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Driving

I. Driving

Defendants in most traffic offences are caught while driving vehicles.  But what exactly is “driving”?  What constitutes “driving” may look plain and obvious.  However, there are in fact many Court cases where defendants facing driving offences have tried to argue that they were not driving at the material time.  Consider the following scenarios:

 

  • Pushing and steering a vehicle?
  • Pushing without steering a vehicle?
  • Leaving a vehicle, with its engine running?
  • Sitting at the driver’s seat of a vehicle, with its engine off? 
  • Releasing the handbrake of a vehicle and let it go downhill?
  • Sitting in the driver’s seat of a vehicle while it was being towed?
  • Controlling a vehicle that was stuck in a traffic jam and motionless at the time?

Are the above acts “driving”?  There is no statutory definition of the word “driving”; and there is no fixed rule governing what constitutes the act of “driving”.  Each of the above scenarios will have to be considered in the light of its factual circumstances before one can decide whether or not there is “driving”. 

 

Generally speaking, the basic principles of what constitutes “driving” are: driving involves the driver having control over the movement of a vehicle, and driving happens when the driver deliberately sets the vehicle in motion. 

 

The following examples may serve to highlight the Court’s attitude towards what constitutes “driving”.

 

  • Pushing a vehicle with occasional adjustment of the steering wheel was not driving.
  • Pushing and steering a motorcycle was driving.
  • Temporarily leaving a vehicle with its engine running amounts to driving because driving is a continuous act.
  • A person in the driving seat of a vehicle, with its engine off but still warm, had driven the vehicle.  A conviction of driving while disqualified was therefore justified.
  • A person sitting in the driver seat of a stationary vehicle, with its engine running, was not driving, though he accidentally stepped on the accelerator and made the vehicle move forward.
  • Releasing the handbrake of a vehicle and letting it go downhill amounts to driving.
  • Sitting at the driver’s seat of a vehicle while it was being towed amounts to driving.
  • A driver controlling a stationary vehicle in a traffic jam was driving.

(However, it should be noted that the Court decides each case on its unique factual circumstances.  The above examples should not be treated as general principles.)

 

Careless Driving

II. Careless Driving

A relatively serious but commonly seen offence involving driving is “careless driving”.  But how carelessly has to be one drive in order to constitute “careless driving”?

 

According to section 38(2) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), a person drives carelessly “if on a road he drives a vehicle without due care and attention or without reasonable consideration for other persons using the road”.  Therefore, the essential question to ask is: what exactly is “without due care and attention” or “without reasonable consideration for other persons using the road”?

 

1. “without due care and attention”

1. “without due care and attention

When dealing with the question of whether a driver has driven “without due care and attention”, the Court will ask: whether the driver was exercising the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.  So the next question will naturally be: what is “reasonable”? 

 

The Court will answer the above questions from an objective perspective.  For example, if a driver went through a red light, it is almost certain from an objective point of view that such an act was not up to the standard of a reasonable and prudent driver.  Personal and non-objective factors such as the driver’s driving experience or state of mind will not be taken into account. 

 

That is to say, if this driver was an experienced one, he could not argue: “I am an experienced driver of good record and have always been driving reasonably and prudently; that act was merely a momentary lapse of mind.”  If this driver was an inexperienced one, he could not argue: “Sorry, I only obtained my driving licence two weeks ago; please excuse me for my inexperience”. 

 

Similarly, it does not matter whether the driver was going through the red light deliberately or absent-mindedly.  The Court will simply ask itself whether the act of going through the red light amounts to an act below the standard of a reasonable and prudent driver.  But of course the act of deliberately jumping a red light is definitely more serious and will likely constitute dangerous driving. 

 

2. “without reasonable consideration for other persons using the road

2. “without reasonable consideration for other persons using the road”

The phrase “without reasonable consideration” may sound similar to “without due care and attention”.  However, one should note that the charge “without reasonable consideration for other persons using the road” is applicable only if other road users are affected. 

 

But one should also note that injury or damage is not an essential element in this offence. The Court has ruled that there could be a failure to show reasonable consideration for other persons using the road when a driver drove at a slow speed (that is, substantially below the speed limit for that road) and did not pull in to passing bays to allow faster traffic to pass by. 

 

3. Proof of careless driving

3. Proof of careless driving

Even though it may seem very obvious that a driver’s act constitutes “carelessness”, the Court cannot simply say: “the facts speak for themselves” and then convict a person of careless driving.  The court must duly consider all the factual circumstances related to the incident and find evidence of carelessness.  The facts may be so prevalent, however, that the Court can draw an irresistible inference that, in the absence of a reasonable explanation, there must have been careless driving.  For example, in the absence of a reasonable explanation, the Court has drawn an inference of careless driving in the following cases:

 

  • where a vehicle knocked down a pedestrian crossing the road;
  • where a vehicle crossed the centre line, i.e. the single broken line in the middle of a road, and caused an accident;
  • where a driver lost control of the vehicle and it led to a collision; and 
  • where a vehicle pulled out from a side road and collided with other vehicles on the main road.

Of course, anybody being charged with a criminal offence has the right to remain silent. Nevertheless, if there is some basic evidence which may suggest carelessness, and the driver charged with the offence of careless driving has an explanation for the incident, this driver should be prepared to speak up and give evidence in Court to explain the circumstances and prove the absence of carelessness, otherwise the inference of careless driving can be inevitable.

 

4. Some typical examples of careless driving

4. Some typical examples of careless driving

Since an objective perspective will be adopted when deciding whether or not there is “carelessness”,it is not difficult, by objective standards, to provide some examples of acts that are unreasonable and would be considered careless. Drivers may find the Road Users’ Code — published by the Transport Department — a useful and objective reference on “carelessness”. Section 109(5) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides that while failure to observe provisions of the Code does not necessarily lead to criminal liability, such failure may be relied upon in legal proceedings “as tending to establish or negate any liability which is in question in those proceedings”.  Since a driver is supposed to comply with the Road Users’ Code , a breach of the same may be considered prima facie (That is, evidence that looks sufficient to prove the case, unless substantial contradictory evidence is presented at trial) evidence of careless driving.

 

While the above acts illustrate examples of careless driving, every case or accident is surrounded by its own facts and circumstances specific to that particular accident, and therefore those examples above are only for reference.  Generally speaking, drivers are recommended to follow the advice set out in the Road Users’ Code.

 

a. Failing to keep a safe distance and rear-end collisions

a. Failing to keep a safe distance and rear-end collisions

Every driver knows that it is essential to keep a safe distance while driving. The Road Users’ Code contains some discussion on stopping distances, which may be somewhat technical.  If we skip the technical part, the plain advice is: “Leave a big enough gap between you and the vehicle in front – big enough for you to stop safely if the vehicle suddenly slows down or stops…If you have to take panic action because you have insufficient room to act smoothly, you are either going too fast or driving too close to the vehicle in front.

 

The logical consequence of failing to keep a safe distance is of course a rear-end collision. While the mere fact of a rear-end collision cannot be irrefutable evidence of carelessness, the Court is entitled to infer carelessness from such a fact, and does so consistently.  In other words, unless there are some exceptional circumstances, a driver who drives a vehicle into the one ahead would often be considered careless.

 

b. Failing to check when reversing

b. Failing to check when reversing

The Road Users’ Code contains plain and straight-forward advice on reversing: “Before you reverse make sure that there are no pedestrians — particularly children — behind you…You must not reverse unless it can be done in safety…Only reverse if you can do so safely and without making other road users change speed or direction.”  In other words, a driver is required to take special care when reversing.  The fact that a vehicle causes an accident when reversing can be decisive regarding the “carelessness” of the driver.

 

c. Unsafe overtaking

c. Unsafe overtaking

Overtaking is generally allowed on a normal two lane road separated by a centre line, i.e. the single broken line in the middle of the road with short markings and long gaps.  However, since there is always the possibility of vehicles coming towards you on the other lane, a driver must adopt extreme care while overtaking.  The Road Users’ Code expressly stipulates: “Do not overtake unless you are sure you can do so without danger to others as well as yourself.”  Drivers causing an accident during overtaking should be prepared to accept liability for careless driving (if not dangerous driving).

 

d. Knocking down pedestrians

d. Knocking down pedestrians

It is probably a truism to say that a driver must keep a vigilant eye on other road users, especially pedestrians, when driving.  The Road Users’ Code actually spells this out clearly: “Drivers have the legal and moral responsibility to take proper care to avoid accidents with pedestrians at all times and place—even if the pedestrian is jaywalking. Always try to give way to a pedestrian on the roadway.” The Court has repeatedly emphasized that a vehicle in the hands of an irresponsible driver can be an extremely lethal weapon.  A driver should therefore always be careful when driving, so as to avoid injuring or even killing innocent citizens.  Although a pedestrian could have suddenly dashed into the road giving the driver no practical chance to avoid hitting him the Court will need cogent (very convincing and compelling) evidence to prove that the pedestrian dashed out suddenly and that a collision was unavoidable, in order to exonerate the driver.

 

5. Sentences

5. Sentences

Section 38 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides that the maximum penalty for careless driving shall be a fine of $5,000 and imprisonment for 6 months.  The Court is also empowered under section 69(1) of the same Ordinance to disqualify a driver from driving for such a period as the Court thinks fit.  For cases where no casualty or serious injury is involved, the Court will usually impose a monetary fine instead of imprisonment or disqualification.

 

There is no offence known as careless driving causing death or causing grievous bodily harm—contrary to dangerous driving charges, which do include dangerous driving causing death and grievous bodily harm, under section 36 and section 36A respectively of the of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong).  However, if the act of careless driving results in casualty, the Court will certainly take this into account when deciding the sentence.  It suffices to say that the Court has not hesitated to impose the maximum custodial sentence (or sentences close to the maximum) in careless driving cases where death occurred. 

 

Dangerous Driving

III. Dangerous Driving

According to section 37(4) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) , a person drives dangerously if “the way he drives falls far below what would be expected of a competent and careful driver” and “it would be obvious to a competent and careful driver that driving in that way would be dangerous”.

 

Therefore, the essential question to ask is: what exactly is “dangerous”?

 

1. “dangerous”

1. “dangerous”

“Dangerous” is a simple word and its meaning should be obvious.  However, what is dangerous to an ordinary driver may not be dangerous to a F1 racecar driver.  In order to avoid doubt, section 37(6) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) defines the word “dangerous”, when used in the context of dangerous driving, as referring to “danger either of injury to any person or of serious damage to property”.

 

2. obvious to a competent and careful driver that driving in that way would be dangerous

2. obvious to a competent and careful driver that driving in that way would be dangerous

Section 37(7) of the Road Traffic Ordinance (Cap.374) of the Laws of Hong Kong contains useful guidelines for 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-

 

  1. the nature, condition and use of the road concerned at the material time;
  2. 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
  3. 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.

Since “dangerous”, or the danger, has to be “obvious to a competent and careful driver”, the Court has to adopt an objective test by considering the facts of each case from the perspective of a competent and careful driver.  Therefore, as in the case of careless driving, the subjective mindset of an individual driver is not important.

 

a. Racing

a. Racing

It is beyond dispute that racing is definitely an act which brings other road users into grave danger.  Once proof of racing is established, the Court will not hesitate to convict a driver of dangerous driving.  Apart from dangerous driving, a driver involved in racing should also be prepared to face the charge of racing under section 55 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), which provides that it shall be an offence for a person to promote or take part in a race between vehicles on any road.  Further, section 33 of the Offences Against the Person Ordinance (Cap.212 of the Laws of Hong Kong) also provides that “Any person who, having the charge of any carriage or vehicle, by wanton or furious driving or racing or other wilful misconduct, or by wilful neglect, does or causes to be done any bodily harm to any person shall be guilty of an offence triable either summarily or upon indictment, and shall be liable to imprisonment for 2 years.

 

However, sometimes it may be difficult to establish whether there is really a race among vehicles.  Let’s assume that you were driving in the middle of the night at a speed well above the prescribed limit on a meandering road in a car which has been adapted for higher speed, together with a group of cars also adapted for higher speed.  Some of the drivers in this group made some dangerous maneuvers by overtaking each other, but you did not.  Are you racing?  Well, even if you have not been caught overtaking, it is likely that you will still be considered to be racing because of all the circumstantial evidence: the time, the place, the high speed and the fact that your vehicle and the other vehicles have been adapted for high speed. These circumstances all objectively indicate the activity of racing; and therefore the Court will likely convict you of racing and dangerous driving.

 

b. Jumping or running red lights deliberately

b. Jumping or running red lights deliberately

Jumping or running red lights represents an act which is obviously below the standard of what would be expected of a competent and careful driver.  But is it so “far below” the standard as to constitute dangerous driving?  If a driver jumps a red light only absentmindedly, could it be only careless driving instead of dangerous driving?  The Court will look into the facts of each case to decide whether dangerous (or careless) driving is present.  But if a case involves deliberately jumping a red light, the driver should not expect anything less than a dangerous driving conviction.  While it may be difficult, if not impossible, to prove whether or not a driver has deliberately jumpeda red light, the Court is entitled to draw inference from the way of driving.  For example, if a driver drove through more than one red light, the Court would not find it difficult to draw an inference that such way of driving arose from a deliberate act.

 

c. Excessive speeding

c. Excessive speeding

For most speeding cases, the driver will only receive a “speeding ticket”.  If this driver promptly settles the “speeding ticket”, probably no charge of dangerous driving will be laid.  Actually, even if a vehicle is driven in excess of the speed limit by 45 km per hour, the driver may probably face a deduction of 10 points under the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong), a fine of $1,000 as prescribed by the Fixed Penalty (Criminal Proceedings) Ordinance (Cap.240 and a disqualification of 6 months under section 41(3) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong).  But what about excessive speeding for an extended period of time?  Such an act of driving is clearly not a momentary lapse of attention.  Unless there were some special reasons for the excessive speed, the Court has, in various cases, treated this kind of driving as blatantly irresponsible behavior and convicted the driver of dangerous driving.

 

d. Driving an overloaded vehicle

d. Driving an overloaded vehicle

The offence of dangerous driving may not be limited to the manner of driving.  According to section 37(5) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), a person “is also to be regarded as driving dangerously…if it would be obvious to a competent and careful driver that driving the motor vehicle concerned in its current state would be dangerous”.  That is to say, driving a vehicle that is obviously unsuitable to be used on the road could amount to dangerous driving.  For example, the Court has held in a number of cases that driving an overloaded vehicle in certain circumstances constitutes dangerous driving.

 

4. Proof of dangerous driving

4. Proof of dangerous driving

As shown in the case of careless driving, the Court will adopt an objective test in deciding whether or not the act of driving in question is dangerous.  It effectively means that each case before the Court will have to be scrutinized in the light of the factual circumstances related to the accident.  The Court would take into account all relevant facts, (whether they are apparently dangerous or not) and all reasons given by the driver, to ascertain whether or not there is dangerous driving.

 

1. Ms. R drove through 2 red lights at the speed of 100 km per hour and then collided with a stationary vehicle on the opposite side of the road. Upon being charged with dangerous driving, Ms. R argued that trees blocked her view of the red lights, and then she lost control of the vehicle and it dashed into the other side of the road although she had tried her best to keep it on the right side of the road. Assuming that is true, would Ms. R be able to get away with the charge?

1. Ms. R drove through 2 red lights at the speed of 100 km per hour and then collided with a stationary vehicle on the opposite side of the road.  Upon being charged with dangerous driving, Ms. R argued that trees blocked her view of the red lights, and then she lost control of the vehicle and it dashed into the other side of the road although she had tried her best to keep it on the right side of the road.  Assuming that is true, would Ms. R be able to get away with the charge?

If Ms. R’s view of the red lights was indeed blocked by trees, she should slow down her vehicle in order to ascertain the prevailing light signal.  Every sensible driver should consider that proceeding with an unclear view is potentially dangerous.  Further, the fact that Ms. R had driven through 2 red lights at an excessively high speed also reinforced the impression that she was driving in a manner that showed no regard for the safety of other road users.  The consequence of Ms. R’s act of driving, i.e. crashing into a stationary vehicle on the opposite side of the road, is another fact from which the Court would likely draw an adverse inference against her in this case.  A “competent and careful driver” should be well aware that loss of control of a vehicle is a predictable consequence of driving at such excessive speed.  Even though Ms. R might have tried her best to control the vehicle, that itself cannot avail her in defending herself against the charge of dangerous driving.

 

a. The statutory sentences

a. The statutory sentences

The statutory sentences in respect of dangerous driving can be grouped under 3 major categories: dangerous driving, causing death by dangerous driving, and causing grievous bodily harm by dangerous driving.  The test for “dangerous” is the same under all 3 categories; but the sentences are different:

 

  • Dangerous Driving, under section 37 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong):
    • on conviction on indictment, to a fine of $20,000 and to imprisonment for 3 years;
    • on summary conviction, to a fine of $10,000 and to imprisonment for 12 months; and
    • disqualification for at least 6 months for a first conviction and for at least 2 years for a subsequent conviction.
  • Causing death by dangerous driving, under section 36 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong):
    • on conviction on indictment, to a fine of $50,000 and to imprisonment for 10 years;
    • on summary conviction, to a fine of $20,000 and to imprisonment for 2 years; and
    • disqualification for at least 2 years for a first conviction and of at least 5 years for a subsequent conviction.
  • Causing grievous bodily harm by dangerous driving, under section 36A of the Road Traffic Ordinance(Cap.374 of the Laws of Hong Kong):
    • on conviction on indictment, to a fine of $50,000 and to imprisonment for 7 years;
    • on summary conviction, to a fine of $20,000 and to imprisonment for 2 years; and
    • disqualification for at least 2 years for the first conviction and of at least 5 years for a subsequent conviction.

 

b. Dangerous driving involving alcohol or drugs

b. Dangerous driving involving alcohol or drugs

Due to the increasing number of cases involving driving under the influence of alcohol or drugs, the statutory sentence was enhanced in 2010 by expressly stating that the maximum fine and term of imprisonment for the offence of dangerous driving (including that of causing death and causing grievous bodily harm) shall be increased by 50% if:

 

  • the proportion of alcohol in the driver’s breath, blood or urine exceeds the following:
    • for breath, 66 micrograms of alcohol in 100 millilitres of breath;
    • for blood, 150 milligrams of alcohol in 100 millilitres of blood; or
    • for urine, 201 milligrams of alcohol in 100 millilitres of urine; or
  • any amount of certain specified drugs (including the most common ones such as heroin, ketamine, cannabis, cocaine, etc.) is present in the driver’s blood or urine.

 

c. The Court’s attitude

c. The Court’s attitude

The sentence to be imposed by the Court would largely depend on the facts of each individual case.  While facts may differ from case to case, the following words by the Honourable Mr. Justice Ma (now the Chief Justice of the Court of Final Appeal) can probably serve as a an illustrative guide to the Court’s attitude towards sentencing in dangerous driving cases:

 

In most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly.  This is important to bear in mind because, while it may be true in some instances not to treat violators of traffic laws as true criminals, nevertheless for offences such as dangerous driving causing death, the offender may not necessarily be seen in quite such a benevolent light…In assessing the overall seriousness of a crime, culpability is often the dominant factor.  It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence.  Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence.…One major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or of his passengers (or, we would add, of pedestrians) or with a degree of recklessness.” (Court of Appeal Review Case No.2 of 2006)

 

In this same case, the Honourable Mr. Justice Ma also expressly approved certain aggravating factors as laid down in the UK case of R v Cooksley (2003):

 

  • consumption of drugs (including legal medication known to cause drowsiness) or alcohol;
  • excessive speed, racing, competitive driving or “showing off”;
  • disregard of warnings from fellow passengers;
  • a prolonged, persistent, and deliberate course of very bad driving;
  • aggressive driving, e.g. driving much too close to the vehicle in front, persistent inappropriate attempts to overtake or cutting in after overtaking;
  • driving while unavoidably distracted, e.g. by reading or by use of a mobile telephone (especially if hand-held);
  • driving when knowingly suffering from a medical condition that significantly impairs driving skills;
  • driving when knowingly deprived of adequate sleep or rest;
  • driving a poorly maintained or dangerously loaded vehicle, especially where that has been motivated by commercial concerns;
  • other offences committed at the same time, e.g. driving without ever holding a licence, driving while disqualified, driving without insurance, driving while a learner without supervision, taking a vehicle without consent, driving a stolen vehicle;
  • previous convictions for motoring offences, particularly offences involving bad driving or the consumption of excessive alcohol before driving;
  • more than one person killed as a result of the offence, especially if the offender knowingly puts more than one person at risk or the occurrence of multiple death is foreseeable;
  • serious injury to one or more victims in addition to any death(s);
  • behaviour at the time of the offence, e.g. failing to stop, falsely claiming that one of the victims was responsible for the crash or trying to throw the victim off the bonnet by swerving in order to escape;
  • causing death in the course of dangerous driving in an attempt to avoid detection or apprehension; and
  • committing the offence while on bail.

Therefore, in cases where the Court finds any of the above aggravating factors, the Court will not hesitate to impose an immediate custodial sentence, even when there is no serious injury or death.  The rationale is: citizens have to be protected from drivers whose way of driving poses a great risk of dire or even tragic consequences. 

 

1. Elements of the offence

1. Elements of the offence

According to section 39 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), “A person who drives or attempts to drive or is in charge of a motor vehicle on any road while he is under the influence of drink or drugs to such an extent as to be incapable of having proper control of the motor vehicle commits an offence”.

 

According to section 39J of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), “A person who drives or attempts to drive, or is in charge of, a motor vehicle on any road while he or she is under the influence of a specified illicit drug to such an extent as to be incapable of having proper control of the motor vehicle commits an offence”.

 

According to section 39L of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), “A person who drives or attempts to drive, or is in charge of, a motor vehicle on any road while he or she is under the influence of a drug other than a specified illicit drug (non-specified drug) to such an extent as to be incapable of having proper control of the motor vehicle commits an offence”.

That sounds simple and straight-forward.  However, upon a detailed examination of the wording of the above sections, we may find certain elements of these offences problematic:

 

a. “in charge of a motor vehicle”

a. “in charge of a motor vehicle

Let’s consider this hypothetical situation: your friend parked a car at the roadside, gave you the car key and asked you to keep an eye on it for a few minutes; well, it’s true that you just had a few glasses of whisky and you might be at that moment arguably in charge of that car; but why should you be criminally liable simply for being in charge of a stationary vehicle?

 

Section 39(4) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) may come to your rescue.  It provides that “A person is deemed not to have been in charge of a motor vehicle if he proves that at the material time the circumstances were such that there was no likelihood of his driving the motor vehicle so long as he remained under the influence of drink or drugs to such an extent as to be incapable of having proper control of the motor vehicle”.  

 

Sections 39J(8) and 39L(7) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) contain similar provisions which endorse the defence of “no likelihood” of driving under the influence of “specified illicit drug” and “non-specified drug” respectively.

 

But well, in the above hypothetical situation, given the fact that you have the car key with you, you may have to provide more circumstantial evidence to show that there is no likelihood of you driving the car.

 

b. “incapable of having proper control of the motor vehicle”

b. “incapable of having proper control of the motor vehicle

This is probably the most difficult part in relation to offences involving driving under the influence of drink or drugs: how do we determine whether a person is “incapable of having proper control of the motor vehicle”?  Of course, there can be objective evidence (usually supported by a medical report) such as an erratic manner of driving, the occurrence of an accident, the driver smelt of alcohol or was unable to walk in a straight line, etc.  But all these require evidence to prove and can be subject to heated argument from the defendant.

 

Sections 39A and 39K of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) attempted to overcome this unsatisfactory situation.

 

For cases involving driving under the influence of drink, section 39A makes it an offence for any person “who drives or attempts to drive a motor vehicle, or is in charge of a motor vehicle, on any road with the proportion of alcohol in his breath, blood or urine exceeding the prescribed limit”; and “prescribed limit” is defined under section 2 of the same Ordinance as:

 

  • 22 micrograms of alcohol in 100 millilitres of breath;
  • 50 milligrams of alcohol in 100 millilitres of blood; or
  • 67 milligrams of alcohol in 100 millilitres of urine.

Once there is proof of the alcohol level by way of breath, blood or urine, the prosecution could simply lay a charge under section 39A instead of section 39 in most drunken driving cases and does not have to worry about how to prove whether the driver is “incapable of having proper control of the motor vehicle”. 

 

For cases involving driving under the influence of specified illicit drugs (please refer to Schedule 1A for the definition of specified illicit drugs), section 39K makes it an offence for any person “who drives or attempts to drive a motor vehicle, or is in charge of, a motor vehicle on any road while any concentration of a specified illicit drug is present in the person’s blood or urine (whether or not any other drug is also so present)”.  Therefore, again the prosecution does not need to prove whether the driver is “incapable of having proper control of the motor vehicle”.

 

But what about non-specified illicit drugs?  Sections 39A and 39K deal only with alcohol and specified illicit drugs.  For cases related to driving under the influence of non-specified illicit drugs, the prosecution would still have to produce sufficient evidence to show that the driver is “incapable of having proper control of the motor vehicle”.

 

a. Obligation to submit to a screening breath test

a. Obligation to submit to a screening breath test

The major statute governing the obligation to submit to a screening breath test is found in section 39B of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong).  It basically provides that a police officer in uniform may require anyone who is driving or attempting to drive or is in charge of a motor vehicle to provide a specimen of breath for a screening breath test; and it shall be an offence if anyone without reasonable excuse fails to provide the specimen of breath when required.  In other words, it empowers a police officer in uniform to conduct random breath testing whether or not there is any accident involved. 

 

1. Mr. D, while driving, was stopped by the police for a random breath test. Mr. D, who had just attended a rave party, was perfectly aware that the alcohol level in his body definitely exceeded the statutory prescribed limit. In the hope of getting away with the charge of drink driving under section 39 or 39A of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), he made up an excuse: “The breath test tools may be infectious” and refused to take the screening breath test. Would his plan work?

1. Mr. D, while driving, was stopped by the police for a random breath test.  Mr. D, who had just attended a rave party, was perfectly aware that the alcohol level in his body definitely exceeded the statutory prescribed limit.  In the hope of getting away with the charge of drink driving under section 39 or 39A of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), he made up an excuse: “The breath test tools may be infectious” and refused to take the screening breath test.  Would his plan work?

The answer here is yes and no at the same time.  Mr. D’s plan may enable him to get away with a drink driving charge.  However, he would at the same time contravene section 39B, which provides that it shall be an offence if any person “without reasonable excuse, fails to provide a specimen of breath when required”.  The excuse of being afraid of infection would not work unless there is medical evidence to prove that Mr. D is suffering from some kind of obsessive phobia.  As a matter of fact, the sentence for failing to provide a specimen of breath is equivalent to or even more serious than that for “driving a motor vehicle under the influence of drink or drugs” or “driving with alcohol concentration above prescribed limit”.  It is therefore really pointless for a driver to refuse to take a screening breath test.

 

Note that according to section 39B(5), the police officer must “warn a person at the time of requiring a specimen for a screening breath test…that a failure to provide it may render him liable to prosecution”.  A failure to give the warning would therefore invalidate a charge under section 39B.

 

If one refuses to provide the specimen, that of course constitutes failure. But the word “failure” here does not simply means refusal.  By section 39B(10), a person fails to provide the required breath specimen unless the specimen “is sufficient to enable the test to be carried out; and is provided in a way to enable the objective of the test to be satisfactorily achieved”.

 

2. Ms. D had a few drinks at a bar and then drove home. She was stopped on the way by the police for a random breath test. Ms. D knew that she couldn’t refuse to do the test. But she deliberately blew around the mouth piece instead of into it. Would her plan work?

2. Ms. D had a few drinks at a bar and then drove home.  She was stopped on the way by the police for a random breath test.  Ms. D knew that she couldn’t refuse to do the test.  But she deliberately blew around the mouth piece instead of into it.  Would her plan work?

That wouldn’t work.  Ms. D’s act of blowing around the mouth piece will not be “sufficient to enable the test to be carried out”.  She has therefore failed to provide the required breath specimen.

 

c. Obligation to provide specimens for analysis

c. Obligation to provide specimens for analysis

In addition to the power to require a person to submit to a screening breath test, a police officer may require a person to provide specimens of breath for analysis or to provide a specimen of blood or urine for a laboratory test; and it shall be an offence if anyone without reasonable excuse fails to provide the specimen when required.  

 

For analysis in relation to alcohol, section 39C of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides that “A police officer may require a person whose screening breath test indicates that the proportion of alcohol in that person's breath is likely to exceed the prescribed limit or who fails to provide a specimen for the screening breath test with reasonable excuse-

 

  1. to provide 2 specimens of breath for analysis by means of an approved breath analysing instrument; or
  2. to provide a specimen of blood or urine for a laboratory test.”

While section 39B of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) caters primarily for the random breath testing that usually takes place on the road, this section 39C deals with the situation where the police may require a specimen of breath, blood or urine at a breath test centre, police station, or hospital. It should be noted that:

 

  • 2 specimens of breath will be taken; and only the one with the lower alcohol level reading will be used as evidence against the accused person. (section 39D)
  • If there is a medical reason why a specimen of breath cannot be provided, the police officer shall decide whether a specimen of blood or urine should be taken. (section 39C(2))
  • However, if specimen of blood is to be taken from a person, the consent of this person must be obtained. (section 39C(11))
  • It is an offence for a person to fail to provide a specimen of breath, urine or blood without reasonable excuse. (section 39C(15))
  • A warning given to the accused person by the police officer at the time a specimen is required is also essential for section 39C to be operative: “A police officer shall warn a person at the time of requiring a specimen under this section that a failure to provide it may render him liable to prosecution”. (section 39C(18))
  • The test for “failure” is similar to that under section 39B, i.e. a person fails to provide the required breath specimen unless the specimen “is sufficient to enable the analysis or laboratory test to be carried out; and is provided in a way to enable the objective of the analysis or laboratory test to be satisfactorily achieved”. (section 39C(19))

 

For test in relation to drugs, section 39P of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides that an authorized police officer may require a person “to provide a specimen of blood or urine, or specimens both of blood and urine, for a laboratory test, if the police officer is of the opinion that the results of the Impairment Test indicate that his or her ability to drive properly is for the time being impaired.

 

If a police officer has reasonable cause to suspect that a specified illicit drug is present in a person’s blood or urine, and a preliminary drug test could not be conducted due to medical reason or any other reasonable cause, the police officer may make the same requirement for the taking of specimen.

 

It should also be noted that:

  • The requirement to provide any specimen has to be made at a breath test centre, police station or hospital. (section 39P(4))
  • The police officer or authorized police officer must decide whether specimen of blood or urine or both are to be taken. (section 39P(5))
  • A person must provide the specimen of urine within 1 hour of being required to provide it. (section 39P(7))
  • It is an offence for a person to fail to undergo preliminary drug test (section 39O) or fail to provide a specimen without reasonable excuse. (section 39S)
  • Specimen of blood cannot be taken from a person unless he or she consents. (section 39P(9))
  • A warning given to the accused person by the police officer at the time a specimen is required is also essential for section 39P to be operative. (section 39P(8))
  • If it appears to a police officer that a person is incapable of giving a valid consent due to medical reason, the police officer may request a medical practitioner to take a specimen of blood from that person. (section 39Q(1))

Even if blood specimen is taken from a person, it shall not be subjected to laboratory test unless the person has been informed that it has been taken, and has given consent to the analysis of the specimen. (section 39Q(4))

 

1. Ms. A’s vehicle hit the rear of the vehicle in front.  The police officer who arrived at the scene found Ms. A unsteady on her feet, her voice slurred, and her breath smelt of alcohol.  Due to Ms. A’s condition as such, the police officer found that no screening breath test could be conducted at the scene.  Ms. A was later transferred to a hospital where she was still in an apparently drunken state.  A police officer then required her to provide a specimen of urine for a laboratory test.  Ms. A, seeing that no female police officer was present, refused to provide the urine specimen.  The police officer and the doctor at the hospital then sought Ms. A’s consent to provide a blood specimen; she again refused by saying: “I don’t trust your doctor and your equipment.  How do I know if your needle is contaminated with AIDS or not?  I won’t give blood to you.”  Eventually no breath, urine, nor blood specimen was taken.  Was Ms. A entitled to make the above refusals?

1. Ms. A’s vehicle hit the rear of the vehicle in front.  The police officer who arrived at the scene found Ms. A unsteady on her feet, her voice slurred, and her breath smelt of alcohol.  Due to Ms. A’s condition as such, the police officer found that no screening breath test could be conducted at the scene.  Ms. A was later transferred to a hospital where she was still in an apparently drunken state.  A police officer then required her to provide a specimen of urine for a laboratory test.  Ms. A, seeing that no female police officer was present, refused to provide the urine specimen.  The police officer and the doctor at the hospital then sought Ms. A’s consent to provide a blood specimen; she again refused by saying: “I don’t trust your doctor and your equipment.  How do I know if your needle is contaminated with AIDS or not?  I won’t give blood to you.”  Eventually no breath, urine, nor blood specimen was taken.  Was Ms. A entitled to make the above refusals?

Ms. A’s refusal to provide the urine specimen is probably justified under those circumstances.  But given that she was being asked to provide her blood specimen in a hospital and in the presence of a medical practitioner, her refusal to provide a blood specimen probably would not stand up as a reasonable excuse.  In such circumstances, Ms. A would likely be liable for failing to provide a specimen under section 39C of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong).

 

If a police officer suspects that Ms. A was under the influence of drugs (instead of drink), the police officer can require her to conduct preliminary drug test and to provide specimen of blood or urine for analysis.  As in the above hypothetical scenario relating to alcohol test, Ms. A’s refusal to provide blood specimen in a drug related case would probably render her liable for failing to provide a specimen under section 39S of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong).

 

a. Fines and imprisonment

a. Fines and imprisonment

For the following offences under the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong):

  • section 39 (i.e. driving a motor vehicle under the influence of drink),
  • section 39A (i.e. driving a motor vehicle with an alcohol concentration above the prescribed limit),
  • section 39B (i.e. failing to provide a specimen of breath for a screening breath test for alcohol),
  • section 39C (i.e. failure to provide a specimen for analysis or laboratory test for alcohol),
  • section 39J (i.e. driving motor vehicle without proper control under influence of specific illicit drug),
  • section 39K (i.e. driving motor vehicle with any concentration of specified illicit drug),
  • section 39L (i.e. driving motor vehicle without proper control under influence of drug other than specific illicit drug),
  • section 39O (i.e. failure to undergo an Impairment Test), and
  • section 39S (i.e. failure to provide specimen of blood or urine or failure to give the necessary consent to provide the specimen for test of drug)

the penalties in respect of fines and imprisonment are largely the same, being:

  • on conviction on indictment to a fine of $25,000 and to imprisonment for 3 years;
  • on summary conviction on a first offence to a fine of $10,000 and to imprisonment for 6 months and on any subsequent conviction to a fine of $25,000 and to imprisonment for 12 months.

 

Note, however, that the penalty for failure to undergo a Drug Influence Recognition Observation is relatively mild: on conviction to a fine of $2,000 and to imprisonment of 3 months (section 39O(3)).

 

b. Disqualification

b. Disqualification

Sections 3939A39B and 39C of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) make it mandatory for the Court to disqualify an offending driver from driving for a certain period of time. 

 

The disqualification period for offences under section 39 (driving a motor vehicle under the influence of drinks or drugs), section 39B (failing to provide a specimen of breath for a screening breath test) and section 39C (failure to provide a specimen for analysis or laboratory test) are the same, being:

  • disqualification for at least 2 years for a first conviction and for at least 5 years for a subsequent conviction under any of sections 3939A39B and 39C.

 

The disqualification period for the section 39A offence (i.e. driving a motor vehicle with an alcohol concentration above prescribed limit) is a bit complicated. In 2010, a 3-tier system was introduced to correlate the disqualification period with the alcohol level found in the offender. Section 39A(1A) specifies that the proportion of alcohol in a person’s breath, blood or urine be:

 

  1. tier 1 if it exceeds the prescribed limit but is less than-
    1. for breath, 35 micrograms of alcohol in 100 millilitres of breath;
    2. for blood, 80 milligrams of alcohol in 100 millilitres of blood; or
    3. for urine, 107 milligrams of alcohol in 100 millilitres of urine;
  2. tier 2 if it exceeds tier 1 but is less than-
    1. for breath, 66 micrograms of alcohol in 100 millilitres of breath;
    2. for blood, 150 milligrams of alcohol in 100 millilitres of blood; or
    3. for urine, 201 milligrams of alcohol in 100 millilitres of urine;
  3. tier 3 if it exceeds tier 2.

 

Section 39A(2A) further provides that the period for which an offender is to be disqualified will be:

 

  1. for a first conviction, a period of not less than-
    1. 6 months if the proportion of alcohol in the person’s breath, blood or urine is tier 1;
    2. 12 months if the proportion of alcohol in the person’s breath, blood or urine is tier 2;
    3. 2 years if the proportion of alcohol in the person’s breath, blood or urine is tier 3; and
  2. for a second or subsequent conviction (regardless of the proportion of alcohol in the person’s breath, blood or urine on any previous conviction), or a conviction subsequent to a conviction under section 3939B or 39C, a period of not less than-
    1. 2 years if the proportion of alcohol in the person’s breath, blood or urine is tier 1;
    2. 3 years if the proportion of alcohol in the person’s breath, blood or urine is tier 2;
    3. 5 years if the proportion of alcohol in the person’s breath, blood or urine is tier 3.

 

For drug-related driving offences, the law takes a more serious approach in terms of the disqualification period:

  • section 39J (i.e. driving motor vehicle without proper control under influence of specific illicit drug): disqualification for at least 5 years for a first conviction and for at least 10 years for a subsequent conviction; and if the accused has been convicted for the same offence previously, the Court may even disqualify him for life.
  • section 39K (i.e. driving motor vehicle with any concentration of specified illicit drug): disqualification for at least 2 years for a first conviction and for at least 5 years for a subsequent conviction.
  • section 39L (i.e. driving motor vehicle without proper control under influence of drug other than specific illicit drug): disqualification for at least 6 months for a first conviction and for at least 2 years for a subsequent conviction.
  • section 39O (i.e. failure to undergo preliminary drug test): disqualification for at least 5 years for a first conviction and for at least 10 years for a subsequent conviction.
  • section 39S (i.e. failure to provide specimen of blood or urine or failure to give the necessary consent to provide the specimen for test of drug): disqualification for at least 5 years for a first conviction and for at least 10 years for a subsequent conviction.

