Sentencing and penalty scales of careless driving and dangerous driving

Sentencing and penalty scales of careless driving and dangerous driving

Careless driving

Under section 38 of the Road Traffic Ordinance (Cap. 374), a person who drives a motor vehicle on a road carelessly is liable to a fine at level 2 (i.e., $5,000 under Schedule 8 of the Criminal Procedure Ordinance, Cap. 221). The court or magistrate may, on conviction, order a period of disqualification (s69) and for the person to attend and complete a driving improvement course (s72A).

There is no sentencing guideline for the offence of careless driving, penalty imposed is dependent on the degree of carelessness of driving and the driver’s traffic record (HKSAR v Cheung Hang Kei [2020] HKDC286). In determining the degree of carelessness of driving, the court takes into account all relevant circumstances (e.g., whether view is obstructed, whether the defendant was driving in a bad manner, whether death, injury or property damage was caused, whether there are other offences committed at the same time etc.). The most important consideration is the protection of the public (Chan Kwai Lai v R [1968] HKLR 31).

Where the case concerns a death, case law indicates that a short term of imprisonment would be appropriate in cases involving gross negligence on the part of the driver and the victim was blameless (HKSAR v Ma Kwong Tak [2014] HKCA 336). If, however, the degree of carelessness was assessed to be at a low rung of the ladder of culpability, a fine and a disqualification order would suffice (HKSAR v Leung Chiu Yu [2012] 2 HKLRD 313). The purpose of a disqualification order is forward-looking and preventive in nature, to protect road users from drivers who constitute a real risk on the road, rather than backward-looking and punitive (The Queen v Cooksley [2003] 2 All ER 40).

In addition to the above penalties, a conviction of careless driving would result in the incurring of 5 points in the Driving-offence Points System.

 

Dangerous driving

Under section 37 of the Road Traffic Ordinance, a person who drives a motor vehicle on a road dangerously commits an offence and is liable, on conviction on indictment to a fine at level 4 (i.e., $25,000) and to imprisonment for 3 years or, on summary conviction to a fine at level 3 (i.e., $10,000) and to imprisonment for 12 months. Section 37 also provides that the court shall order the person to be disqualified in cases of a first conviction, for a period of not less than 6 months and in cases of a second or subsequent conviction, for a period of not less than 2 years, unless the court has special reasons for disqualification of a shorter period or that disqualification order should not be made. Section 72A(1A) further provides that the court shall order the person to attend and complete a driving improvement course, unless there are special reasons to the contrary.

Similar to the offence of careless driving, there is no sentencing guidelines for the offence of dangerous driving, each case must be decided on its own facts. In Secretary for Justice v Poon Wing Kay [2007] 1 HKLRD 660, the Court of Appeal in applying R v Cooksley [2003] 3 All ER 40 expressed that the sentencing principle shall have a deterrent effect to emphasize the possible grave consequences flowing from acts of dangerous driving.

The following is a non-exhaustive list of relevant factors for the purpose of assessing culpability of the offence of dangerous driving causing death, which may be relevant to the consideration of the offence of dangerous driving.

Aggravating factors Mitigating factors
Highly culpable standard of driving at time of offence

a.      Consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a ‘motorised pub crawl’

b.     Greatly excessive speed; racing; competitive driving against another vehicle; ‘showing off’

c.      Disregard of warnings from fellow passengers

d.     A prolonged, persistent and deliberate course of very bad driving

e.      Aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking)

f.      Driving while the driver’s attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held)

g.     Driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills

h.     Driving when knowingly deprived of adequate sleep or rest

i.       Driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns

 

Driving habitually below acceptable standard

j.       Other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle

k.     previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving

 

Outcome of offence

l.       more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable)

m.   serious injury to one or more victims, in addition to the death(s)

 

Irresponsible behaviour at time of offence

n.     behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape

o.     causing death in the course of dangerous driving in an attempt to avoid detection or apprehension

p.     offence committed while the offender was on bail

a.      Good driving record

b.     Absence of previous convictions

c.      Timely guilty plea

d.     Genuine shock and remorse (which may be greater if the victim is either a close relation or a friend)

e.      The offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence)

f.      The fact that the offender had been seriously injured as a result of the dangerous driving

 

The Court of Appeal cautioned against mechanical counting of aggravating factors and mitigating factors as the approach to sentencing. The court shall look at the overall circumstances and overall culpability of the offender. Culpability and selfish disregard for the safety of other road users are often dominating factors in such consideration.

After conviction, the driver would incur 10 points in the Driving-offence Points System.

Leave a Reply

Your email address will not be published. Required fields are marked *