation 9 of the Road Traffic (Expressway) Regulations (Cap.374Q of the Laws of Hong Kong)).
  4. Under normal circumstances, a medium goods vehicle, a heavy goods vehicle, a private bus, a public bus, a motor vehicle towing a trailer or another vehicle, and a motor cycle, motor tricycle, private car or light goods vehicle driven by a person holding a probationary driving licence may not use the offside lane of the carriageway of an expressway where 3 or more traffic lanes are open for use by traffic proceeding in the same direction (Regulation 11 of the Road Traffic (Expressway) Regulations (Cap.374Q of the Laws of Hong Kong)).
  5. The driver of a motor vehicle on an expressway shall drive the vehicle only in the nearside lane except when the vehicle is overtaking another vehicle (Regulation 12 of the Road Traffic (Expressway) Regulations (Cap.374Q of the Laws of Hong Kong)).
  6. A driver of a motor vehicle on an expressway shall not, without reasonable excuse, overtake another vehicle on this other vehicle’s nearside (Regulation 13 of the Road Traffic (Expressway) Regulations (Cap.374Q of the Laws of Hong Kong)).

Persons committing the above offence(s) will be liable to a fine of $5,000 and imprisonment for 3 months upon a first conviction, and to a fine of $10,000 and imprisonment for 6 months upon the second or subsequent conviction. 

9. Related to parking

Parking offences are probably the most common offence to be committed by a driver.  To put it simply, in general a driver cannot park on any road unless parking meters are present.  But what exactly is parking?

Regulation 2(1) of the Road Traffic (Parking) Regulations (Cap.374C of the Laws of Hong Kong) defines parking as “the standing of a vehicle, whether occupied or not, except when standing temporarily for the purpose of and while actually engaged in loading or unloading or picking up or setting down passengers”.  The key word here is of course “temporarily”.  The Court will consider factual circumstances such as the flow of the traffic at the material time, to decide whether or not the vehicle is standing “temporarily”.

One further note: most drivers probably believe that they can continue to park a vehicle at a parking space as long as they continue to feed the meter.  Well, that is not true.  Drivers should be reminded of regulation 8 of the Road Traffic (Parking) Regulations (Cap.374C of the Laws of Hong Kong), which provides that “Any person who parks a vehicle in a parking place for a continuous period of more than 24 hours commits an offence and is liable to a fine of $2,000”.

1. Mr. P, had a heated quarrel with his wife while driving along Queen’s Road Central.  He became so agitated that he stopped the vehicle in the middle of the road and just left the scene (and also his poor wife alone in the vehicle).  What he had in his mind was: I don’t care; I don’t mind being given a parking ticket; after all, it costs only a few hundred dollars. 

What Mr. P has done could amount to the more serious offence of leaving a vehicle in dangerous position under regulation 9 of the Road Traffic (Parking) Regulations (Cap.374C of the Laws of Hong Kong), which provides that “Any person who causes or permits a vehicle to remain at rest on a road in such a position or in such condition or in such circumstances as to be likely to cause danger to other persons using the road commits an offence and is liable to a fine of $2,000”.  The police are also empowered under section 103 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) “to remove or cause to be removed, and where necessary may provide for the safe custody of, any vehicle which…remains at rest on a road in such conditions or in such circumstances as to be likely to cause danger to other persons using the road or to interfere with the use of the road”.  The costs of such removal and custody are of course to be borne by Mr. P.

10. Related to insurance

Section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap.272 of the Laws of Hong Kong) expressly specifies that “it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Ordinance”.

The statutory maximum penalty for this offence, as stated under section 4(2)(a) of the same Ordinance, is a fine of $10,000, imprisonment for 12 months and disqualification for at least 12 months and at most 3 years.

The rationale for compulsory insurance is simple: if a person is injured by a motor vehicle but the driver of that vehicle does not have the financial means to pay the damages, the injured person would be left in a dire and helpless condition. Trying to make sure that all vehicles running on the road are covered by compulsory insurance offers a solution to this problem.