 

c. Drink driving vs failure to provide a specimen

c. Drink driving vs failure to provide a specimen

It should now be obvious that the penalty for failure to provide a specimen is equivalent to or more serious than that for drink driving.  This arrangement is most sensible because it would be contrary to the intent of the law if a driver could avoid disqualification and/or imprisonment by refusing to give a sample of breath, urine or blood.  The Court has pointed out in various cases that the penalty for failure to provide specimens of breath, urine or blood should have sufficient deterrent effect, so that no one can try to avoid the drink driving offence by deliberately failing to provide a specimen.

 

a. General

a. General

For the purpose of the issue of driving licences, motor vehicles are divided into 13 classes, the most common ones being private cars, motorcycles and light goods vehicles.  A person may drive a vehicle on the road only when holding a licence for the class to which such vehicle belongs.  Driving without the right licence will commit the driver to a fine of $5,000 and imprisonment for 3 months upon a first conviction, and to a fine of $10,000 and imprisonment for 6 months upon the second or subsequent conviction (sections 42(1) and 42(4) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).

 

Even if one has obtained the relevant driving licence, one may commit another offence unless one has physical possession of the licence at the time of driving. According to section 42(2) of the Road Traffic Ordinance(Cap.374 of the Laws of Hong Kong), “no person shall drive a motor vehicle on a road unless he has with him at the time he is driving his driving licence”. 

 

Persons contravening this section will be liable to a fine of $1,000 upon a first conviction, and to a fine of $2,000 upon the second or subsequent conviction (section 42(5) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).

 

b. Permitting a vehicle to be driven by an unlicensed person

b. Permitting a vehicle to be driven by an unlicensed person

Obviously, no person may drive a motor vehicle on a road without holding the relevant driving licence.  But it is also a criminal offence to allow someone without the right licence to drive. Under section 42(3) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), “no person shall suffer or permit a motor vehicle to be driven by a person who is not the holder of a driving licence of the class to which such vehicle belongs”. Therefore, before you lend your car to a friend, make sure this friend has the right licence.

 

c. Driving while disqualified

c. Driving while disqualified

A more serious offence related to driving licences is “driving while disqualified”.  A person committing this offence “is liable to a fine of $10,000 and to imprisonment for 12 months”; and unless there is any special reason for committing the offence, the Court shall order a further disqualification of at least 12 months in the case of a first conviction, and at least 3 years in the case of the second or subsequent conviction (section 44 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).

 

a. Registration marks

a. Registration marks

Every motor vehicle is given a registration mark (vehicle licence plates); and that mark must be displayed on the vehicle.  The mark must also comply with certain requirements in respect of its display, colours, construction, fitting and illumination.  Details of such requirements can be found in Schedule 4 of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap.374E of the Laws of Hong Kong).  General requirements include:

 

  • The letters and numerals of a registration mark (not being a personalized registration mark) shall be displayed in either one or two rows;
  • All letters and numerals shall be not less than 8 cm and not more than 11 cm high;
  • The registration mark shall be displayed on a reflex-reflecting number plate;
  • The registration mark shall be displayed on the front and on the back of a motor vehicle in a vertical position, so that every letter and numeral of the registration mark is vertical, and is easily distinguishable; and
  • No letter or numeral of a registration mark shall be capable of being detached.

 

1. The owner of a vehicle displayed its registration mark “HE 1107” as “HE110 7”, having the implication of “Hello 7”.  Was that a contravention of the law?

1. The owner of a vehicle displayed its registration mark “HE 1107” as “HE110 7”, having the implication of “Hello 7”.  Was that a contravention of the law?

There was a real legal case where the Court ruled that to present “HE 1107” as “HE110 7” would contravene the requirement that a registration mark is to be “easily distinguishable”.

 

b. Vehicle licences

b. Vehicle licences

No motor vehicle is allowed to be driven or used on a road unless it is registered and licensed.  Regulation 25 of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap.374E of the Laws of Hong Kong) prescribe that “no motor vehicle shall be upon or used on any road unless a valid vehicle licence in respect of the vehicle is displayed”. Regulation 60(3) prescribes that persons contravening Regulation 25 will be liable to a fine of $2,000 and imprisonment for 3 months upon a first conviction, and to a fine of $5,000 and imprisonment for 6 months upon the second or subsequent conviction.  By comparing this against the penalties for other offences in the same Regulations, most of which impose a fine of $2,000, one can easily see that the law takes a serious view of this offence.

 

Q1. I forgot that the Vehicle Licence of my car had expired and I renewed it a few days later. I left the car in my own parking lot and had not driven it in those few days. Did I commit any offence?

Q1. I forgot that the Vehicle Licence of my car had expired and I renewed it a few days later. I left the car in my own parking lot and had not driven it in those few days. Did I commit any offence?

Probably no one would have noticed in that few days that the Vehicle Licence of your car had expired.  But from a strictly legal perspective, Regulation 25 of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap.374E of the Laws of Hong Kong) prescribes that “no motor vehicle shall be upon…any road unless a valid vehicle licence in respect of the vehicle is displayed”.  The word “upon” means that mere parking—not necessarily driving—of a vehicle without a valid licence on a road would give rise to the offence.  Further, the word “road” is given a broad definition in the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) as to comprising almost any place—including a parking lot; and section 118 of the same Ordinance prescribes that virtually all regulations made under the Ordinance shall apply to private roads as they apply to roads.  In such circumstances, you have committed an offence under Regulation 25 of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap.374E of the Laws of Hong Kong).

3. Related to traffic lights and signs

3. Related to traffic lights and signs

It is probably superfluous to emphasize that a driver must comply with traffic lights and signs.  However, it is worth noting that there is a major but common misconception among drivers in Hong Kong that it is okay to go through an amber light.  That is simply not true.  Regulation 17(1)(e) of the Road Traffic (Traffic Control) Regulations (Cap.374G of the Laws of Hong Kong) expressly stipulates that “where an amber light signal is provided it shall, when shown alone, indicate the prohibition that vehicular traffic shall not proceed beyond the stop line or, if the stop line is not for the time being visible or there is no stop line, beyond the light signals, except in the case of any vehicle which when the light signal first appears is so close to the stop line or light signals that it cannot safely be stopped before passing the stop line or light signals”.  Hence, one should stop before the light signals upon seeing the amber light unless it is not safe to do so.

 

Another common mistake frequently committed by drivers is the disregard of the “Stop” sign.  Octagonal “Stop” signs are usually placed on minor roads at their junction with major roads; and drivers are supposed to stop completely at the “Stop” sign before they enter the junction.  However, drivers tend to slow down before the sign and then proceed forward, thereby ignoring the rule that they are compelled to bring the vehicle to a complete standstill.

 

The maximum penalty for failure to comply with traffic lights and signs is a fine of $5,000 and imprisonment for 3 months for a first conviction, and a fine of $10,000 and imprisonment for 6 months for a subsequent conviction (Regulation 61(1) of the Road Traffic (Traffic Control) Regulations (Cap.374G of the Laws of Hong Kong)).  However, it would normally be the case that a penalty under the Fixed Penalty System would be imposed unless the incident leads to serious injury or damage. 

 

4. Related to speed limits

4. Related to speed limits

Again, it is probably superfluous to emphasize that a driver must drive within the relevant speed limit, which is 50 km/hour on any road except where otherwise specified.

 

While section 41 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides that the offence of speeding be subject to a penalty of $4,000, the offence is in most cases dealt with under the Fixed Penalty System, except where the extent of the excess speed would lead to a different monetary penalty:

 

  • $320: speeding of up to 15 km/hour over the speed limit;
  • $450: speeding of more than 15 km/hour but not more than 30 km/hour over the speed limit;
  • $600: speeding of more than 30 km/hour but not more than 45 km/hour over the speed limit; and
  • $1,000: speeding of more than 45 km/hour over the speed limit.

Drivers should note that for speeding of more than 45 km/hour, the driver will face not just fiscal penalty, but also disqualification for at least 6 months unless there is a special reason (sections 41(3) and 41(4) of the Road Traffic Ordinance(Cap.374 of the Laws of Hong Kong))

 

5. Related to alteration of vehicles

5. Related to alteration of vehicles

The Road Traffic (Construction and Maintenance of Vehicles) Regulations ( Cap.374A of the Laws of Hong Kong) contain various requirements for the construction and maintenance of vehicles, including dimensions, weight, power, braking efficiency, tyres, etc.

 

Section 53(2) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides that “no person shall alter or cause or permit to be altered a motor vehicle or trailer so as to render its condition such that the use thereof on a road would contravene any provision of this Ordinance as to the construction, weight, equipment, brakes, steering gear or tyres thereof”.  The maximum penalty for contravening this provision is a fine of $20,000.

 

Reading these 2 provisions together, one can clearly see that the Government takes a serious view of the alteration of motor vehicles.  Probably most drivers will not consider altering or modifying the engines of their vehicles so as to turn them into powerful racecars.  But drivers may be tempted to add some fanciful fittings to their beloved vehicles. Since this subject can be substantially technical, the Transport Department has published guidelines for the general public’s reference, being:

 

Drivers who intend to alter or modify their vehicles are advised to read these 2 guidelines and to consult the vehicle manufacturer or agent for their advice / endorsement before carrying out any alterations.

 

7. Related to the use of mobile phones

7. Related to the use of mobile phones

The use of mobile phone in Hong Kong is very common.  Yet common sense dictates that driving while using a mobile phone can be dangerous.  It is therefore essential to have statutory control over a driver’s use of a mobile phone while driving.  The relevant law is found in Regulation 42(1)(g) of the Road Traffic (Traffic Control) Regulations (Cap.374G of the Laws of Hong Kong) .  
It provides that if a motor vehicle is in motion, the driver shall not “use a mobile telephone while holding it in his hand or between his head and shoulder” nor “use, while holding it in his hand, any accessory to a mobile telephone”.  The penalty for contravening this Regulation is a fine of $2,000.

 

Q1. Ms. M understands that it is illegal to hold and talk on a mobile phone while driving.  But she is unsure about using the speaker-phone function?  And what about using a hand-free device?  Does the law prohibit the use of such function or device?

Q1. Ms. M understands that it is illegal to hold and talk on a mobile phone while driving.  But she is unsure about using the speaker-phone function?  And what about using a hand-free device?  Does the law prohibit the use of such function or device?

The gist of this offence is the “holding” of the mobile phone or its accessory.  Therefore, if Ms. M uses her hand to hold and use her mobile phone (even while using the speaker phone function) or hold and use its accessory (which includes a hand-free device) while driving, she has committed the offence.  But even if she does not “hold” the phone or the hand-free device and talks while driving, there must be a moment—no matter how short that moment is—that Ms. M will have to touch the phone or the hand-free device to activate it.  For example, she may have to pick up the phone (thus holding it) to key in numbers for an outgoing call or to press the “Answer” key to receive incoming calls.  Hence, at that moment, Ms. M might be contravening Regulation 42(1)(g).  Well, in the case of answering a call by pressing the “Answer” key on a phone without actually picking it up and then using the hand-free device to communicate, this is unlikely to constitute “holding”.  Such strict interpretation of this Regulation is probably not what the lawmakers intend.  Instead, this Regulation was enacted to allow drivers to use a hand-free device.  Ms. M should not worry too much about this.  However, picking up a mobile phone and keying in numbers to make an outgoing call certainly amounts to “holding”, even though the keying process may take only a very short while.

 

8. Related to private roads

8. Related to private roads

Private roads can be quite common in Hong Kong.  For example, roads inside university campuses and housing estates are private roads. 

 

The distinction between “road” and “private road”, however, is somewhat meaningless in the context of a traffic offence.  The reason is: sections 117 and 118 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) make it clear that all major traffic offences are applicable to private roads as well as roads.  Section 119 of the same Ordinance also expressly provides that in criminal proceedings involving a traffic offence, it shall be sufficient for the prosecution “to show that the place where that offence was committed was either a road or private road, without showing that the place was one or the other”.

 

1. Mr. R is a very rich man owning a large piece of land and several luxurious sport cars. Can he let his 10-year old son drive one of his sport cars on that piece of private land? Let’s assume further that that piece of land is completely barren and there is virtually no road at all. Can he argue that he has not done anything wrong on any road (irrespective of whether it is a private road) because there is no road?

1. Mr. R is a very rich man owning a large piece of land and several luxurious sport cars.  Can he let his 10-year old son drive one of his sport cars on that piece of private land?  Let’s assume further that that piece of land is completely barren and there is virtually no road at all.  Can he argue that he has not done anything wrong on any road (irrespective of whether it is a private road) because there is no road?

Sections 117 and 118 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) expressly stipulate that all major traffic offences shall apply to private roads as they apply to roads.  If Mr. R thinks he can do anything he wants with his sport cars on his private land (or private road), he is wrong.  Further, under section 2 of the same Ordinance, both “road” and “private road” are given such wide definitions that they include almost all kinds of places where a vehicle can be used.  As a matter of fact, definitions of both “road” and “private road” include “place”.  Therefore, the “no-road” argument cannot work.

 

9. Related to expressways

9. Related to expressways

Even though Hong Kong is a small place, there are quite a number of expressways designed to carry high volumes of traffic at a higher speeds.  Due to this specific nature, the Road Traffic (Expressway) Regulations(Cap.374Q of the Laws of Hong Kong) expressly spell out certain laws governing the use of vehicles on expressways.  Generally speaking:

 

  1. Only those vehicles with engine cylinder capacity of at least 125 cubic centimeters are allowed on an expressway (Regulation 4 of the Road Traffic (Expressway) Regulations (Cap.374Q of the Laws of Hong Kong)).
  2. Drivers holding only a learner’s driving licence shall not drive on an expressway (Regulation 5 of the Road Traffic (Expressway) Regulations (Cap.374Q of the Laws of Hong Kong)).
  3. No driver shall stop a motor vehicle or cause it to remain at rest on an expressway except in the case of breakdown, mechanical defect, lack of fuel, accident, illness or other emergency, or to permit a person to help another in view of the above circumstances (Regulation 9 of the Road Traffic (Expressway) Regulations (Cap.374Q of the Laws of Hong Kong)).
  4. Under normal circumstances, a medium goods vehicle, a heavy goods vehicle, a private bus, a public bus, a motor vehicle towing a trailer or another vehicle, and a motor cycle, motor tricycle, private car or light goods vehicle driven by a person holding a probationary driving licence may not use the offside lane of the carriageway of an expressway where 3 or more traffic lanes are open for use by traffic proceeding in the same direction (Regulation 11 of the Road Traffic (Expressway) Regulations (Cap.374Q of the Laws of Hong Kong)).
  5. The driver of a motor vehicle on an expressway shall drive the vehicle only in the nearside lane except when the vehicle is overtaking another vehicle (Regulation 12 of the Road Traffic (Expressway) Regulations (Cap.374Q of the Laws of Hong Kong)).
  6. A driver of a motor vehicle on an expressway shall not, without reasonable excuse, overtake another vehicle on this other vehicle’s nearside (Regulation 13 of the Road Traffic (Expressway) Regulations(Cap.374Q of the Laws of Hong Kong)).

Persons committing the above offence(s) will be liable to a fine of $5,000 and imprisonment for 3 months upon a first conviction, and to a fine of $10,000 and imprisonment for 6 months upon the second or subsequent conviction. 

 

10. Related to parking

10. Related to parking

Parking offences are probably the most common offence to be committed by a driver.  To put it simply, in general a driver cannot park on any road unless parking meters are present.  But what exactly is “parking”?

 

Regulation 2(1) of the Road Traffic (Parking) Regulations (Cap.374C of the Laws of Hong Kong) defines parking as “the standing of a vehicle, whether occupied or not, except when standing temporarily for the purpose of and while actually engaged in loading or unloading or picking up or setting down passengers”.  The key word here is of course “temporarily”.  The Court will consider factual circumstances such as the flow of the traffic at the material time, to decide whether or not the vehicle is standing “temporarily”.

 

One further note: most drivers probably believe that they can continue to park a vehicle at a parking space as long as they continue to feed the meter.  Well, that is not true.  Drivers should be reminded of regulation 8 of the Road Traffic (Parking) Regulations (Cap.374C of the Laws of Hong Kong), which provides that “Any person who parks a vehicle in a parking place for a continuous period of more than 24 hours commits an offence and is liable to a fine of $2,000”.

 

Q2. Mr. P, had a heated quarrel with his wife while driving along Queen’s Road Central. He became so agitated that he stopped the vehicle in the middle of the road and just left the scene (and also his poor wife alone in the vehicle). What he had in his mind was: I don’t care; I don’t mind being given a parking ticket; after all, it costs only a few hundred dollars.

Q2. Mr. P, had a heated quarrel with his wife while driving along Queen’s Road Central. He became so agitated that he stopped the vehicle in the middle of the road and just left the scene (and also his poor wife alone in the vehicle). What he had in his mind was: I don’t care; I don’t mind being given a parking ticket; after all, it costs only a few hundred dollars. 

What Mr. P has done could amount to the more serious offence of leaving a vehicle in dangerous position under regulation 9 of the Road Traffic (Parking) Regulations (Cap.374C of the Laws of Hong Kong), which provides that “Any person who causes or permits a vehicle to remain at rest on a road in such a position or in such condition or in such circumstances as to be likely to cause danger to other persons using the road commits an offence and is liable to a fine of $2,000”.  The police are also empowered under section 103 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) “to remove or cause to be removed, and where necessary may provide for the safe custody of, any vehicle which…remains at rest on a road in such conditions or in such circumstances as to be likely to cause danger to other persons using the road or to interfere with the use of the road”.  The costs of such removal and custody are of course to be borne by Mr. P.

11. Related to insurance

11. Related to insurance

Section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap.272 of the Laws of Hong Kong) expressly specifies that “it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Ordinance”.

 

The statutory maximum penalty for this offence, as stated under section 4(2)(a) of the same Ordinance, is a fine of $10,000, imprisonment for 12 months and disqualification for at least 12 months and at most 3 years.

 

The rationale for compulsory insurance is simple: if a person is injured by a motor vehicle but the driver of that vehicle does not have the financial means to pay the damages, the injured person would be left in a dire and helpless condition. Trying to make sure that all vehicles running on the road are covered by compulsory insurance offers a solution to this problem.

 

a. Jaywalking

a. Jaywalking

The most common traffic offence to be committed by a pedestrian is probably jaywalking, i.e. crossing a road without regard to the traffic light signal.  Regulation 33(6) of the Road Traffic (Traffic Control) Regulations(Cap.374G of the Laws of Hong Kong) prescribes that every pedestrian at a crossing that has traffic lights shall comply with the prevailing light signal; and regulation 61(2) of the same Regulations stipulates that any person contravening regulation 33(6) “without reasonable excuse” is liable to a fine of $2,000. 

 

Q1. Mr. J crossed a road irrespective of the red light signal.  He argued that despite the red light signal, he had carefully checked that there was no vehicle approaching.  He therefore believed that it was safe to cross the road and proceeded to do so.  Did Mr. J’s argument amount to a “reasonable excuse”, so that he was not liable under Regulation 33(6) of the Road Traffic (Traffic Control) Regulations (Cap.374G of the Laws of Hong Kong)?

Q1. Mr. J crossed a road irrespective of the red light signal.  He argued that despite the red light signal, he had carefully checked that there was no vehicle approaching.  He therefore believed that it was safe to cross the road and proceeded to do so.  Did Mr. J’s argument amount to a “reasonable excuse”, so that he was not liable under Regulation 33(6) of the Road Traffic (Traffic Control) Regulations (Cap.374G of the Laws of Hong Kong)?

The Regulation 33(6) offence is a strict-liability offence.  That is to say, once the act is done, the offence is committed; the mindset of the defendant is irrelevant.  Therefore, it does not matter what a pedestrian believes, otherwise everyone is entitled to jaywalk if he “believes” it is safe to do so.  Mr. J’s “reasonable excuse” must fail.  However, if Mr. J was directed by a police officer in uniform or a traffic warden in uniform to proceed against the red light signal, he would have the reasonable excuse to do so.

 

b. The negligent pedestrian

b. The negligent pedestrian

Section 48 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) prescribes that a pedestrian who “negligently endangers his own safety or that of any other person commits an offence and is liable to a fine of $2,000”.  In other words, pedestrians may commit this offence even though they suffer injury in the incident.

 

 

Q1. Ms. N crossed a road while talking on her mobile phone. She did not look properly up and down the road and did not notice an approaching vehicle. The vehicle failed to stop in time and knocked down Ms. N. Would Ms. N be liable under section 48 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)?

Q1. Ms. N crossed a road while talking on her mobile phone. She did not look properly up and down the road and did not notice an approaching vehicle. The vehicle failed to stop in time and knocked down Ms. N.  Would Ms. N be liable under section 48 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)?

Ms. N’s behaviour amounted to negligently endangering her own safety.  It actually might also endanger other road users because the approaching vehicle could, in an attempt to avoiding knocking down Ms. N, run into other vehicles or pedestrians.  (Note: even though the driver of the approaching vehicle might be driving carelessly — or even dangerously — that is another matter and it will not negate Ms. N’s negligence.)

 

13. Related to cycling

13. Related to cycling

A bicycle or tricycle basically has the same right to use a road as a motor vehicle. Needless to say, the rider of a bicycle or tricycle also has the duty to exercise due care when using the road and to comply with all traffic regulations (e.g. to comply with all traffic signs, traffic lights and road markings) as if he/she is the driver of a motor vehicle. Major offences related to cycling include:

 

  1. Reckless cycling under section 45 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), where the maximum sentence is: a fine of $500 for a first conviction, and a fine of $1,000 and imprisonment for 3 months for the second or subsequent conviction;
  2. Careless cycling under section 46 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), where the maximum sentence is a fine of $500;
  3. Cycling under the influence of drink or drugs under section 47 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), where the maximum sentence is: a fine of $500 for a first conviction, and a fine of $1,000 for the second or subsequent conviction and imprisonment for 3 months; and
  4. Regulation 87 of the Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap.374A of the Laws of Hong Kong), which provides that every bicycle/ tricycle shall be equipped with at least one braking system which is efficient and in proper working order.  The maximum sentence is a fine of $10,000 and imprisonment for 6 months;
  5. Regulation 88 of the Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap.374A of the Laws of Hong Kong), which provides that every bicycle/tricycle shall be fitted with a bell capable of giving sufficient warning of its approach or presence.  The maximum sentence is a fine of $10,000 and imprisonment for 6 months
  6. Regulation 51 of the Road Traffic (Traffic Control) Regulations (Cap.374G of the Laws of Hong Kong), which provides that no person riding a bicycle or tricycle on a road shall carry any other person, a person riding a bicycle or tricycle on a road shall do so with at least one hand on the handle bars, and no person shall ride a bicycle or tricycle during the hours of darkness or in poor visibility conditions unless he shows a white light at the front and a red light at the rear.  The maximum sentence for breaching this Regulation 51 is a fine of $2,000; and
  7. Section 4(8) of the Summary Offences Ordinance (Cap.228 of the Laws of Hong Kong), which prescribes that it shall be an offence if someone “rides or drives on any foot-path without obvious necessity” or “in any public place rides or drives recklessly or negligently or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case”.  The maximum sentence is a fine of $300 or imprisonment for 3 months.

One could easily observe that there is no offence like “dangerous cycling” or “dangerous cycling causing death”, as if the act of cycling cannot possibly be dangerous nor cause death.  That is obviously not true.  Common sense will tell us that a bicycle can also be dangerous.

 

Q1. Cyclist A rode a bicycle frantically and knocked into cyclist B.  Cyclist B suffered serious injury and eventually died.  Can cyclist A be prosecuted under the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)?

Q1. Cyclist A rode a bicycle frantically and knocked into cyclist B.  Cyclist B suffered serious injury and eventually died.  Can cyclist A be prosecuted under the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)?

Cyclist A can obviously be prosecuted under section 45 (for reckless cycling) or section 46 (for careless cycling) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong).  Depending on the evidence available, the prosecution may also consider prosecuting cyclist A on the more serious offence of “injuring a person by furious driving” under section 33 of the Offences Against the Person Ordinance (Cap.212 of the Laws of Hong Kong): “Any person who, having the charge of any carriage or vehicle, by wanton or furious driving or racing or other wilful misconduct, or by wilful neglect, does or causes to be done any bodily harm to any person shall be guilty of an offence triable either summarily or upon indictment, and shall be liable to imprisonment for 2 years”.  Since the victim in this occasion died eventually, the graver offence of manslaughter may also be available to the prosecution.  Detailed analysis of the offence of manslaughter is not within the scope of this discussion.  It suffices to say here that manslaughter occurs when death is accidentally caused by an unlawful act or by culpable negligence.  Manslaughter is punishable by imprisonment for life.  In the present case, the prosecution will look into the available evidence to ascertain how Cyclist A was riding the bicycle at the material time before it decides what charge(s) would be laid against Cyclist A.

 

1. The Driving-offence Points System

1. The Driving-offence Points System

The Driving-offence Points System is designed to deter drivers from committing driving offences repeatedly within a certain period of time.

 

a. How it works

a. How it works

The basic mechanism of the Driving-offence Points System is:

 

 

 

1. I became aware that I had incurred 15 driving-offence points within the last 2 years.  I immediately went to take a driving improvement course and successfully obtained a course certificate.  So my balance of driving offence points should now be 12, right?

1. I became aware that I had incurred 15 driving-offence points within the last 2 years.  I immediately went to take a driving improvement course and successfully obtained a course certificate.  So my balance of driving offence points should now be 12, right?

Wrong.  If you have already incurred 15 or more points on the date that you complete the driving improvement course,  you are not entitled to any deduction of points [section 6A(2) of the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong)].

c. Calculation of points

C. Calculation of points

The calculation of driving-offence points apparently involves only simple arithmetic and should be quite straight-forward.  However, section 8A(1) of the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong) provides that “where 2 or more of the offences in respect of which points have been incurred are constituted by the same, or substantially the same, act...(a) only that offence attracting the highest number of points; or (b) where those offences each attract the same number of points, only one of those offences, shall be taken into account”.  Therefore, if a driver is convicted of several offences all arising from one incident, the total driving-offence points incurred may not be simply the sum of all the relevant points.

 

1. I was involved in an accident where I was liable for careless driving, failing to stop after an accident and failing to report after an accident, which would incur 5, 5 and 3 driving-offence points respectively. So in this one single accident, I incurred 13 points, right?

1. I was involved in an accident where I was liable for careless driving, failing to stop after an accident and failing to report after an accident, which would incur 5, 5 and 3 driving-offence points respectively.  So in this one single accident, I incurred 13 points, right?

Not necessarily.  According to section 8A of the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong), if several offences are committed in one act, the simple addition of all the points may not be the correct way to make the calculation.  You should consult the Commissioner for Transport or seek legal assistance to clarify the actual number of points to be incurred.  In your circumstances, it is likely that careless driving and failing to stop after an accident will be considered as the same or substantially the same act, thus attracting 5 points in total for these 2 liabilities; the total points incurred for this incident may therefore be 8.

 

d. Defence

d. Defence

The order for disqualification under the Driving-offence Points System is to be made by a magistrate.  Existing Court decisions indicate that magistrate’s courts almost invariably make orders for disqualification for 3 months in the case of a first incurrence of 15 points and 6 months in the case of a repeated incurrence.  However, section 8(3) of the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong) provides that a magistrate may, “having regard to all the circumstances”, order a shorter period of disqualification or even not to order the convicted person to be disqualified; and section 8(4) of the same Ordinance expressly denotes that a magistrate may take into account circumstances such as “exceptional hardship”.  So what exactly is “exceptional hardship”?

 

The Court has made it clear that “exceptional hardship” does not mean an extreme degree of hardship, but a kind of hardship different from a usual or ordinary one.  For example, the Court has held that financial hardship is not exceptional hardship even though the defendant is a professional driver.

 

1. Mr. R repeatedly incurred 15 driving offence points and was to be disqualified for 6 months.  He submitted that his wheelchair bound mother was suffering from heart disease, recurrent mental problem and suicidal tendency, that he had to drive her to the hospital for regular medical checks, and that he frequently had to drive home to take care of her in case of emergency.  Mr. R tried to rely on the circumstance of “exceptional hardship” and sought a non-disqualification order.

1. Mr. R repeatedly incurred 15 driving offence points and was to be disqualified for 6 months.  He submitted that his wheelchair bound mother was suffering from heart disease, recurrent mental problem and suicidal tendency, that he had to drive her to the hospital for regular medical checks, and that he frequently had to drive home to take care of her in case of emergency.  Mr. R tried to rely on the circumstance of “exceptional hardship” and sought a non-disqualification order.

The above scenario is an actual Court case, where the Court ruled that there was “exceptional hardship” on the part of the mother—though not on the part of Mr. R—and thus allowed an order for non-disqualification.

 

2. The Fixed Penalty System

2. The Fixed Penalty System

Traffic offences range from serious ones resulting in fatal accidents to minor ones like a simple parking contravention.  If all traffic offences were to be brought to Court, there would definitely be an excessive burden on the judiciary.  The Fixed Penalty System was devised to deal with minor offences where the owner of a vehicle is unlikely to plead not guilty and argue the case before the Court.  It saves time for the Court, the vehicle owner and the police.  In other words, everybody benefits.

 

a. How it works

a. How it works

The Fixed Penalty System is governed by the Fixed Penalty (Traffic Contraventions) Ordinance (Cap.237 of the Laws of Hong Kong) and the Fixed Penalty (Criminal Proceedings) Ordinance (Cap.240 of the Laws of Hong Kong).

 

Both Ordinances provide that the owner or driver (as the case may be) of a vehicle may be discharged from the liability for a specified offence upon the payment of a fixed penalty.  In other words, once the penalty is paid, there can be no conviction.

 

However, if the fixed penalty is not paid within 21 days, the Commissioner of Police may serve a notice on the owner or driver (as the case may be) of the vehicle, demanding payment and informing the owner or driver of their right to dispute the liability.  If the payment is not made and no dispute is raised, the Court shall order the offender to pay the fixed penalty plus an additional penalty equal to the amount of the fixed penalty.

 

b. What offences are covered

b. What offences are covered

The Fixed Penalty (Traffic Contraventions) Ordinance (Cap.237 of the Laws of Hong Kong) specifies offences which are mostly related to the unauthorized or improper parking of vehicles.  All these offences lead to the fixed penalty of $320.  A complete list of the contraventions can be found in the Schedule to this Ordinance.

 

The Fixed Penalty (Criminal Proceedings) Ordinance (Cap.240 of the Laws of Hong Kong) deals with slightly more serious offences such as speeding, failing to comply with traffic signals, driving without a securely fastened seat belt, etc.  All the specified offences and their corresponding fixed penalties, ranging from $230 to $1,000, can be found in the Schedule of this Ordinance.

 

1. Duty to stop

1. Duty to stop

Probably every sensible driver involved in an accident will stop and check what has happened.  But what about those non-sensible drivers? Section 56(1) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides as follows:

 

Where, owing to the presence of a vehicle on a road, an accident occurs whereby-

 

  1. personal injury is caused to a person other than the driver of that vehicle; or
  2. damage is caused to-
    1. a vehicle other than that vehicle or a trailer drawn thereby;
    2. a specified animal (other than one in or on that vehicle or a trailer drawn by that vehicle); or
    3. any other thing not being in or on that vehicle or a trailer drawn thereby,

the driver of that vehicle shall stop.

 

Specified animal means any horse, cattle, ass, mule, sheep, pig, goat, cat or dog.

 

In other words, a driver must stop whenever there is an accident causing damage to another vehicle or anything (for example, if you crashed into a lamp post), irrespective of whether any other person is injured.  But what exactly is meant by “stop”?  How long should a driver “stop” in case of an accident?  What should the driver do after “stopping”? While section 56(1) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) does not define “stop”, section 56(2) of the same Ordinance provides that in the case of such an accident, a driver shall

 

if required, give to any police officer or to any person having reasonable grounds for so requiring the following particulars-

 

  1. his name and address;
  2. the name and address of the owner of the vehicle; and
  3. the registration or identification mark or number of the vehicle.

Reading sections 56(1) and 56(2) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) together, we can safely assume that to “stop” means to stop and to remain at the scene of the accident for a period long enough for anyone to obtain the necessary particulars from the driver.

 

2. Duty to give particulars

2. Duty to give particulars

As already discussed above, sections 56(1) and 56(2) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) impose a duty to give particulars in the case of accidents involving another vehicle or anything.  Such particulars include the driver’s name and address, the vehicle owner’s name and address, and the vehicle’s registration mark.  It should also be noted that this duty is imposed on the driver personally.  Therefore, the driver cannot leave the scene and just ask a passenger of the vehicle to give the necessary particulars.

 

3. Duty to report

3. Duty to report

Now consider this situation: a driver drove in the middle of the night in some country side and collided with a lamp post. This driver stopped; but there was obviously no one there for him to give particulars to; he therefore left the scene.  Did this driver breach the duty to stop and to give particulars?

 

In this particular case, certainly the law would not be so unreasonable as to impose on this driver the duty to stop and wait indefinitely in the middle of the night for someone to come along and ask him for his particulars.  Instead this driver should comply with section 56(2A) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), which requires that if “the driver of the vehicle for any reason does not give the particulars mentioned in subsection (2), he shall report the accident in person at the nearest police station or to any police officer as soon as reasonably practicable, and in any case not later than 24 hours after the accident.”  Therefore, the driver in this situation must report the incident in person to a police as soon as reasonably practicable.

 

Further, section 56(3) of the same Ordinance also stipulates a similar duty to report accidents that involve injury to any person, unless the driver “is incapable of doing so by reason of injuries sustained by him in the accident”.

 

1. Mr. C’s vehicle accidentally collided with another vehicle.  Both drivers stopped, got out of their vehicles and quarreled.  In the heat of the incident, the driver of the other vehicle did not ask Mr. C to give particulars, but did tell Mr. C to remain at the scene to wait for the police.  Mr. C, who had to attend an important meeting, then left the scene.  The other driver, however, managed to remember the registration mark of Mr. C’s vehicle and reported the same to the police.  The police had no difficulty in locating Mr. C in his office within just one hour.  During the interview with the police, Mr. C told everything in detail to the police.  Under such circumstances, what are Mr. C’s liabilities (if any) under section 56 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)?

1. Mr. C’s vehicle accidentally collided with another vehicle.  Both drivers stopped, got out of their vehicles and quarreled.  In the heat of the incident, the driver of the other vehicle did not ask Mr. C to give particulars, but did tell Mr. C to remain at the scene to wait for the police.  Mr. C, who had to attend an important meeting, then left the scene.  The other driver, however, managed to remember the registration mark of Mr. C’s vehicle and reported the same to the police.  The police had no difficulty in locating Mr. C in his office within just one hour.  During the interview with the police, Mr. C told everything in detail to the police.  Under such circumstances, what are Mr. C’s liabilities (if any) under section 56 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)?

Obviously Mr. C had stopped.  But as discussed above, “stop” means to stop and to remain at the scene of the accident for a period long enough for anyone to obtain from the driver the necessary particulars.  Therefore, even though the driver of the other vehicle did not ask Mr. C for particulars, Mr. C had to stay and wait for the police.  In other words, Mr. C did not comply with the duty to “stop” under section 56(1) of the Road Traffic Ordinance(Cap.374 of the Laws of Hong Kong).  When Mr. C was approached by the police, he fully co-operated and gave all particulars to the police.  It is therefore likely that Mr. C would not be prosecuted under section 56(2) of the same Ordinance, i.e. under the duty to give particulars.  What about the duty to report an accident under section 56(2A)?  If Mr. C did not give particulars at the scene of the accident, he was supposed to report to the police as soon as reasonably practicable and in any case not later than 24 hours after the accident.  But since the police located Mr. C and obtained particulars from him in just one hour, could Mr. C argue that there was no duty to report under such circumstances?  It should be noted that the words “in any case not later than 24 hours after the accident” do not mean that a driver can wait till the last minute of that 24 hours to report; he must report as soon as reasonably practicable.  In Mr. C’s case, obviously he did not report immediately.  But since the police had obtained particulars from him within just one hour, it was arguable that there was no further need to comply with the duty to report under section56(2A).  In this situation, Mr. C should at least have made a phone call to the police within that one hour—although a report by telephone does not satisfy the legal duty to report in person—to explain why he could not report immediately and to show that in any case he intends to report.

 

4. Preserving evidence

4. Preserving evidence

Incidental to the duty to stop, to give particulars and to report the accident to the police, the law also lays down a duty to preserve evidence in the case of a serious accident.  Section 57(1) of the Road Traffic Ordinance(Cap.374 of the Laws of Hong Kong) prescribes that if there is an accident “in consequence of which any person is killed or seriously injured or serious damage is caused to any vehicle or thing, any person who without the authority of a police officer moves or otherwise interferes with any vehicle involved in the accident or any part of any such vehicle or does any other act which destroys, alters or conceals any evidence of the accident commits an offence”.

 

Notwithstanding the above, section 57(2) of the same Ordinance provides that if the moving or interference is done “for the purpose of saving life, extinguishing fire or meeting any other emergency”, no offence would have been committed.

 

1. A vehicle bumped into the back of another vehicle.  Both vehicles stopped.  There was of course some damage to both vehicles; but luckily, no one was injured.  In order not to block the traffic, both drivers agreed to drive the vehicles to a nearby gas station to discuss liability and damages.  Since they had obviously moved the vehicles, would they be liable under section 57 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)?

1. A vehicle bumped into the back of another vehicle.  Both vehicles stopped.  There was of course some damage to both vehicles; but luckily, no one was injured.  In order not to block the traffic, both drivers agreed to drive the vehicles to a nearby gas station to discuss liability and damages.  Since they had obviously moved the vehicles, would they be liable under section 57 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)? 

