Causing death by dangerous driving
Causing death by dangerous driving is an offence under section 36 of the Road Traffic Ordinance (Cap.374).
A person is to be regarded as driving dangerously if (i) he drives in the manner that falls far below what is expected of a competent and careful driver, and (ii) it would be obvious to a competent and careful driver that driving in that way would cause either injury to any person or serious damage to property.
The standard of a competent and careful driver is determined with regard to all the circumstances of the case, including:
- the nature, condition and use of the road concerned at the material time;
- the amount of traffic which is on the road concerned or might be reasonably be expected to be on the road at the material time; and,
- the circumstances which the driver could be expected to be aware of or shown to have been within the knowledge of the driver (e.g. the physical condition of the driver).
The charge of causing death by dangerous driving further involves a question of causation. If death was not caused by such dangerous driving, the charge might be substituted with other offences in the Road Traffic Ordinance such as the offence of causing grievous bodily harm by dangerous driving or dangerous driving.
On sentencing, if the driver is convicted in the Magistrates’ Court on summary conviction, the maximum liability is a fine at level 4 ($25,000 as of 2018) and imprisonment for 2 years. If the driver is convicted on indictment, the maximum liability is a fine at level 5 ($50,000 as of 2018) and imprisonment of 10 years.
In the case of Secretary for Justice v Poon Wing Kay  1 HKLRD 660, the English case of R v Cooksley  2 Cr. App. R. 18 was adopted in identifying the aggravating and mitigating factors of the offence, and 4 starting points of sentencing based on culpability.
|Aggravating factors||Mitigating factors|
|1. Consumption of drugs
2. Greatly excessive speed, racing, competitive driving or showing off
3. Disregard of warnings from fellow passengers
4. Prolonged, persistent and deliberate course of very bad driving
5. Aggressive driving
6. Driving while the driver’s attention was distracted, e.g. by reading or using a mobile phone
7. Driving when knowingly suffering from a medical condition
8. Driving when knowingly deprived of adequate sleep or rest
9. Driving a poorly maintained or dangerously loaded vehicle, especially when motivated by commercial concerns
10. Other offences committed at the same time
11. Previous convictions of motoring offences, particularly offences involving bad driving or the consumption of alcohol before driving
12. Killing of several people in the incident
13. Serious injury to one or more victims, in addition to the death(s)
14. Irresponsible behaviour at the time of the offence (e.g. failure to stop, claiming one of the victims was responsible for the crash)
15. Causing death in the course of the dangerous driving in the attempt to avoid detection or apprehension
16. Offence committed on bail
|a. Good driving record
b. Absence of previous convictions
c. Timely guilty plea
d. Genuine shock and remorse, especially where the victim was a close relation or friend
e. Defendant’s age
f. The fact that the offender had been seriously injured as a result of the dangerous driving
The 4 starting points for sentences:
|No aggravating features||12-18 months of imprisonment, custodial sentence only avoidable if there were exceptional mitigating features|
|Presence of 1 or more factors in 10-16||2-3 years of imprisonment, 5 years where aggravating features are present|
|Presence of 2 or more aggravating features in 1-9||4-5 years of imprisonment|
|Presence of 3 or more aggravating features in 1-8||6 years imprisonment, maximum- 10 years|
Further, the driver is likely to be disqualified from driving for a period of time – for no less than 5 years on first conviction, or for no less than 10 years on second or subsequent convictions; unless the court is satisfied for special reasons that the person be disqualified for a shorter period of time or not be disqualified. Special reasons are special reasons relating to the offence, the offender and other circumstances that the court finds relevant. However, circumstances such as excess alcohol level being slightly over the limit and occupation as a driver would not constitute special reasons.
In the case of HKSAR v Wong Mun Ming  6 HKC 453, the main purpose of disqualification is forward looking and preventative to protect road users, rather than backward looking and punitive. The period of disqualification is to be determined with reference to the risk represented by the offender, reflected in the level of culpability attached to his driving. If the term of imprisonment and period of disqualification are to run concurrently, the period of disqualification must be longer than the prison term. The court may also order the disqualified person to attend and complete driving improvement course at his own cost.