11. Related to pedestrians

Traffic offences do not necessarily involve vehicles.  A pedestrian can also be subject to criminal liability under the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong).

a. Jaywalking

The most common traffic offence to be committed by a pedestrian is probably jaywalking, i.e. crossing a road without regard to the traffic light signal.  Regulation 33(6) of the Road Traffic (Traffic Control) Regulations (Cap.374G of the Laws of Hong Kong) prescribes that every pedestrian at a crossing that has traffic lights shall comply with the prevailing light signal; and regulation 61(2) of the same Regulations stipulates that any person contravening regulation 33(6)without reasonable excuse” is liable to a fine of $2,000. 

1. Mr. J crossed a road irrespective of the red light signal.  He argued that despite the red light signal, he had carefully checked that there was no vehicle approaching.  He therefore believed that it was safe to cross the road and proceeded to do so.  Did Mr. J’s argument amount to a “reasonable excuse”, so that he was not liable under Regulation 33(6) of the Road Traffic (Traffic Control) Regulations (Cap.374G of the Laws of Hong Kong)?

The Regulation 33(6) offence is a strict-liability offence.  That is to say, once the act is done, the offence is committed; the mindset of the defendant is irrelevant.  Therefore, it does not matter what a pedestrian believes, otherwise everyone is entitled to jaywalk if he “believes” it is safe to do so.  Mr. J’s “reasonable excuse” must fail.  However, if Mr. J was directed by a police officer in uniform or a traffic warden in uniform to proceed against the red light signal, he would have the reasonable excuse to do so.

b. The negligent pedestrian

Section 48 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) prescribes that a pedestrian who “negligently endangers his own safety or that of any other person commits an offence and is liable to a fine of $500”.  In other words, pedestrians may commit this offence even though they suffer injury in the incident.

1. Ms. N crossed a road while talking on her mobile phone. She did not look properly up and down the road and did not notice an approaching vehicle. The vehicle failed to stop in time and knocked down Ms. N.  Would Ms. N be liable under section 48 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)?

Ms. N’s behaviour amounted to negligently endangering her own safety.  It actually might also endanger other road users because the approaching vehicle could, in an attempt to avoiding knocking down Ms. N, run into other vehicles or pedestrians.  (Note: even though the driver of the approaching vehicle might be driving carelessly — or even dangerously — that is another matter and it will not negate Ms. N’s negligence.)

12. Related to cycling

A bicycle or tricycle basically has the same right to use a road as a motor vehicle.  Needless to say, the rider of a bicycle or tricycle also has the duty to exercise due care when using the road.  Major offences related to cycling include:

  1. Reckless cycling under section 45 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), where the maximum sentence is: a fine of $500 for a first conviction, and a fine of $1,000 and imprisonment for 3 months for the second or subsequent conviction;
  2. Careless cycling under section 46 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), where the maximum sentence is a fine of $500;
  3. Cycling under the influence of drink or drugs under section 47 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), where the maximum sentence is: a fine of $500 for a first conviction, and a fine of $1,000 for the second or subsequent conviction and imprisonment for 3 months; and
  4. Section 4(8) of the Summary Offences Ordinance (Cap.228of the Laws of Hong Kong), which prescribes that it shall be an offence if someone “rides or drives on any foot-path without obvious necessity” or “in any public place rides or drives recklessly or negligently or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case”.  The maximum sentence is a fine of $300 or imprisonment for 3 months.

One could easily observe that there is no offence like “dangerous cycling” or “dangerous cycling causing death”, as if the act of cycling cannot possibly be dangerous nor cause death.  That is obviously not true.  Common sense will tell us that a bicycle can also be dangerous.

1. Cyclist A rode a bicycle frantically and knocked into cyclist B.  Cyclist B suffered serious injury and eventually died.  Can cyclist A be prosecuted under the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)?

Cyclist A can obviously be prosecuted under section 45 (for reckless cycling) or section 46 (for careless cycling) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong).  Depending on the evidence available, the prosecution may also consider prosecuting cyclist A on the more serious offence of “injuring a person by furious driving” under section 33 of the Offences Against the Person Ordinance (Cap.212 of the Laws of Hong Kong): “Any person who, having the charge of any carriage or vehicle, by wanton or furious driving or racing or other wilful misconduct, or by wilful neglect, does or causes to be done any bodily harm to any person shall be guilty of an offence triable either summarily or upon indictment, and shall be liable to imprisonment for 2 years”.  Since the victim in this occasion died eventually, the graver offence of manslaughter may also be available to the prosecution.  Detailed analysis of the offence of manslaughter is not within the scope of this discussion.  It suffices to say here that manslaughter occurs when death is accidentally caused by an unlawful act or by culpable negligence.  Manslaughter is punishable by imprisonment for life.  In the present case, the prosecution will look into the available evidence to ascertain how Cyclist A was riding the bicycle at the material time before it decides what charge(s) would be laid against Cyclist A.



