LC Paper No. CB(1) 866/98-99(04)
Paper for the LegCo Panel on Transport
Meeting on 9 February 1999
Proposed Offences of Dangerous Driving, Dangerous Driving
Causing Death and Careless Driving Causing Death
This is an information paper on the law relating to the offences of dangerous driving, etc. as applied in the United Kingdom and proposed by the Administration to assist members of the Panel in their consideration of item No. V on the agenda of the meeting of the LegCo Panel on Transport on 9 February 1999.
Dangerous driving/Dangerous driving causing death
A. The Law in the United Kingdom
2. In the United Kingdom, the offences of dangerous driving and causing death by dangerous driving replace the offences of reckless driving and causing death by reckless driving when the Road Traffic Act 1988 was enacted. The 1988 Act came into force in May 1989. These offences were then re-enacted in the Road Traffic Act 1991. The relevant provisions are set out in Annex 2 to the paper issued by the Transport Bureau in January 1999 (LegCo Paper No. CB(1)769/98-99(04) refers).
3. We have looked at cases in the Untied Kingdom in order to find out the standard applied by the courts there in determining whether a person is driving dangerously. The courts have directed that if, in all the circumstances, the manner of driving was dangerous to other road users, then, on the issue of guilt (as distinct from penalty) it matters not whether the defendant was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best. The offence of dangerous driving is not, however, an absolute offence; in order to justify a conviction there must not only have been a situation which, viewed objectively was dangerous, but also some fault on the part of the driver causing that situation. The courts have found the following manner of driving dangerous:
- the level of alcohol consumption was such as would adversely affect a driver, or that the driver was in fact adversely affected;
- driving a motor vehicle at excessive speed that would create actual or potential danger of injury to persons or property;
- driving in a dangerously defective state due to a condition, such as diabetes, alcohol or fatigue, of which the driver is fully aware;
- driving a motor vehicle knowing that the vehicle is defective;
- taking a motor vehicle onto the road with a combination of defects which should have been obvious to any careful and competent person;
- driving in an impatient and aggressive manner over some distance at an excessive speed;
- momentary reckless error of judgment. such as failing to notice a pedestrian on a pedestrian crossing;
- momentary disregard of safety precautions or momentary act of negligence on the part of the driver;
- failing to pay proper attention to the road ahead when driving;
- failing to stop at a pelican crossing; and
- racing with another vehicle.
4. It should be noted that the owner of the vehicle, though not actually driving, but allowing it to be driven dangerously, is guilty of aiding and abetting and is liable to be convicted as a principal offender.
B. Definition of dangerous driving as proposed by the Administration
5. The definition of dangerous driving as proposed by the Administration is set out in Annex 3 to the paper issued by the Transport Bureau. The proposed definition is modelled on that of the Road Traffic Act but differs in the following aspects:
C. Consequences of breach of the Road Users' Code
- Under the Road Traffic Act, a person is also regarded as driving dangerously if it would be obvious to a competent and careful driver that driving the vehicle at its current state would be dangerous. This ground of convicting a person of dangerous driving does not appear in the Administration's proposal;
- Under the Road Traffic Act, "dangerous" is defined but there is no such definition in the Administration's proposal;
- Under the Administration's proposal, in determining whether the manner of driving falls below the standard of a competent and careful driver, the court shall have regard to the standard set out in the Road Users' Code issued under section 109 of the Road Traffic Ordinance (Cap. 374). However, there is no such requirement in the Road Traffic Act;
- The Road Traffic Act provides that in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused. Under the Administration's proposal, the court shall have regard to all the circumstances of the case and some examples of those circumstances are set out; and
- Under the Road Traffic Act, the offences apply to any mechanically propelled vehicle (not only a motor vehicle) and to driving not only on a road but also on any public place (e.g. a public carpark, school grounds). Under the Administration's proposal, the offences apply to a motor vehicle and driving on a road.
6. The Road Users' Code (the Code) is made under section 109 of Cap. 374 and is deemed to be subsidiary legislation for the purpose of section 34 of Cap. 1. Under section 109(5) of Cap. 374, a failure on the part of any person to observe any provision of the Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings whether civil or criminal and including proceedings for an offence under the Ordinance be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings.
7. The proposed definition, as drafted, imposes an obligation on the courts to have regard to the standard set out in the Code in considering whether the manner of driving falls below the standard of a competent and careful driver. The Code is intended to assist the courts in their consideration of the issue. It is open to the courts to find that the manner of driving does not fall below the prescribed standard after they have considered the Code. Even if the courts are prepared to find otherwise when the standard set out in the Code has not been observed, given that the manner of driving falling below the prescribed standard is only one of the two limbs that need to be proved in order to establish dangerous driving, any breach of the standard in the Code will not in itself lead to a conviction of offences relating to dangerous driving.
Proposed new offence of careless driving causing death
8. There is an offence of causing death by careless driving when under influence of drink or drugs in the Road Traffic Act. The offence is triable on indictment with a maximum penalty of 10 years' imprisonment or a fine or both. Disqualification is obligatory. The maximum penalty for this offence is similar to that for the offence of causing death by dangerous driving under the Act except that in the latter case no provision is made for the courts to impose a fine upon conviction. While the Road Traffic Act confines the offence of causing death by careless driving to specified circumstances, the Administration, however, proposes a general offence of careless driving causing death.
Legal Service Division
Legislative Council Secretariat
8 February 1999