This appears to be a minor accident where no person was injured and no vehicle or thing was seriously damaged.  Section 57 of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) is therefore inapplicable.  However, if the accident involves serious injury or damage or even death, no one should be bothered about the traffic and no person should move or interfere with anything at the scene.

 

5. Notifying an insurer

5. Notifying an insurer

In Hong Kong there is no law that compels drivers to report an accident to their insurers.  As a matter of fact, most parties involved in minor accidents would simply resolve the disputes by way of mutual agreement without involving their insurers.  However, most vehicle insurance policies require vehicle owners to immediately report an accident to the insurance company if they intend to claim damages under their policy.  Drivers involved in an accident should therefore duly consider whether it is in their best interest to report the case to their insurers.

 

b. Obligation to undergo drug test

b. Obligation to undergo drug test

 

Screening breath test is only for assessing whether a driver has alcohol in his body. In the case of drugs, a police officer is equipped with similar power to require a driver to undergo drug test. The relevant law, however, are quite complicated. Let’s try to go through the relevant details.

 

If a police officer has reasonable cause to suspect that a person:   

  • has been driving or attempting to drive, or has been in charge of, a motor vehicle with specified illicit drug present in his blood or urine, or under the influence of any drug (section 39M(2)(a) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)); or
  • has been driving or attempting to drive, or has been in charge of a motor vehicle and has committed a traffic offence while the motor vehicle was in motion (section 39M(2)(b) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)); or
  • was driving or attempting to drive, or was in charge of, a motor vehicle at the time of an accident which occurs owing to the presence of that motor vehicle on the road (section 39M(3) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong))

 

then the police officer may require that person to undergo one or more of the following preliminary drug test:

  • a Drug Influence Recognition Observation; or
  • an Impairment Test.

(section 39M(1) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong))

 

A Drug Influence Recognition Observation can take place anywhere; but an Impairment Test must be carried out at a police station (sections 39M(7) and 39M(8) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).

 

Despite that any police officer can require a person to undergo preliminary drug test, only certain authorized police officer can conduct the test (section 39T(5) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).

 

And if an authorized police officer has conducted a Drug Influence Recognition Observation on a person and does not opine that he was under the influence of a drug, he is not obliged to undergo an Impairment Test (section 39M(4) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).

 

And when a police officer requires a person to undergo a preliminary drug test, he must also warn the person that failure to undergo the test may render him liable to prosecution (section 39M(6) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).

 

a. Protective helmets

a. Protective helmets

 

Probably we all know that drivers and passengers of motor cycles must wear helmets. But it is interesting to note the following:

  • Not all helmets are the same. We are not talking about the style or design of helmets. But drivers and passengers of motor cycles are required not just to wear any helmet; they must wear “approved protective helmets” which conform to the specifications and standards set out in Schedule 1 of the Road Traffic (Safety Equipment) Regulations (Cap. 374F of the Laws of Hong Kong of the Laws of Hong Kong).
  • Maximum penalty for not wearing an approved protective helmet while driving or riding as passenger on a motor cycle is a fine of $5,000 or imprisonment for 3 months (regulation 12 of the Road Traffic (Safety Equipment) Regulations (Cap. 374F of the Laws of Hong Kong) Road Traffic (Safety Equipment) Regulations (Cap.374F of the Laws of Hong Kong))). In most cases, the usual penalty would be a fine of $320 under the Fixed Penalty (Criminal Proceedings) Ordinance (Cap.240 of the Laws of Hong Kong).
  • Accordingly, it shall be an offence for anyone to sell or hire out any protective helmet other than an approved protective helmet; maximum penalty for doing so is also a fine of $5,000 or imprisonment for 3 months.
  • If a motor cycle is equipped with a side car, it is not compulsory for a passenger in the side car to wear an approved protective helmet (regulation 3(1) of the Road Traffic (Safety Equipment) Regulations (Cap. 374F of the Laws of Hong Kong) Road Traffic (Safety Equipment) Regulations (Cap.374F of the Laws of Hong Kong)).
  • While it is mandatory for riders and passengers of motor cycles to wear approved protective helmets, there is no such restriction in relation to motor tricycle.
  • According to regulation 10 of the Road Traffic (Safety Equipment) Regulations (Cap. 374F of the Laws of Hong Kong) Road Traffic (Safety Equipment) Regulations (Cap.374F of the Laws of Hong Kong), the Commissioner for Transport may exempt any person or any class of persons from the mandatory requirement of wearing approved protective helmets while driving or riding as passenger on a motor cycle. Religious reason is the most common grounds for application for exemption.

 

b. Seat belts

b. Seat belts

It should be common knowledge to all Hong Kong citizens that all drivers and passengers must wear seat belts. That sounds simple and straight-forward. However, there are different laws governing the installation of seal belts on different seats of a vehicle. Let’s try to simplify the issue as much as we can.

 

As a vehicle owner, you have to make sure that:

 

(a) the driver seat and the front passenger seat are equipped with seat belts unless your vehicle is:

  • a private car manufactured before 30 June 1964;
  • a taxi manufactured before 1 January 1981;
  • a light bus manufactured before 1 January 1984; or
  • a goods vehicle manufactured before 1 January 1989. (regulation 6 of the Road Traffic

(Safety Equipment) Regulations (Cap. 374F of the Laws of Hong Kong))

 

(b) the middle front seat (if there is any) is equipped with seat belt unless your vehicle is registered before 1 June 1996 (regulation 6A of the Road Traffic (Safety Equipment) Regulations (Cap. 374F of the Laws of Hong Kong)).

 

(c) the rear seats are equipped with seat belt unless your vehicle is:

  • a private car or a taxi registered before 1 January 2001; or
  • a public light bus registered before 1 August 2004.

 (regulations 6B and 6C of the Road Traffic (Safety Equipment) Regulations (Cap. 374F of the Laws of Hong Kong))

 

Contravention of any of the above regulations could make a person liable to a fine of $5,000 or imprisonment for 3 months.

 

As a passenger of a private car, taxi, public light bus or goods vehicle, you simply have to wear a seat belt (if any) no matter which seat you are sitting on (regulations 7, 7A and 7B of the Road Traffic (Safety Equipment) Regulations (Cap. 374F of the Laws of Hong Kong)). Contravention of any of these regulations could make a person liable to a fine of $5,000 or imprisonment for 3 months.

 

As the driver of a private car, of course you have to wear a seat belt (if any). You also must also ensure that all passengers on your vehicle are fastened to their seat belts (if any) (regulations 7 and 7B of the Road Traffic (Safety Equipment) Regulations (Cap. 374F of the Laws of Hong Kong)). Contravention of any of these regulations could make a person liable to a fine of $5,000 or imprisonment for 3 months.

 

As the driver of a private light bus or goods vehicle, you of course have to wear a seat belt (if any). You also have to ensure that all passengers on your vehicle are fastened to their seat belts (if any) (regulation 7A of the Road Traffic (Safety Equipment) Regulations (Cap. 374F of the Laws of Hong Kong)). Contravention of this regulation could make a person liable to a fine of $5,000 or imprisonment for 3 months.

 

As the driver of a taxi or a public light bus, you of course have to wear a seat belt (if any). But you do not have a legal duty to ensure that your passengers are fastened to their seat belts.

 

But when we come to buses, the situation is a bit different. The present law only requires that seat belts be installed for the driver seats and that drivers of buses must wear seat belts when driving (regulations 8A and 8B of the Road Traffic (Safety Equipment) Regulations (Cap. 374F of the Laws of Hong Kong)). It is not compulsory for seat belts to be installed for passenger seats of buses; and it is also not compulsory for passengers of buses to wear seat belts.

 

Q1. Can a learner's driving licence holder deliver takeout with his/her motorcycle?

Q1. Can a learner's driving licence holder deliver takeout with his/her motorcycle?

 

Obviously a person with learner’s driving licence should not use his/her motorcycle to deliver takeout or conduct any commercial activities. Simple logic will tell us that a learner’s driving licence only entitles the holder to practise the driving of a motor vehicle (or a motorcycle).

 

However, from a strictly legal perspective,

 

  1. there is no statue which expressly disallows the holder of a learner’s driving licence to deliver takeout with his/her motorcycle;
  2. under regulation 12DA of the Road Traffic (Driving Licences) Regulations ( 374B), which specifically deals with the Commissioner for Transport’s power to cancel learners’ driving licences, there is nothing which empower the Commissioner to cancel a learner’s driving licence under similar circumstances; and
  3. while regulation 20 of the Road Traffic (Driving Licences) Regulations ( 374B) gives general power to the Commissioner for Transport to cancel a driving licence if the holder does not fulfill the conditions and requirements for the issue of the licence, or contravenes any condition of the licence, it seems that there is not any requirement or condition which prescribes that a learning driver cannot use his/her motor vehicle/motorcycle for takeout delivery.

 

Nevertheless, the third party insurance policy for a motor vehicle/motorcycle for learners certainly will be void if the motor vehicle/motorcycle is used for commercial activities such as food delivery.

 

The Commissioner for Transport may therefore rely on section 25(1) of the Road Traffic Ordinance (Cap. 374) to cancel the learner’s driving licence: “The Commissioner may cancel the licence of a motor vehicle if… (vi) no valid insurance in respect of third party risks as required by the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272) is in force in respect of the vehicle”.

 

Q1. Are driving licences issued by other countries valid driving licences in Hong Kong?

Q1. Are driving licences issued by other countries valid driving licences in Hong Kong?

 

Strictly speaking, driving licences issued by other countries are not valid driving licences in Hong Kong.

 

However, a visitor from abroad, if holding a valid domestic driving licence, may drive in Hong Kong  during the period of 12 months following the date of his/her last entry into Hong Kong (regulation 37(1)(b) of the Road Traffic (Driving Licences) Regulations (Cap. 374B).

 

But obviously the above regulation 37(1)(b) provides only a temporary solution for a visiting driver. If a person holding a foreign driving licence is looking for a more or less long term relief, regulation 11(3) of the Road Traffic (Driving Licences) Regulations (Cap. 374B) would be helpful. It states that a person holding such foreign driving licence may apply for a full Hong Kong driving licence if he/she holds a driving licence issued within the last 3 years by a competent authority in any countries listed in Fourth Schedule of the said Regulations.

 

If the person holding a foreign driving licence does not come from those countries, and if he/she makes an application for a driving test within 3 months after his/her arrival in Hong Kong, he/she may apply for a temporary driving licence. The temporary driving licence is valid for 12 months from the date of the applicant’s arrival in Hong Kong (regulation 13 of the Road Traffic (Driving Licences) Regulations).

Q2. If I let my child sit on the driver’s seat to play with the steering wheel while the car is stopped, will I be charged?

Q2. If I let my child sit on the driver’s seat to play with the steering wheel while the car is stopped, will I be charged?

 

Section 42(3) of the Road Traffic Ordinance (Cap. 374) provides that “no person shall suffer or permit a motor vehicle to be driven by a person who is not the holder of a driving licence of the class to which such vehicle belongs”. The question here, therefore, is whether your car is being “driven” by your child.

 

Regulation 42(1)(a) of the Road Traffic (Traffic Control) Regulations (Cap. 374G) also provides that a driver shall not “when driving a motor vehicle on a road permit any person not being a driving instructor to grasp or interfere with the steering, gearing or braking mechanism of the vehicle”.

 

In the hypothetical scenario, “…while the car is stopped” is somewhat ambivalent. Is it stopped in the middle of a traffic jam? Is it stopped by the roadside or in a parking lot? Is the key in the ignition? Is the engine still running? As discussed above, there is no statutory definition of the word “driving”. We can only say that if you let your child play with the steering wheel when the engine is still running or the key in the ignition, no matter in what manner the vehicle is stopped, you probably have committed the aforesaid offence under section 42(3) of the Road Traffic Ordinance (Cap. 374) and regulation 42(1)(a) of the Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

Q1. A driver whose driving licence had been suspended drove through a police roadblock. What offences the driver could have committed?

Q1. A driver whose driving licence had been suspended drove through a police roadblock. What offences the driver could have committed?

 

Obviously this driver has committed the offence of “driving while disqualified” under section 44 of the Road Traffic Ordinance (Cap. 374).

 

Other possible offences that he/she may have committed include the following:

 

  1. the act of driving through a police roadblock may constitute an offence under section 60 of the Crimes Ordinance ( 200), i.e. without lawful excuse destroying or damaging any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged, or intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; 
  2. the act of driving through a police roadblock very likely amounts also to dangerous driving, i.e. “the way he drives falls far below what would be expected of a competent and careful driver” and “it would be obvious to a competent and careful driver that driving in that way would be dangerous”; 
  3. this act may also be equivalent to an assault on police officer contrary to section 36(b) of the Offences against the Person Ordinance ( 212); and
  4. depending on the consequence of that act of driving through a police roadblock, the driver could have committed the offence of homicide or manslaughter.

 

Q2. Can a person without a driving licence register a car in his/her name?

Q2. Can a person without a driving licence register a car in his/her name?

Registration of a motor vehicle conveys the right of a vehicle to be driven on a road. It confirms ownership of a vehicle. But the owner does not have to drive the vehicle. The owner does not even need a driving licence in order to have a vehicle registered under his/her/its name. One obvious example is: a vehicle can be registered under the name of a company (i.e. the company owns the vehicle) even though a company cannot possibly drive a vehicle or have a driving licence.

 

Therefore, yes, a person without a driving licence can have a car registered under his/her name.

 

Q1. What should drivers and pedestrians do when the light signal is not working?

Q1. What should drivers and pedestrians do when the light signal is not working?

 

There is no law which governs such situation. However, it is generally accepted that drivers and pedestrians should adopt the following practice:

 

  1. drivers and pedestrians should treat intersections with failed traffic lights as four-way stops; that is to say, all vehicles have to come to a complete stop before proceeding further;
  2. vehicles entering from a minor road should give way to those on the major road;
  3. drivers should always give way to the vehicle on your right;
  4. drivers should always give way to pedestrians;
  5. pedestrians should always proceed with exceptional care; and
  6. after all, it all boils down to one single rule: be patient and courteous.

 

Q2. I am a visually impaired person. I crossed the road without noting that the pedestrian light was on red. I am charged with jaywalking. Is it a defence that I am a visually impaired person?

Q2. I am a visually impaired person. I crossed the road without noting that the pedestrian light was on red. I am charged with jaywalking. Is it a defence that I am a visually impaired person?

 

Regulation 33(6) of the Road Traffic (Traffic Control) Regulations (Cap. 374G) prescribes that every pedestrian at a crossing that has traffic lights shall comply with the prevailing light signal. Even though regulation 61(2) provides that contravention of regulation 33(6) may be forgiven if there is a “reasonable excuse”, it is believed that visual impairment does not constitute a “reasonable excuse”, otherwise all visually impaired person is entitled to jaywalking. A visually impaired person does not enjoy any exemption. As a result, iniquitous as it may be, being visually impaired is not a defence or excuse for jaywalking.

 

Q3. In a congested road, if a vehicle has mostly passed a yellow box marking (e.g., 2/3 of its length has passed), is the driver in breach of any traffic laws?

Q3. In a congested road, if a vehicle has mostly passed a yellow box marking (e.g., 2/3 of its length has passed), is the driver in breach of any traffic laws?

 

According to regulation 10(1) of the Road Traffic (Traffic Control) Regulations (Cap. 374G), no person shall drive a vehicle into a boxed junction unless he will be immediately able to drive the vehicle wholly out of the boxed junction”. Therefore, it appears that the vehicle having 1/3 of its length trapped in the boxed junction is in breach of the said Regulation 10(1).

 

However, regulation 10(3) prescribes that regulation 10(1) does not apply if a vehicle is driven from a traffic lane marked with a right turn arrow to a position where the vehicle can conveniently wait to make a right turn, and is prevented from being driven out of the box junction by other stationary vehicles in or near the box junction waiting to complete a right turn, or by vehicles moving in the opposite direction.

 

For the same token, regulation 10(3) prescribes that regulation 10(1) does not apply if a vehicle is driven from a traffic lane marked with a left turn arrow to a position where the vehicle can conveniently wait to make a left turn, and is prevented from being driven out of the box junction by other stationary vehicles in or near the box junction waiting to complete a left turn, or by vehicles moving in the opposite direction.

 

Therefore, depending on the actual circumstances, the vehicle having part of it prevented from being driven out of a box junction may not have breached regulation 10(1).

 

Q4. When a traffic light signal turns amber, a driver stops the car immediately. At the time when it turns red, the car stops completely with its head having crossed the stop line. Is the driver in breach of any traffic law?

Q4. When a traffic light signal turns amber, a driver stops the car immediately. At the time when it turns red, the car stops completely with its head having crossed the stop line. Is the driver in breach of any traffic law?

 

Regulation 17(1)(e) of the Road Traffic (Traffic Control) Regulations (Cap. 374G) provides that a vehicle shall not proceed beyond the stop line “except in the case of any vehicle which when the light signal first appears is so close to the stop line or light signals that it cannot safely be stopped before passing the stop line or light signals”.

 

In other words, the driver in this scenario may adopt the defence that the vehicle “cannot safely be stopped before passing the stop line”.

 

Q1. Is it illegal to go too slow on the road or highway? Does the law prescribe a minimum speed for vehicles on roads?

Q1. Is it illegal to go too slow on the road or highway? Does the law prescribe a minimum speed for vehicles on roads?

 

The law does not prescribe any minimum speed for vehicles on the road. However, driving too slow could cause annoyance to other drivers and indirectly encourage overtaking, which of course would increase the probability of accident.

 

Driving too slow could therefore be a sign of driving “without due care and attention or without reasonable consideration for other persons using the road”, i.e. the feature of careless driving.

 

Q1. Can a passenger refuse to wear a seat belt on the medical ground?

Q1. Can a passenger refuse to wear a seat belt on the medical ground?

There is no statute which allows dispensation of seat belts on medical ground. Regulation 10 of the Road Traffic (Safety Equipment) Regulations (Cap. 374F) provides that the Commissioner for Transport may, “on application made to him in such form as he may determine”, exempt any person or any class of persons from compliance with seat belt regulations. However, there is no indication of what the “form as he may determine” really is. If anyone wants to dispense with seat belt on medical ground, it seems that he/she could only make an application by writing to the Commissioner for Transport.

 

Q2. If a passenger travels with a young child, can he/she use one seat belt to fasten himself/herself and the young child?

Q2. If a passenger travels with a young child, can he/she use one seat belt to fasten himself/herself and the young child?

 

No. Regulations 7, 7A and 7B of the Road Traffic (Safety Equipment) Regulations (Cap. 374F) contain express terms which govern the use of seat belts by child and infant. Put it simply, any passenger over 2 years of age has to be fastened to his/her seat by means of a seat belt; and any passenger of 2 years of age or less has to be fastened to his/her seat by means of an approved restraining device. Therefore, passenger travelling with a young child cannot use one seat belt to fasten both of them to one seat.

 

Q2. Nowadays many taxi drivers have multiple mobile phones in front of their driver seats to receive calls for business. This possibly will affect their attention on road situations. Are taxi drivers in breach of any traffic law in such circumstances (even if they make and receive phone calls with hand-free function)?

Q2. Nowadays many taxi drivers have multiple mobile phones in front of their driver seats to receive calls for business. This possibly will affect their attention on road situations. Are taxi drivers in breach of any traffic law in such circumstances (even if they make and receive phone calls with hand-free function)?

 

Technically a taxi drivers operating multiple mobile telephones simultaneously without “holding” any of them may argue that he/she did not “use a mobile telephone while holding it in his hand” and therefore get away with the offence.

 

However, if any accident happens to that taxi, no matter how minor that accident is, the fact of using multiple mobile telephones simultaneously may contribute to the evidence against him/her for driving “without due care and attention or without reasonable consideration for other persons using the road”, i.e. careless driving.

 

Q3. Can drivers watch videos during driving?

Q3. Can drivers watch videos during driving?

 

Regulation 37 of the Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A) expressly confirms that any video display unit visible to the driver in a vehicle could only display information about the current state of the vehicle or its equipment, the current closed-circuit view of any part of the vehicle or the area surrounding the vehicle, information about the current location of the vehicle or information for the purpose of navigating the vehicle.

 

A driver watching video while driving definitely is in breach of the said regulation 37 and is liable to a fine of $10,000 and imprisonment for 6 months.

 

Q1. Do people obstructing a parking space by placing an object (e.g., a chair) there violate the laws? If I drive a car and pass by, do I have right to the remove the object and park my car into the parking space?

Q1. Do people obstructing a parking space by placing an object (e.g., a chair) there violate the laws? If I drive a car and pass by, do I have right to the remove the object and park my car into the parking space?

 

Section 4A of the Summary Offences Ordinance (Cap. 228) provides clearly that it is an offence for any person “without lawful authority or excuse sets out or leaves, or causes to be set out or left, any matter or thing which obstructs, inconveniences or endangers, or may obstruct, inconvenience or endanger, any person or vehicle in a public place”. As to removal of the object, you better leave it to the Police.

 

Q3. Is it parking if I stop my car at the roadside but the engine is still on?

Q3. Is it parking if I stop my car at the roadside but the engine is still on?

 

Regulation 2(1) of the Road Traffic (Parking) Regulations (Cap. 374C) defines parking as “the standing of a vehicle, whether occupied or not, except when standing temporarily for the purpose of and while actually engaged in loading or unloading or picking up or setting down passengers”. The key words here are “temporarily for the purpose of and while actually engaged in loading or unloading or picking up or setting down passengers”. It is irrelevant whether the engine is on or not. Simply leaving the engine on while standing a vehicle for an extended period of time without doing the excepted acts under regulation 2(1) certainly constitutes an act of parking.

 

Q6. Motor vehicles left unattended in streets or carparks for extended period are found at times. What action can be taken if it happens in the public area? What action can be taken if it happens in privately run carparks?

Q6. Motor vehicles left unattended in streets or carparks for extended period are found at times. What action can be taken if it happens in the public area? What action can be taken if it happens in privately run carparks?

 

It should be noted that under section 2 of the Road Traffic Ordinance (Cap. 374), both “road” and “private road” are given such wide definitions that they include almost all kinds of places where a vehicle can be used. Sections 117 and 118 of the same Ordinance expressly stipulate that all major traffic ordinances and regulations shall apply to private roads as they apply to roads.

 

It therefore does not matter whether the unattended vehicle is on a road or in a public area or privately run carpark.

 

According to regulation 9 of the Road Traffic (Parking) Regulations (Cap. 374C), any person who “causes or permits a vehicle to remain at rest on a road in such a position or in such condition or in such circumstances as to be likely to cause danger to other persons using the road” commits an offence and is liable to a fine of $2,000.

 

The Police is also empowered under section 103 of the Road Traffic Ordinance (Cap. 374) to remove any vehicle which “remains at rest on a road in such conditions or in such circumstances as to be likely to cause danger to other persons using the road or to interfere with the use of the road” when the driver cannot be located, is unable to remove the vehicle or refuses to remove the vehicle. If the owner does not come forth to claim the vehicle within 3 days, the Police will issue a notice to the owner demanding him/her to take the vehicle and pay the removal and storage charges within the next 14 days; and if the owner does not claim the vehicle accordingly, the vehicle will become Government property and may be sold.

 

Even if the vehicle may not cause danger to other persons or may not interfere with the use of the road, if there is reasonable cause to believe that a vehicle has been abandoned, the Police may pursuant to section 107 of the Road Traffic Ordinance (Cap. 374) give notice to the vehicle owner requiring the owner to remove the vehicle. If the owner does not remove the vehicle within 7 days, the Police may seize it; and if the owner does not claim the vehicle within 14 days after the seizure, the vehicle will become Government property and may be sold.

 

Q4. Can traffic tickets be issued from midnight to dawn to vehicles parked in any area which are not designated parking spaces without obstructing other traffic or pedestrians?

Q4. Can traffic tickets be issued from midnight to dawn to vehicles parked in any area which are not designated parking spaces without obstructing other traffic or pedestrians?

 

The Government has by way of traffic signs and road markings designated parking spaces all over Hong Kong. You are not allowed to park at any area which are not designated parking space irrespective of the time.

 

Q5. Can parking spaces with malfunctioning meters be used?

Q5. Can parking spaces with malfunctioning meters be used?

 

Section 11(2) of the Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237) stipulates that in any proceedings related to failure to feed a parking meter, it shall be a defence to prove that:

 

  1. you have paid but the meter fails to show the payment; or
  2. it is not possible to use any approved payment means for the meter.

 

In other words, yes, legally speaking, parking spaces with malfunctioning meters can be used. However, practically, an enforcement officer may not bother to find out whether a parking meter is in working condition and may just issue a ticket to you if you do not pay for the parking space. In such circumstances, you may find it useful to adopt the Police’s recommendation.

 

Q1. Can I leave my car uninsured or unlicensed if I do not intend to drive it anymore?

Q1. Can I leave my car uninsured or unlicensed if I do not intend to drive it anymore?

 

Section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272) specifies that in order to “use, or to cause or permit any other person to use, a motor vehicle on a road”, there must be a third party risks insurance policy in force in relation to the user of that vehicle. The keyword here is “use”.

 

Regulation 25 of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap. 374E) specifies that “no motor vehicle shall be upon or used on any road unless a valid vehicle licence in respect of the vehicle is displayed”. The keywords here are “be upon or used”.

 

It is evident that there is a difference between the requirements for insurance and that of licensing:  

  • For insurance, you cannot “use” a vehicle if you do not have the insurance.
  • For licensing, you cannot have your vehicle “upon or used on any road” if you do not have the licence.

 

Judging from the wording of these 2 statues, you may argue that you can leave a vehicle uninsured if you do not intend to “use” or you will not let anyone “use” your car on a road.

 

Nevertheless, even if no one is going to “use” the vehicle, you must maintain a licence as long as the vehicle is “upon” any road. Given the broad definition of the word “road”, which comprises almost any place, you certainly need a licence for the vehicle. Regulation 21(1)(a)(ii) of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap. 374E) provides that a licence shall not be issued unless there is a third party insurance policy is “valid on the date when the licence is to become operative”. In other words, you must have a valid insurance policy as long as you continue to own the vehicle.

 

Note: since the law only requires that there must be a valid insurance policy “on the date” when the licence is to become operative, you could obtain a licence with an insurance policy which will expire in the near future. So it is possible that there will be a time gap that an unused vehicle can be placed “upon” a road without a valid insurance.

 

Q2. Can my son drive my car if he is an unnamed driver?

Q2. Can my son drive my car if he is an unnamed driver?

In insurance jargon, an “unnamed driver” means someone who is not named as a driver in the insurance policy but is authorized by the policy holder to drive the car.

 

Therefore the real question is: by allowing my son, who is an unnamed driver under the subsisting insurance policy, am I in breach of section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272), which specifies that in order to “use, or to cause or permit any other person to use, a motor vehicle on a road”, there must be a third party risks insurance policy in force in relation to the user of that vehicle.

 

The answer must be: it all depends on whether your third party insurance plan covers any unnamed driver. So read your insurance policy or consult your insurance agent.

 

Q2. Does a pedestrian commit the offence of jaywalking if the pedestrian light is not working and he/she crosses the road?

Q2. Does a pedestrian commit the offence of jaywalking if the pedestrian light is not working and he/she crosses the road?

 

If a pedestrian light is not working, the pedestrian obviously cannot be expected to quit crossing the road. He/She should proceed with exceptional care. Crossing the road under such circumstance should constitute a “reasonable excuse” under regulation 61(2) of the Road Traffic (Traffic Control) Regulations (Cap. 374G) and a good defence if the pedestrian is charged with jaywalking.

 

Q2. My car camera recorded someone hitting my car deliberately and pretending to be knocked down by my car. Will that person be charged? Will I be charged with careless driving?

Q2. My car camera recorded someone hitting my car deliberately and pretending to be knocked down by my car. Will that person be charged? Will I be charged with careless driving?

 

This appears to be a case of injury feigning rather than a negligent pedestrian. Assuming that the acts of  “hitting…deliberately” and “pretending to be knocked down” can be proved, it is likely that you will not be charged with careless driving. On the other hand, if that person tried to extort money from you, he/she may be charged with fraud or blackmail (depending on the factual circumstances).

 

Q3. Are electric golf carts regulated by traffic law?

Q3. Are electric golf carts regulated by traffic law?

 

As defined under the Road Traffic Ordinance (Cap. 374), golf cart is a “village vehicle”. Village vehicles are governed by the Road Traffic (Village Vehicles) Regulations (Cap. 374N). The major regulations in relation to golf carts are:

 

  1. a permit issued by the Commissioner for Transport is required to authorize the driving or use of a golf cart (regulation 4 of the Road Traffic (Village Vehicles) Regulations ( 374N)); 
  2. the permit may impose conditions on the use of the golf cart, such as the roads on which the vehicle may or may not be driven or used, the times and days during which the vehicle may or may not be driven or used, and the place where the vehicle will be kept when not being driven or used (regulation 9(2) of the Road Traffic (Village Vehicles) Regulations ( 374N); 
  3. the golf cart has to be “so constructed as to render it safe to carry any passengers that it may reasonably be required to carry” (regulation 16(1)(c) of the Road Traffic (Village Vehicles) Regulations ( 374N)); and 
  4. for certain specified road in Discovery Bay, the driver of a golf cart must hold a valid driving licence or a valid international driving permit (regulation 18(7A) of the Road Traffic (Village Vehicles) Regulations ( 374N)).

 

Basically drivers of golf carts shall comply with all traffic regulations as if they are drivers of motor vehicles.

 

Q2. Can I ride a bicycle or tricycle to carry animals?

Q2. Can I ride a bicycle or tricycle to carry animals?

 

According to regulation 51(3)(b) of the Road Traffic (Traffic Control) Regulations (Cap. 374G), “No person riding a bicycle or tricycle on a road shall carry… any animal or article which obstructs his view or which prevents him from exercising complete control over his vehicle”. In other words, as long as the animal does not obstruct the rider’s view or prevents him/her from exercising complete control over the bicycle or tricycle, the rider has not committed any offence.

 

Q1. Are electric mobility devices treated as “motor vehicles”?  Is riding on electric mobility devices (e.g. electric scooters, electric unicycles, electric hoverboards, electric skateboards, electric bicycles, etc.) illegal in Hong Kong? What charges could be laid against the riders?

Q1. Are electric mobility devices treated as “motor vehicles”?  Is riding on electric mobility devices (e.g. electric scooters, electric unicycles, electric hoverboards, electric skateboards, electric bicycles, etc.) illegal in Hong Kong? What charges could be laid against the riders?

 

The term “electric mobility devices” usually refers to electric scooters, electric unicycles, electric hoverboards, electric skateboards, electric bicycles, etc.

 

As defined under the Road Traffic Ordinance (Cap. 374), “motor vehicle” means “any mechanically propelled vehicle”, and “motor cycle” means “a two-wheeled motor vehicle with or without a sidecar”.

 

With such definitions and from a legal perspective, electric bicycle is a motor cycle and all other electric mobility devices are motor vehicles.

 

However, according to the leaflet “Electric Mobility Devices are banned on roads (including footpaths)” published by the Transport Department, electric mobility devices are banned on roads. It is interesting to note that:

 

  1. the Transport Department confirms the legal position that electric mobility devices “are likely ‘motor vehicles’ under the Road Traffic Ordinance”; 
  2. it then states that electric mobility devices “are not suitable to share road spaces with ordinary vehicles, no matter from the road safety perspective or from the smooth traffic angle. They are also not suitable for use on footpaths. Therefore, it is a general policy of the Transport Department that such mobility devices would not be registered or licensed under the Road Traffic Ordinance”; and 
  3. it then concludes that since electric mobility devices will not be registered or licensed, riding one on the road “may constitute an offence under section 52 of the Road Traffic Ordinance and is liable in the case of a first conviction for that offence to a fine at level 2 (currently $5000) and to imprisonment for 3 months”.

 

It is not difficult to see that the Transport Department’s decision to ban electric mobility devices is based on safety concern and is probably reasonable and realistic. But this administrative measure is irreconcilable with the existing law. It fails to answer the fundamental question: since electric mobility devices are motor vehicles, why are they not allowed to run on roads like other motor vehicles? Obviously the law is not adequately updated to keep up with the advancement of technology.

 

In the meantime, unless and until someone being charged with riding an electric mobility device brings the case to the Court and obtain a definitive judgment, anyone riding an electric mobility device is taking the risk of committing the offence of driving an unregistered and licensed vehicle.

 

Q2. Do I bear the responsibilities of a driver if I ride an electric unicycle on the road and hit someone?

Q2. Do I bear the responsibilities of a driver if I ride an electric unicycle on the road and hit someone?

 

As discussed in the section on electric mobility devices, riding an electric unicycle may constitute the offence of driving an unregistered and licensed vehicle. You may therefore be treated as a driver and have to bear all responsibilities that a driver of a motor vehicle may bear. Even though it is unlikely that an electric mobility device may lead to serious charges like careless driving and dangerous driving, you could be charged under section 4(8) of the Summary Offences Ordinance (Cap. 228): “rides or drives on any foot-path without obvious necessity; or in any public place rides or drives recklessly or negligently or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case”.

 

Q4. Are electric wheelchairs regulated by traffic law?

Q4. Are electric wheelchairs regulated by traffic law?

 

As defined under the Road Traffic Ordinance (Cap. 374), “motor vehicle” means “any mechanically propelled vehicle”, and “motor cycle” means “a two-wheeled motor vehicle with or without a sidecar”. An electric wheelchair evidently falls into these definitions and should be a motor vehicle or motor cycle.

 

Yet, strangely enough, the Government does not consider the electric wheelchair a motor vehicle nor a motor cycle, not even an electric mobility device.

 

According to the “Review of the Use of Electric Mobility Devices in Hong Kong” made by the Transport Department in June 2020, electric wheelchairs are “Motorised Personal Mobility Aids”; and they are “the motorised version of wheelchairs for essential mobility of the disabled and the elderly. Their use on footpaths is considered necessary for these people and the impact on pedestrians is expected to be low, provided that their speed is restricted at a certain level”.

 

When comparing electric mobility devices (EMDs) and personal mobility aids (PMAs), the Review makes the following remarks: “we are mindful that Hong Kong is a densely populated city and our road networks are heavily used by motor vehicles. We need to take into account a host of local factors in reviewing the proposed regulation of EMDs in Hong Kong, including road and pedestrian safety concerns, traffic environment, road design and associated traffic impacts, as well as the benefits that EMDs may bring to their users. In connection with the last factor, due consideration has been given to the practical needs of the users of motorised PMAs.

 

In other words, EMDs are motor vehicles but they will not be registered or licensed because they do not bring forth much benefit to the community; and motorized PMAs (i.e. electric wheelchairs), though within the definition of “motor vehicle”, will not be treated as motor vehicles and thus are not required to be registered or licensed because they serve practical purposes.

 

One certainly cannot reproach the Transport Department for giving due consideration to the needs of the elderly and the disabled. Nevertheless, just like in the case of electric mobility devices, this administrative measure based on practicality is irreconcilable with the existing law.

 

Since electric wheelchairs are not motor vehicle, they could not be regulated by the Road Traffic Ordinance (Cap. 374). The user of an electric wheelchair, however, should remain vigilant of section 4(8) of the Summary Offences Ordinance (Cap. 228): it shall be an office if someone “rides or drives on any foot-path without obvious necessity; or in any public place rides or drives recklessly or negligently or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case”.

 

Q1. In Chinese, the word “road” is frequently called “馬路”, literally “horse way”, which was so defined when horses or carriages were the major means of transportation. Nowadays, can we still ride horses on roads?

Q1. In Chinese, the word “road” is frequently called “馬路”, literally “horse way”, which was so defined when horses or carriages were the major means of transportation. Nowadays, can we still ride horses on roads?

 

The Chinese term “馬路” (transliterated “horse way”) has almost completely disappeared in Hong Kong statutes. There are only 2 references to the Chinese term. Both appear in the Road Traffic (Traffic Control) Regulations (Cap. 374G); both are called “road” in the English version; and both are used in the context of pedestrians crossing the “road”.

 

But Hong Kong citizens have all along been using the term “馬路” (transliterated “horse way”) to describe the road in their daily language. It is therefore interesting to ponder upon whether riding horses on a road is permitted.

 

As a matter of fact, there is no law which prohibits riding of horse on the road. There are actually a few statues which suggest that it is not an offence to ride a horse on the road:

 

  1. Section 28(3) of the Summary Offences Ordinance ( 228) stipulates: “Any person who is found drunk while in charge of any vehicle (other than a motor vehicle) or of any horse, in any public road or street shall be liable to a fine at level 1 or to imprisonment for 2 months.” That seems to suggest that you can be in charge of any vehicle or horse on a road as long as you are not drunk.
  2. At certain areas where equestrian centres or riding schools are located, you may see a triangular traffic sign displaying a running horse.
Horse

 

According to Schedule 1 of the Road Traffic (Traffic Control) Regulations (Cap. 374G), “This sign indicates that motorists are approaching a length of road on which they are likely to encounter horses.” That again seems to suggest that horse riding is allowed on the road.

 

The Road Users’ Code published by the Transport Department, though not representing the law, also contains passages which indicate that horse riding on the road is allowed. For example:

 

  1. Riding a horse on roads with traffic should be avoided. However, if you have to ride a horse on the road, make sure you can control it in traffic.
  2. When riding, keep to the left of the road. If you are leading a horse, on foot or while riding another, you should also keep to the left and keep the led animal on your left.
  3. If you are riding a horse, you should wear a hard hat and lightcoloured, reflective or fluorescent clothing.

 

In view of the above, it is believed that it is not an offence for someone to ride a horse on the road.

 

Q1. Does the regulation regarding running engines on idling vehicles also apply to electric motor cars?

Q1. Does the regulation regarding running engines on idling vehicles also apply to electric motor cars?

 

The Motor Vehicle Idling (Fixed Penalty) Ordinance (Cap. 611) comes into effect on 15 December 2011 with the prime objective to control air pollution and fuel waste caused by combustion-type vehicle engines. That would include vehicle engines powered by fuels such as petrol, diesel or liquefied petroleum gas, as well as hybrid vehicles operating in fuel combustion mode.