VI. The Driving-offence Points System and the Fixed Penalty System

1. The Driving-offence Points System

The Driving-offence Points System is designed to deter drivers from committing driving offences repeatedly within a certain period of time.

 

a. How it works

The basic mechanism of the Driving-offence Points System is:

  • When a driver is convicted of a specified driving offence, he incurs a designated number of driving-offence points in respect of that offence.  For example, dangerous driving would attract 10 points, careless driving 5 points, failure to report an accident 3 points, etc.  Details of the driving-offence points for different offences can be found in the Schedule of the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong).
  • If a person incurs 15 or more points within a period of 2 years, he shall be liable to be disqualified from holding or obtaining a driving licence.
  • The period of disqualification shall be 3 months if no previous disqualification has been imposed on the driver under the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong), and 6 months if any previous disqualification has been imposed.

b. Deduction of points

Section 6A(1) of the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong) provides that where a person completes a driving improvement course and is issued with a course certificate, 3 points will be deducted from the total number of points that have been incurred.

1. I became aware that I had incurred 15 driving-offence points within the last 2 years.  I immediately went to take a driving improvement course and successfully obtained a course certificate.  So my balance of driving offence points should now be 12, right?

Wrong.  If you have already incurred 15 or more points on the date that you complete the driving improvement course,  you are not entitled to any deduction of points [section 6A(2) of the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong)].

c. Calculation of points

The calculation of driving-offence points apparently involves only simple arithmetic and should be quite straight-forward.  However, section 8A(1) of the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong) provides that “where 2 or more of the offences in respect of which points have been incurred are constituted by the same, or substantially the same, act...(a) only that offence attracting the highest number of points; or (b) where those offences each attract the same number of points, only one of those offences, shall be taken into account”.  Therefore, if a driver is convicted of several offences all arising from one incident, the total driving-offence points incurred may not be simply the sum of all the relevant points.

1. I was involved in an accident where I was liable for careless driving, failing to stop after an accident and failing to report after an accident, which would incur 5, 5 and 3 driving-offence points respectively.  So in this one single accident, I incurred 13 points, right?

Not necessarily.  According to section 8A of the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong), if several offences are committed in one act, the simple addition of all the points may not be the correct way to make the calculation.  You should consult the Commissioner for Transport or seek legal assistance to clarify the actual number of points to be incurred.  In your circumstances, it is likely that careless driving and failing to stop after an accident will be considered as the same or substantially the same act, thus attracting 5 points in total for these 2 liabilities; the total points incurred for this incident may therefore be 8.

d. Defence

The order for disqualification under the Driving-offence Points System is to be made by a magistrate.  Existing Court decisions indicate that magistrate’s courts almost invariably make orders for disqualification for 3 months in the case of a first incurrence of 15 points and 6 months in the case of a repeated incurrence.  However, section 8(3) of the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong) provides that a magistrate may, “having regard to all the circumstances”, order a shorter period of disqualification or even not to order the convicted person to be disqualified; and section 8(4) of the same Ordinance expressly denotes that a magistrate may take into account circumstances such as “exceptional hardship”.  So what exactly is “exceptional hardship”?

The Court has made it clear that “exceptional hardship” does not mean an extreme degree of hardship, but a kind of hardship different from a usual or ordinary one.  For example, the Court has held that financial hardship is not exceptional hardship even though the defendant is a professional driver.

1. Mr. R repeatedly incurred 15 driving offence points and was to be disqualified for 6 months.  He submitted that his wheelchair bound mother was suffering from heart disease, recurrent mental problem and suicidal tendency, that he had to drive her to the hospital for regular medical checks, and that he frequently had to drive home to take care of her in case of emergency.  Mr. R tried to rely on the circumstance of “exceptional hardship” and sought a non-disqualification order.

The above scenario is an actual Court case, where the Court ruled that there was “exceptional hardship” on the part of the mother—though not on the part of Mr. R—and thus allowed an order for non-disqualification.

