Cap 374 s 36 Causing death by dangerous driving (Road Traffic Ordinance)

Contents of Section

Chapter:	374	Title:	Road Traffic Ordinance	Gazette Number:	E.R. 2 of 2012
Section:	36	Heading:	Causing death by dangerous driving	Version Date:	02/08/2012

(1) A person who causes the death of another person by driving a motor vehicle on a road dangerously commits an offence and is liable-

(a) on conviction on indictment to a fine at level 5 and to imprisonment for 10 years; (Amended 23 of 2008 s. 5)

(b) on summary conviction to a fine at level 4 and to imprisonment for 2 years.

(2) If a court or magistrate convicts a person of an offence under subsection (1), the court or magistrate shall order that the person be disqualified in accordance with subsection (2A) or (2B) unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified. (Replaced 23 of 2008 s. 5)
(2A) Subject to subsection (2B), the person is to be disqualified-

(a) in the case of a first conviction, for a period of not less than 5 years; and

(b) in the case of a second or subsequent conviction, for a period of not less than 10 years. (Added 23 of 2008 s. 5. Amended 19 of 2010 s. 6; 24 of 2011 s. 6)

(2AB) A court or magistrate may, in making an order that a person be disqualified in accordance with subsection (2A), order that the person be disqualified for life, if-

(a) the person has been convicted of the same offence previously; and

(b) having regard to the circumstances in which the offence was committed (which may include but is not limited to those set out in subsection (2E)) and the behaviour of the person, the court or magistrate is of the opinion that it is undesirable for the person to continue to be allowed to drive a motor vehicle. (Added 24 of 2011 s. 6)

(2B) If the court or magistrate has ordered the person to attend and complete a driving improvement course under section 72A(1A), the person is to be disqualified-

(a) in the case of a first conviction, for a period of not less than 5 years, or until the person has attended and completed the course at his own cost, whichever is the later; and

(b) in the case of a second or subsequent conviction, for a period of not less than 10 years, or until the person has attended and completed the course at his own cost, whichever is the later. (Added 23 of 2008 s. 5. Amended 19 of 2010 s. 6; 24 of 2011 s. 6)

(2C) For the purposes of subsection (2), a person to whom subsection (2B) applies is disqualified for a shorter period if he is disqualified-

(a) in the case of a first conviction, for a period of less than 5 years, or until the person has attended and completed the driving improvement course at his own cost, whichever is the later; and

(b) in the case of a second or subsequent conviction, for a period of less than 10 years, or until the person has attended and completed the driving improvement course at his own cost, whichever is the later. (Added 23 of 2008 s. 5. Amended 19 of 2010 s. 6; 24 of 2011 s. 6)

(2D) If an offence under subsection (1) is committed in circumstances of aggravation, the maximum fine and term of imprisonment for the offence as set out in subsection (1), and the minimum disqualification periods for the offence as set out in subsections (2A) and (2B), are each increased by 50% and subsection (2C) must be construed accordingly. (Added 19 of 2010 s. 6)
(2E) A person commits an offence under subsection (1) in circumstances of aggravation if at the time of committing the offence-

(

) the proportion of alcohol in the person's breath, blood or urine is tier 3; or

(

) any concentration of a specified illicit drug is present in the person's blood or urine. (Added 19 of 2010 s. 6. Amended 24 of 2011 s. 6)

(2F) To avoid doubt and despite anything to the contrary in section 113C of the Criminal Procedure Ordinance (Cap 221), the maximum fine for an offence under subsection (1) committed in circumstances of aggravation is the monetary amount derived by multiplying by 1.5 the maximum fine for the offence as set out in subsection (1). (Added 19 of 2010 s. 6)
(3) The court or magistrate may deal with the conviction of an offence as a first conviction (including for the purposes of subsection (2AB)(a)) if, as at the date on which the offence was committed, at least 5 years have elapsed since the person's last conviction under subsection (1). (Replaced 23 of 2008 s. 5. Amended 24 of 2011 s. 6)
(4) A person is to be regarded as driving dangerously within the meaning of subsection (1) if-

(a) the way he drives falls far below what would be expected of a competent and careful driver; and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

(5) A person is also to be regarded as driving dangerously within the meaning of subsection (1) if it would be obvious to a competent and careful driver that driving the motor vehicle concerned in its current state would be dangerous.
(6) For the purposes of subsections (4) and (5), dangerous refers to danger either of injury to any person or of serious damage to property.
(7) For the purposes of subsections (4) and (5), in 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-

(a) the nature, condition and use of the road concerned at the material time;

(b) 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

(c) 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.

(8) In determining for the purposes of subsection (5) the state of the motor vehicle, regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.
(9) If on the trial of any person charged with an offence under subsection (1) the prosecution proves that the person charged drove dangerously but not that he caused the death of another person by so driving, the person charged shall be acquitted of the offence under subsection (1) and be found guilty of an offence under section 37.
(9A) If on the trial of any person charged with an offence under subsection (1) the prosecution proves that the person charged drove dangerously and caused grievous bodily harm to, but not the death of, another person by so driving, the person charged must be acquitted of the offence under subsection (1) and be found guilty of an offence under section 36A. (Added 19 of 2010 s. 6)
(10) On the trial of any person charged with an offence under subsection (1), the person charged may be acquitted of the offence under subsection (1) and be found guilty of one or more offences under section 38, 39 , 39A, 39J, 39K or 39L. (Amended 24 of 2011 s. 6)

(Replaced 33 of 2000 s. 2)