 

According to sections 5 and 7 of the Ordinance, if a driver causes or permits a vehicle to be idling on a road for more than 3 minutes in any 60-minute period, he/she is liable to pay a fixed penalty of $320.

 

Nevertheless, as electric vehicles and hybrid vehicles operating solely in electric mode do not emit pollutants, the Environment Protection Department has confirmed that the Ordinance does not apply to such vehicles.

 

1. Parking Contraventions

1. Parking Contraventions

 

The enforcement procedures for fixed penalty tickets against parking contraventions under the Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237) are as follows:

 

  1. Form 1 (commonly known as “traffic ticket”): If a police officer has reasonable cause to believe that a contravention is being or has been committed, he/she may deliver a Fixed Penalty Notice (Form 1) to the person in charge of the vehicle or fixed on the vehicle. The penalty should be paid according to the payment instructions stated on the overleaf of the Form 1 within 21 days of the issue date of the Notice in order to discharge the liability of the contravention.
  2. Form 2: If the offender fails to pay the penalty within 21 days of the issue date of Form 1, the Notice Demanding Payment of Fixed Penalty (Form 2) will be issued within 6 months from the date of the contravention and sent to the registered owner of the offending vehicle by post to the address as registered at Transport Department. The vehicle owner has to pay the penalty or dispute the case in court according to the instructions stated on the Notice before the due date prescribed in the Notice.

 

In case the offender has not indicated the intention to dispute in court

 

  1. Court order: If a person on whom Form 2 has been served has not paid the fixed penalty and has not notified the Commissioner of Police that he wishes to dispute liability for the contravention before the prescribed due date in Form 2, an application will be made by the Secretary for Justice, in the absence of the person, before a magistrate to order the person to pay the fixed penalty, together with an additional penalty equal to the amount of the fixed penalty and a court costs in a total of HK$1080. At the same time, the magistrate will put the following restrictions against the person until the payment of the order has been settled:

 

  • refuse the issuing and renewal of the person’s driving licence;
  • refuse the renewal of all vehicle licences under the name of the person;
  • refuse the transfer of vehicle ownerships of all vehicles registered under the name of the person; and
  • refuse the issuing of traffic conviction records of the person.

 

  1. Distress: If a person failed to settle a court order within 1 month of the date of the order to so pay, the Secretary for Justice will apply, in the absence of the person, before a magistrate for an order directing that all costs as stated in the ordinance be levied on any goods and chattels of the person by distress and sale.

 

In case the offender intends to dispute in court

 

  1. Return Form 2: A registered vehicle owner could dispute the liability of a traffic contravention by writing to or forwarding a signed Notification to Commissioner of Police of Wish to Dispute Liability for Contraventions, which is at the back of the Notice Demanding Payment of Fixed Penalty (Form 2), to Unit 4 of Central Traffic Prosecutions Division (CTPD) at 30/F, Arsenal House, Police Headquarters, No. 1 Arsenal Street, Wanchai. Any such document must be signed by the registered vehicle owner or affixed with a company seal (if the registered owner is a company) and forwarded to CTPD by the due date prescribed on the Form 2.
  2. Appear before the Magistrate: The offender should appear before the magistrate presiding in the summons or he/she may discharge the liability for the contravention by presenting the Summons at the Accounts Office of any Magistrates’ Courts, not later than two clear working days before the appearance day and pay the amount stated in the Summons.

 

2. Speeding and Other Moving Offences

2. Speeding and Other Moving Offences

 

The enforcement procedures for fixed penalty tickets against moving offences under the Fixed Penalty (Criminal Proceedings) Ordinance (Cap. 240) are as follows:

 

  1. Form 1 (commonly known as “traffic ticket”): If a police officer has reason to believe that a person is committing or has committed a scheduled offence, he may give that person a Notice of Particulars of Alleged Fixed Penalty Traffic Offence (Form 1) by delivering it personally to that person or by fixing it to the vehicle used or involved in the commission of the offence. The penalty should be paid according to the payment instructions stated on the overleaf of the Form 1 within 21 days of the issue date of the Notice in order to discharge the liability of the contravention.

 

  1. Notice Requiring Identification of Driver: In case the identity of the offended driver cannot be identified, a police officer may issue a Notice Requiring Identification of Driver to the registered owner of the vehicle involved. Within 21 days after the date of the notice, the recipient shall provide the name, address and driving licence number of the driver of the vehicle at the time of the alleged offence, and the recipient’s relationship to any such driver.

 

  1. Form 2: No matter whether the penalty specified in Form 1 has been cleared or not before the due date, the Commissioner of Police will mail a Notice Demanding Payment of Fixed Penalty (Form 2) to the offender’s address registered with Transport Department. If the penalty has not been cleared, and if the offender does not intend to dispute liability for the offence concerned, he/she should pay the penalty according to the payment instructions stated on the overleaf of the demand note before the Last Date for Payment / Notification of Dispute. The demand note can be ignored if the correct amount of payment of the penalty has been made.

 

In case the offender has not indicated the intention to dispute in court

 

  1. Court order: If the penalty has not been cleared and no notification of dispute has been given after the Last Date for Payment / Notification of Dispute, the magistrate will order the offender to pay the fixed penalty together with an additional penalty equal to the amount of the fixed penalty and court costs of not less than HK$80 or more than HK$1,500 within 14 days of being served with notice of the order. At the same time, the court will put the following restrictions against the person until the payment of the order has been settled:
  • refuse the issuing and renewal of the person’s driving licence;
  • refuse the renewal of all vehicle licences under the name of the person;
  • refuse the transfer of vehicle ownerships of all vehicles registered under the name of the person; and
  • refuse the issuing of traffic conviction records of the person.

 

  1. Imprisonment: If the offender fails to pay the amount of the fixed penalty, additional penalty and costs on the specified date, he/she will be deemed to have failed to have paid a sum adjudged to be paid by a conviction and shall be liable to be imprisoned under Magistrates Ordinance (227).

 

  1. Distress: If a person failed to settle a court order within 1 month of the date of the order to so pay, the Secretary for Justice will apply, in the absence of the person, before a magistrate for an order directing that all costs as stated in the ordinance be levied on any goods and chattels of the person by distress and sale.

 

In case the offender intends to dispute in court

 

  1. Return Form 2: If the offender wishes to dispute a fixed penalty ticket, he/she can sign the notification of dispute slip on the overleaf of the Form 2 and mail it on or before the Last Date for Payment / Notification of Dispute to Unit 3 of CTPD (30/F, Arsenal House, Police Headquarters, No. 1 Arsenal Street, Wanchai). The unit will then arrange with the court to issue a summons to the offender.

     

  2. Appear before the Magistrate: The offender should appear before the magistrate presiding in the summons or he/she may discharge the liability for the contravention by presenting the Summons at the Accounts Office of any Magistrates’ Courts, not later than two clear working days before the appearance day and pay the amount stated in the Summons.

 

d. Complaint mechanism

D. Complaint mechanism

 

Complaints against unjust issue of fixed penalty notices can be lodged in person or by post or fax:

 

In Person

 

The complainant can bring the notice to any Police Station or the Central Traffic Prosecutions Division (CTPD) Enquiry Counter and complete an enquiry or complaint form.

 

Address: 11/F, Arsenal House, Police Headquarters, No. 1 Arsenal Street, Wanchai, Hong Kong

Opening hours: Monday to Friday 9:00 am to 5:45 pm, closed on Saturdays, Sundays and General Holidays.

 

Complaints against traffic tickets related to parking contraventions will be referred to Unit 4 of CTPD while those related to speeding or other moving offences will be referred to Unit 3 for investigations.

 

By Post or Fax

 

The complainant can also write to CTPD by post or fax, stating the personal particulars, telephone number, the number of the Fixed Penalty Notice and reason or justification for the complaint, together with a photocopy of the notice.

 

Related to Parking Contravention

Address: Unit 4 of Central Traffic Prosecutions Division, 11/F, Arsenal House, Police Headquarters, No. 1 Arsenal Street, Wanchai, Hong Kong

Fax number: 2200-4320

 

Related to Speeding and Other Moving Offences

Address: Unit 3 of Central Traffic Prosecutions Division, 11/F, Arsenal House, Police Headquarters, No. 1 Arsenal Street, Wanchai, Hong Kong

Fax number: 2200-4319

 

Related to Traffic Summons

Address: Unit 2 of Central Traffic Prosecutions Division, 11/F, Arsenal House, Police Headquarters, No. 1 Arsenal Street, Wanchai, Hong Kong

Fax number: 2200-4318

 

Via the e-Report Room

 

Complaints against unfair traffic tickets can also be lodged through the e-Report Room.

 

Inquiry Hotline

 

Call the hotline 2866-6552 during office hours.

 

Result

 

Upon receiving a complaint, the relevant unit of the CTPD will carry out the investigation and will inform the complainant of the outcome in about 2 months.

 

Q1. Should I pay for a traffic ticket if I believe it is wrongly issued and would like to raise an objection?

Q1. Should I pay for a traffic ticket if I believe it is wrongly issued and would like to raise an objection?

 

If you believe that the ticket is wrongly issued, you certainly have the right to raise an objection and indeed you should not pay. The standard traffic ticket contains the following words: “if you wish to dispute liability for the contravention, you should inform me. You are required…to notify me that you wish to dispute liability for the contravention (by using the notification form overleaf).” 

 

After receiving your notification of dispute, the Police will pass the case to the Court and you will be notified of a hearing date. For details of Court procedures, please refer to “Court procedure - criminal cases”.

 

Q2. Do I have the right to request access to the pictures taken from the speed camera (and other photographic evidence made by HK Police)?

Q2. Do I have the right to request access to the pictures taken from the speed camera (and other photographic evidence made by HK Police)?

 

Yes, definitely. Every person being accused of any offence is entitled to obtain the evidence in the Police’s possession. The standard traffic ticket contains a telephone number of the Central Traffic Prosecutions Division of the Police and you can call that number to raise your request.

 

Q1. Can video clips from driving recorders (of any driver involved in a case, or any third-party driver) be used as evidence in court?

Q1. Can video clips from driving recorders (of any driver involved in a case, or any third-party driver) be used as evidence in court?

 

Generally speaking, a video clip, as long as its content is relevant to the subject matter, is prima facie admissible in Court as evidence. Another issue is the authenticity of the video clip: it has to be shown that the clip has been, since the time it was recorded, continuously in the custody of the person who asserts that it was not tampered with.

 

If you believe that a video clip on your driving recorder may assist you in the defence of a charge, you should keep the memory card in your safe custody at all times and be ready to testify to the Court that you have not and no one will have tempered with the content of the memory card.

 

Q2. What makes a video clip admissible evidence? (Correct time? Vehicle registration number clearly captured?)

Q2. What makes a video clip admissible evidence? (Correct time? Vehicle registration number clearly captured?)

 

A video clip is prima facie admissible in Court as evidence if its content is relevant to the subject matter. In a case involving a traffic incident, a video recording of the incident would certainly be helpful to the Court.

 

The video clip produced to the Court must be the original clip. A copy will not be allowed unless there is a cogent reason why the original cannot be produced.

 

The video clip must truly and accurately represent the actual circumstances of the incident. For instance, the subject vehicle, driver and/or victim should be identifiable in the video clip. Correct date and time, if available, should also be shown. It is quite usual that a dashcam often does not display the accurate date and time because it is not properly charged at all times. This may not render the clip inadmissible as long as there are other elements in the clip which verify that it is a truthful recording of the incident.

 

Q3. What makes a video clip be regarded as being "interfered" and that may cause it inadmissible in court?

Q3. What makes a video clip be regarded as being "interfered" and that may cause it inadmissible in court?

 

Any editing or post-production on a video clip would render the clip being “interfered” or “tampered” with and thus adversely affect or even completely destroy its authenticity. This is also the reason why only original of a video clip will be admissible because a copy is always subject to the accusation that it could have been “interfered” or “tempered” with.

 

For the same reason, if the authenticity of a video clip is being challenged, the person who took the clip should be ready to confirm to the Court that he/she has all along kept the video clip in his/her safe custody without any possible interference of the clip by any other person.

 

Q4. What can I do if my driving recorder has recorded the happening of a traffic offence on the road?

Q4. What can I do if my driving recorder has recorded the happening of a traffic offence on the road?

 

First of all, as an ordinary citizen, you are not the right person to decide whether that is an offence or not. We suggest that you should pass the video clip (i.e. the memory card containing the video clip) to the Police and let the professionals do their job.

 

We do not recommend passing the memory card to any party involved in the traffic incident. The obvious reason is: you do not know which party has committed an offence (if any) in the incident; the apparent victim could actually be the offender. Then you may have passed a valuable evidence to the offender and give him/her an opportunity to destroy the evidence. Certainly you do not want to make that kind of mistake.

 

You should also be prepared to be requested by the Police to give evidence in the Court to verify the authenticity of your recording.

 

Q1. Does such kind of settlement contract preclude the right of the parties to report the accident to the Police?

Q1. Does such kind of settlement contract preclude the right of the parties to report the accident to the Police?

 

A settlement agreement is a contract between parties on a civil basis. Investigation by the Police, on the other hand, belongs to the criminal realm. Settlement on a civil basis cannot exclude criminal liability. Let’s review a rather extreme hypothetical situation: A driver rode dangerously and crashed into your supercar, causing total loss of your supercar and permanent disability to you; but you, for whatever reason, reached a settlement with the driver whereby you did not require damages from him and even paid him $1 million. This settlement is of course binding on you; but it cannot negate the fact that the driver has driven dangerously and cannot stop the Police from laying charges against him. In the settlement agreement, the parties have probably agreed not to report the accident to the Police. However, even if you have agreed not to report the accident to the Police, such agreement has no effect because it may amount to perverting the course of justice.

 

Q2. If I have paid a sum of money to the other party in the agreement, and subsequently I reported the case to the police, and it turns out that it is the other party who has committed the offence of "careless driving". Can I ask for the money back?

Q2. If I have paid a sum of money to the other party in the agreement, and subsequently I reported the case to the police, and it turns out that it is the other party who has committed the offence of "careless driving". Can I ask for the money back?

 

As discussed above, one same incident can lead to difference aspects of civil and criminal liabilities. If you have paid according to an agreement, it seems that there is no reason, even that the other party has committed a criminal act, that you can get your money refunded unless the contract contains some clauses which allow such refund.

 

Hong Kong's jurisdiction over Shenzhen Bay Port, Hong Kong - Zhuhai - Macao Bridge and the Express Rail Link

Hong Kong's jurisdiction over Shenzhen Bay Port, Hong Kong - Zhuhai - Macao Bridge and the Express Rail Link

 

The general legal principle on jurisdiction is: each country shall have jurisdiction over its own land. Hong Kong of course is not a country. But it has its own jurisdictional power under the “one country, two systems” principle. The above general legal principle on jurisdiction therefore must apply also to Hong Kong.

 

Section 5 of the Shenzhen Bay Port Hong Kong Port Area Ordinance (Cap. 591) provides that the laws of Hong Kong shall apply in area lying within Hong Kong. This is consistent with the general legal principle on jurisdiction.

 

As for the Hong Kong-Zhuhai-Macao Bridge, there is no statue which expressly deals with the jurisdiction issue. However, according to the “Government Statement in respect of the jurisdiction of the Eastern Artificial Island of the Hong Kong-Zhuhai-Macao Bridge” published on 17 December 2019, the operation and law enforcement of the portion of the Hong Kong-Zhuhai-Macao Bridge situated in Hong Kong are carried out by the Hong Kong Government in accordance with the laws of Hong Kong. This is also consistent with the general legal principle on jurisdiction.

 

The Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance (Cap. 632), however, provides a creative deviation from this general principle due to practical consideration. It introduces the “Mainland Port Area” which includes part of the West Kowloon Station and train compartments of passenger trains in operation on the Hong Kong section of the Express Rail Link. The laws of mainland China shall apply in the “Mainland Port Area” which is geographically and physically located in Hong Kong.

 

Q1. Does following the Road Users' Code published by the Transport Department give me a strong case when facing a criminal charge or when dealing with a civil claim relating to traffic incidents?

Q1. Does following the Road Users' Code published by the Transport Department give me a strong case when facing a criminal charge or when dealing with a civil claim relating to traffic incidents?

 

First of all, it should be noted that the Road Users' Code published by the Transport Department is not law. Section 109(5) of the Road Traffic Ordinance (Cap. 374) expressly states: “A failure on the part of any person to observe any provisions of the road users’ 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 this 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.

 

By the same token, full compliance with the Road Users’ Code does not mean that you have fully complied with the law, but such compliance may in any proceedings whether civil or criminal be relied upon by any party to the proceedings as tending to establish or negative any liability.

 

The Court has also in various cases confirmed that the Road Users' Code serves only the purpose of guidance. So yes, compliance with the Road Users’ Code may give you a strong case in criminal or civil proceedings. But you should not expect anything more than a strong case.

 

Public Transport

IX. Public Transport

In Hong Kong, public transport includes public buses, public light buses, taxis, ferries, tramways, Mass Transit Railway etc.

 

The major sources of law governing public transport are :-

 

  1. Road Traffic Ordinance (Cap. 374);
  2. Road Traffic (Public Service Vehicles) Regulations (Cap. 374D);
  3. Road Traffic (Safety Equipment) Regulations (Cap. 374F);
  4. Road Traffic (Traffic Control) Regulations (Cap. 374G);
  5. Public Bus Services Regulations (Cap. 230A); and
  6. Mass Transit Railway By-laws (Cap. 556B).

 

1. Concepts of Regulations and By-laws

1. Concepts of Regulations and By-laws

(a) Regulation

 

Regulation is generally made by the Secretary for Transport and Logistics as opposed to the company of the buses or the Mass Transit Railway MTR Corporation Limited: see Section 35 of the Public Bus Services Ordinance (Cap. 230); and Section 2 and Section 33 of the Mass Transit Railway Ordinance (Cap. 556).

 

Regulation has the same meaning as subsidiary legislation and subordinate legislation: see Section 3 of Interpretation and General Clauses Ordinance (Cap. 1). Subsidiary legislation and subordinate legislation mean any proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw or other instrument made under or by virtue of any Ordinance and having legislative effect.

 

Examples for regulations are :-

 

  1. Public Bus Services Regulations (Cap. 230A);
  1. Road Traffic (Public Service Vehicles) Regulations (Cap. 374D);
  1. Road Traffic (Safety Equipment) Regulations (Cap. 374F); and
  1. Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

(b) By-laws

 

By-laws can be made by transportation companies, e.g. public bus company (see Section 36(1) of the Public Bus Services Ordinance (Cap. 230)) and the MTR Corporation Limited (see Section 34 of the Mass Transit Railway Ordinance (Cap. 556)) etc.

 

All by-laws are subject to the approval of the Legislative Council: see Section 36(2) of the Public Bus Services Ordinance (Cap. 230); and Section 34(3) of the Mass Transit Railway Ordinance (Cap. 556).

 

Any by-laws may provide that a contravention of specified provisions of the by-laws is an offence and may provide penalties for the offence: see Section 36(3) of the Public Bus Services Ordinance (Cap. 230).

 

One example of by-laws is the Mass Transit Railway By-laws (Cap. 556B).

 

Q1. Who are given the power to enforce the regulations/by-laws?

Q1. Who are given the power to enforce the regulations/by-laws?

Public bus, public light bus and taxi

Generally speaking, the following persons may apprehend any person whom he believes, on reasonable ground, to have committed an offence against certain regulations in the regulations/by-laws, including:

 

  1. Any driver of a public bus, public light bus or taxi while on duty and while wearing his badge;
  2. Any authorised person on duty, i.e. an employee of a licensee on duty on or in connection with a vehicle: see Regulation 2(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D)

 

They may detain such person until he can be handed over to a police officer: see Regulations 58(a) and 58(b) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

For public buses specifically, any person who is an employee of a public bus company and who is in uniform and on duty may arrest without a warrant any person whom he has reasonable cause to believe has contravened the Public Bus Services Regulations (Cap. 230A) and may detain such person until he can be handed over to a police officer: see Regulation 13(3) of the Public Bus Services Regulations (Cap. 230A).

 

Mass Transit Railway

For Mass Transit Railway, every official, namely any person duly authorised to act on behalf of the MTR Corporation Limited, has the power to remove (if necessary by the use of reasonable force) from the railway premises any person whom he reasonably suspects of having committed, or attempting to commit any breach of the Mass Transit Railway By-laws (Cap. 556B).

 

If such breach is an offence as provided under the by-laws, the official has power to detain such person until he can be delivered into the custody of a police officer to be dealt with according to law: see By-law 2 and By-law 42(2) of the Mass Transit Railway By-laws (Cap. 556B).

 

Q2. Will I be arrested if I breach the regulations/by-laws?

Q2. Will I be arrested if I breach the regulations/by-laws?

Yes.

 

Any:

  1. on-duty driver of a public bus, public light bus or taxi  while wearing his badge and on-duty authorized person, who is any employee of a licensee on duty on or in connection with a vehicle; or
  2. an official, namely any person duly authorised to act on behalf of the MTR Corporation Limited

 

has the power to arrest any person in contravention of the regulations/by-laws.

 

Q3. Will I get a criminal record if I am convicted of an offence under the regulations/by-laws?

Q3. Will I get a criminal record if I am convicted of an offence under the regulations/by-laws?

Yes.

 

Offence includes any crime and any contravention or other breach of, or failure to comply with, any provision of any law, for which a penalty is provided: see Section 3 of the Interpretation and General Clauses Ordinance (Cap. 1).

 

Thus, a person will commit an offence if he or she contravenes, breaches or fails to comply with any provision of any relevant ordinance, regulations and By-laws governing the conduct on a public transport, for which a penalty is provided.

 

The commission of an offence would necessarily leave a criminal record.

 

2. Public Bus

2. Public Bus

Bus means a motor vehicle constructed or adapted for the carriage of a driver and more than 19 passengers and their personal effects. Public bus means a bus, other than any private bus, which is used or intended for use for hire or reward: see Section 2 of the Road Traffic Ordinance (Cap. 374).

 

The current franchised operators of public bus are :-

  1. Citybus Limited;
  2. Kowloon Motor Bus Company (1933) Limited;
  3. Long Win Bus Company Limited;
  4. New Lantao Bus Company (1973) Limited;
  5. New World First Bus Services Limited.

 

Q1. What are the general rules of conduct of bus drivers? What are the legal consequences if bus drivers do not observe the general rules of conduct?

Q1. What are the general rules of conduct of bus drivers? What are the legal consequences if bus drivers do not observe the general rules of conduct?

(i) Sign boards and notices on buses

 

Under Regulation 7(1) of the Public Bus Services Regulations (Cap. 230A), a driver of a bus must:

 

  1. display signs on the front and back of the bus showing the route number;
  2. display a destination indicator on the front of the bus in English and Chinese characters;
  3. ensure that the signs and indicator are always illuminated when the bus lights are on;
  4. display a “BUS FULL”  and “滿座” sign when the bus is carrying the maximum number of passengers allowed;
  5. display a statement in English and Chinese characters showing the maximum number of passengers allowed on the bus, along with the authorized fare for that section of the route; and
  6. make written details of authorized fares and charges available on the bus, in both English and Chinese characters, for passengers to inspect upon request.

 

(ii) Uniform

 

Every driver of a bus must at all times when on duty wear such uniform and carry such badge: see Regulation 8 of the Public Bus Services Regulations (Cap. 230A).

 

(iii) Conduct of driver

 

Under Regulation 9 of the Public Bus Services Regulations (Cap. 230A), a driver of a bus must:

 

  1. only stop the bus for as long as necessary to pick up or drop off passengers, except at stands or places where longer stops are allowed;
  2. follow the designated route to the destination, except in the case of an emergency or if ordered not to by an authorized person or police officer; and
  3. stop at every bus stop that indicates that all buses or all buses on the route should stop there; and
  4. stop at every bus stop along the route if signalled by passengers who want to get on or off the bus provided that the driver is not required to stop the bus to pick up passengers if the “BUS FULL” sign is displayed.

 

Under Regulation 12 of the Public Bus Services Regulations (Cap. 230A), a driver of a bus must:

 

  1. stop the bus as close to the left or near side of the road as is safe and practical when picking up or dropping off passengers;
  2. not talk to anyone while the bus is in motion unless it is necessary for safety reasons;
  3. not unreasonably delay the bus during any journey;
  4. turn off the engine and make sure all passengers have exited the bus before filling the petrol or oil tank, keep the engine off and make sure passengers stay out of the bus until filling is complete; and
  5. turn off the engine if leaving the bus unattended.

 

(iv) Conduct of driver when no conductor is carried

 

Under Regulation 10(2) of the Public Bus Services Regulations (Cap. 230A), in the case of a bus in which no conductor is carried, a driver—

 

  1. must allow any passenger who can be accommodated without exceeding the authorized capacity of the bus and who has paid the lawful fare to board the bus, unless there is a reasonable objection;
  2. must allow passengers to bring goods that are lawful, safe, and convenient to be carried on the bus;
  3. must not allow any animals, except for guide dogs accompanying blind people, on the bus;
  4. may refuse entry or travel to any person who is in a dirty condition;
  5. may refuse entry or travel to any person who the driver has reason to believe is intoxicated, mentally unbalanced, or suffering from an infectious or contagious disease; and
  6. may refuse entry or travel to any person who the driver has reasonable cause to believe is carrying dangerous or offensive goods.

 

(v) General conduct of driver

 

Under Regulation 11 of the Public Bus Services Regulations (Cap. 230A), a driver of a bus —

 

  1. must behave in a civil and orderly manner;
  2. must be clean and tidy in his person;
  3. must not smoke in or on the bus during a journey or when it has passengers on board; must take all reasonable precautions to ensure the safety of passengers in or on or entering or alighting from the bus;
  4. must, if requested by any police officer in uniform or any person authorized by the Commissioner for Transport, give particulars of his licence, if any, his name and the name and address of his company;
  5. must not, at any reasonable time, obstruct, or neglect to give all reasonable information and assistance to, any police officer in uniform, or any person authorized by the Commissioner for Transport who produces such authority, to examine the bus.

 

In addition, under Regulation 45(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the driver of a public bus —

 

  1. must ensure that all exits of the vehicle, including emergency exits, are free from obstruction and, when passengers are on board, are not locked;
  2. must not congregate or assemble with other drivers to the annoyance of members of the public.

 

(vi) Consumption of alcohol

 

While on duty, a bus driver must not consume any alcoholic drink: see Regulation 11A of the Public Bus Services Regulations (Cap. 230A).

 

(vii) Public service vehicle badges

 

If issued with a badge, a bus driver must wear his badge in a conspicuous position at all times when he is on duty: see Regulation 43(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Legal consequences if bus drivers do not observe the general rules of conduct

 

Any person who without reasonable excuse contravenes any of the following provisions of regulation:

 

  1. 7(1) – Sign boards and notices on bus
  2. 8 – Uniform
  3. 9 – Conduct of driver
  4. 10(2)(a), (b) or (c) – Conduct of conductor and of driver when no conductor is carried
  5. 11(a), (b), (c), (e), or (f) – General conduct of driver and conductor
  6. 12(a), (b) or (c) – General conduct of driver

 

commits an offence; and is liable to a fine at $2,000: see Regulation 25(1) and Regulation 25(2) of the Public Bus Services Regulations (Cap. 230A).

 

Any person who without reasonable excuse contravenes any of the following provisions of regulation:

 

  1. 11(d) - Taking reasonable precautions to ensure safety of passengers;
  2. 11A - Consumption of Alcohol
  3. 12(d) or (e) - scenarios when engine needs to be shut off

 

commits an offence and is liable to a fine at $5,000 and to imprisonment for 6 months: see Regulation 25(3) of the Public Bus Services Regulations (Cap. 230A).

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under, regulation 45(1), i.e. General conduct of driver, commits an offence and is liable on conviction to a fine of $3,000 and to imprisonment for 6 months: see Regulation 57(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q2. What are the rules of general conduct of passengers? What are the legal consequences if passengers do not observe the rules of general conduct?

Q2. What are the rules of general conduct of passengers? What are the legal consequences if passengers do not observe the rules of general conduct?

Passenger in relation to a vehicle means any person carried in or on it other than any driver or conductor of it: see Section 2 of the Road Traffic Ordinance (Cap. 374).

 

General conduct of passengers or intending passengers

 

Under Regulation 13A(1) of the Public Bus Services Regulations (Cap. 230A), no passenger or intending passenger shall —

 

  1. wilfully obstruct, impede or distract the driver of the bus or any authorized person;
  2. wilfully obstruct the driver’s view of the road or of any traffic;
  3. wilfully do or cause to be done with respect to any part of the bus or its equipment, anything which—
  • obstructs or interferes with the workings of the bus or causes damage; or
  • causes injury, discomfort, annoyance or inconvenience to any other person;
  1. improperly interfere with the doors or any other mechanism, device or control which forms part of the bus or which is connected to the bus; or
  2. throw or wilfully drop anything from a bus.

 

Under Regulation 13A(2) of the Public Bus Services Regulations (Cap. 230A), no passenger shall stand—

 

  1. on any part of a bus other than the gangway;
  2. on the upper deck of a bus; or
  3. on a single-decked bus or on the lower deck of a double-decked bus, forward of the rearmost part of the driver’s seat,

 

while the bus is moving.

 

Under Regulations 46(1) and 46(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), a passenger or intending passenger on a public bus shall not :-

 

  1. use offensive language or behave disorderly;
  2. obstruct, impede or distract the driver;
  3. damage or interfere with the bus;
  4. spit, damage, soil or deface the bus;
  5. remove, displace, deface or alter any number plate, fare table, route indicator or destination board or any printed or other notice or advertisement in or on the bus;
  6. drive the bus or interfere with its doors, mechanisms or controls;
  7. enter or alight from the bus while the bus is moving;
  8. behave in a way that delays the bus;
  9. impedes other passengers from boarding or alighting;
  10. carry firearms or any dangerous or offensive articles;
  11. ignore requests from the driver not to board or alight from the bus;
  12. enter or remain in the bus when the driver is prohibited from permitting passengers to enter or remain at the place in question;
  13. enter or alight from the vehicle at places where it's not permitted or prohibited;
  14. board or remain on the bus if their condition, dress or clothing is offensive or likely to soil or damage the bus or other passengers' clothing;
  15. bring any article onto the vehicle without permission or place it where requested not to;
  16. use musical instruments, radios or make excessive noise;
  17. throw articles, attach articles or put any limb out of the bus in a way that overhangs the road;
  18. enter or alight from the bus otherwise than by the door or opening provided for the entry or exit of passengers; or
  19. beg, sell, or offer items for sale, or distribute printed or written materials or any items for advertising purposes while inside the vehicle.

 

Legal consequences if passengers do not observe the rules of general conduct?

 

Any person who without reasonable excuse contravenes Regulation 13A(1) of the Public Bus Services Regulations (Cap. 230A) commits an offence and is liable to a fine at $5,000 and to imprisonment for 6 months: see Regulation 25(3) of the Public Bus Services Regulations (Cap. 230A).

 

Any person who without reasonable excuse contravenes Regulation 13A(2) of the Public Bus Services Regulations (Cap. 230A) commits an offence and is liable to a fine at $2,000: see Regulations 25(1) and 25(2) of the Public Bus Services Regulations (Cap. 230A).

 

Any person who without reasonable excuse contravenes Regulation 46 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) commits an offence and is liable on conviction to a fine of $3,000 and to imprisonment for 6 months: see Regulation 57(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q11. How should lost property left on buses be dealt with?

Q11. How should lost property left on buses be dealt with?

Any person who finds any property accidentally left in a bus must immediately hand it in the state in which he finds it to the driver, who must deal with it accordingly: see Regulation 15 of the Public Bus Services Regulations (Cap. 230A).

 

Under Regulation 16 of the Public Bus Services Regulations (Cap. 230A) —

 

Duty of driver to search a bus:

 

Immediately on the termination of any journey the driver shall search the bus so far as is practicable for any property that has been accidentally left therein.

 

Disposal of the lost property:

 

As soon as may be and in any case within 12 hours, the bus driver shall hand any such property together with any property handed to him in accordance with Regulation 15 of the Public Bus Services Regulations (Cap. 230A) in the state in which it came into his possession, to the authorized employee authorized by the bus company, and such employee shall give driver a receipt for the property.

 

Return of the lost property:

 

If, before the property has been handed to the authorized employee, it is claimed by a person who satisfies the driver that he is the owner thereof it shall be returned to that person forthwith, without fee or reward, on such person giving a receipt therefor containing his name and address to the driver who shall, as soon as may be, report the facts and give the claimant’s receipt and a description of the property to the authorized employee.

 

Any person who without reasonable excuse contravenes any of the provisions of Regulation 15 or Regulation 16 commits an offence and is liable to a fine at $2,000: see Regulations 25(1) and 25(2) of the Public Bus Services Regulations (Cap. 230A).

 

Q3. Can bus drivers refuse passengers boarding buses?

Q3. Can bus drivers refuse passengers boarding buses?

Yes. Bus drivers may refuse the following persons boarding buses :-

 

  1. person whom the bus driver has reasonable grounds to believe that has committed or is about to commit an offence against the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D): see Regulation 56(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D);
  2. person whom is in a dirty condition: see Regulation 10(2)(d) of the Public Bus Services Regulations (Cap. 230A);
  3. person whom the bus driver has reasonable cause to believe to be intoxicated, mentally unbalanced or suffering from an infectious or contagious disease: see Regulation 10(2)(e) of the Public Bus Services Regulations (Cap. 230A);
  4. person whom the bus driver has reasonable cause to believe is carrying goods of a dangerous or offensive nature: see Regulation 10(2)(f) of Public Bus Services Regulations (Cap. 230A).

 

No person shall having been refused entry enter the vehicle: see Regulation 56(2)(a) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes Regulation 56(2) commits an offence and is liable on conviction to a fine of $2,000: see Regulation 57(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

However, in other circumstances, bus drivers shall not neglect or refuse to admit and to carry at the lawful fare any passenger or intending passenger who can be accommodated without exceeding the authorized capacity of the bus and to whose admission no reasonable objection is made: see Regulation 10(2)(a) of the Public Bus Services Regulations (Cap. 230A).

 

Q4. Can bus drivers evict passengers?

Q4. Can bus drivers evict passengers?

Yes. Bus drivers may remove from a bus any person whom they have reasonable cause to believe that such person or passenger has contravened the Public Bus Services Regulations (Cap. 230A): see Regulation 13(1) of the Public Bus Services Regulations (Cap. 230A).

 

Bus drivers may also order any person to remove himself from the vehicle where bus drivers have reasonable grounds to believe that such person has committed or is about to commit an offence against the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D): see Regulation 56(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

No person shall having been ordered to remove himself from the vehicle fail to comply with such order: see Regulation 56(2)(b) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes Regulation 56(2) commits an offence and is liable on conviction to a fine of $2,000: see Regulation 57(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

However, in the absence of any reasonable cause or ground to believe that any regulations have been breached, bus drivers may not evict passengers.

 

Q5. Can bus drivers examine passengers’ property?

Q5. Can bus drivers examine passengers’ property?

Under Regulation 13B(1) of the Public Bus Services Regulations (Cap. 230A), bus drivers may give such directions as he considers necessary in the interests of public safety to any passenger or intending passenger.

 

Thus, where the bus drivers consider necessary in the interests of public safety, for example, in circumstances where the bus drivers suspect that the passengers’ or intending passengers’ property may endanger the public safety, to give directions that the passengers’ or intending passengers’ property be examined.  

 

However, in the absence of such consideration as to the interests of public safety, bus drivers may not examine passengers’ property.

 

Q6. Should passengers comply with directions made by bus drivers?

Q6. Should passengers comply with directions made by bus drivers?

Yes. Passengers or intending passengers must comply with directions made by bus drivers to them which the bus drivers consider necessary in the interest of public safety: see Regulation 13B(1) of the Public Bus Services Regulations (Cap. 230A). No passenger or intending passenger shall fail to comply with any direction given under Regulation 13B(1) of the Public Bus Services Regulations (Cap. 230A): see Regulation 13B(2) of the Public Bus Services Regulations (Cap. 230A).

 

Any person who without reasonable excuse contravenes any of the provisions of Regulation 13B commits an offence and is liable to a fine at $2,000: see Regulations 25(1) and 25(2) of the Public Bus Services Regulations (Cap. 230A).

 

Q7. If a passenger refuses to pay enough fares or any at all, what can a bus driver do?

Q7. If a passenger refuses to pay enough fares or any at all, what can a bus driver do?

Bus drivers may refuse entry to his vehicle or may order any person to remove himself from the vehicle where he has reasonable grounds to believe that such person has committed or is about to commit an offence against the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D): see Regulation 56(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

No person shall board a public bus, knowing or having reason to believe that he cannot pay the fare and with intent to avoid payment of the fare; or dishonestly avoid payment of a fare due from him: see Regulation 48(2)(a) and (b) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Thus, bus drivers may refuse entry to the bus or may order the passenger to remove himself from the bus.

 

Strictly speaking, bus drivers may arrest the passenger and may detain such person until he can be handed over to a police officer: see Regulations 58(a) and 58(b) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q8. If a passenger plays loud music in a bus, can the driver and other passengers stop him?

Q8. If a passenger plays loud music in a bus, can the driver and other passengers stop him?

Can the driver stop a passenger playing loud music in a bus?

Yes.

 

A passenger or intending passenger on a public bus shall not use or operate to the annoyance of any other person any noisy or musical instrument or any gramophone, radio or tape player: see Regulation 46(1)(n)(i) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Thus, if a passenger plays loud music in a bus, he or she may be treated as using or operating a “noisy” instrument, thus committing an offence under Regulation 46(1)(n)(i) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Where the playing of loud music in a bus may obstruct, impede or distract the driver of the bus and that passenger does so wilfully, that passenger may also contravene Regulation 13A(1)(a) of the Public Bus Services Regulations (Cap. 230A), which provides that that no passenger or intending passenger shall wilfully obstruct, impede or distract the driver of the bus or any authorized person.