2. The Fixed Penalty System

Traffic offences range from serious ones resulting in fatal accidents to minor ones like a simple parking contravention.  If all traffic offences were to be brought to Court, there would definitely be an excessive burden on the judiciary.  The Fixed Penalty System was devised to deal with minor offences where the owner of a vehicle is unlikely to plead not guilty and argue the case before the Court.  It saves time for the Court, the vehicle owner and the police.  In other words, everybody benefits.

a. How it works

The Fixed Penalty System is governed by the Fixed Penalty (Traffic Contraventions) Ordinance (Cap.237 of the Laws of Hong Kong) and the Fixed Penalty (Criminal Proceedings) Ordinance (Cap.240 of the Laws of Hong Kong).

Both Ordinances provide that the owner or driver (as the case may be) of a vehicle may be discharged from the liability for a specified offence upon the payment of a fixed penalty.  In other words, once the penalty is paid, there can be no conviction.

However, if the fixed penalty is not paid within 21 days, the Commissioner of Police may serve a notice on the owner or driver (as the case may be) of the vehicle, demanding payment and informing the owner or driver of their right to dispute the liability.  If the payment is not made and no dispute is raised, the Court shall order the offender to pay the fixed penalty plus an additional penalty equal to the amount of the fixed penalty.

b. What offences are covered

The Fixed Penalty (Traffic Contraventions) Ordinance (Cap.237 of the Laws of Hong Kong) specifies offences which are mostly related to the unauthorized or improper parking of vehicles.  All these offences lead to the fixed penalty of $320.  A complete list of the contraventions can be found in the Schedule to this Ordinance.

The Fixed Penalty (Criminal Proceedings) Ordinance (Cap.240 of the Laws of Hong Kong) deals with slightly more serious offences such as speeding, failing to comply with traffic signals, driving without a securely fastened seat belt, etc.  All the specified offences and their corresponding fixed penalties, ranging from $230 to $1,000, can be found in the Schedule of this Ordinance.



VII. What to do when accidents happen

1. Duty to stop

Probably every sensible driver involved in an accident will stop and check what has happened.  But what about those non-sensible drivers? Section 56(1) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides as follows:

Where, owing to the presence of a vehicle on a road, an accident occurs whereby-

  1. personal injury is caused to a person other than the driver of that vehicle; or
  2. damage is caused to-
    1. a vehicle other than that vehicle or a trailer drawn thereby;
    2. an animal other than an animal in or on that vehicle or a trailer drawn thereby; or
    3. any other thing not being in or on that vehicle or a trailer drawn thereby,

the driver of that vehicle shall stop.

In other words, a driver must stop whenever there is an accident causing damage to another vehicle or anything (for example, if you crashed into a lamp post), irrespective of whether any other person is injured.  But what exactly is meant by “stop”?  How long should a driver “stop” in case of an accident?  What should the driver do after “stopping”? While section 56(1) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) does not define “stop”, section 56(2) of the same Ordinance provides that in the case of such an accident, a driver shall

if required, give to any police officer or to any person having reasonable grounds for so requiring the following particulars-

  1. his name and address;
  2. the name and address of the owner of the vehicle; and
  3. the registration or identification mark or number of the vehicle.

Reading sections 56(1) and 56(2) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) together, we can safely assume that to “stop” means to stop and to remain at the scene of the accident for a period long enough for anyone to obtain the necessary particulars from the driver.

2. Duty to give particulars

As already discussed above, sections 56(1) and 56(2) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) impose a duty to give particulars in the case of accidents involving another vehicle or anything.  Such particulars include the driver’s name and address, the vehicle owner’s name and address, and the vehicle’s registration mark.  It should also be noted that this duty is imposed on the driver personally.  Therefore, the driver cannot leave the scene and just ask a passenger of the vehicle to give the necessary particulars.

3. Duty to report

Now consider this situation: a driver drove in the middle of the night in some country side and collided with a lamp post. This driver stopped; but there was obviously no one there for him to give particulars to; he therefore left the scene.  Did this driver breach the duty to stop and to give particulars?

