Careless Driving

Section 38(2) provides two alternative ways in which driving may be careless: driving without due care and attention, or driving without reasonable consideration for other persons using the road. The prosecution must prove at least one of these alternatives beyond a reasonable doubt.

Hong Kong case law applies an objective test. In Tse So-ha v The Queen (CACC 380/1978), the Court of Appeal considered whether the driver exercised the degree of care and attention that a reasonable and prudent driver would have exercised in the circumstances. A driver is not careless merely because an accident occurred or because, with hindsight, a more skilful driver might have reacted differently.

The Road Users' Code, issued by the Transport Department, is an important practical reference when the court assesses that standard. Under section 109(5) of the Road Traffic Ordinance, failure to observe the Code is not, by itself, an offence. It may nevertheless be taken into account in civil or criminal proceedings and relied upon as tending to establish or negate liability. The Code does not replace the statutory test: the court must still decide the case from all the surrounding circumstances.