 

Bus drivers may remove from a bus any person whom they have reasonable cause to believe that such person or passenger has contravened the Public Bus Services Regulations (Cap. 230A): see Regulation 13(1) of the Public Bus Services Regulations (Cap. 230A).

 

Alternatively, bus drivers may order any person to remove himself from the vehicle where he has reasonable grounds to believe that such person has committed or is about to commit an offence against the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D): see Regulation 56(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Thus, a bus driver can stop that passenger playing loud music.

 

Strictly speaking, the bus driver may arrest any person whom he believes on reasonable grounds to have committed an offence against certain regulations in the regulations/by-laws and may detain such person until he can be handed over to a police officer: see Regulations 58(a) and 58(b) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes Regulation 46 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) commits an offence and is liable on conviction to a fine of $3,000 and to imprisonment for 6 months: see Regulation 57(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes any of the provisions of regulation 13A(1) of the Public Bus Services Regulations (Cap. 230A) commits an offence and is liable to a fine at $5,000 and to imprisonment for 6 months: see Regulation 25(3) of the Public Bus Services Regulations (Cap. 230A).

 

Can other passengers stop a passenger playing loud music in a bus?

 

There is no law prohibiting a passenger from orally stopping a passenger to play loud music on a bus. However, legally speaking, a passenger has no power conferred on him or her to stop a passenger playing loud music.

 

Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence: see Section 101(2) of the Criminal Procedure Ordinance (Cap. 221). Arrestable offence means an offence for which the sentence is fixed by law or for which a person may under or by virtue of any law be sentenced to imprisonment for a term exceeding 12 months, and an attempt to commit any such offence: see Section 3 of the Interpretation and General Clauses Ordinance (Cap. 1).

 

Since the maximum sentence for a contravention of Regulation 46 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) and Regulation 13A(1) of the Public Bus Services Regulations (Cap. 230A) are both 6 months only, which is less than 1 year, the two offences are not arrestable offence and the passenger may not arrest that passenger playing loud music.

 

However, a passenger may make a complaint to the bus driver who can stop a passenger from playing loud music.  

 

Q9. Can a passenger stand on the upper deck or the staircase of a bus while the bus is moving?

Q9. Can a passenger stand on the upper deck or the staircase of a bus while the bus is moving?

No. A passenger cannot stand on the upper deck of a bus while the bus is moving: see Regulation 13A(2)(b) of the Public Bus Services Regulations (Cap. 230A).

 

Under Regulation 2 and Regulation 13A(2)(a) of the Public Bus Services Regulations (Cap. 230A), no passenger shall stand on any part of a bus other than the gangway, but gangway does not include staircase. Thus, a passenger also cannot stand on the staircase of a bus while the bus is moving.

 

Any person who without reasonable excuse contravenes any requirement made under Regulation 13A(2) of the Public Bus Services Regulations (Cap. 230A) commits an offence and is liable to a fine of HK$2,000: see Regulations 25(1) and 25(2) of the Public Bus Services Regulations (Cap. 230A).

 

Q10. What types of goods cannot be carried onto buses?

Q10. What types of goods cannot be carried onto buses?

The following types of goods cannot be carried onto buses—

 

  1. Goods that are of an offensive nature: see Regulation 14(3)(b) of the Public Bus Services Regulations (Cap. 230A). “Offensive” is defined as that which offends against the standard of good taste or good manners which is a breach of the rules of courtesy, or runs contrary to commonly accepted social rules, and may well be ill-advised or hurtful. Whatever offends is rightly termed offensive;
  2. Any substance or article to which the Dangerous Goods Ordinance (Cap. 295) applies: see Regulation 14A(1) of the Public Bus Services Regulations (Cap. 230A), which are—
  • explosives;
  • gases;
  • flammable liquids or flammable solids;
  • substances liable to spontaneous combustion;
  • substances that, in contact with water, emit flammable gases;
  • oxidizing substances;
  • organic peroxides;
  • toxic substances;
  • infectious substances;
  • radioactive material;
  • corrosive substances; and
  • any substance, material and article to which the Dangerous Goods Ordinance (Cap. 295) applies, as provided for by any regulation made by the Chief Executive in Council.
  1. Goods which are not securely wrapped: see Regulation 41(2)(b) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D);
  2. Oversize and/or overweight goods: Except where the bus company laid further charge on the passenger, a passenger may not carry a package or packages of a total weight exceeding 5 kg and a total volume exceeding 0.1m3 and where package or packages may not be safely or conveniently carried: see Regulation 14(1) of the Public Bus Services Regulations (Cap. 230A).

 

3. Public Light Bus

3. Public Light Bus

Light bus means a motor vehicle constructed or adapted for use solely for the carriage of a driver and not more than 19 passengers and their personal effects, but does not include an invalid carriage, motor cycle, motor tricycle, private car or taxi: see Section 2 of the Road Traffic Ordinance (Cap. 374).

 

Public light bus (commonly known as mini-bus) means a light bus , other than any private light bus, which is used or intended for use for hire or reward: see Section 2 of the Road Traffic Ordinance (Cap. 374).

 

Q1. What are the general rules of conduct for public light bus drivers? What are the legal consequences if light bus drivers do not observe the general rules of conduct?

Q1. What are the general rules of conduct for public light bus drivers? What are the legal consequences if light bus drivers do not observe the general rules of conduct?

 

General conduct of driver

 

Under Regulation 45(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), similar to a driver of a public bus and a taxi driver, the driver of a public light bus:

 

  • shall behave in a civil and orderly manner; 
  • shall be clean and tidy in his person and adequately clothed; 
  • shall not smoke in or on the vehicle when it has passengers on board; 
  • shall take all reasonable precautions to ensure the safety of passengers in or on or entering or alighting from the vehicle; 
  • shall ensure that all exits of the vehicle, including emergency exits, are free from obstruction and, when passengers are on board, are not locked; 
  • shall, if requested by any police officer or traffic warden in uniform or any person authorized by the Commissioner of Police, give particulars of his name and address and the name and address of the public light bus company by whom he is employed; 
  • shall not, at any reasonable time, obstruct, or neglect to give all reasonable information and assistance to, any person having authority to examine the vehicle; 
  • shall not cause the vehicle to remain stationary on a road longer than is necessary to pick up or set down passengers except at a stand or place where such vehicles are permitted to stop for a longer time than is necessary for that purpose; 
  • shall not unreasonably delay the journey; and 
  • shall not congregate or assemble with other drivers to the annoyance of members of the public.

 

Any person who without reasonable excuse contravenes Regulation 45(1) commits an offence and is liable on conviction to a fine of $3,000 and to imprisonment for 6 months: see Regulation 57(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

No Soliciting

 

A public light bus driver shall not in any manner attract or endeavour to attract any person in order to induce such person to make use of the vehicle: see Regulation 40 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes Regulation 40 commits an offence and is liable on conviction to a fine at HK$10,000 and to imprisonment for 6 months: see Regulation 57(4) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Public service vehicle badges

 

Under Regulation 43 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), a public light bus driver :-

 

 

Any person who without reasonable excuse contravenes Regulations 43(2), (3) or (4) commits an offence and is liable on conviction to a fine of $2,000.

 

Destination indicators and fares to be displayed on public light buses

 

Under Regulation 50 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) :-

 

  • A driver of a public light bus shall ensure that, at all times when it is used for the carriage of passengers for hire or reward, there is displayed at the front of the vehicle a destination indicator that indicates the destination of the vehicle in a clearly visible and legible manner;

 

  • A destination indicator displayed on a public light bus must—
    • be of a design and construction specified by the Commissioner for Transport by notice published in the Gazette;
    • clearly indicate the destination of the vehicle in English and in Chinese characters by reference to a road junction or a similarly precise location; and
    • comply with the colour requirements specified in Schedule 6, i.e. that for a destination indicated by means of a roller blind—letters and characters in white on a dark blue, green, yellow or red background; and for a destination indicated by any other means—letters and characters in yellow or amber on a dark non-reflective background: see Road Traffic (Public Service Vehicles) Regulations ( 374D) at Schedule 6;

 

  • A driver of a public light bus shall ensure that, at all times when it is used for the carriage of passengers for hire or reward, there is displayed at the front of the vehicle in a prominent position a card which complies with Regulation 50(4) of the Road Traffic (Public Service Vehicles) Regulations ( 374D) showing the fare chargeable for carriage to the destination indicated on the destination indicator;

 

 

  • A public light bus company, and a driver of a public light bus, shall not—
    • change or remove a destination indicator while passengers are being carried thereon with intent to induce any passenger to—
    • without reasonable excuse, require any passenger to alight from the vehicle before reaching the destination indicated on the destination indicator at the time the passenger boarded the vehicle; or
    • cause or permit to be displayed at the front of the vehicle more than one destination indicator at any one time;

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under Regulation 50 commits an offence and is liable on conviction to a fine of $2,000.

 

Information to be displayed on public light buses

 

(i) Notice to wear seatbelt

 

Under Regulation 51(3) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the owner of a public light bus shall ensure that there is displayed on the public light bus, so as to be clearly visible at all times of the day and night to any passenger who is required by Regulation 7A or 7B of the Road Traffic (Safety Equipment) Regulations (Cap. 374F) to wear a seat belt, a notice which shall meet the requirements of Schedule 8 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Schedule 8 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) provides that :-

 

A notice shall—

  • clearly indicate to the passenger referred to in that regulation, that if he does not wear a seat belt—
    • he commits an offence;
    • the driver of the vehicle may refuse the hire or to drive; and
    • he may be required to pay the fare and leave the vehicle;

 

  • be in English and Chinese; and

 

  • be of a size and a background colour and consist of such letters and characters of a size and colour so as to be easily legible and visible to a passenger referred to in Regulation 51(3), and be constructed of a durable and water resistant material.

 

Under Regulation 51(4) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), no person shall drive a public light bus when it is being used for the carriage of passengers for hire or reward unless there is displayed on the public light bus a notice required to be displayed in accordance with Regulation 51(3) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

(ii) public light bus driver identity plate

 

Under Regulation 51(5A) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), when a public light bus is standing for the purpose of picking up passengers, or being used for the carriage of passengers, for hire or reward, the driver must display in it a public light bus driver identity plate that complies with Regulation 51(6) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) in a holder that complies with Regulation 51(7) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) and neither of which is in any way obscured.

 

Under Regulation 51(6) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the driver identity plate referred to in Regulations 51(1)(c), 51(5) and 51(5A) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) must :-

 

  • be a valid driver identity plate; 
  • be of the size, design, form and construction, and displayed in the position in the public light bus as specified by the Commissioner for Transport by notice in the Gazette; 
  • show the captions “PUBLIC LIGHT BUS DRIVER IDENTITY PLATE” and “公共小巴司機證”; 
  • show the driver’s full name as shown in his identity card in English and, where appropriate, in Chinese; 
  • bear the driver’s photograph that is recent as at the date of issue; 
  • show the date of issue and the date of expiry; and 

 

Under Regulation 51(7) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the holder referred to in Regulations 51(1)(c), 51(5) and 51(5A) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) must – 

  • be of the size, design and construction, and displayed in the position in the public light bus, as specified by the Commissioner for Transport by notice in the Gazette; and 
  • show the registration mark of the public light bus.

 

Any person who without reasonable excuse contravenes Regulations 51(3), 51(4), 51(5A) commits an offence and is liable on conviction to a fine of $2,000.

 

Q2. What are the general rules of conduct for passengers? What are the legal consequences if passengers do not observe the general conduct?

Q2. What are the general rules of conduct for passengers? What are the legal consequences if passengers do not observe the general conduct?

 

General conduct of passengers

 

Under Regulations 46(1) and 46(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), a passenger or intending passenger on a public light bus shall not :

 

  1. use offensive language or behave disorderly;
  2. obstruct, impede or distract the driver;
  3. damage or interfere with the bus;
  4. spit, damage, soil or deface the bus;
  5. remove, displace, deface or alter any number plate, fare table, route indicator or destination board or any printed or other notice or advertisement in or on the bus;
  6. drive the bus or interfere with its doors, mechanisms or controls;
  7. enter or alight from the bus while the bus is moving;
  8. behave in a way that delays the bus;
  9. impedes other passengers from boarding or alighting;
  10. carry firearms or any dangerous or offensive articles;
  11. ignore requests from the driver not to board or alight from the bus;
  12. enter or remain in the bus when the driver is prohibited from permitting passengers to enter or remain at the place in question;
  13. enter or alight from the vehicle at places where it's not permitted or prohibited;
  14. board or remain on the bus if their condition, dress or clothing is offensive or likely to soil or damage the bus or other passengers' clothing;
  15. bring any article onto the vehicle without permission or place it where requested not to;
  16. use musical instruments, radios or make excessive noise;
  17. throw articles, attach articles or put any limb out of the bus in a way that overhangs the road;
  18. enter or alight from the bus otherwise than by the door or opening provided for the entry or exit of passengers; and
  19. beg, sell, or offer items for sale, or distribute printed or written materials or any items for advertising purposes while inside the vehicle.

 

Any person who without reasonable excuse contravenes Regulation 46 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) commits an offence and is liable on conviction to a fine of $3,000 and to imprisonment for 6 months: see Regulation 57(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Wear seat belt

 

A passenger of a public light bus shall be securely fastened to his seat by means of a seat belt, if any, provided for his seat: see Regulations 7A and 7B of the Road Traffic (Safety Equipment) Regulations (Cap. 374F).

 

Any person who contravenes Regulations 7A(1) or (2), 7B(1) or (5) of Road Traffic (Safety Equipment) Regulations (Cap. 374F) commits an offence and is liable to a fine of $5,000 and to imprisonment for 3 months: see Regulation 12(1) of Road Traffic (Safety Equipment) Regulations (Cap. 374F).

 

A passenger in public light bus who is required to wear a seat belt but who refuses or fails to do so shall leave the vehicle if so required by the driver, and in the case of a public light bus, pay, if he has not already done so, the fare indicated at the time he boarded the vehicle on the card displayed: see Regulation 45A of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under Regulation 45A of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) commits an offence and is liable on conviction to a fine of $3,000 and to imprisonment for 6 months.

 

Carriage of goods

 

Under Regulation 41 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the passenger of a public light bus shall not :-

 

 

 

Dangerous Goods are:

 

  • Goods harmful to life or presenting a danger to property because they are: explosive, flammable, or volatile; toxic, poisonous, or corrosive substances; substances which become dangerous by interaction with water or air, substances liable to spontaneous combustion or of a readily combustible nature, radioactive material and to such substances to which it is applied by the Chief Executive in Council under certain regulations: Dangerous Goods Ordinance (Cap. 295) Section 3.

 

Meaning of “offensive”:

 

  •  “Offensive” is defined as that which offends against the standard of good taste or good manners which is a breach of the rules of courtesy, or runs contrary to commonly accepted social rules, and may well be ill-advised or hurtful. Whatever offends is rightly termed offensive.

 

Any person who without reasonable excuse contravenes Regulation 41 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) commits an offence and is liable on conviction to a fine of $2,000.

 

Q3. Can public light drivers refuse passengers boarding?

Q3. Can public light drivers refuse passengers boarding?

Yes.

 

The driver of a public light bus may refuse entry to his vehicle where he has reasonable grounds to believe that such person has committed or is about to commit an offence against the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D): see Regulation 56(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

However, the driver may not refuse entry where the driver has no reasonable grounds to believe that a passenger or intending passenger has committed or is about to commit an offence against the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

No person shall having been refused entry enter the vehicle: see Regulation 56(2)(a) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes Regulation 56(2)(a) commits an offence and is liable on conviction to a fine of $2,000: see Regulation 57(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q4. Can public light bus drivers evict passengers?

Q4. Can public light bus drivers evict passengers?

Yes.

 

The driver of a public light bus may order any person to remove himself from the vehicle where he has reasonable grounds to believe that such person has committed or is about to commit an offence against the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D): see Regulation 56(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

However, the driver may not remove a passenger from the vehicle where the driver has no reasonable grounds to believe that a passenger or intending passenger has committed or is about to commit an offence against the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

No person shall having been ordered to remove himself from the vehicle under Regulation 56(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), fail to comply with such order: see Regulation 56(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes Regulation 56(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) commits an offence and is liable on conviction to a fine of $2,000: see Regulation 57(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q5. Do passengers have legal responsibilities for getting on an overloaded public light bus?

Q5. Do passengers have legal responsibilities for getting on an overloaded public light bus?

No. The responsibility lies on the driver of the vehicle to ensure that the public light bus does not become overloaded.

 

The driver of a vehicle on a road shall not carry in the vehicle passengers in excess of the number specified in the registration document of that vehicle or permitted by an excess passengers permit: see Regulation 53(3) of the Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

Any person who without reasonable excuse contravenes Regulation 53(3) commits an offence and is liable on first conviction to a fine of $5,000 and imprisonment for 3 months and on second or subsequent conviction to a fine of $10,000 and imprisonment for 6 months: see Regulation 61(1) of Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

However, there is no provision governing the conduct of passenger for getting on an overloaded mini-bus. Thus, there is no legal responsibilities on passengers for getting into an overloaded public light bus.

 

Q6. Can passengers of green public light buses ask drivers to stop at spots different from the light bus stops?

Q6. Can passengers of green public light buses ask drivers to stop at spots different from the light bus stops?

No.

 

The driver of a public light bus on a scheduled service, that is, a service of one or more vehicles authorized under a passenger service licence and limited by the conditions of such licence to specified routes, shall not stop to pick up or set down passengers except as specified in the passenger service licence in respect of such service: see Regulation 2(1) and Regulation 33(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Thus, whether the driver of a green public light bus may stop at spots different from the light bus stops depends on whether stopping to pick up or set down passenger at spots different from the light bus stops is permitted under the passenger service licence in respect of the service of that green public light bus.  

 

If yes, the passengers of a green public light bus may ask drivers to stop at spots different from the light bus stops.

 

However, the driver of a green public light bus cannot stop to pick up or set down passengers if it is not permitted or authorized under the passenger service licence in respect of service of that green public light bus.

 

This limitation does not extend to red public light buses. The driver of a public light bus on a service other than a scheduled service, may stop to pick up or set down passengers when requested by a passenger or hailed by an intending passenger: see Regulation 33(2)(b) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes Regulation 33 of commits an offence and is liable on conviction to a fine of $2,000: see Regulation 57(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q7. Do passengers in public light buses have a legal obligation to buckle up when seat belts are available?

Q7. Do passengers in public light buses have a legal obligation to buckle up when seat belts are available?

Yes. Indeed, the duty of the passenger to check for the seat belt availability might be stricter than one would have thought.

 

If there is a seat belt provided, the passenger shall be securely fastened to his seat with it: see Regulation 7B(1) of Road Traffic (Safety Equipment) Regulations (Cap. 374F).

 

If there is no seat belt provided for a particular seat, the passenger shall first look for another rear seat that is provided with a seat belt and not occupied by other passengers. If there is one, the passenger should occupy that seat and be fastened to it with the seat belt.

 

Only when there is no other rear seat that is provided with a seat belt and not occupied can the passenger be exempted from the seat belt rule: see Road Traffic (Safety Equipment) Regulations (Cap. 374F), Regulation 7B(1) and 7B(5).

 

Any person who contravenes regulation 7B(1) or (5) commits an offence and is liable to a fine of $5,000 and to imprisonment for 3 months: see Regulation 12(1) of Road Traffic (Safety Equipment) Regulations (Cap. 374F).

 

However, public light buses registered on or after 1 August 2004 are required to be fitted with seat belts and high rear seats. Only a small portion of public light buses running on the road has still not equipped their rear seats with seat belts.

 

Q8. Is the driver responsible for passengers not wearing seat belts installed on the vehicle? If passengers refuse to cooperate, can the driver refuse to drive the vehicle?

Q8. Is the driver responsible for passengers not wearing seat belts installed on the vehicle? If passengers refuse to cooperate, can the driver refuse to drive the vehicle?

 

Is the driver responsible for passengers NOT wearing seat belts installed on the vehicle?

 

No, the driver of a public light bus is not legally responsible for passengers who do not wear seat belts installed on the vehicle.

 

However, the owner of a public light bus shall ensure that there is a notice displayed on the public light bus so as to be clearly visible at all times of the day and night to any passenger who is required to wear a seat belt: see Regulation 51(3) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Schedule 8 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) provides that the notice shall—

 

(a) clearly indicate to the passenger who is required to wear a seatbelt that not wearing one is an offence, and as a consequence, the driver may refuse the hire or to drive, and the passenger may be required to pay the fare and leave the vehicle.

 

(b) be in both English and Chinese.

 

(c) be of a size, background color, and consist of letters and characters that are easily legible and visible to the passenger who is required to wear a seatbelt. The notice must also be constructed of durable and water-resistant material.

 

If passengers refuse to cooperate, can the driver refuse to drive the vehicle?

 

Yes. The driver of a public light bus may refuse to hire or to drive the vehicle if a passenger in the vehicle refused or failed to wear a seat belt: see Regulation 37A(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Under Regulation 45A of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), a passenger in a public light bus who is required to wear a seat belt but who refuses or fails to do so shall—

 

  1. leave the vehicle if so required by the driver, an authorized person or a police officer; and
  2. if he has not already done so, pay the fare indicated at the time he boarded the vehicle on the card displayed.

 

Q9. Is it permissible for a mother to ride on a public light bus while holding her 8-month-old baby in her arms?

Q9. Is it permissible for a mother to ride on a public light bus while holding her 8-month-old baby in her arms?

Yes, she can.

 

There are no provisions under the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) which prohibit a mother from bringing a 8-month-old baby onto the a public light bus and carry it with her arms ride.

 

Not counting towards maximum number of passengers

 

For the purpose of establishing the number of persons that may be carried in a vehicle, a child under the age of 3 years shall not be counted: see Regulation 53(1)(a) of Road Traffic (Traffic Control) Regulations (Cap. 374G). Thus, an 8-month-old baby would not count towards the maximum number of passengers legally permitted.

 

Legal obligation to wear seatbelts

 

However, passenger, in relation to a vehicle, is defined under the Road Traffic Ordinance (Cap. 374), Section 2 to mean any person carried in or on it other than any driver or conductor of it. Thus, a baby may fall within the definition of “any person” and may be treated as a passenger.

 

A baby as passenger would still be required to be securely fastened to his seat by means of a seat belt, if any, provided for his seat. Insofar as statutory definition is concerned, there is no differentiation between a baby and a child and an adult for the purpose of the meaning of passenger. So theoretically, a baby, as a passenger riding on the public light bus, still have to wear a seat belt.

 

Practically speaking, since the size of a baby is too small, the baby may not be capable of being fastened by a seat belt properly. As the law would not require one to do the impossible, the legislative intent may not be that the baby is under an obligation to wear a seat belt.

 

Parent’s or care-taker’s duty of care to the baby

 

Practically speaking, it is also quite rare that the parent or care-taker of the baby would allow the baby to sit on a separate seat on his or her own. Thus, the problem of baby wearing seat belt may not arise.

 

Under the common law of negligence, a parent owed a duty of care to the baby and is expected to exercise reasonable care and skill to ensure the safety of the infant on a public light bus. To allow a baby to sit separately may constitute negligence if the seat belt is not adequate to prevent baby from throwing forward or to some other directions.

 

Thus, a mother holding her 8-month-old baby with arms can ride on the public light bus.

 

Q10. A mother carried a 3-year-old child. The child sat on her mother’s thigh. They only occupied one seat. Only fare of the mother was paid. Is it legal?

Q10. A mother carried a 3-year-old child. The child sat on her mother’s thigh. They only occupied one seat. Only fare of the mother was paid. Is it legal?

Overloading

 

For the purpose of establishing the number of persons that may be carried in a vehicle, a child under the age of 3 years shall not be counted: see Regulation 53(1)(a) of Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

Thus, a child of 3-year-old would count towards the number of persons that may be carried in a vehicle. If all other seats are occupied, the number of persons that may be carried in a vehicle may be in excess of the number specified in the registration document of that vehicle or permitted by an excess passengers permit: see Regulation 53(3) of the Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

Thus, the driver of the minibus may be held liable for driving in excess of the number of persons that may be carried in a vehicle and thus may be illegal in the event that the public light bus is full.

 

Legal obligation to wear seatbelt

 

However, passenger, in relation to a vehicle, is defined under the Road Traffic Ordinance (Cap. 374), Section 2 to mean any person carried in or on it other than any driver or conductor of it. Thus, a child would within the definition of “any person” and would be treated as a passenger.

 

Even if the number of persons that may be carried in a vehicle may not exceed the prescribed number of that vehicle, the child would also be required to be securely fastened to his seat by means of a seat belt, if any, provided for his seat because the child would still be treated as a passenger.

 

Thus, practically the child needs to occupy a seat alone.

 

Fare

 

It is customary that any child below 3-year-old does not have to pay the fare. However, it is not a legal requirement and thus a public light bus company can still collect fares on any passenger below the age of 3 at its own discretion. There is no legal entitlement for the passenger of any age to be exempted from paying fare.

 

Q11. What types of goods cannot be carried onto public light buses?

Q11. What types of goods cannot be carried onto public light buses?

Under Regulation 41 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the following goods cannot be carried onto public light buses:

 

 

Dangerous Goods are:

 

  • Goods harmful to life or presenting a danger to property because they are: explosive, flammable, or volatile; toxic, poisonous, or corrosive substances; substances which become dangerous by interaction with water or air, substances liable to spontaneous combustion or of a readily combustible nature, radioactive material and to such substances to which it is applied by the Chief Executive in Council under certain regulations: Dangerous Goods Ordinance (Cap. 295) Section 3.

 

Meaning of “offensive”:

 

  • “Offensive” is defined as that which offends against the standard of good taste or good manners which is a breach of the rules of courtesy, or runs contrary to commonly accepted social rules, and may well be ill-advised or hurtful. Whatever offends is rightly termed offensive.

 

Any person who without reasonable excuse contravenes Regulation 41 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) commits an offence and is liable on conviction to a fine of $2,000.

 

Q12. How should lost property left on public light buses be dealt with?

Q12. How should lost property left on public light buses be dealt with?

Lost property found by passengers:

 

Any person who finds any property accidentally left in a public light bus shall immediately hand it in the state in which he finds it to the driver or an authorized person, who shall deal with it in accordance with the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D): see Regulation 53 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Search for lost property:

 

Immediately after the termination of every journey or hiring of a public light bus, the driver or an authorized person shall carefully search the vehicle to ascertain whether any property has been accidentally left therein and if the vehicle is not searched by the driver or an authorized person at the termination of the journey or hiring it shall be done as soon as is practicable thereafter: see Regulation 54 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Disposal of lost property:

 

Any driver or an authorized person who finds any property left in a public light bus or any person to whom any such property is handed shall, within 6 hours, deposit such property at a police station in the state in which it was found by or handed to him and shall truly state the particulars of such finding: Provided that if such property is sooner claimed by the owner thereof and satisfactory proof of ownership is given, it shall be restored to the owner forthwith instead of being deposited at a police station: see Regulation 55(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any property deposited in a police station in accordance with the provisions of Regulation 55(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) shall be disposed of in accordance with sections 40, 41 and 43 of the Police Force Ordinance (Cap. 232): see Regulation 55(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes Regulations 53, 54, or 55(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) commits an offence and is liable on conviction to a fine of $2,000.

 

Q13. What is the maximum speed limit for public light buses when travelling on roads?

Q13. What is the maximum speed limit for public light buses when travelling on roads?

The maximum speed at which a public light bus may be driven on any road shall not exceed the relevant speed limit of the road and in any case shall not exceed 80km an hour: see Section 40(5A) of the Road Traffic Ordinance (Cap. 374).

 

A person who drives a vehicle on a road at a speed exceeding 80 km an hour as provided for in Section 40(5A), commits an offence and is liable to a fine at $5,000: see Section 41(1)(c) of the Road Traffic Ordinance (Cap. 374).

 

4. MTR

4. MTR

Mass Transit Railway means the railway system known as the Mass Transit Railway and indicated on plans endorsed by the Secretary for the Transport and Housing and deposited by the MTR Corporation Limited with the Land Registry from time to time, or any part of that system: see Section 2 of the Mass Transit Railway Ordinance (Cap. 556).

 

Q1. Are MTR train drivers subject to general traffic laws such as the Road Traffic Ordinance?

Q1. Are MTR train drivers subject to general traffic laws such as the Road Traffic Ordinance?

Road Traffic Ordinance (Cap. 374) or Road Traffic (Public Service Vehicles) Regulations (Cap. 374D)

 

The MTR train drivers may not be subject to the regulations or requirement under the Road Traffic Ordinance (Cap. 374) or the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

The Long Title of the Road Traffic Ordinance (Cap. 374) is “To provide for the regulation of road traffic and the use of vehicles and roads (including private roads) and for other purposes connected therewith.”

 

Under Section 2 of the Road Traffic Ordinance (Cap. 374) :

 

  1. “Road” includes every highway, thoroughfare, street, lane, alley, court, square, car park, passage, path, way and place to which the public have access either continuously or intermittently, whether or not the same is the property of the Government, and includes the carriageway of the North-west Railway, but does not include any private road, or any part of the carriageway of the North-west Railway designated by the Commissioner for Transport for the purposes of this definition by notice in the Gazette;
  2. “Vehicle” means any vehicle whether or not mechanically propelled which is constructed or adapted for use on roads but does not include a vehicle of the North-west Railway or a tram;
  3. “Driver”, in relation to any vehicle (other than a rickshaw), vehicle of the North-west Railway, or tram, means any person who is in charge of or assisting in the control of it and, in relation to a rickshaw, means any person pulling a rickshaw.

 

The railway of MTR may not be a “road” where the public have access to, and therefore a MTR train is not a “vehicle” and a MTR driver is not a “driver” for the purpose of the Road Traffic Ordinance (Cap. 374).

 

There are only specific regulations under the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) in relation to the general conduct of public bus drivers, public light bus drivers and taxi drivers, but not MTR train drivers. Thus, the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) may not be applicable to MTR train drivers.

 

However, under Section 29(1) of the Mass Transit Railway Ordinance (Cap. 556), if, in connection with his duty, an employee of the MTR Corporation Limited negligently does or omits to do anything in relation to the condition or operation of a part of the railway or railway premises after that part has come into operation; and by that act or omission, the safety of a person on the railway or on railway premises is endangered, or is likely to be endangered, the employee commits an offence and is liable to a fine at HK$5,000; or, if the act or omission results in serious injury to or the death of a person being on the railway or railway premises, to a fine at HK$5,000 and to imprisonment for 6 months: see By-law 29(1) of the Mass Transit Railway By-laws (Cap. 556B). Negligence is the failure to exercise the care or skill that a reasonable employee in the situation would exercise: see Section 29(2) of the Mass Transit Railway Ordinance (Cap. 556).

 

If a person wilfully does or omits to do anything in relation to the railway or railway premises; and by that act or omission, the safety of any person being on the railway or on railway premises is endangered, or is likely to be endangered, the first-mentioned person commits an offence and is liable to a fine at HK$100,000 and to imprisonment for 3 years: see Section 30 of the Mass Transit Railway Ordinance (Cap. 556).

 

Thus, MTR train drivers may not be subject to general traffic laws such as the Road Traffic Ordinance (Cap. 374), but are subject to the Mass Transit Railway Ordinance (Cap. 556).

 

Q2. What are the general rules of conduct for passengers? What are the legal consequences if passengers do not observe the general conduct?

Q2. What are the general rules of conduct for passengers? What are the legal consequences if passengers do not observe the general conduct?

Trespass:

 

No person, unless otherwise authorized by the MTR Corporation Limited, shall enter into or upon any part of the railway premises, other than those parts clearly defined by means of notices, indicators and other directions for the use of persons using, or intending to use the railway; or enter or leave such parts other than by proper use of such gates, barriers or turnstiles (if any) provided for such entry or exit: see By-law 4(1) of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 4 commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Bringing vehicles, animals, etc. across the railway premises:

 

No person shall pass or attempt to bring, pass, drive or conduct any motor vehicle, bicycle, motorcycle or other similar conveyance or any handcart, barrow or similar conveyance or anything including animals across the railway premises or any part of the railway premises at any time except by notice published by or on behalf of the MTR Corporation Limited under this by-law nor shall any such person omit to shut or refasten any gate, door, chain or barrier as soon as he and any conveyance, animal or other thing has passed through the same: see By-law 4A of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 4A of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Unauthorized structures:

 

No person shall cause, permit or suffer any kind of building or structure to be constructed or erected upon or remain upon the railway premises without the written authority of the MTR Corporation Limited: see By-law 4B of Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 4B of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Damage to railway premises, plant and equipment:

 

Under By-law 5 of the Mass Transit Railway By-laws (Cap. 556B), no person shall improperly touch, use, meddle, damage or otherwise interfere with—

 

  • any machine or equipment, or any part thereof, used or employed in or upon any part of the railway premises;
  • any locomotive, train, carriage, truck or any other conveyance or any equipment thereon used or employed on or in connexion with the railway;
  • any tracks, rails and supporting system including fastenings, fixtures, baseplates, plinths, sleepers and ballast;
  • any gate, door, chain, wall, fence, barrier or other erection constructed or erected in or upon any part of the railway premises;
  • any building and structure constructed or erected in or upon on any part of the railway premises; or
  • any electrical plant, overhead wiring or other form of electrical installation or equipment of any nature whatsoever used or employed in or upon any part of the railway.

 

A person who contravenes By-law 5 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Sewage placed on railway premises:

 

Under By-law 6 of the Mass Transit Railway By-laws (Cap. 556B), no person shall cause, permit or suffer—

 

  • any sewage, drainage or other offensive matter to flow onto or enter or be placed on any part of the railway premises;
  • any kind of construction materials, construction plant or equipment to be deposited on or otherwise come upon and remain upon or pass across the railway premises except with the written authority of the MTR Corporation Limited; or
  • the water or contents of any reservoir, tank, ponds, duct or water or other container under the control of the MTR Corporation Limited or forming part of or being upon the railway premises or any part thereof to be used, abstracted or polluted in any way.

 

A person who contravenes By-law 6 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Depositing or throwing of rubbish, etc.:

 

No person shall deposit or throw, or cause to be deposited or thrown, at, on or from the railway premises any glass, stone, missile or any rubbish or other offensive or waste matter: see By-law 7 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 7 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Improper use of emergency equipment:

 

No person, unless otherwise authorized by the MTR Corporation Limited, shall activate any emergency or safety device on the railway premises save for the express purpose for which the same is provided and in accordance with the instructions printed on it: see By-law 8 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 8 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Wrongfully entering or leaving train:

 

No person shall enter or leave or attempt to enter or leave any train after the doors have commenced to close: see By-law 9(1) of the Mass Transit Railway By-laws (Cap. 556B).

 

No person shall interfere with any doors or gates within the railway premises including any train doors and platform screen doors: see By-law 9(2) of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 9 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$2,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Entry and travel prohibited without ticket:

 

No person shall, without lawful authority or reasonable excuse enter or leave, or attempt to enter or leave, the paid area; or travel or attempt to travel upon any part of the railway, without first paying his fare and obtaining a valid ticket appropriate to the circumstances of his intended journey and using that ticket by inserting it into an automatic gate or by using it in an appropriate manner over the electronic sensor of an automatic gate as may be required by the conditions of issue of such ticket on entering or leaving the paid area or otherwise producing it and delivering it up to any official: see By-law 14 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 14 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Failure to pay fares, etc.:

 

No person shall, prior to leaving the paid area, fail or refuse to pay any fare, surcharge or other sum leviable in accordance with the Mass Transit Railway By-laws (Cap. 556B): see By-law 14A of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 14A of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Damaging a ticket:

 

No person shall improperly do anything to or with a ticket whereby the coded data thereon is erased wholly or in part, or is otherwise altered or interfered with; or the ticket is otherwise damaged: see By-law 18(1) of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 18(1) of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Using a damaged ticket:

 

No person shall use or attempt to use a ticket which has been improperly altered, damaged or interfered with for the purpose of entering or leaving the paid area or travelling upon the railway: see By-law 18(2) of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 18(2) of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Non-compliance with notices, etc.:

 

Every person while on the railway premises shall comply with the Mass Transit Railway By-laws (Cap. 556B) and with all notices, indicators, and all reasonable directions and requests of any official. If a person duly authorized to act on behalf of the MTR Corporation Limited determines that a train is full, no person shall enter or remain therein if directed by such official not to do so: see By-law 2 and By-law 21 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 21 of Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$2,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Feet placed on seats:

 

No person shall place his feet on any seat in any part of the railway premises: see By-law 22 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 22 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$2,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Smoking:

 

No person shall smoke or carry a lighted pipe, cigar or cigarette or naked flame in any form in any other part of the railway premises where smoking is prohibited by notice: see By-law 23 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 23 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Fire hazard:

 

No person shall place or throw any lighted cigarette end, match, tobacco, liquid, substance or any other thing upon the railway premises in a manner which constitutes or is likely to constitute a fire hazard: see By-law 23A of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 23A of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Spitting and litter:

 

No person shall spit on any part of the railway premises; or place or throw any litter upon the railway premises, except into receptacles provided for that purpose: see By-law 24 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 24 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Passenger causing a nuisance:

 

No person shall conduct himself on any train or in any part of the railway premises so as to cause a nuisance or annoyance to other passengers: see By-law 25 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 25 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Playing musical instruments, etc.:

 

No person, unless authorized by the MTR Corporation Limited, shall sing or dance, play or perform with any musical instrument in any part of the railway premises: see By-law 26 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 26 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$2,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Playing radios, cassettes, etc.:

 

No person, unless authorized in writing by the MTR Corporation Limited, shall play or use or attempt to play or use any radio, cassette, compact disc player, record player, portable wireless television, or any other similar device upon any part of the railway premises which shall generate noise: see By-law 26A of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 26A of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$2,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Bringing prohibited items of luggage, etc.:

 

No person shall bring into or upon the railway premises any luggage, article or other thing which cannot be carried or otherwise accommodated on the railway without risk of injury to any person or damage to any railway property or without causing a nuisance or inconvenience to other persons using the railway: see By-law 27(a) of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 27(a) of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$2,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Consumption of food or beverage:

 

No person shall consume or attempt to consume any food or beverage (whether alcoholic or non-alcoholic) within the paid area (except any train for the carriage of passengers to Hong Kong from any other part of China or vice versa by the MTR Corporation Limited or by third parties): see By-law 27(b) of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 27(b) of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$2,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Bringing animals:

 

No person shall, unless the MTR Corporation Limited in its sole discretion allows or permits, bring any animal or other livestock into or upon any part of the railway premises (provided that this restriction shall not apply to a guide dog accompanying a blind person): see By-law 28 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 28 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$2,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Improper operation of equipment, etc.:

 

Under By-law 28A(1) of the Mass Transit Railway By-laws (Cap. 556B), no person, unless authorized by the MTR Corporation Limited, shall interfere with any appliances or devices owned by or under the control of the MTR Corporation Limited on the railway premises. They must follow directions when using escalators and are not allowed to sit on them. They must not open or attempt to open any gates or doors leading to or from a platform or paid area at a station on the railway premises. Unauthorized possession of keys, passes, or entry cards to doors or gates inside the railway premises is not allowed.