In this particular case, certainly the law would not be so unreasonable as to impose on this driver the duty to stop and wait indefinitely in the middle of the night for someone to come along and ask him for his particulars.  Instead this driver should comply with section 56(2A) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), which requires that if “the driver of the vehicle for any reason does not give the particulars mentioned in subsection (2), he shall report the accident in person at the nearest police station or to any police officer as soon as reasonably practicable, and in any case not later than 24 hours after the accident.”  Therefore, the driver in this situation must report the incident in person to a police as soon as reasonably practicable.

Further, section 56(3) of the same Ordinance also stipulates a similar duty to report accidents that involve injury to any person, unless the driver “is incapable of doing so by reason of injuries sustained by him in the accident”.

1. Mr. C’s vehicle accidentally collided with another vehicle.  Both drivers stopped, got out of their vehicles and quarreled.  In the heat of the incident, the driver of the other vehicle did not ask Mr. C to give particulars, but did tell Mr. C to remain at the scene to wait for the police.  Mr. C, who had to attend an important meeting, then left the scene.  The other driver, however, managed to remember the registration mark of Mr. C’s vehicle and reported the same to the police.  The police had no difficulty in locating Mr. C in his office within just one hour.  During the interview with the police, Mr. C told everything in detail to the police.  Under such circumstances, what are Mr. C’s liabilities (if any) under section 56 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)?

Obviously Mr. C had stopped.  But as discussed above, “stop” means to stop and to remain at the scene of the accident for a period long enough for anyone to obtain from the driver the necessary particulars.  Therefore, even though the driver of the other vehicle did not ask Mr. C for particulars, Mr. C had to stay and wait for the police.  In other words, Mr. C did not comply with the duty to “stop” under section 56(1) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong).  When Mr. C was approached by the police, he fully co-operated and gave all particulars to the police.  It is therefore likely that Mr. C would not be prosecuted under section 56(2) of the same Ordinance, i.e. under the duty to give particulars.  What about the duty to report an accident under section 56(2A)?  If Mr. C did not give particulars at the scene of the accident, he was supposed to report to the police as soon as reasonably practicable and in any case not later than 24 hours after the accident.  But since the police located Mr. C and obtained particulars from him in just one hour, could Mr. C argue that there was no duty to report under such circumstances?  It should be noted that the words “in any case not later than 24 hours after the accident” do not mean that a driver can wait till the last minute of that 24 hours to report; he must report as soon as reasonably practicable.  In Mr. C’s case, obviously he did not report immediately.  But since the police had obtained particulars from him within just one hour, it was arguable that there was no further need to comply with the duty to report under section56(2A).  In this situation, Mr. C should at least have made a phone call to the police within that one hour—although a report by telephone does not satisfy the legal duty to report in person—to explain why he could not report immediately and to show that in any case he intends to report.

4. Preserving evidence

Incidental to the duty to stop, to give particulars and to report the accident to the police, the law also lays down a duty to preserve evidence in the case of a serious accident.  Section 57(1) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) prescribes that if there is an accident “in consequence of which any person is killed or seriously injured or serious damage is caused to any vehicle or thing, any person who without the authority of a police officer moves or otherwise interferes with any vehicle involved in the accident or any part of any such vehicle or does any other act which destroys, alters or conceals any evidence of the accident commits an offence”.

Notwithstanding the above, section 57(2) of the same Ordinance provides that if the moving or interference is done “for the purpose of saving life, extinguishing fire or meeting any other emergency”, no offence would have been committed.

1. A vehicle bumped into the back of another vehicle.  Both vehicles stopped.  There was of course some damage to both vehicles; but luckily, no one was injured.  In order not to block the traffic, both drivers agreed to drive the vehicles to a nearby gas station to discuss liability and damages.  Since they had obviously moved the vehicles, would they be liable under section 57 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)? 

This appears to be a minor accident where no person was injured and no vehicle or thing was seriously damaged.  Section 57 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) is therefore inapplicable.  However, if the accident involves serious injury or damage or even death, no one should be bothered about the traffic and no person should move or interfere with anything at the scene.

5. Notifying an insurer

In Hong Kong there is no law that compels drivers to report an accident to their insurers.  As a matter of fact, most parties involved in minor accidents would simply resolve the disputes by way of mutual agreement without involving their insurers.  However, most vehicle insurance policies require vehicle owners to immediately report an accident to the insurance company if they intend to claim damages under their policy.  Drivers involved in an accident should therefore duly consider whether it is in their best interest to report the case to their insurers.

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