 

However, in cases of accident or other emergency, a person may operate, move, or work any switch, lever or other device or mechanical, electrical, electronic, telecommunications or other appliance upon or near which is displayed a notice that it is intended to be operated in cases of accident or emergency: see By-law 28A(2) of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 28A of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Climbing barriers, turnstiles, etc.:

 

No person shall climb or jump on or over any wall, fence, barrier, turnstile or post in any part of the railway premises: see By-law 28B of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 28B of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$3,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Entrance or exit by improper means:

 

Under By-law 28C(1) of the Mass Transit Railway By-laws (Cap. 556B), a person shall

 

  • enter or attempt to enter any train through any door of the train to or from the platform at stations;
  • wait at the platform of a station for the arrival of a train or wait inside a train for the arrival at the platform of a station; or
  • gain access from the platform of a station to a train or gain access from a train to the platform of a station,

 

only at such time and location and in such manner as a person duly authorized to act on behalf of the MTR Corporation Limited or other authorized persons shall reasonably provide and require.

 

No person except a member of the staff of the MTR Corporation Limited or an official shall enter or leave or attempt to enter or leave any train whilst it is in motion or (except in case of accident or other emergency) between stations or otherwise than at the side of the train adjoining the platform appointed for passengers to enter or leave the train: see By-law 28C(2) of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 28C(1) and By-law 28C(2) of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$3,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Failure to queue:

 

The MTR Corporation Limited may establish queues on the railway premises for the purpose of regulating the access to services and facilities provided on or in the vicinity of the railway premises: see By-law 28C(3) of the Mass Transit Railway By-laws (Cap. 556B).

 

Every person desirous of availing himself of any such service or facility described in By-law 28C(3) of the Mass Transit Railway By-laws (Cap. 556B) shall, upon notice or request by a member of the staff of the MTR Corporation Limited or an official, take up position in the rear of one of such queues established pursuant to By-law 28C(3) of the Mass Transit Railway By-laws (Cap. 556B) and move forward in an orderly and regular manner, and obey the reasonable instructions of any member of the staff of the MTR Corporation Limited or an official regulating such queues: see By-law 28C(4) of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 28C(4) of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$3,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Entrance to trains by improper means or overloading:

 

When a person duly authorized to act on behalf of the MTR Corporation Limited determines, in his absolute discretion, that a train or part thereof contains the full load, no additional person shall enter or remain or attempt to enter or remain therein if directed by him not to do so: see By-laws 2 and  28D of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 28D of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Entry to restricted area:

 

Unless authorized by the MTR Corporation Limited, no person shall enter or remain in any area declared by the MTR Corporation Limited, by notices, signs or any other manner as will reasonably indicate the same as restricted area: see By-law 28E of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 28E of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Intoxication:

 

No person in a state of intoxication resulting from consuming or abusing alcohol, medicine or drug or in an unfit condition as determined by an official in his absolute discretion shall enter or remain or attempt to enter or remain upon the railway premises: see By-laws 2 and 28F of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 28F of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Improper dressing:

 

No person whose dress or clothing is in a condition liable to soil or injure the dress or clothing or person effects of any other person in or upon a railway premises shall enter or attempt to enter a train or a railway premises unless an official in his absolute discretion grants permission to such a person: see By-law 28G of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 28G of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Abusive language:

 

Under By-law 28H(1) of the Mass Transit Railway By-laws (Cap. 556B), no person shall at any time while upon the railway premises—

 

  • use any threatening, abusive, obscene or offensive language, or behave in a riotous, disorderly, indecent or offensive manner;
  • paint, write, draw or affix any word, representation or character upon, or wilfully soil or defile or break, cut, scratch, tear, spray, deface or damage any part of the railway premises including any train or any of the fittings, furniture, decorations or equipment, or any publication, notice, list, time-table, advertisement, sign, figure or letter, or remove or detach any such article or object;
  • damage any property upon the railway premises;
  • molest any person or wilfully interfere with the comfort or convenience of any such person; or
  • without the prior approval in writing of the MTR Corporation Limited, and subject to such terms and conditions as the MTR Corporation Limited may impose, use any voice recording or video recording or camera equipment for the conduct of interviews or taking or making of films or videos.

 

A person who contravenes By-law 28H of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Flying materials endangering operations:

 

No person shall cause, permit or suffer any kite, balloon, model or other thing to fly or pass into or over any part of the railway premises including any tunnel or in or on to the air space or any overhead line above the railway premises which may endanger proper railway operation: see By-law 28I of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 28I of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$3,000 and 3 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Soliciting, etc.:

 

No person shall on the railway premises solicit alms or advantage of any description: see By-law 29 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 29 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Hawking:

 

No person, unless authorized in writing by the MTR Corporation Limited, shall sell or expose or offer for sale any goods, wares or services in or upon any railway premises, and sections 86, 86A and 86D of the Public Health and Municipal Services Ordinance (Cap. 132) shall apply to an offence under this By-law as if such offence were a hawker offence within the meaning of section 83 of the Public Health and Municipal Services Ordinance (Cap. 132): see By-law 30 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 30 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Loitering:

 

No person shall loiter in or about any part of the railway premises: see By-law 31 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 31 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$2,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Bill posting, etc.:

 

Under By-law 32 of the Mass Transit Railway By-laws (Cap. 556B), no person shall, unless authorized in writing by the MTR Corporation Limited— 

 

  • post, stick, paint or write or cause to be posted, stuck, painted or written any placard, bill, advertisement or any other matter; or
  • distribute any book, leaflet or other printed matter or any sample or other article,

 

on any part of the railway premises.

 

A person who contravenes By-law 32 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 3 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Unauthorized display of materials for the purpose of advertisement, etc.:

 

No person while upon the railway premises shall, except by permission of a member of the staff of the MTR Corporation Limited or an authorized person, display or exhibit any printed, written or pictorial matter or any article for the purpose of advertisement or publicity: see By-law 32A of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 32A of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Motor vehicles left on railway premises:

 

Except with the written permission of the MTR Corporation Limited, no person shall leave or cause to be left any motor car or other vehicle on any part of the railway premises or on any station approach road or entrance being under the control of the MTR Corporation Limited: see By-law 33 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 33 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$4,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Failure of vehicle driver to comply with signs:

 

Vehicle drivers shall while in or upon any part of the railway premises obey all traffic signs and signals and the reasonable instructions and directions of any official: see By-law 2 and By-law 35 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 35 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$4,000 and 2 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Dangerous driving:

 

No person shall drive any motor car or other vehicle through, into or upon any part of the railway premises at a rate of speed or in a manner liable to involve danger to others: see By-law 36 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 36 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Vehicles on certain parts of railway premises:

 

No person shall drive any motor car or other vehicle upon or along any part of the railway premises set apart for the exclusive use of pedestrians: see By-law 37 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 37 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Firearms:

 

No person not being a member of Armed Forces, a police officer, a member of the Customs and Excise Department or an officer of the Independent Commission Against Corruption shall carry or have with him on any railway premises any arms or ammunition: see By-law 38 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 38 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Dangerous goods:

 

No person not being official duly authorized by the MTR Corporation Limited in that behalf shall bring onto any part of the railway premises any substance or other thing which is subject to the provisions of the Dangerous Goods Ordinance (Cap. 295): see By-laws 39 of the Mass Transit Railway By-laws (Cap. 556B).

 

The substance or article to which the Dangerous Goods Ordinance (Cap. 295) applies are—

 

  • explosives;
  • gases;
  • flammable liquids or flammable solids;
  • substances liable to spontaneous combustion;
  • substances that, in contact with water, emit flammable gases;
  • oxidizing substances;
  • organic peroxides;
  • toxic substances;
  • infectious substances;
  • radioactive material;
  • corrosive substances; and
  • any substance, material and article to which the Dangerous Goods Ordinance (Cap. 295) applies, as provided for by any regulation made by the Chief Executive in Council

 

[See Section 3(1) of the Dangerous Goods Ordinance (Cap. 295)]

 

A person who contravenes By-law 39 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Soliciting for handling of luggage:

 

No person other than an official or a person licensed by the MTR Corporation Limited to do so shall solicit for engagement in or for the handling or moving or transport of any luggage or any item thereof for reward: see By-law 39B of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 39B of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Soliciting for handling of goods:

 

No person other than a person licensed by the MTR Corporation Limited to do so shall solicit for engagement in or for the handling or moving or transport of any goods or item thereof for reward: see By-law 39D of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 39D of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Q3. Why a man taking sneak shots of a woman's legs can be charged under the MTR By-laws, the Public Order Ordinance or the Crimes Ordinance?

Q3. Why a man taking sneak shots of a woman's legs can be charged under the MTR By-laws, the Public Order Ordinance or the Crimes Ordinance?

Prosecution Code

 

When choosing charges to be prosecuted, the prosecution should attempt to reflect adequately the criminality of the conduct alleged, in a manner that is both efficient and that will enable the court to do justice between the community and the accused. The number of charges should be kept as low as reasonably possible. Where a large number of offences of a similar nature is alleged, the use of representative charges should be considered. If the accused agrees, outstanding additional charges may be taken into account on sentencing: see Prosecution Code, at §8.1.

 

If the criminality of any specific act may not be serious enough, the prosecution may prefer a charge of a less serious nature. The ultimate question is whether the charge preferred adequately reflects the criminality of any alleged act committed by the defendant or the accused.

 

If there is insufficient evidence to satisfy the element of the offence of any particular charge, such that it does not demonstrate a reasonable prospect of conviction, the Prosecution may prefer one charge to another: see Prosecution Code, at §§5.4 to 5.5.

 

The following illustrates the possible charges in relation to sneak-shotting. As the maximum penalty and the ingredients of each offence stated below are different, the Prosecution would choose the most proper charge having regard to the sufficiency of evidence in satisfaction of the elements of the offence, criminality of the defendant’s conduct and the public interest at large.

 

Sneak-shotting of women’s leg

 

MTR By-laws

 

Under By-law 25 of the Mass Transit Railway By-laws (Cap. 556B), no person shall conduct himself on any train or in any part of the railway premises so as to cause a nuisance or annoyance to other passengers. The maximum penalty for contravention of By-law 25 is a fine of $5,000: see Schedule 2 of Mass Transit Railway By-laws (Cap. 556B).

 

Under By-law 28H(1)(d) of the Mass Transit Railway By-laws (Cap. 556B), no person shall at any time while upon the railway premises molest any person or wilfully interfere with the comfort or convenience of any such person. The maximum penalty for contravention of By-law 28H(1)(d) is a fine of HK$5,000.

 

Public Order Ordinance

 

Under Section 17B(2) of the Public Order Ordinance (Cap. 245), any person who in any public place behaves in a noisy or disorderly manner, or uses, or distributes or displays any writing containing, threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, shall be guilty of an offence and shall be liable on conviction to a fine at $5,000 and to imprisonment for 12 months.

 

Crimes Ordinance

 

  1. Loitering

 

Under Section 160(3) of the Crimes Ordinance (Cap. 200), if any person loiters in a public place or in the common parts of any building and his presence there, either alone or with others, causes any person reasonably to be concerned for his safety or well-being, he shall be guilty of an offence and shall be liable on conviction to imprisonment for 2 years.

 

  1. Unlawful recording or observation of intimate parts

 

Under Section 159AAC of the Crimes Ordinance (Cap. 200), a person commits an offence if—

 

  • the person—
    • records an intimate part of an individual, in circumstances in which the intimate part would not otherwise be visible; or
    • with intent to observe or record an intimate part of an individual--
      • operates equipment for the purpose of observing or recording an intimate part of the individual from beneath the clothing of the individual; or
      • operates equipment in an unreasonable manner for the purpose of observing or recording an intimate part of the individual through an opening or a gap in the outer clothing of the individual, in circumstances in which the intimate part would not otherwise be visible;
  • the person engages in these conduct —
    • for a sexual purpose; or
    • dishonestly; and
  • the person disregards whether the individual consents to the person’s these conducts.

 

A person who commits an offence under Section 159AAC(1) of the Crimes Ordinance (Cap. 200) is liable on conviction on indictment to imprisonment for 5 years: see Section 159AAC(2) of the Crimes Ordinance.

 

Under Section 159AA of the Crimes Ordinance (Cap. 200) —

 

Intimate part (私密部位), in relation to an individual, means—

 

  • the individual’s genitals, buttocks, anal region or breasts (whether exposed or only covered with underwear); or
  • the individual’s underwear covering genitals, buttocks, anal region or breasts;

 

Record (拍攝)—

 

  • means creating or generating an image; and
  • includes any act of making a visual record that is transmitted in real time with or without retention or storage in—
    • a physical form; or
    • an electronic form from which the record is capable of being reproduced with or without the aid of any device;

 

Sexual purpose (性目的), in relation to a person, includes the stimulation or satisfaction of the sexual desire of the person or any other person. 

 

Common law – Outraging public decency

 

In Regina v Hamilton [2008] QB 224, a filming of a hidden camera of a number of women’s skirts inside a supermarket is held to be in contravention of the common law offence of outraging public decency, as filming of women’s skirts is an act of such a lewd, obscene or disgusting character as to outrage public decency, as judged by contemporary standards, in a place to which the public had access or where what was done was capable of public view and in a way which was capable of being seen by two or more persons who were actually present.

 

The maximum penalty for outraging public decency is imprisonment for 7 years: see Section 101I of the Criminal Procedure Ordinance (Cap. 221).

 

Q4. What kind of business activities are prohibited on MTR premises and trains?

Q4. What kind of business activities are prohibited on MTR premises and trains?

The following kind of business activities are prohibited on MTR premises and trains :-

 

  1. Solicit alms or advantage of any description: see By-law 29 of the Mass Transit Railway By-laws (Cap. 556B). A person who contravenes By-law 29 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B);

 

  1. Sell or expose or offer for sale any goods, wares or services in or upon any railway premises, unless authorized in writing by the MTR Corporation Limited: see By-law 30 of the Mass Transit Railway By-laws (Cap. 556B). A person who contravenes By-law 30 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B);

 

  1. Post, stick, paint or write or cause to be posted, stuck, painted or written any placard, bill, advertisement or any other matter, unless authorized in writing by the MTR Corporation Limited: see By-law 32(a) of the Mass Transit Railway By-laws (Cap. 556B). A person who contravenes By-law 32 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 3 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B);

 

  1. Distribute any book, leaflet or other printed matter or any sample or other article on any part of the railway premises, unless authorized in writing by the MTR Corporation Limited: see By-law 32(b) of the Mass Transit Railway By-laws (Cap. 556B). A person who contravenes By-law 32 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000 and 3 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B);

 

  1. Display or exhibit any printed, written or pictorial matter or any article for the purpose of advertisement or publicity while upon the railway premises, except by permission of a member of the staff of the MTR Corporation Limited or an authorized person: see By-law 32A of the Mass Transit Railway By-laws (Cap. 556B). A person who contravenes By-law 32A of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B);

 

  1. Solicit for engagement in or for the handling or moving or transport of any luggage or any item of it for reward, except for any person duly authorized to act on behalf of the MTR Corporation Limited or a person licensed by the MTR Corporation Limited to do so: see By-law 39B of the Mass Transit Railway By-laws (Cap. 556B). A person who contravenes By-law 39B of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B);

 

  1. Solicit for engagement in or for the handling or moving or transport of any goods of it for reward, except for a person licensed by the MTR Corporation Limited to do so: see By-law 39D of the Mass Transit Railway By-laws (Cap. 556B). A person who contravenes By-law 39D of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$5,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Q5. Are private transactions (buying and selling of second-hand goods) taking place in MTR stations allowed?

Q5. Are private transactions (buying and selling of second-hand goods) taking place in MTR stations allowed?

No. No person, unless authorized in writing by the MTR Corporation Limited, shall sell or expose or offer for sale any goods, wares or services in or upon any railway premises: see By-law 30 of the Mass Transit Railway By-laws (Cap. 556B).

 

Contravention to the By-law 30 of the of the Mass Transit Railway By-laws (Cap. 556B) is punishable by $5,000 fine and 6 months imprisonment: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Q6. Is taking pictures with mobile phones (without affecting other passengers) inside the train compartment allowed?

Q6. Is taking pictures with mobile phones (without affecting other passengers) inside the train compartment allowed?

Taking pictures with mobile phones without affecting other passengers inside the train compartment may be allowed where it will not:

  1. cause nuisance or annoyance to other passengers: see By-law 25 of the Mass Transit Railway By-laws (Cap. 556B);
  2. molest any person or wilfully interfere with the comfort or convenience of any such person: see By-law 28H(1)(d) of the Mass Transit Railway By-laws (Cap. 556B).

 

However, no person shall at any time while upon the railway premises without the prior approval in writing of the MTR Corporation Limited, , use any voice recording or video recording or camera equipment for the conduct of interviews or taking or making of films or videos: see By-law 28H(1)(e) of the Mass Transit Railway By-laws (Cap. 556B).

 

Thus, taking pictures with mobile phones without affecting other passengers in the absence of a criminal intent, or without contravening the MTR By-laws, Public Order Ordinance (Cap. 245), Crimes Ordinance (Cap. 200), or the common law offence of outraging public decency may generally be allowed under the Law.

 

Q7. What is the source of authority for the MTR Corporation Limited to impose surcharges on passengers? What are the differences between surcharges and the penalties specified in the MTR By-laws?

Q7. What is the source of authority for the MTR Corporation Limited to impose surcharges on passengers? What are the differences between surcharges and the penalties specified in the MTR By-laws?

Source of authority that the MTR Corporation Limited has in levying surcharges on passengers:

 

Surcharge means such amount, not exceeding an amount equal to 50 times the maximum adult single fare at the time the surcharge is to be paid, as may be specified in the conditions of issue: see By-law 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

What are the differences between surcharges and the penalties specified in the MTR By-laws?

 

First, surcharges are imposed by the MTR Corporation Limited while a penalty is imposed by a court after conviction of any offence any the Mass Transit Railway By-laws (Cap. 556B).

 

Second, any sum leviable by or payable to the MTR Corporation Limited under these By-laws or howsoever otherwise (including, without limitation, any fare, excess fare or surcharge) whether by way of debt, damages, costs, loss, expense or otherwise shall be receivable by the MTR Corporation Limited or its lawful agents as a debt due on demand and shall be enforceable as a civil debt: see By-law 44(2) of the Mass Transit Railway By-laws (Cap. 556B).

 

However, as for penalties, Section 101A(1) of the Magistrates Ordinance (Cap. 227) provides that if the accused does not pay the fine imposed upon him by the magistrate forthwith, or in such manner as may be allowed or directed, the magistrate may either issue a summons to the accused to appear, and if he does not appear, issue a warrant to apprehend him, or, alternatively, issue such a warrant in the first place.

 

Thus, unpaid levies are debts enforceable by the MTR Corporation Limited in a civil court while the non-payment of penalties would attract further criminal liability.

 

Q8. Under what conditions would a passenger be levied a surcharge?

Q8. Under what conditions would a passenger be levied a surcharge?

Surcharge means such amount, not exceeding an amount equal to 50 times the maximum adult single fare at the time the surcharge is to be paid, as may be specified in the conditions of issue: see By-law 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

The following provisions provide for the circumstances under which a surcharge may be laid against any person :-

 

  1. Travel where ticket is lost, damaged or expired

 

Under By-law 15 of the Mass Transit Railway By-laws (Cap. 556B), where a person (other than a person who is under the age of 3 years) within the paid area –

 

  • without a ticket;
  • with a ticket which is invalid for travel in the carriage or compartment of the train in which the ticket holder is travelling, and in the case of a passenger travelling in the first class compartment, with a smart card which has not had the authorization code for first class travel encoded on it by an automatic processing device immediately prior to the ticket holder entering a first class compartment, with a smart card which has not had the authorization code for first class travel encoded in it by an automatic processing device immediately prior to the ticket holder entering a first class compartment;
  • with a ticket improperly damaged, altered or interfered with or whose coded data has been improperly altered, erased or damaged either wholly or in part;
  • with a ticket that has expired; or
  • with a concessionary ticket when he does not meet any of the conditions upon which the ticket is issued,

 

he shall be regarded as not having paid his fare and shall be liable to both to pay a surcharge and to deliver up his ticket (if any) to an official.

 

  1. Handling in of tickets

 

A passenger within the paid area or within the railway premises after having immediately gained exit from the paid area must produce any ticket for checking, inspection or verification at any time upon demand by any official: see By-law 17(2) of the Mass Transit Railway By-laws (Cap. 556B). 

 

Any person who contravenes By-law 17(2) shall be regarded as not having paid his fare and shall be liable to pay a surcharge: see By-law 17(3) of the Mass Transit Railway By-laws (Cap. 556B).

 

Q9. What types of goods cannot be carried onto MTR trains?

Q9. What types of goods cannot be carried onto MTR trains?

The following goods cannot be carried onto MTR trains :-

 

  1. any luggage, article or other thing which cannot be carried or otherwise accommodated on the railway without risk of injury to any person or damage to any railway property or without causing a nuisance or inconvenience to other persons using the railway: see By-law 27(a) of the Mass Transit Railway By-laws (Cap. 556B);

 

  1. any luggage for carriage not complying the Mass Transit Railway By-laws (Cap. 556B) and conditions of carriage of luggage set out in notices published by the MTR Corporation Limited: see By-law 39A of the Mass Transit Railway By-laws (Cap. 556B). According to the Conditions of Carriage of Luggage issued by the General Manager – Legal (O&GB), Legal – General Department of MTR Corporation Limited (see https://www.mtr.com.hk/archive/Luggage202002.pdf) at paragraph 1.2, unless authorized in writing by the MTR Corporation Limited, a passenger travelling on the Urban Lines may carry only one piece of luggage and the total dimension (i.e. length plus width plus height) of that piece of luggage shall not exceed 170 cm and the length of any one side of the luggage shall not exceed 130 cm, provided that a passenger who is the holder of a valid “MTR Carriage of Oversized Musical Instruction Permit” or “MTR Carriage of Oversized Musical Instrument and Sports Equipment Permit” issued by the MTR Corporation Limited may, subject to the terms and conditions of such permit, carry one piece of musical instrument or one piece of sports equipment with total dimensions not exceeding 235 cm and the length of any one side not exceeding 145 cm.

 

  1. any motor vehicle, bicycle, motorcycle or other similar conveyance except by notice published by or on behalf of the MTR Corporation Limited: see By-law 4A of the Mass Transit Railway By-laws (Cap. 556B);

 

  1. any handcart, barrow or similar conveyance except by notice published by or on behalf of the MTR Corporation Limited: see By-law 4A of the Mass Transit Railway By-laws (Cap. 556B);

 

  1. any thing including animals at any time except by notice published by or on behalf of the MTR Corporation Limited or unless the MTR Corporation: see By-law 4A of the Mass Transit Railway By-laws (Cap. 556B);

 

  1. any animal or other livestock (except a guide dog accompanying a blind person), unless the MTR Corporation Limited in its sole discretion allows or permits: see By-law 28 of the Mass Transit Railway By-laws;

 

  1. any substance or other thing which is subject to the provisions of the Dangerous Goods Ordinance (Cap. 295), such as explosives, gases, flammable liquids or flammable solids etc.: see By-law 39 of the Mass Transit Railway By-laws (Cap. 556B);

 

  1. arms or ammunition: see By-law 38 of the Mass Transit Railway By-laws (Cap. 556B);

 

  1. Flying materials, such as kite, balloon, model or other thing to fly or pass into or over any part of the railway premises including any tunnel or in or on to the air space or any overhead line above the railway premises which may endanger proper railway operation: see By-law 28I of the Mass Transit Railway By-laws (Cap. 556B).

 

Q1. Is there any exemption for oversized musical instruments and sports equipment on the MTR luggage size restrictions?

Q1. Is there any exemption for oversized musical instruments and sports equipment on the MTR luggage size restrictions?

Yes.

 

According to MTR Registration Scheme for Carriage of Oversized Musical Instruments and Sports Equipment (see: https://www.mtr.com.hk/archive/ch/services/oversized_item_terms.pdf), passengers who wish to carry an oversized musical instrument or sports equipment in MTR premises during designated service hours (throughout service hours except for Monday to Friday 08:15 to 09:15 (non-public holidays, based on entry time into the system), with total dimensions (length + width + height) not exceeding 235 cm and any one side not exceeding 145 cm, including the case or bag, which is outside the current permitted limits of baggage (total dimensions do not exceed 170cm and any one side does not exceed 130cm), can apply for the “MTR Carriage for Oversized Musical Instrument and Sports Equipment Permit”. Each Passenger only needs to apply for one permit.

 

Applicants may collect their permit from the selected station 7 working days after submitting the application or upon receiving an email notification that the permit is ready for collection.

 

Thus, there is exemption for oversized musical instruments and sports equipment on the MTR luggage size restrictions upon the application by passenger for a permit.

 

Q2. Is the bicycle with one of the wheels removed allowed to be carried into the MTR paid areas?

Q2. Is the bicycle with one of the wheels removed allowed to be carried into the MTR paid areas?

According to Regulation 4A of the Mass Transit Railway By-laws (Cap. 556B), no person shall pass or attempt to bring, pass, drive or conduct any bicycle across the railway premises or any part thereof at any time except by notice published by or on behalf of the MTR Corporation Limited under this by-law nor shall any such person omit to shut or refasten any gate, door, chain or barrier as soon as he and any conveyance, animal or other thing has passed through the same.

 

According to Cycling Information Centre of Transport Department of the Government of the HKSAR – Bicycle Carriage Arrangement on Public Transport, (see: https://www.td.gov.hk/mini_site/cic/en/cycling-infrastructure/cycling-with-public-transport.html#2), passengers who wish to carry bicycle on board MTR train services have to fold up the bicycle, making it to fall within the allowable baggage size limit, i.e. the total dimension (length and width and height) does not exceed 170 cm and the length of any one side of the luggage does not exceed 130 cm) so that it may be brought into MTR premises. However, if the bicycle size does not meet the size specifications, MTR Corporation Limited allows entry as long as the front wheel is removed to meet the size requirement.

 

To let passenger understand clearly the relevant conditions of carriage of luggage, MTR Corporation Limited has posted allowable size limits of luggage and the associated conditions at station concourse for the notice of the public.

 

Passengers travelling on the MTR trains with luggage (including folded bicycle) in compliance with allowable size limits should take care to avoid causing nuisance to other passengers.

 

Q10. How should lost property left on MTR premises or trains be dealt with?

Q10. How should lost property left on MTR premises or trains be dealt with?

Lost Property

 

A person who finds any lost property in or upon any part of the railway premises shall report to an official at the nearest station, and no person other than a person duly authorized to act on behalf of the MTR Corporation Limited shall remove from any train or carriage any property lost or left behind therein, save for the purpose of handing over the same forthwith to a person duly authorized to act on behalf of the MTR Corporation Limited: see By-law 40 of the Mass Transit Railway By-laws (Cap. 556B).

 

A person who contravenes By-law 40 of the Mass Transit Railway By-laws (Cap. 556B) commits an offence and is liable to a fine of HK$2,000: see By-law 43 and Schedule 2 of the Mass Transit Railway By-laws (Cap. 556B).

 

Disposal of lost property

 

Under By-law 41(1) of the Mass Transit Railway By-laws (Cap. 556B), all lost property which comes into the possession of the MTR Corporation Limited shall be dealt with as follows—

 

  • perishable, noxious or otherwise offensive goods or articles may be disposed of by the MTR Corporation Limited as soon as practicable after they have come into its possession by sale or otherwise as it sees fit;

 

  • identification and travel documents, certificates or any other document which the MTR Corporation Limited shall regard to be of an important or confidential nature may be disposed of by the MTR Corporation Limited within such time they have come into its possession and in such manner as it sees fit; and

 

  • all other goods or articles shall be retained by the MTR Corporation Limited for a period of 1 month after they have come into its possession and, if at the end of that period they remain unclaimed, they shall be deemed to become the property of the MTR Corporation Limited free of all other rights and encumbrances, and it may dispose of them by sale or otherwise as it sees fit.

 

If within a period of 6 months of any sale or disposal by the MTR Corporation Limited the former owner or the person formerly entitled to the beneficial ownership of the goods can establish his ownership to the satisfaction of the MTR Corporation Limited, he shall be paid, subject to his providing the MTR Corporation Limited with an indemnity in retention as the MTR Corporation Limited may reasonably require, the proceeds of sale, if any, less all expenses incurred by the MTR Corporation Limited of and incidental to the sale or disposal: see By-law 41(2) of the Mass Transit Railway By-laws (Cap. 556B).

 

Save as provided in By-law 41(2) of the Mass Transit Railway By-laws (Cap. 556B), the MTR Corporation Limited shall incur no liability whatsoever to any person in respect of lost property as bailees or otherwise and no claim for damages or compensation shall be brought against it by any person in respect of the same: see By-law 41(3) of the Mass Transit Railway By-laws (Cap. 556B).

 

Without prejudice to the generality of any of the Mass Transit Railway By-laws (Cap. 556B), the MTR Corporation Limited shall have a special lien on all motor vehicles, motorcycles, bicycles or any similar conveyance or on luggage, goods or articles howsoever brought by any person upon the railway premises including any train of the MTR Corporation Limited and accepted for carriage on the railway or storage by the MTR Corporation Limited and shall also have a general lien against the owner of any such motor vehicles, motorcycles, bicycles, similar conveyances, luggage, goods or articles for any sum of money howsoever due on any account from such person or owner to the MTR Corporation Limited: see By-law 44A(1) of the Mass Transit Railway By-laws (Cap. 556B).

 

If any lien is not satisfied within a reasonable time, the MTR Corporation Limited may, in its absolute discretion, sell the motor vehicles, motorcycles, bicycles or similar conveyances or the luggage, goods and articles or any part of them and apply the proceeds so arising in or towards the discharge of such lien including for the expenses of sale; and the balance of any proceeds if unclaimed within a period of 4 weeks following the sale shall become the general revenue of the MTR Corporation Limited free from any claims in relation to it: see By-law 44A(2) of the Mass Transit Railway By-laws (Cap. 556B).

 

Q1. Can taxi drivers refuse hiring or select passengers?

Q1. Can taxi drivers refuse hiring or select passengers?

No. The driver of a taxi shall not without reasonable excuse wilfully refuse or neglect to accept a hire from a hirer whether the intention of such hirer is indicated expressly or by implication: see Regulation 37(a) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Reasonable excuse

 

In determining whether the driver of a taxi has a reasonable excuse, the Court will look at the following three circumstances :-

 

  1. The matters said to constitute reasonable excuse must be identified;

 

  1. Whether the excuse is genuine, since the reason asserted for departing from a relevant prescription must be the real reason for doing so;

 

  1. Whether that excuse is reasonable, which the court will assess on an objective standard depending on the particular facts of the case.

 

[See HKSAR v Ho Loy (2016) 19 HKCFAR 110 at paragraph 36]

 

Wilfully

 

Wilful meant “deliberate and intentional” but also encompasses recklessness. Recklessness:-

 

… in the context of the case before me, must mean either a total disregard or non-caring as to whether the offence was committed, or an appreciation of the dangers and nonetheless proceeding to take the risk.”

 

[See HKSAR v Stephen Daryl Barnes [2000] 2 HKLRD 495 at 498G-H]

 

While whether a taxi driver has reasonable excuse in refuse hiring or selecting passenger is a question of fact, the refusal of hiring is generally prohibited.

 

Q2. Can a taxi driver refuse to take a passenger who is known to be an infectious disease carrier or be subject to compulsory quarantine?

Q2. Can a taxi driver refuse to take a passenger who is known to be an infectious disease carrier or be subject to compulsory quarantine? 

The driver of a taxi shall not without reasonable excuse wilfully refuse or neglect to accept a hire from a hirer whether the intention of such hirer is indicated expressly or by implication: see Regulation 37(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

In determining whether the driver of a taxi has a reasonable excuse, the Court will look at the following three circumstances :-

 

  1. The matters said to constitute reasonable excuse must be identified;

 

  1. Whether the excuse is genuine, since the reason asserted for departing from a relevant prescription must be the real reason for doing so;

 

  1. Whether that excuse is reasonable, which the court will do on an objective standard depending on the particular facts of the case.

 

[See HKSAR v Ho Loy (2016) 19 HKCFAR 110]

 

What constitutes a reasonable excuse depends on the fact of each case and there is no hard-and-fast rule: see香港特別行政區 梁偉民 (HCMA 333/2018, 20 December 2018):-

 

 “24. The Appellant’s appeal is allowed in the present case based on the special circumstances and evidence of the case. I must emphasize that the cardinal principle of “passenger having the right to choose taxi, but taxi driver cannot choose passenger” has not been changed. Taxi drivers in the industry should not treat the present case as the precedent of legal refusal of taking passenger. As to the meaning of “reasonable excuse”, it absolutely depends on the facts of each particular case and there is no hard-and-fast rule.” [English Translation]

 

In香港特別行政區 王祁偉 (HCMA 280/2015, 3 July 2015), the taxi driver in the mid-way stopped and requested the passenger to get off the car on the ground that he saw the passenger having red spots on his skin and mistaken that the red spots are infectious. The Court of First Instance held that the red spots may not be infectious and that the driver’s act was “discriminatory”. The driver in that case remained guilty of refusing or neglecting to drive the taxi to any place indicated by a hirer under Regulation 37(b) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

However, each case must turn on its own fact. Where the driver knows that a passenger is suffering an infectious disease, a refusal to accept hire on the ground of “self-help” may constitute a “reasonable excuse”. Of course, this would also depend on whether such excuse is genuine.

 

Under Regulation 32(1) of Prevention and Control of Disease Regulation (Cap. 599A), a person shall not, knowing that he is a contact or is infected with a specified infectious disease, expose other persons to the risk of infection—

 

  • by the person’s presence or conduct in—

 

  • any public conveyance; or

 

  • any street, public place, place of entertainment or assembly, club or hotel; or

 

  • by carrying on any trade, business or occupation.

 

A person who contravenes Regulation 32(1) or (2) commits an offence and is liable on conviction to a fine at $10,000 and to imprisonment for 6 months: see Regulation 32(3) of Prevention and Control of Disease Regulation (Cap. 599A).

 

Thus, the ground of “self-help” may constitute a reasonable excuse in rejecting hire from hirer with infectious disease or under a quarantine order (where there is risk of infection of COVID 19).

 

Q3. Can taxi drivers evict passengers?

Q3. Can taxi drivers evict passengers?

Yes.

 

The driver of a taxi may order any person to remove himself from the vehicle where he has reasonable grounds to believe that such person has committed or is about to commit an offence against the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D): see Regulation 56(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

However, the driver of a taxi may not remove a passenger from the taxi where the driver has no reasonable grounds to believe that a passenger or intending passenger has committed or is about to commit an offence against the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

No person shall having been ordered to remove himself from the taxi under Regulation 56(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), fail to comply with such order: see Regulation 56(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under Regulation 56(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) commits an offence and is liable on conviction to a fine of $2,000: see Regulation 57(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q4. If a passenger wants to cross the harbour, can a taxi driver refuse hiring?

Q4. If a passenger wants to cross the harbour, can a taxi driver refuse hiring?

 

No. The driver of a taxi shall not without reasonable excuse wilfully refuse or neglect to accept a hire from a hirer whether the intention of such hirer is indicated expressly or by implication: see Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), Regulation 37(1).

 

In determining whether the driver of a taxi has a reasonable excuse, the Court will look at the following three circumstances :-

 

  • The matters said to constitute reasonable excuse must be identified;

 

  • Whether the excuse is genuine, since the reason asserted for departing from a relevant prescription must be the real reason for doing so;

 

  • Whether that excuse is reasonable, which the court will do on an objective standard depending on the particular facts of the case.

 

[See HKSAR v Ho Loy (2016) 19 HKCFAR 110]

 

A passenger’s request for crossing the harbour is not a reasonable excuse for refusing hiring: see香港特別行政區 陳楚民 (HCMA 117/2011,  30 December 2011).

 

However, a driver of a taxi which is standing or plying for hire at a cross-harbour taxi stand may refuse to accept any hire which is not for a destination across the harbour via the cross-harbour tunnels: see Regulation 37B of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

If a cross-harbour stand taxi and a non-cross-harbour taxi stand are next to each other, can a driver of a taxi which is standing or plying for hire at a non-cross-harbour taxi stand refuse to accept any hire?

 

No, the fact that there is another cross-harbour taxi stand nearby does not exonerate a taxi driver’s general obligation not to wilfully refuse or neglect to accept a hire without reasonable excuse. The fact that there is another cross-harbour taxi stand nearby is not a reasonable excuse for refusing to accept any hire.

 

Thus, the driver of a taxi which is standing or plying fore hire at a non-cross—harbour taxi stand may not refuse to accept any hire.

 

Q5. If a passenger requests to stop at a restricted area, should the taxi driver comply with the request? If the taxi driver refuses, will he be charged?

Q5. If a passenger requests to stop at a restricted area, should the taxi driver comply with the request? If the taxi driver refuses, will he be charged?

If a passenger requests to stop at a restricted area, should the taxi driver comply with the request?

 

No, the taxi driver should not comply with the request.

 

No taxi driver shall pick up or set down a passenger in a restricted zone or a prohibited zone designated by the Commissioner for Transport, unless a restricted/prohibited zone permit was issued to that taxi according to the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap. 374E): see Regulation 14(6) and Regulation 14(8)(b) of Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under Regulation 14(6) commits an offence and is liable to a fine of $2,000: see Regulation 61(2) of Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

If the taxi driver refuses, will he be charged?

 

No. Although under Regulation 37(b) of Road Traffic (Traffic Control) Regulations (Cap. 374G), the driver of a taxi shall not without reasonable excuse refuse or neglect to drive the taxi to any place indicated by a hirer, that obligation is subject to the qualification of “without reasonable excuse”. The compliance with Regulation 14(6) of the Road Traffic (Traffic Control) Regulations (Cap. 374G) would certainly be a reasonable excuse. Thus, it is very likely that the taxi driver would not be charged for such refusal is for the purpose of compliance with the law and the passenger’s request is illegal.

 

Q6. If a passenger requests to stop at an area that is fully parked, will the taxi driver stopping at a restricted area nearby be charged?

Q6. If a passenger requests to stop at an area that is fully parked, will the taxi driver stopping at a restricted area nearby be charged?

Yes, he will be charged.

 

No taxi driver can pick up or set down a passenger in a restricted zone or a prohibited zone designated by the Commissioner for Transport, unless a restricted/prohibited zone permit was issued to that taxi according to the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap. 374E), under Regulation 14(8)(b) of the Road Traffic (Traffic Control) Regulations (Cap. 374G): see Regulation 14(6) of Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

Any person who without reasonable excuse contravenes Regulation 14(6) of Road Traffic (Traffic Control) Regulations (Cap. 374G) commits an offence and is liable to a fine of $2,000: see Regulation 61(2) of Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

The fact that the taxi driver has to be forced to stop at a restricted area contrary to Regulation 14(6) of Road Traffic (Traffic Control) Regulations (Cap. 374G) because the original destination is fully parked is hardly a “reasonable excuse”, for the taxi driver could stop at any places other than those fully parked space and restricted zones in the nearby area.

 

Q7. Is a child below the age of 3 a passenger if he does not occupy a seat by himself?

Q7. Is a child below the age of 3 a passenger if he does not occupy a seat by himself?

Passenger in relation to a vehicle means any person carried in or on it other than any driver or conductor of it: see Section 2 of the Road Traffic Ordinance (Cap. 374).

 

For the purpose of the Road Traffic Ordinance (Cap. 374) and its subsidiary regulations, a child below the age of 3 is a passenger because he or she is a “person carried in or on it”, whether or not he occupies a seat by himself or herself.

 

However, for the purpose of Regulation 53(1)(a) and (3) of the Road Traffic (Traffic Control) Regulations (Cap. 374G), that is, for the purpose of establishing the number of persons that may be carried in a vehicle, a child below the age of 3 years shall not be counted.

 

Q8. Can three adults and two children get on a 4-seater taxi? In those cases, would they be covered by insurance?

Q8. Can three adults and two children get on a 4-seater taxi? In those cases, would they be covered by insurance?

Can three adults and two children get on a 4-seater taxi?

 

No.

 

Under to Regulation 53(1) of the Road Traffic (Traffic Control) Regulations (Cap. 374G), for the purpose of establishing the number of persons that may be carried in a vehicle—

 

  • a child under the age of 3 years shall not be counted;

 

  • 3 children aged 3 years or above but each not exceeding 1.3 m in height shall be counted as 2 persons.

 

Thus, in any event, two children would be counted as two persons unless one or more of them are under the age of 3 years. The total number of passengers being carried in this circumstance would become 5, which exceeds the maximum number of 4 in a 4-seater taxi.

 

Any person who without reasonable excuse contravenes Regulation 53(3) of Road Traffic (Traffic Control) Regulations (Cap. 374G) commits an offence and is liable on first conviction to a fine of $5,000 and imprisonment for 3 months and on second or subsequent conviction to a fine of $10,000 and imprisonment for 6 months: see Regulation 61(1) of Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

Where the motor vehicle insurance for third party risk only covers 4 persons on a 4-seater taxi, the fifth person would not be insured generally under the insurance policy. The taxi driver may be liable for failing to cause the motor vehicles against ALL third parties’ risks and thus may contravene Sections 4(1) and 2(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272), and would be liable to a fine of $10,000 and imprisonment for 12 months.

 

In those cases, would they be covered by insurance?

 

It depends on whether contractual warranties under the insurance policy have been breached. If they are breached, not all injured parties may be insured.

 

If it is stipulated in the insurance policy that it would only insure for the maximum number of the taxi, i.e. 4 persons, the fifth person may not be insured.

 

On the other hand, if it is stipulated under the insurance policy that the driver should not carry excessive number of passengers, it is inconceivable that any breach of that contractual warranties would enable the injured parties to obtain full compensation.

 

If it is stipulated under the insurance policy that the driver should not cause the taxi to be driven in an unsafe manner, driving an overloaded taxi may amount to driving in an unsafe manner and would affect the claim for compensation.

 

Thus, the injured parties may only be covered under the third party motor vehicle insurance to a limited extent.

 

Q9. In case of serious traffic congestion, if a passenger insists to take off in the middle of the road, will the taxi driver be charged?

Q9. In case of serious traffic congestion, if a passenger insists to take off in the middle of the road, will the taxi driver be charged?

It depends on whether the place where a passenger insists to take off permits the taxi to stop and take off passenger.

 

Prohibited zone/restricted zone

 

No taxi driver can pick up or set down a passenger in a restricted zone or a prohibited zone designated by the Commissioner for Transport, unless a restricted/prohibited zone permit was issued to that taxi according to the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap. 374E), under Regulation 14(8)(b) of the Road Traffic (Traffic Control) Regulations (Cap. 374G): see Regulation 14(6) of Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

Any person who without reasonable excuse contravenes Regulation 14(6) commits an offence and is liable to a fine of $2,000: see Regulation 61(2) of Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

Thus, if the place of alighting passenger is within the prohibited zone or restricted zone, the taxi driver may be charged under Regulation 14(6) of Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

Area prohibiting stopping

 

Under Regulation 45 of the Road Traffic (Traffic Control) Regulations (Cap. 374G), subject to Regulation 14 of the Road Traffic (Traffic Control) Regulations (Cap. 374G) and to any direction given by a police officer in uniform or traffic warden in uniform, a driver of a vehicle on a road shall not stop within an area designated as a—

 

  • bus stop;
  • public light bus stopping place or public light bus stand;
  • taxi stand; or
  • rail stop.

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under, Regulation 45 of  Road Traffic (Traffic Control) Regulations (Cap. 374G) commits an offence and is liable to a fine of $2,000: see Regulation 61(2) of Road Traffic (Traffic Control) Regulations (Cap. 374G).

 

Other areas

 

According to Chapter 5 of Road Users’ Code – For All Drivers – Where Not to Stop (see: https://www.td.gov.hk/en/road_safety/road_users_code/index/chapter_5_for_all_drivers/where_not_to_stop_/index.html), vehicle drivers are not permitted to stop at the following places, and thus cannot alight passengers :-

 

  • On an expressway;

 

  • In a ‘No stopping’ zone during the restriction time;

 

  • On a ‘Zebra’ or ‘Green man’ crossing;

 

  • In a zebra-controlled area marked with zigzag lines unless you are giving precedence to pedestrians or are waiting to make a left or right-turn;

 

  • At a bus stop, public light bus stand or taxi stand (except permitted users);

 

  • On parts of a roadway on which you are normally not allowed to enter, for example bus lanes, hard shoulders and cycleways;

 

  • In a tunnel area or control area;

 

  • On a yellow box marking or yellow striped ‘green man’ crossing;

 

  • Near a ‘Green man’ crossing;

 

  • Near a pedestrian crossing place, for example where there is an island on the road;

 

  • Near traffic lights;

 

  • Near a school crossing patrol;

 

  • On a major dual carriageway;

 

  • Near or at a junction;

 

  • Near or on a roundabout;

 

  • Where danger is likely to be caused to the taxi or passengers.

 

Generally speaking, a taxi driver would not be charged for alighting passenger for places other than those mentioned above.

 

Q10. If passengers deliberately select and ride in the 2nd taxi at the taxi stand, would the driver of the 2nd taxi be charged?

Q10. If passengers deliberately select and ride in the 2nd taxi at the taxi stand, would the driver of the 2nd taxi be charged?

Yes, the driver of the 2nd taxi will be charged if the 1st taxi ahead of the 2nd taxi has not yet accepted a hire or is in or near the 2nd taxi.

 

Under Regulation 36(3)(b) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), if a person wishes to engage a taxi, the driver of a taxi other than the first taxi at the stand shall not accept the hire, unless the drivers of all taxis ahead of his taxi at the stand have either accepted a hire or are not in or near their taxis.

 

Thus, even if the passenger deliberately selected the second taxi in line, the driver of the second taxi may still be charged in contravention of Regulation 36(3)(b) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) if the 1st taxi ahead of the 2nd taxi has not yet accepted a hire or is in or near the 2nd taxi.

 

Any person who without reasonable excuse contravenes Regulation 36 commits an offence and is liable on conviction to a fine of $3,000 and to imprisonment for 6 months: see Regulation 57(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q11. Is the practice of taxi-sharing by unknown passengers at a fixed fare (known as  “rabbitfish taxi”) legal?

Q11. Is the practice of taxi-sharing by unknown passengers at a fixed fare (known as  “rabbitfish taxi”) legal?

No, it is not legal.

 

(i) Drive to such destination other than by the most direct practicable route

 

First, under Regulation 37(d) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the driver of a taxi shall not without reasonable excuse, when hired to drive to a specified destination, drive to such destination other than by the most direct practicable route.

 

In the present case, where there are more than 1 hirer who are unknown to each other, the taxi driver must inevitably drive to destination ordered by the 1st passenger before driving another destination driven by the 2nd passenger. Thus, while the taxi is driving towards the destination of 1st passenger, he may not be driving the towards the destination of 2nd passenger at the most direct practicable route. This may contravene Regulation 37(d) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under Regulation 37(d) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) commits an offence and is liable on conviction to a fine at HK$10,000 and to imprisonment for 6 months: see Regulation 57(4) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

(ii) Shall not permit any person other than the hirer to enter the taxi without consent

 

Second, under Regulation 37(e) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the driver of a taxi shall not without reasonable excuse, when his taxi is hired, permit any person other than the hirer to enter the taxi without the consent of the hirer.

 

Thus, if the passengers are unknown to each other, the subsequent passenger(s) entering the taxi may not have the consent of the original hirer. In the absent of consent, the taxi driver would be in breach of Regulation 37(e) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes Regulation 37(e) commits an offence and is liable on conviction to a fine of $5,000 and to imprisonment for 6 months: see Regulation 57(3) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q1. How is the fare calculated?

Q1. How is the fare calculated?

Taxi fares are calculated in accordance with the use of a taximeter.

 

Taximeter means any appliance for measuring the time or distance for which a taxi is used, or for measuring both time and distance, or for recording the fare by time or distance or by a combination of time and distance, which is for the time being approved for the purpose by the Commissioner for Transport: see Section 2 of the Road Traffic Ordinance (Cap. 374).

 

The scale of fares for the hiring of taxis shall be as specified in Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D): see Regulation 47(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Schedule 5

 

Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), as updated on 17th July 2022, provides as follows :-

 

Taxi Fares

 

1.      

Taxis licensed to operate in Hong Kong and Kowloon

 

 

 

 

(A)

$27.00 for the first 2 kilometres or any part of those 2 kilometres

 

 

(B)

$1.90 for every further 200 metres or any part of those 200 metres, until the chargeable amount reaches $93.50; and

 

 

(C)

$1.30 for every 200 metres or any part of those 200 metres, after the chargeable amount has reached $93.50.

2.      

Taxis licensed to operate within Lantau

 

 

 

 

(A)

$22.00 for the first 2 kilometres or any part of those 2 kilometres;

 

 

(B)

$1.70 for every further 200 metres or any part of those 200 metres, until the chargeable amount reaches $175.00; and

 

 

(C)

$1.50 for every 200 metres or any part of those 200 metres, after the chargeable amount has reached $175.00.

2a.

Taxis licensed to operate in the New Territories

 

 

 

 

(A)

$23.50 for the first 2 kilometres or any part of those 2 kilometres;

 

 

(B)

$1.70 for every further 200 metres or any part of those 200 metres, until the chargeable amount reaches $74.50; and

 

 

(C)

$1.30 for every 200 metres or any part of those 200 metres, after the chargeable amount has reached $74.50.

3.      

Waiting Time

 

 

 

(i)              Taxis licensed to operate in Hong Kong and Kowloon

 

 

 

 

(A)

$1.90 for every period of 1 minute, or any part of that period, during which the taxi is hired but not in motion, until the chargeable amount reaches $93.50; and

 

 

(B)

$1.30 for every period of 1 minute, or any part of that period, during which the taxi is hired but not in motion, after the chargeable amount has reached $93.50.

 

(ii)            Taxis licensed to operate within Lantau

 

 

 

 

(A)

$1.70 for every period of 1 minute, or any part of that period, during which the taxi is hired but not in motion, until the chargeable amount reaches $175.00; and

 

 

(B)

$1.50 for every period of 1 minute, or any part of that period, during which the taxi is hired but not in motion, after the chargeable amount has reached $175.00.

 

(iii)          Taxis licensed to operate in the New Territories

 

 

 

 

(A)

$1.70 for every period of 1 minute, or any part of that period, during which the taxi is hired but not in motion, until the chargeable amount reaches $74.50; and

 

 

(B)

$1.30 for every period of 1 minute, or any part of that period, during which the taxi is hired but not in motion, after the chargeable amount has reached $74.50.

4.      

Additional Fares

 

 

 

(i)              For every article of baggage carried in accordance with Regulation 41

(a)   Taxis licensed to operate in Hong Kong and Kowloon

 

 

 

 

 

 

 

$6.00

 

 

(b)   Taxis licensed to operate in the New Territories

$6.00

 

 

 

(c)   Taxis licensed to operate within Lantau

$6.00

 

 

 

(ii)            For every animal or bird carried in accordance with Regulation 42

(a)   Taxis licensed to operate in Hong Kong and Kowloon

$5.00

 

 

 

(b)   Taxis licensed to operate in the New Territories

$5.00

 

 

 

(c)   Taxis licensed to operate within Lantau

$5.00

 

 

 

(iii)          For every hiring involving the use of the Lion Rock Tunnel, the Shing Mun Tunnels, the Tseung Kwan O Tunnel, the Tate’s Cairn Tunnel, the Aberdeen Tunnel, the Cross-Harbour Tunnel or the Eastern Harbour Crossing

The appropriate toll for the use of the tunnel concerned, as specified in Part 1, 2, 3 or 3A of Schedule 2 to the Road Tunnels (Government) Regulations (Cap. 368A).

 

 

(iiia) For every hiring involving the use of the Tai Lam Tunnel or the Western Harbour Crossing

 

The toll paid by the driver of the taxi during the hiring for the use of the tunnel concerned.

 

(iv)           (a) For every hiring which is for a destination across the harbour via the Cross-Harbour Tunnel where the hiring does not begin from a cross-harbour taxi stand

 

 

 

 

 

 

 

$10.00

 

 

(b) For every hiring which is for a destination across the harbour via the Eastern Harbour Crossing or the Western Harbour Crossing where the hiring does not begin from a cross-harbour taxi stand

 

 

 

 

 

 

 

 

 

 

$15.00

 

 

(vib) For every hiring involving the use of the toll area within the meaning of the Tsing Sha Control Area Ordinance (Cap. 594)

 

 

 

 

The appropriate toll for the use of the toll area, as specified in Schedule 1 to the Tsing Sha Control Area (Tolls, Fees and Charges) Regulation (Cap. 594B).

 

(vib) For every hiring arranged through telephone booking—

(a)   Taxis licensed to operate in Hong Kong and Kowloon

 

 

 

 

$5.00

 

 

 

(b)   Taxis licensed to operate in the New Territories

$5.00

 

 

 

 

(c)   Taxis licensed to operate within Lantau

$5.00

 

 

 

Q2. Is it illegal not to use the taximeter to calculate the fare?

Q2. Is it illegal not to use the taximeter to calculate the fare?

 

Yes. It is illegal not to use the taximeter to calculate the fare.

 

The driver of a taxi as soon as the taxi has been hired shall move the taximeter indicator to the recording position and as soon as the hiring has terminated shall return the taximeter indicator to the non-recording position: see Regulation 49(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Thus, it is illegal not to use the taximeter to calculate the fare.

 

Any person who without reasonable excuse contravenes Regulation 49(2) commits an offence and is liable on conviction to a fine of $5,000 and to imprisonment for 6 months: see Regulation 57(3) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Hiring of vehicle

 

However, an exception is where a taxi is under hire. Under Regulation 38(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the registered owner of a taxi, may hire the vehicle to any person at a rate of hire based on the time during which the vehicle is hired with or without additional charge in respect of the mileage travelled by the vehicle while it is so hired, or on such other terms as may be agreed with the hirer.

 

Under Regulation 38(3)(a) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), before a vehicle is hired under Regulation 38(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the registered owner and hirer shall complete and sign 2 copies of a document which shall contain the rate or scale of charges applicable to the hiring.

 

Thus, under that situation, the calculation of the fare is in accordance with the rental contract as opposed to by the taximeter.

 

Q3. Is it legal for taxi drivers to charge additional fares when a typhoon No. 8 signal or black rainstorm warning signal is issued?

Q3. Is it legal for taxi drivers to charge additional fares when a typhoon No. 8 signal or black rainstorm warning signal is issued?

No. No registered owner or driver of a taxi shall charge for the hiring of the taxi a fare exceeding the appropriate scale of fares specified in Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D): see Regulation 47(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

There is no stipulation under Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) that additional fares could be charged when a typhoon No.8 signal or black rainstorm warning signal is issued. Therefore, the charge of an additional fee may contravene Regulation 47(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes Regulation 47(2) commits an offence and is liable on conviction to a fine at $10,000 and to imprisonment for 6 months: see Regulation 57(4) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Hiring of vehicle

 

However, the registered owner of a taxi, may hire the vehicle to any person at a rate of hire based on the time during which the vehicle is hired with or without additional charge in respect of the mileage travelled by the vehicle while it is so hired, or on such other terms as may be agreed with the hirer: see Regulation 38(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

A condition of the hiring of a vehicle may be that it shall be driven only by a person in the employ of the registered owner of the vehicle or that such a person is provided to drive the vehicle: see Regulation 38(2) of Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Furthermore, under Regulation 38(3) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), before a vehicle is hired under Regulation 38(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the registered owner and hirer shall complete and sign 2 copies of a document which shall contain the following particulars –

 

  • The rate or scale of charges applicable to the hiring;

 

  • Details of the third party risks insurance held in respect of the vehicle; and

 

  • The names and addresses of the persons who are permitted to drive the vehicle while it is the subject of the hiring and the numbers of their driving licences.

 

The registered owner shall retain one copy of the document and shall produce it on demand by a police officer made within 3 months after the commencement of the hiring: see Regulation 38(4) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

The hirer shall retain one copy of the document and shall produce it on demand by a police officer made during the continuance of the hiring: see Regulation 38(5) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Thus, in the present case, in any event it is very difficult under such an emergent situation to form a hire agreement as between the registered owner of the taxi and the hirer. Even if such hire agreement can be formed between the registered owner of the taxi and the hirer, the formalities stated above must be complied with.

 

Thus, unless other hire agreement has been reached pursuant to Regulation 38 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the driver of a taxi shall not charge a fare exceeding the appropriate scale of fares specified in Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), even if a typhoon No. 8 signal or black rainstorm warning signal is issued.

 

Q4. Is it legal for taxi drivers to give discounts on fares?

Q4. Is it legal for taxi drivers to give discounts on fares? 

Generally speaking, it is legal. There is no provisions under the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) prohibiting taxi drivers from charging lower than scale of fees specified under Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

No soliciting

 

However, if the driver of taxi uses discount as a means to solicit intending passengers to take that taxi, that may constitute soliciting and would contravene Regulation 40 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), which provides that no driver or person acting or purporting to act on behalf of the driver of a taxi, shall in any manner attract or endeavour to attract any person in order to induce such person to make use of the vehicle.

 

Any person who without reasonable excuse contravenes Regulation 40 commits an offence and is liable on conviction to a fine at HK$10,000 and to imprisonment for 6 months: see Regulation 57(4) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q5. Some taxi drivers may deliberately select an unreasonably longer route for higher fares. Is it regulated by the law? How can the passenger prove it?

Q5. Some taxi drivers may deliberately select an unreasonably longer route for higher fares. Is it regulated by the law? How can the passenger prove it?

Is it regulated by the law?

 

Yes, it is regulated by law.

 

The driver of a taxi shall not without reasonable excuse when hired to drive to a specified destination, drive to such destination other than by the most direct practicable route: see Regulation 37(d) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D). Any person who without reasonable excuse contravenes Regulation 37(d) commits an offence and is liable on conviction to a fine at $10,000 and to imprisonment for 6 months: see Regulation 57(4) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

 

The driver of taxi shall not unreasonably delay the journey: see Regulation 45(1)(i) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D). Any person who without reasonable excuse contravenes Regulation 45(1) commits an offence and is liable on conviction to a fine of $3,000 and to imprisonment for 6 months: see Regulation 57(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

How can the passenger prove it?

 

  1. Request for Receipt

 

A passenger should request a receipt from the taxi driver for the payment of fares, which the taxi driver is obliged to issue under Regulation 49A of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Under Schedule 9, Part I of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), a receipt issued in respect of the payment of any fare for the hiring of a taxi must be in a form specified by the Commissioner for Transport and must include:

 

  1. registration number of the taxi;

 

  1. date and time when the journey starts;

 

  1. date and time when the journey ends;

 

  1. total distance travelled;

 

  1. distance over which a distance rate is charged;

 

  1. waiting time over which a time rate is charged;

 

  1. surcharges, if any; and

 

  1. total taxi fare.

 

The letters, characters, and figures on the receipt must be printed in black or blue and be at least 2 millimetres in height. The receipt must also be printed on paper with a white background.

 

The passenger may use the receipt as a prove that the total distance travelled by is unreasonably longer than the original distance anticipated. The receipt is also to be used to show that the fares charged is unreasonably high having regard to the originally anticipated distance.

 

  1. Testify in Court

 

Alternatively, the passenger may testify in Court as to the route actually taken by the taxi driver.

 

Q6. Can taxi drivers refuse to receive small changes?

Q6. Can taxi drivers refuse to receive small changes?

It depends on whether the passengers are giving coins not complying with Section 2(1) of the Coinage Ordinance (Cap. 454).

 

Under Section 2(1) of the Coinage Ordinance (Cap. 454) :-

 

  • The Chief Executive in Council may, by order, authorize the issue of coins with the design and of the denomination, composition, standard weight and remedy allowance specified in the order, and such coins shall, provided they have not been dealt with in any manner prohibited by law, be legal tender for payment as follows—

 

  • for coins of denominations of not less than $1, for the payment of an amount not exceeding $100;

 

  • for coins of denominations of less than $1, for the payment of an amount not exceeding $2.

 

  • Each coin shall be legal tender only for the amount of its denomination.

 

Accordingly, the passenger cannot pay coins of denominations of less than $1, for the payment of an amount exceeding $2, or for coins of denominations of not less than $1, for the payment of an amount exceeding $100.

 

However, even if the requirement of Section 2(1) of the Coinage Ordinance (Cap. 454) has been complied with, Section 2(1) of the Coinage Ordinance (Cap. 454) does not compel a taxi driver to accept small changes. This is because the medium of exchange is a matter of contract as between the parties. The driver of taxi is entitled to state under the contract that he doesn’t receive small changes. However, if the taxi drivers do not wish to accept small changes, the driver should have mentioned this to a passenger before the beginning of the journey or conclusion of the contract. If the taxi has told this requirement to the passenger, then the driver is not bound to accept small changes as Section 2(1) of the Coinage Ordinance (Cap. 454) does not compel a taxi driver to receive small changes.

 

Q7. What could the driver do if a passenger does not have money to pay for the fare? Can the driver keep the HKID/passport/staff card/other personal belongings of the passenger until the fare is received, if the passenger is willing to do so?

Q7. What could the driver do if a passenger does not have money to pay for the fare? Can the driver keep the HKID/passport/staff card/other personal belongings of the passenger until the fare is received, if the passenger is willing to do so?

What could the driver do if a passenger does not have money to pay for the fare?

 

The driver could request the passenger to give to the driver of the taxi his name and an address at which he can be found: see Regulation 48(1)(c) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

If the passenger refuses to give to the driver of the taxi his name and an address at which he can be found, the taxi driver may arrest the person and may detain such person until he can be handed over to a police officer: see Section 58 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Can the driver keep the HKID/passport/staff card/other personal belongings of the passenger until the fare is received, if the passenger is willing to do so?

 

  1. HKID/passport

 

The driver can only keep the HKID/passport of a passenger under a lawful authority or where a reasonable excuse exists.

 

Under Section 7A(1A) of the Registration of Persons Ordinance (Cap. 177), any person who without lawful authority or reasonable excuse uses or has in his custody or possession an identity card or other document issued under Cap. 177 which relates to another person commits an offence and is liable on conviction on indictment to a fine at HK$100,000 and to imprisonment for 10 years; and on summary conviction to a fine at HK$50,000 and to imprisonment for 2 years.

 

Under Section 7A(2) of the Registration of Persons Ordinance (Cap. 177), an accused person shall be deemed to have an identity card or other document or a forged identity card or other document in his custody or possession if he :-

 

  • Has it in his personal custody or possession; or

 

  • Knowingly has it in the actual custody or possession of any other person, or has it in any other place, whether occupied by himself or not,

 

and it is immaterial whether the identity card or other document or the forged identity card or other document, as the case may be, is in such custody, possession or place for the use of the accused person or that of another person.

 

Lawful authority:

 

“Lawful authority” extends to and denotes any permission which may be lawfully given by a public officer or department or by a private person. It is submitted that this general definition applies: see Section 2(1) of the Summary Offences Ordinance (Cap. 228).

 

Reasonable excuse:

 

Whether the driver can keep the HKID/passport of the passenger depends on whether there exists any reasonable excuse for doing so. The relevant tests has been laid down in HKSAR v Ho Loy (2016) 19 HKCFAR 110, which are :-

 

  1. The matters said to constitute reasonable excuse must be identified;

 

  1. Whether the excuse is genuine, since the reason asserted for departing from a relevant prescription must be the real reason for doing so;

 

  1. Whether that excuse is reasonable, which the court will do on an objective standard depending on the particular facts of the case.

 

First, the excuse which is said to be reasonable is to keep a passenger’s ID as a pledge to pay for the unpaid fares. The excuse may be genuine. Thus, the question is whether by applying an objective standard, the excuse is reasonable.

 

In HKSAR v Chung Ka Wai [2018] 2 HKLRD 1090, Hon Yeung VP held that :-

 

34. This court should point out that in daily life, it happens quite often that people have in their possession/custody an identity card relating to another person, which may not necessarily involve inherently culpable conduct. For example, parents may have in their possession their children’s identity cards for safety reasons; spouses may, for some reasons, have in their possession the identity card of one another; the same is true for family members too. In some commercial transactions, staff members may also need to keep the customers’ identity cards for a short while. Under the above circumstances, if those parents, spouses, family and staff members must discharge their legal burden by establishing the defence of “lawful authority” or “reasonable excuse” before they can absolve themselves from liability, it will bring huge trouble to these people who are in possession of an identity card relating to another person. Yet, this court also needs to point out that, under the above circumstances, there shall not be any difficulty for those charged with possession of an identity card relating to another person to raise the defence of “reasonable excuse”.”

 

Thus, whether there exists any reasonable excuse is a fact-sensitive matter. If the matter is said to be genuine, that the driver of the taxi genuinely wants to keep the passenger’s ID as a pledge, then it may constitute a reasonable excuse for keeping the passenger’s ID.

 

  1. Other belongings

 

If the passenger is willing to do so, it is not illegal for a driver to keep the staff card, or other personal belongings of the passenger until the fare is received.

 

Q8. Are there any laws regulating the installation of taximeter and receipt printer in a taxi?

Q8. Are there any laws regulating the installation of taximeter and receipt printer in a taxi? 

Installation of taximeter

 

Yes.

 

Under Regulation 44 of Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A) :-

 

  • Every taximeter shall be tested by the Commissioner for Transport before it is fitted to a taxi and thereafter at intervals of not more than 6 months, and, if the tests prove satisfactory and the receipt printing device installed in respect of the taxi (whether by forming part of or being connected to the taximeter) is in proper working order, stamped and sealed by the Commissioner for Transport.

 

  • The registered owner of a taxi shall submit the taxi, with the meter properly affixed, to the Commissioner for Transport in order that tests may be made.

 

  • The registered owner of a taxi shall report to the Commissioner for Transport, as soon as reasonably practicable, any fault or damage to the taximeter fitted to the taxi that may result in any inaccurate recording of the fare, or any damage to any stamp or seal of the Commissioner for Transport thereon.

 

Under Regulation 121(3)-(4) of Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A) :-

 

  • Any person who uses or suffers or permits to be used to ply for hire or for the carriage of passengers for hire or reward on any road, any taxi on which—

 

  • the stamp or seal of the Commissioner for Transport on the taximeter has been broken;

 

  • the taximeter has not been stamped and sealed by the Commissioner for Transport within the previous 6 months;

 

  • the wheel of the taxi by which the taximeter is driven is, with fully inflated tyre thereon, of a diameter different from that for which the taximeter has been designed, geared and tested or that marked on the taximeter;

 

  • the taximeter was affixed thereon without the prior approval of the Commissioner for Transport;

 

  • the taximeter does not comply in every way with the provisions of these regulations; or

 

  • a receipt printing device is not installed in accordance with Regulation 42A,

 

commits an offence and is liable to a fine of $10,000 and to imprisonment for 6 months.

 

  • Any person who without lawful excuse defaces, damages or alters any taximeter commits an offence and is liable to a fine of $10,000 and to imprisonment for 6 months.

 

Under Regulation 49(1)(a) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the driver of a taxi available for hire shall display the taximeter indicator.

 

Thus, it is implied from these Regulations under Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A) and the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) that the installation of a taximeter on a taxi is mandatory or otherwise the fares cannot be properly calculated.

 

Installation of receipt printer

 

Yes, there are laws regulating the installation of receipt printer.

 

Under Regulation 42A of Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A), there shall be installed a device, which is capable whilst in proper working order of printing a fare receipt within 12 seconds, in respect of every taxi, either by forming part of or being connected to the taximeter with which the taxi is fitted.

 

Under Regulation 49A(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), a receipt issued in respect of the payment of any fare for the hiring of a taxi shall be printed by the receipt printing device installed in respect of the taxi; and comply with the requirements set out in Part I of Schedule 9 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Under Regulation 49A(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), where the receipt printing device installed in respect of a taxi is not in proper working order, a receipt shall be issued by the driver of the taxi and comply with the requirements set out in Part II of Schedule 9 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Under Part I of Schedule 9 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), a receipt issued in respect of the payment of any fare for the hiring of a taxi must be in a form specified by the Commissioner for Transport and must include:

 

  • registration number of the taxi;

 

  • date and time when the journey starts;

 

  • date and time when the journey ends;

 

  • total distance travelled;

 

  • distance over which a distance rate is charged;

 

  • waiting time over which a time rate is charged;

 

  • surcharges, if any; and

 

  • total taxi fare.

 

The letters, characters, and figures on the receipt must be printed in black or blue and be at least 2 millimetres in height. The receipt must also be printed on paper with a white background.

 

Under Part II of Schedule 9 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), a driver shall issue a hand-written fare receipt in a pre-printed form prescribed by the Commissioner for Transport upon request which contains information as taxi number, date of journey, time of the end of the journey, fare shown on the meter, surcharges if any, total taxi fare and name of the driver.

 

Thus, there are laws regulating the installation of receipt printing device, and it is implied from the Regulation 49(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) that a receipt printing device in compliance with Part I of Schedule 9 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) is required.

 

Q9. If a taximeter has been found altered or defaced, will the taxi owner, or the taxi driver who has operated the taximeter be charged?

Q9. If a taximeter has been found altered or defaced, will the taxi owner, or the taxi driver who has operated the taximeter be charged?

Taxi owner

 

Yes, the taxi owner having the knowledge of the defects of a taximeter but failing to report to the Commissioner for Transport will be charged.  

 

Under Regulation 44 of Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A) :

 

  • Every taximeter shall be tested by the Commissioner for Transport before it is fitted to a taxi and thereafter at intervals of not more than 6 months, and, if the tests prove satisfactory and the receipt printing device installed in respect of the taxi (whether by forming part of or being connected to the taximeter) is in proper working order, stamped and sealed by the Commissioner for Transport.

 

  • The registered owner of a taxi shall submit the taxi, with the meter properly affixed, to the Commissioner for Transport in order that tests in accordance with paragraph (1) may be made.

 

  • The registered owner of a taxi shall report to the Commissioner for Transport, as soon as reasonably practicable, any fault or damage to the taximeter fitted to the taxi that may result in any inaccurate recording of the fare, or any damage to any stamp or seal of the Commissioner for Transport thereon.

 

Thus, a taxi owner is under an obligation to report to the Commissioner for Transport once he or she has knowledge of the defects. If he or she fails to do so, he or she would be guilty of an offence under Regulation 121(2) of Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A), which provides that any person who contravenes or fails to comply with any requirement under these regulations commits an offence and is liable to a fine of $10,000 and to imprisonment for 6 months.

 

Taxi driver operating the altered or defaced taximeter

 

Yes, the taxi driver operating the altered or defaced taximeter would be charged.

 

Under Regulation 121(1) of Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A), subject to the provisions of Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A), any person who uses or causes or permits to be used on any road any vehicle which does not comply in all respects with the provisions of these regulations commits an offence and is liable to a fine of $10,000 and to imprisonment for 6 months.

 

Under Regulation 121(3)-(4) of Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A) :

 

  • Any person who uses or suffers or permits to be used to ply for hire or for the carriage of passengers for hire or reward on any road, any taxi on which—

 

  • the stamp or seal of the Commissioner for Transport on the taximeter has been broken;

 

  • the taximeter has not been stamped and sealed by the Commissioner for Transport within the previous 6 months;

 

  • the wheel of the taxi by which the taximeter is driven is, with fully inflated tyre thereon, of a diameter different from that for which the taximeter has been designed, geared and tested or that marked on the taximeter;

 

  • the taximeter was affixed thereon without the prior approval of the Commissioner for Transport;

 

  • the taximeter does not comply in every way with the provisions of these regulations; or

 

  • a receipt printing device is not installed in accordance with Regulation 42A,

 

commits an offence and is liable to a fine of $10,000 and to imprisonment for 6 months.

 

  • Any person who without lawful excuse defaces, damages or alters any taximeter commits an offence and is liable to a fine of $10,000 and to imprisonment for 6 months.

 

Thus, the taxi driver operating the altered or defaced taximeter, i.e. a taximeter not complying with the requirement under Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A) commits an offence and is liable to a fine of $10,000 and to imprisonment for 6 months.

 

Q10. Can a private car owner install a taximeter or a similar instrument in their car just for decoration?

Q10. Can a private car owner install a taximeter or a similar instrument in their car just for decoration?

No.

 

No taximeter or instrument similar to a taximeter shall be fitted to a vehicle without the prior approval of the Commissioner for Transport: see Regulation 41(4) of Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A).

 

If a person installs a taximeter without the prior approval of the Commissioner for Transports, he or she may contravene Regulation 41(4) of  Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A). Any person who contravenes or fails to comply with any requirement under these regulations commits an offence and is liable to a fine of $10,000 and to imprisonment for 6 months: see Regulation 121(2) of Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374A). 

 

Q11. A passenger reserved a taxi via telephone or app booking at 10.00 AM. When he arrived at the meeting place at 10.05 AM, he found that the taxi driver had moved the meter to the recording position before he got in the taxi. Could the passenger refuse to pay or request the taxi driver to start counting fares again?

Q11. A passenger reserved a taxi via telephone or app booking at 10.00 AM. When he arrived at the meeting place at 10.05 AM, he found that the taxi driver had moved the meter to the recording position before he got in the taxi. Could the passenger refuse to pay or request the taxi driver to start counting fares again? 

Yes.

 

The driver of a taxi as soon as the taxi has been hired shall move the taximeter indicator to the recording position and as soon as the hiring has terminated shall return the taximeter indicator to the non-recording position: see Regulation 49(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

The hiring of the taxi shall commence from the time at which the journey begins or the time at which the taxi is first made immediately available to the hirer at the time and place appointed by the hirer, whichever first occurs: see Regulation 49(3) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Thus, the taxi driver cannot move the taximeter indicator to the recording position before the journey begins. The time of hiring begins only at 10.05 AM when the journeys begins but not at the time when a taxi is booked via telephone or booking app at 10.00 AM. Therefore, the passenger can refuse to pay or request the taxi driver to start counting fares again.

 

Q12. A regular passenger travels the same route by taxi very often. If he finds that the fare recorded by the taximeter on a particular trip is 1.5x higher than the fare he has paid regularly, can he refuse to pay for the fare exceeding the regular amount?

Q12. A regular passenger travels the same route by taxi very often. If he finds that the fare recorded by the taximeter on a particular trip is 1.5x higher than the fare he has paid regularly, can he refuse to pay for the fare exceeding the regular amount?

Yes.

 

If for the distance covered the taximeter records a fare clearly higher than the legal fare chargeable under scale of fares for the hiring of taxis shall be as specified in Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the hirer of the taxi shall not be obliged to pay to the driver more than the legal fare: see Regulation 49(4) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q1. What types of goods cannot be carried onto taxis?

Q1. What types of goods cannot be carried onto taxis?

Under Regulation 41 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the following goods cannot be carried onto taxis :-

 

 

 

Dangerous Goods are:

 

  • Goods harmful to life or presenting a danger to property because they are: explosive, flammable, or volatile; toxic, poisonous, or corrosive substances; substances which become dangerous by interaction with water or air, substances liable to spontaneous combustion or of a readily combustible nature, radioactive material and to such substances to which it is applied by the Chief Executive in Council under certain regulations: Dangerous Goods Ordinance (Cap. 295) Section 3.

 

Meaning of “offensive”:

 

  • “Offensive” is defined as that which offends against the standard of good taste or good manners which is a breach of the rules of courtesy, or runs contrary to commonly accepted social rules, and may well be ill-advised or hurtful. Whatever offends is rightly termed offensive.

 

Any person who without reasonable excuse contravenes Regulation 41 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) commits an offence and is liable on conviction to a fine of $2,000.

 

Q1. Can taxi drivers refuse to pick up passengers with animals?

Q1. Can taxi drivers refuse to pick up passengers with animals?

Yes.

 

The carriage of animals and birds in a taxi and the terms and conditions under which any animal or bird is carried shall be at the sole discretion of the driver of the taxi: see Regulation 42(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who is permitted to take any animal or bird on a taxi shall be responsible for and shall pay for any damage caused to the vehicle by the animal or bird: see Regulation 42(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q1. Can taxi drivers smoke in the cabin without passengers? How about drinking and eating?

Q1. Can taxi drivers smoke in the cabin without passengers? How about drinking and eating?

Can taxi drivers smoke in the cabin without passengers?

 

No, a taxi driver cannot smoke even without passenger. No person shall smoke or carry a lighted cigarette, cigar or pipe in a public transport carrier, except that the registered taxi has been hired to any person under Regulation 38 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), under Schedule 1(4) of the Smoking (Public Health) Ordinance (Cap. 371): see Section 4 of the Smoking (Public Health) Ordinance (Cap. 371).

 

A public transport carrier includes taxi: see Section 2 of the Smoking (Public Health) Ordinance (Cap. 371).

 

There is no reason why taxi drivers themselves are exempted from Section 4 of the Smoking (Public Health) Ordinance (Cap. 371) as “no person” shall include the taxi drivers as well.

 

Any person who contravenes Section 4 of the Smoking (Public Health) Ordinance (Cap. 371) commits an offence and is liable on summary conviction to a fine at $5,000: see Section 7(1) of the Smoking (Public Health) Ordinance (Cap. 371).

 

How about drinking and eating?

 

Yes. There are no provisions under the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) prohibiting taxi drivers from drinking and eating on a taxi.

 

Q2. Can taxi drivers wear slippers when driving? Can taxi drivers be barefoot?

Q2. Can taxi drivers wear slippers when driving? Can taxi drivers be barefoot?

No. A taxi driver shall be clean and tidy in his person and adequately clothed: see Regulation 45(1)(b) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Wearing slippers or being barefoot are not “clean”, “tidy” or “adequately clothed”.

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under, regulation 45(1) commits an offence and is liable on conviction to a fine of $3,000 and to imprisonment for 6 months: see Regulation 57(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q3. Can taxi drivers solicit business by distributing business cards or advertising materials to passengers? Can they do so using smartphone apps or social media?

Q3. Can taxi drivers solicit business by distributing business cards or advertising materials to passengers? Can they do so using smartphone apps or social media?

No. No driver or person acting or purporting to act on behalf of the driver of a taxi, shall in any manner attract or endeavour to attract any person in order to induce such person to make use of the vehicle: see Regulation 40 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

“In any manner” means that distributing business cards, advertising materials to passengers or using smartphone apps or social media for the purpose of soliciting business are prohibited. 

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under Regulation 40 commits an offence and is liable on conviction to a fine at HK$10,000 and to imprisonment for 6 months.

 

Q4. Is it legal for taxi drivers to receive Lai See from passengers during the Lunar New Year?

Q4. Is it legal for taxi drivers to receive Lai See from passengers during the Lunar New Year?

While under Regulation 47(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), no registered owner or driver of a taxi shall charge for the hiring of the taxi a fare exceeding the appropriate scale of fares specified in Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), receiving Lai See from passengers is not an act of “charging” a taxi fare exceeding the appropriate scale of fares specified in Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) because the passengers voluntarily pay extra money to the taxi drivers.

 

Thus, it is legal for taxi drivers to receive Lai See from passengers during Lunar New Year.

 

Q5. Can taxi licence owners let their taxis to taxi drivers with criminal records?

Q5. Can taxi licence owners let their taxis to taxi drivers with criminal records?

The registered owner of a taxi may hire the vehicle to any person at a rate of hire based on the time during which the vehicle is hired with or without additional charge in respect of the mileage travelled by the vehicle while it is so hired, or on such other terms as may be agreed with the hirer: see Regulation 38(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Thus, the license owners of a taxi is free to let their taxis to “any person”, whether or not that person is with a criminal record.

 

However, if the criminal records are accompanied with a disqualification order of driving, the taxi driver whom the taxi was let must not drive while being disqualified. Otherwise, he or she would commit an offence under Section 44(1)(b) of the Road Traffic Ordinance (Cap. 374), and subject to other conditions, be liable to a fine of $10,000 and to imprisonment for 12 months.

 

Q6. What are the general rules of conduct for taxi drivers? What are the legal consequences if taxi drivers do not observe the general rules of conduct?

Q6. What are the general rules of conduct for taxi drivers? What are the legal consequences if taxi drivers do not observe the general rules of conduct?

  1. Obligation of taxi driver

 

Under Regulation 37 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the driver of a taxi shall not without reasonable excuse :-

 

  1. refuse to accept a hirer, including at a cross-harbour taxi stand where he may only refuse passengers who are not going across the harbour via the Cross-Harbour Tunnel, the Western Harbour Crossing or the Eastern Harbour Crossing;

 

  1. refuse to drive the hirer where he indicates to go;

 

  1. refuse to carry the number of passengers allowed by the vehicle license, as required by the hirer;

 

  1. drive to a destination specified by the hirer other than by the most direct practicable route;

 

  1. allow anyone else to enter the taxi without the hirer’s consent; and

 

  1. refuse to give a receipt to a person who has paid the fare for the hire.

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under Regulation 37(a), (b) or (d) commits an offence and is liable on conviction to a fine at HK$10,000 and to imprisonment for 6 months: see Regulation 57(4) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under Regulation 37(c), (e) or (f) commits an offence and is liable on conviction to a fine of $5,000 and to imprisonment for 6 months: see Regulation 57(3) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

  1. Cleanliness

 

The driver of a taxi shall ensure that the vehicle is kept in a clean and tidy condition: see Regulation 44 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under Regulation 44 commits an offence and is liable on conviction to a fine of $2,000: see Regulation 57(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

  1. General conduct of driver

 

Under Regulation 45(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), similar to a driver of a public bus, public light bus, a taxi driver :

 

  • shall behave in a civil and orderly manner;

 

  • shall be clean and tidy in his person and adequately clothed;

 

  • shall not smoke in or on the vehicle when it has passengers on board;

 

  • shall take all reasonable precautions to ensure the safety of passengers in or on or entering or alighting from the vehicle;

 

  • shall ensure that all exits of the vehicle, including emergency exits, are free from obstruction and, when passengers are on board, are not locked;

 

  • shall, if requested by any police officer or traffic warden in uniform or any person authorized by the Commissioner, give particulars of his name and address and the name and address of the licensee or owner by whom he is employed;

 

  • shall not, at any reasonable time, obstruct, or neglect to give all reasonable information and assistance to, any person having authority to examine the vehicle;

 

  • shall not cause the vehicle to remain stationary on a road longer than is necessary to pick up or set down passengers except at a stand or place where such vehicles are permitted to stop for a longer time than is necessary for that purpose;

 

  • shall not unreasonably delay the journey; and

 

  • shall not congregate or assemble with other drivers to the annoyance of members of the public.

 

Any person who without reasonable excuse contravenes Regulation 45(1) commits an offence and is liable on conviction to a fine of $3,000 and to imprisonment for 6 months: see Regulation 57(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Under Regulation 45(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), a driver, when in charge of a taxi, shall :-

 

  • not deceive or refuse to inform a passenger or intending passenger as to the proper fare and route to any place;

 

  • at all times when the taxi is available for hire or is hired, carry, for the purpose of giving change, not less than—

 

    • $90 in notes of a denomination of $10 or in coins of a denomination of $2 or more; and

 

    • $10 in coins of a denomination of $1 or less;

 

  • while the taxi is available for hire, not loiter or stop elsewhere than at a taxi stand except through accident or unavoidable cause;

 

  • while conveying passengers to or picking up passengers from any place of public amusement or assembly, draw up in order of arrival as near to the door or entrance thereto as is reasonably practicable and, subject to any direction by a police officer or traffic warden in uniform, drive the taxi away immediately after the passengers have alighted from or boarded the taxi in such manner as to cause the minimum of obstruction and congestion.

 

Any person who without reasonable excuse contravenes Regulation 45(2) commits an offence and is liable on conviction to a fine of $5,000 and to imprisonment for 6 months: see Regulation 57(3) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

  1. Use of taximeter, etc.

 

The driver of a taxi available for hire shall display the taximeter indicator; and during the hours of darkness keep the roof “TAXI” sign illuminated: see Regulation 49(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

The driver of a taxi as soon as the taxi has been hired shall move the taximeter indicator to the recording position and as soon as the hiring has terminated shall return the taximeter indicator to the non-recording position: see Regulation 49(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

The hiring of the taxi shall commence from the time at which the journey begins or the time at which the taxi is first made immediately available to the hirer at the time and place appointed by the hirer, whichever first occurs: see Regulation 49(3) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

If for the distance covered the taximeter records a fare clearly higher than the legal fare chargeable under Regulation 47, the hirer of the taxi shall not be obliged to pay to the driver more than the legal fare: see Regulation 49(4) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

  1. Receipts in respect of fares paid for hiring of a taxi

 

Under Regulation 49A(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), for receipts in respect of fares paid for hiring of a taxi, a receipt issued for the purposes of these regulations in respect of the payment of any fare for the hiring of a taxi shall—

 

  • be printed by the receipt printing device installed in respect of the taxi; and

 

 

Under Regulation 49A(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), where the receipt printing device installed in respect of a taxi is not in proper working order, a receipt issued for the purposes of these regulations in respect of the payment of any fare for the hiring of the taxi shall—

 

  • be issued by the driver of the taxi to whom the payment has been made; and

 

 

  1. Information to be displayed on certain public service vehicles

 

Under Regulation 51(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), when a taxi is standing or plying for hire the driver shall, subject to Regulation 51(1A) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), display so as to be clearly visible to any passenger travelling in the taxi and legible to the passenger –

 

  • a table showing in English and in Chinese characters the scale of fares chargeable in respect of the use of the taxi;

 

  • the registration mark of the vehicle; and

 

  • a taxi driver identity plate in a holder.

 

Under Regulation 51(1A) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), a table referred to in Regulation 51(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) shall be of a design and construction and displayed in such position in the taxi as specified by the Commissioner by notice published in the Gazette.

 

Under Regulation 51(4) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), no person shall drive a taxi when it is being used for the carriage of passengers for hire or reward unless there is displayed on the taxi or the public light bus a notice required to be displayed in accordance with Regulation 51(3) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), i.e. a notice to wear a seatbelt.

 

Under Regulation 51(5) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), no person shall drive a taxi when it is being used for the carriage of passengers for hire or reward unless there is displayed in the taxi, so as to be clearly visible to any passenger travelling in the taxi and legible to the passenger, a taxi driver identity plate in a holder, both of which comply with the requirements of Regulations 51(6) and 51(7) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Under Regulation 51(6) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the driver identity plate referred to in Regulation 51(1)(c), Regulation 51(5) and Regulation 51(5A) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) must :-

 

  • be a valid driver identity plate;

 

  • be of the size, design, form and construction, and displayed in the position in the taxi as specified by the Commissioner by notice in the Gazette;

 

  • show, in the case of a taxi driver identity plate, the captions “TAXI DRIVER IDENTITY PLATE” and “的士司機證;

 

  • show the driver’s full name as shown in his identity card in English and, where appropriate, in Chinese;

 

  • bear the driver’s photograph that is recent as at the date of issue;

 

  • show the date of issue and the date of expiry; and

 

  • not show or bear anything or matter that is not specified in paragraphs (b), (c), (d) and (da) or that is not in accordance with the form specified under paragraph (a).

 

Under Regulation 51(7) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), the holder referred to in Regulation 51(1)(c), Regulation 51(5) and Regulation 51(5A) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) must –

 

  • be of the size, design and construction, and displayed in the position in the taxi, as specified by the Commissioner by notice in the Gazette; and

 

  • show the registration mark of the taxi.

 

Any person who without reasonable excuse contravenes Regulation 51(1), (4), (5) commits an offence and is liable on conviction to a fine of $2,000: see Regulation 57(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q1. Is the charging model of Uber Taxi legal? Does it make any difference if the taxi licence owners have authorized the drivers to join the Uber Taxi (as hiring)?

Q1. Is the charging model of Uber Taxi legal? Does it make any difference if the taxi licence owners have authorized the drivers to join the Uber Taxi (as hiring)?

Uber has stated clearly how the fares are calculated on their website as of June 2022: There are times when so many people are requesting rides that there aren’t enough cars on the road to help take them all. Bad weather, rush hour, and special events, for instance, may cause unusually large numbers of people to want to request a ride with Uber all at the same time.

 

In these cases of very high demand, prices may increase to help ensure that those who need a ride can get one.”

 

Is the charging model of Uber Taxi legal?

 

The charging model of Uber Taxi is not illegal if it does not contravene any of the regulations under the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) and the Road Traffic Ordinance (Cap. 374).

 

Generally speaking, where the vehicle is licensed as taxi, it is legal for the taxi driver to drive it for carriage of passengers for hire or reward, even if the taxi driver receives passenger through the Uber Taxi App: see Section 52(3) of the Road Traffic Ordinance (Cap. 374).

 

However, the following should be noted :-

 

First, no registered owner or driver of a taxi shall charge for the hiring of the taxi a fare exceeding the appropriate scale of fares specified in Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D): see Regulation 47(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D). Thus, the charging model of Uber Taxi shall not cause the charge of the taxi fares exceeding the appropriate scale of fares specified in Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Second, the driver of a taxi shall not without reasonable excuse wilfully refuse or neglect to accept a hire from a hirer whether the intention of such hirer is indicated expressly or by implication: see Regulation 37(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D). Thus, a taxi driver who via the Uber Taxi App shall not refuse or neglect to accept a hire.

 

Does it make any difference if the taxi licence owners have authorized the drivers to join the Uber Taxi (as hiring)?

 

Section 52(3) of the Road Traffic Ordinance (Cap. 374) provides that no person shall drive or use a motor vehicle; or suffer or permit a motor vehicle to be driven or used, for the carriage of passengers for hire or reward unless the vehicle is licensed as a taxi.

 

Thus, so long as the vehicle is licensed as a taxi, a taxi licence owners can let the taxi to a taxi driver to join Uber Taxi under any hire agreement formed under Regulation 38 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D). It would not be illegal for the taxi driver to join the Uber Taxi in a criminal sense provided that there is no contravention of any sections or regulations under the Road Traffic Ordinance (Cap. 374).

 

Q2. Can the Uber Taxi driver charge the fare recorded on the taximeter while the passenger is expected to pay the price quoted by Uber Taxi app?

Q2. Can the Uber Taxi driver charge the fare recorded on the taximeter while the passenger is expected to pay the price quoted by Uber Taxi app?

The law only requires that the taxi driver charges no higher than the appropriate scale of fares specified in Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D): see Regulation 47(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

If it is agreed contractually via the Uber Taxi app that a fare less than the appropriate scale of fares specified in Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) is to be charged, the taxi driver is bound by that contract and cannot subsequently renege from his or her promise, provided that there is nothing illegal to charge lower than the scale specified in Schedule 5 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Thus, the Uber Taxi driver cannot subsequently charge the fare recorded on the taximeter when the passenger has only agreed to pay the price quoted by the Uber Taxi app and the Uber Taxi driver had agreed on it.

 

Q3. Taxi apps and telephone booking services match customers with taxi drivers. Will taxi drivers be charged with being wilfully refusing or neglecting to accept hire from a hirer if they refuse to take an order referred to or broadcasted to them?

Q3. Taxi apps and telephone booking services match customers with taxi drivers. Will taxi drivers be charged with being wilfully refusing or neglecting to accept hire from a hirer if they refuse to take an order referred to or broadcasted to them?

The driver of a taxi shall not without reasonable excuse willfully refuse or neglect to accept a hire from a hirer whether the intention of such hirer is indicated expressly or by implication: see Regulation 37(a) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Strictly speaking, a hire request via the taxi apps and telephone booking services is made to all drivers involving in that taxi apps and telephone booking services. Thus, if a taxi driver, having participated in such platform and is notified that there is a request for hire, in the absence of reasonable excuse, the taxi driver may not willfully refuse to neglect to accept a hire from that hirer, despite the fact that the hire request is made via an online or telephone platform.

 

G. Cabin Recording

G. Cabin Recording

 

Can a taxi driver use a car recorder to capture the dialogue with customers and publish the video clips, without the permission of the latter?

 

It depends on :-

 

  • purpose of the publication;

 

  • intention of the publication; and

 

  • whether it is foreseeable that the publication would or would likely cause any specified harm to the customers. 

 

Video clips capturing the dialogue with customers are personal data under Section 2 of the Personal Data (Privacy) Ordinance (Cap. 486).

 

Is it legal to collect personal data by means of a video recorder in a taxi?

 

Under Data Protection Principle 1(1) of the Personal Data (Privacy) Ordinance (Cap. 486),  personal data shall not be collected unless –

 

(a)   the data is collected for a lawful purpose directly related to a function or activity of the data user who is to use the data;

 

(b)   subject to paragraph (c), the collection of the data is necessary for or directly related to that purpose; and

 

(c)   the data is adequate but not excessive in relation to that purpose.

 

Lawful Purpose

 

A ‘lawful’ purpose is one that does not contravene a statutory provision or a relevant common law principle: see R v R [1991] 4 All ER 481 (HL). Video-recording of staff at the employer’s premises by the employer for monitoring of staff is ‘a lawful purpose’: see Re Chan Hui May Kiu [2014] HKCU 438 (unreported, CACV 4/2013, 21 February 2014) (CA).

 

Thus, if the collection of personal data is for a lawful purpose, for example, for prevention or detection of crime, the collection per se is for a lawful purpose and therefore is lawful.

 

However, if the collection of personal data is for a purpose which contravenes a statutory provision or a relevant common law principle, then the purpose and therefore the collection may not be lawful.

 

Article 30 of the Basic Law provides that :-

 

The freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.”

 

Article 14(1) of the Hong Kong Bill of Rights provides that :-

 

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”

 

Thus, if the purpose of collection by the taxi driver is arbitrary or unrelated to the prevention or detection of crime, or for a pure entertainment purpose, the collection would invade the freedom and privacy of communication and would be an arbitrary or unlawful interference with the customers’ privacy.

 

Thus, whether the collection is justified or lawful depends on the purpose of the collection.

 

Is it legal to publish the personal data captured by a video recorder in a taxi?

 

Under Data Protection Principle 3(1) of the Personal Data (Privacy) Ordinance (Cap. 486), personal data shall not, without the prescribed consent of the data subject, be used for a new purpose.

 

Prescribed Consent

 

Under Section 2(1) of the Personal Data (Privacy) Ordinance (Cap. 486), prescribed consent :-

 

(a)   means the express consent of the person given voluntarily;

 

(b)   does not include any consent which has been withdrawn by notice in writing served on the person to whom the consent has been given (but without prejudice to so much of that act that has been done pursuant to the consent at any time before the notice is so served).

 

New Purpose

 

Thus, it may not be legal to publish the personal data without the prescribed consent of the customers if the publication itself constitutes a new purpose.

 

The original purpose of capturing the dialogue with customers may be to detect crime, provide proof for civil action etc.. Thus, it is reasonably expected that the personal data would be used only for the purpose of defection of crime etc., such as submitting the person data to police or to a lawyer.

 

In the premises, since publication of the personal data goes beyond the ambit of original purpose and has constituted a new purpose, the prescribed consent of the customers is required.

 

In the absence of a prescribed consent, any publication would contravene Data Protection Principle 3(1) of the Personal Data (Privacy) Ordinance (Cap. 486).

 

Are there any lawful purposes of capturing dialogues with taxi customers? Can the purposes listed in Section 58(1)(a)(d)(e) apply in this context?

 

A lawful purpose is one that does not contravene a statutory provision or a relevant common law principle: see R v R [1991] 4 All ER 481 (HL).

 

The purposes listed in Section 58(1)(a)(d)(e) of the Personal Data (Privacy) Ordinance (Cap. 486) are :-

 

  • the prevention or detection of crime;

 

  • the prevention, preclusion or remedying (including punishment) of unlawful or seriously improper conduct, or dishonesty or malpractice, by persons;

 

  • the prevention or preclusion of significant financial loss arising from—

 

  • any imprudent business practices or activities of persons;

 

or

 

  • unlawful or seriously improper conduct, or dishonesty or malpractice, by persons.

 

Section 58(1)(a)(d)(e) does not directly apply to Data Protection Principle 1, as Section 58 of the Personal Data (Privacy) Ordinance (Cap. 486) is concerned with the exemption of application of Data Protection Principle 3 and 6 under certain conditions: see Section 58(1) and (3) of the Personal Data (Privacy) Ordinance (Cap. 486). However, Section 58(1)(a)(d)(e) of the Personal Data (Privacy) Ordinance (Cap. 486) are still lawful purposes of capturing dialogues with taxi customers under Data Protection Principle 1.

 

What is the proper manner of collecting such personal data? Is a notice needed to explicitly inform the customer of such data collection?

 

Under Data Protection Principle 1(2) of the Personal Data (Privacy) Ordinance (Cap. 486), personal data shall be collected by means which are—

 

(a)   lawful; and

 

(b)   fair in the circumstances of the case.

 

Thus, the personal data must be collected by lawful means.

 

The following circumstances may be unfair :-

 

(1)   Misrepresenting matters to the data subject, be it identity of the data collector, the purposes for which the data will be used or the consequences of not providing the data;

 

(2)   Applying undue pressure on the data subject.

 

Thus, it would be fair in the circumstances for taxi driver to notify customers orally or in writing, that his or her communication is recorded.

 

Obligation of notification

 

Under Data Protection Principle 1(3) of the Personal Data (Privacy) Ordinance (Cap. 486), where the person from whom personal data is or is to be collected is the data subject, all practicable steps shall be taken to ensure that—

 

  • he is explicitly or implicitly informed, on or before collecting the data, of—

 

  • whether it is obligatory or voluntary for him to supply the data; and

 

  • where it is obligatory for him to supply the data, the consequences for him if he fails to supply the data; and

 

  • he is explicitly informed—

 

  • on or before collecting the data, of—

 

  • the purpose (in general or specific terms) for which the data is to be used; and

 

  • the classes of persons to whom the data may be transferred; and

 

  • on or before first use of the data for the purpose for which it was collected, of—

 

  • his rights to request access to and to request the correction of the data; and

 

  • the name or job title, and address, of the individual who is to handle any such request made to the data user,

 

unless to comply with the provisions of this subsection would be likely to prejudice the purpose for which the data was collected and that purpose is specified in Part 8 of the Personal Data (Privacy) Ordinance (Cap. 486) as a purpose in relation to which personal data is exempt from the provisions of Data Protection Principle 6 of the Personal Data (Privacy) Ordinance (Cap. 486).

 

Thus, under Data Protection Principle 1(3) of the Personal Data (Privacy) Ordinance (Cap. 486), a data user shall take all practicable steps to notify the data subject the purpose of collection of the personal data, unless to comply with this requirement would be likely to prejudice the purpose for which the data was collected.

 

A notice explicitly informing passengers of the collection of personal data is practicable. Thus, it is submitted that a taxi driver shall notify the customers of such data collection.

 

According to Privacy Commissioner Responses to Media Enquiry on the Issue of Installation of Photographic and Audio Equipment in Taxis dated 19 September 2016 at paragraph 6 (English Translation):-

 

6. When deciding to perform recording, [the owner of taxi / driver of taxi shall consider the reasonableness of the surveillance, inform the person being affected (including the passenger) about the surveillance activity, and properly handle the method of surveillance record. The Privacy Commissioner for Personal Data suggested the relevant industry or taxi’s driver to :-

 

To display a poster containing relevant information (e.g. stating that the passenger’s activities inside the taxi compartment would be monitored, the purpose of installation of surveillance system, the information relating to the contact details of the person operating the surveillance system and the person responsible for handling private information or problems) at a conspicuous position, such as the window at the back passenger row, the back of front passenger’s seat or at the position of the camera, and that the content of the poster shall be clear and easy to understand, in order to have the effect of reminder and to avoid unnecessary dispute. On the other hand, as a good course of conduct, the relevant taxi driver shall, at the time when the passenger boarded the taxi, orally informed the passenger that there is a surveillance system inside the compartment of taxi, and to give passenger autonomous and well-formed choice, to let the passenger to decide whether to board on that taxi or not.

 

The area of surveillance should be limited to the located and time needed, and it shall be good that the number of cameras be enough and to ensure the monitoring of relevant person be reduced.

 

Be careful in possessing and handling surveillance record (prescribe information’s retained period, and to account for who have actually checked the video recording.”

 

While the Privacy Commissioner for Personal Data only “suggested” taxi driver to display poster containing relevant information of data collection at a conspicuous position, it is submitted that under Data Protection Principle 1(3), a taxi driver shall take all practicable steps to inform the data subject of the purpose of data collection. Such obligation may be statutory.

 

After capturing the video clips, how should the taxi drivers manage the data to ensure that they will not contravene Principles 2 and 4?

 

Under Data Protection Principle 2 of the Personal Data (Privacy) Ordinance (Cap. 486) :-

 

(1)   All practicable steps shall be taken to ensure that—

 

(a)   personal data is accurate having regard to the purpose (including any directly related purpose) for which the personal data is or is to be used;

 

(b)   where there are reasonable grounds for believing that personal data is inaccurate having regard to the purpose (including any directly related purpose) for which the data is or is to be used— 

 

(i)              the data is not used for that purpose unless and until those grounds cease to be applicable to the data, whether by the rectification of the data or otherwise; or

 

(ii)            the data is erased;

 

(c)   where it is practicable in all the circumstances of the case to know that—

 

(i)              personal data disclosed on or after the appointed day to a third party is materially inaccurate having regard to the purpose (including any directly related purpose) for which the data is or is to be used by the third party; and

 

(ii)            that data was inaccurate at the time of such disclosure,

 

that the third party—

 

(A)  is informed that the data is inaccurate; and

 

(B)  is provided with such particulars as will enable the third party to rectify the data having regard to that purpose.

 

(2)   All practicable steps must be taken to ensure that personal data is not kept longer than is necessary for the fulfilment of the purpose (including any directly related purpose) for which the data is or is to be used.

 

(3)   Without limiting subsection (2), if a data user engages a data processor, whether within or outside Hong Kong, to process personal data on the data user’s behalf, the data user must adopt contractual or other means to prevent any personal data transferred to the data processor from being kept longer than is necessary for processing of the data.

 

(4)   In subsection (3)—

 

data processor (資料處理者) means a person who—

 

(a)   processes personal data on behalf of another person; and

 

(b)   does not process the data for any of the person’s own purposes.

 

Under Data Protection Principle 4 of the Personal Data (Privacy) Ordinance (Cap. 486) :-

 

(1)   All practicable steps shall be taken to ensure that any personal data (including data in a form in which access to or processing of the data is not practicable) held by a data user is protected against unauthorized or accidental access, processing, erasure, loss or use having particular regard to—

 

(a)   the kind of data and the harm that could result if any of those things should occur;

 

(b)   the physical location where the data is stored;

 

(c)   any security measures incorporated (whether by automated means or otherwise) into any equipment in which the data is stored;

 

(d)   any measures taken for ensuring the integrity, prudence and competence of persons having access to the data; and

 

(e)   any measures taken for ensuring the secure transmission of the data.

 

(2)   Without limiting Data Protection Principle 4(1), if a data user engages a data processor, whether within or outside Hong Kong, to process personal data on the data user’s behalf, the data user must adopt contractual or other means to prevent unauthorized or accidental access, processing, erasure, loss or use of the data transferred to the data processor for processing.

 

A contravention of Data Protection Principles of the Personal Data (Privacy) Ordinance (Cap. 486) would not automatically trigger criminal liability or prosecution. An individual or a relevant person on behalf of an individual may make a complaint to the Privacy Commissioner for Personal Data about an act or practice in contravention of the Data Protection Principles: see Section 37 of the Personal Data (Privacy) Ordinance (Cap. 486).

 

The Privacy Commissioner for Personal Data may carry out investigation under Section 38 of Personal Data (Privacy) Ordinance (Cap. 486).

 

If, following the completion of an investigation, the Privacy Commissioner for Personal Data is of the opinion that the relevant data user is contravening or has contravened a requirement under this Ordinance, the Privacy Commissioner for Personal Data may serve on the data user a notice in writing, directing the data user to remedy and, if appropriate, prevent any recurrence of the contravention: see Section 50 of the Personal Data (Privacy) Ordinance (Cap. 486).

 

Under Section 50A of the Personal Data (Privacy) Ordinance (Cap. 486), a data user who contravenes an enforcement notice commits an offence and is liable—

 

  • on a first conviction—

 

  • to a fine at $50,000 and to imprisonment for 2 years; and

 

  • if the offence continues after the conviction, to a daily penalty of $1,000; and

 

  • on a second or subsequent conviction—

 

  • to a fine at $100,000 and to imprisonment for 2 years; and

 

  • if the offence continues after the conviction, to a daily penalty of $2,000.

 

Exemptions:

 

The Personal Data (Privacy) Ordinance (Cap. 486) provides certain exemptions from the provisions of Data Protection Principle 3 of Personal Data (Privacy) Ordinance (Cap. 486). Examples include:

 

 

 

 

 

 

Using personal data with an intent or effect to cause specified harm to the data subject

 

Under Section 64(3A) of the Personal Data (Privacy) Ordinance (Cap. 486), a person commits an offence if the person discloses any personal data of a data subject without the relevant consent of the data subject—

 

  • with an intent to cause any specified harm to the data subject or any family member of the data subject; or

 

  • being reckless as to whether any specified harm would be, or would likely be, caused to the data subject or any family member of the data subject.

 

A person who commits an offence under Section 64(3A) of the Personal Data (Privacy) Ordinance (Cap. 486) is liable on conviction to a fine at $100,000 and to imprisonment for 2 years.

 

If the disclosure causes any specified harm to the data subject or any family member of the data subject, the person commits an offence under Section 64(3C) of the Personal Data (Privacy) Ordinance (Cap. 486) and is liable on conviction on indictment to a fine of $1,000,000 and to imprisonment for 5 years.

 

Specified harm (指明傷害), in relation to a person, means—

 

  • harassment, molestation, pestering, threat or intimidation to the person;

 

  • bodily harm or psychological harm to the person;

 

  • harm causing the person reasonably to be concerned for the person’s safety or well-being; or

 

  • damage to the property of the person.

 

Defences:

 

In any proceedings for an offence under Section 64(3A) or 64(3C) of the Personal Data (Privacy) Ordinance (Cap. 486), it is a defence for the person charged to establish that—

 

  • the person reasonably believed that the disclosure was necessary for the purpose of preventing or detecting crime;

 

  • the disclosure was required or authorized by or under any enactment, by any rule of law or by an order of a court;

 

  • the person reasonably believed that the disclosure was made with the consent of the data subject; or

 

  • the person disclosed the personal data solely for a purpose of a lawful news activity and had reasonable grounds to believe that the publishing or broadcasting of the personal data was in the public interest.

 

Thus, a taxi driver cannot publish video clips from a car recorder capturing the dialogue with customers, without the permission of the latter, if :-

 

(1)   the publication constitutes a new purpose and there is no applicable statutory exemptions;

 

(2)   the publication is with an intent or effect to cause specified harm to the data subject or is reckless as to whether such harm would be caused, without any defence listed above.

Q1. What are the general rules of conduct for passengers? What are the legal consequences if passengers do not observe the general conduct?

Q1. What are the general rules of conduct for passengers? What are the legal consequences if passengers do not observe the general conduct?

Requirement to wear seatbelt

 

A passenger of a taxi shall be securely fastened to his seat by means of a seat belt, if any, provided for his seat: see Regulations 7A and 7B of the Road Traffic (Safety Equipment) Regulations (Cap. 374F).

 

Any person who contravenes Regulations 7A(1) or (2), 7B(1) or (5) of Road Traffic (Safety Equipment) Regulations (Cap. 374F) commits an offence and is liable to a fine of $5,000 and to imprisonment for 3 months: see Regulation 12(1) of Road Traffic (Safety Equipment) Regulations (Cap. 374F).

 

A passenger in a taxi who is required by Regulations 7A and 7B of the Road Traffic (Safety Equipment) Regulations (Cap. 374F) to wear a seat belt but who refuses or fails to do so shall leave the vehicle if so required by the driver, an authorized person, or a police officer; and in the case of a taxi, pay the legal fare then recorded on the taximeter: see Regulation 45A of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under Regulation 45A of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) commits an offence and is liable on conviction to a fine of $3,000 and to imprisonment for 6 months.

 

General conduct of passenger

 

Under Regulation 46(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D), similar to that of a public bus or public light bus, a passenger or intending passenger on a taxi shall not—

 

  1. use obscene or offensive language or conduct himself in a disorderly manner;

 

  1. wilfully obstruct, impede or distract the driver of the vehicle or an authorized person;

 

  1. wilfully do or cause to be done with respect to any part of the vehicle or its equipment, or any accessory thereto, anything which is calculated—

 

    1. to obstruct or interfere with the working of the vehicle or to cause damage; or

 

    1. to cause injury, discomfort, annoyance or inconvenience to any other person;

 

  1. spit or wilfully damage, soil, deface or defile any part of the vehicle or any equipment thereon, or any accessory thereto;

 

  1. wilfully remove, displace, deface or alter any number plate, fare table, route indicator or destination board or any printed or other notice or advertisement in or on the vehicle;

 

  1. drive the vehicle, or interfere with its doors or any other mechanism, device or control which forms part of the vehicle or which is connected with the vehicle;

 

  1. enter or alight from the vehicle while it is in motion;

 

  1. when entering or attempting to enter the vehicle—

 

    1. impede any passenger seeking to enter or alight from the vehicle; or

 

    1. behave in any other manner which is likely to delay the vehicle;

 

  1. enter, remain or travel in or on the vehicle while in possession of—

 

    1. any firearm, unless he is a police officer, or member of the Hong Kong Auxiliary Police Force under the Hong Kong Auxiliary Police Force Ordinance (Cap. 233) or of the Customs and Excise Service under the Customs and Excise Service Ordinance (Cap. 342), and is on duty; or

 

    1. any other dangerous or offensive article;

 

  1. enter or remain in or on the vehicle when requested not to do so by the driver or an authorized person on the grounds that—

 

    1. the petrol or oil tank of the vehicle is to be filled;

 

    1. the vehicle is carrying its full complement of passengers; or

 

    1. the driver or licensee is debarred, by reason of any enactment or by reason of any condition attached to the vehicle licence or passenger service licence issued in respect of the vehicle, from permitting any passenger to enter or remain in the vehicle at the place in question;

 

  1. enter or alight from the vehicle when requested not to do so by the driver or an authorized person on the grounds that, by reason of any enactment or by reason of any condition attached to the vehicle licence or passenger service licence issued in respect of the vehicle, the place in question is a place where—

 

    1. the vehicle is not permitted to stop; or

 

    1. the passengers are prohibited from entering or alighting from the vehicle;

 

  1. if his condition is such as to be offensive to passengers on the vehicle, or the condition of his dress or clothing is such that it may be reasonably expected to soil or injure any lining, cushion, seat or other part of the vehicle or the clothing of any passenger on the vehicle, enter or remain in or on the vehicle after the driver of the vehicle, or an authorized person or police officer, has requested him—

 

    1. not to enter the vehicle; or

 

    1. to leave the vehicle,

 

by reason of his condition or of the condition of his dress or clothing;

 

  1. bring any article into or onto the vehicle without the permission of the driver or an authorized person, or place such article in any place in which such driver or authorized person may have requested him not to place such article;

 

  1. when in or on the vehicle—

 

    1. use or operate to the annoyance of any other person any noisy or musical instrument or any gramophone, radio or tape player;

 

    1. make or combine with any other person to make excessive noise by singing or shouting;

 

    1. throw within the vehicle or on to any road or footway any article or thing;

 

    1. attach to or trail from the vehicle any streamer, balloon, flag or other article or set or put anything out of the vehicle in such manner as to overhang the road; or

 

    1. lean out or put any limb out of the vehicle in such manner as to overhang the road.

 

Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under Regulation 46 commits an offence and is liable on conviction to a fine of $3,000 and to imprisonment for 6 months: See Regulation 57(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q2. How should lost property left on taxi be dealt with?

Q2. How should lost property left on taxi be dealt with?

Lost property found by passengers

 

Any person who finds any property accidentally left in a taxi shall immediately hand it in the state in which he finds it to the driver or an authorized person, who shall deal with it in accordance with the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D): see Regulation 53 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Search for lost property

 

Immediately after the termination of every journey or hiring of a taxi, the driver or an authorized person shall carefully search the vehicle to ascertain whether any property has been accidentally left therein and if the vehicle is not searched by the driver or an authorized person at the termination of the journey or hiring it shall be done as soon as is practicable thereafter: see Regulation 54 of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Disposal of lost property

 

Under Regulation 55(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) :-

 

  • Any driver who finds any property left in a taxi or any person to whom any such property is handed shall, within 6 hours, deposit such property at a police station in the state in which it was found by or handed to him and shall truly state the particulars of such finding:

 

  • Provided that if such property is sooner claimed by the owner thereof and satisfactory proof of ownership is given, it shall be restored to the owner forthwith instead of being deposited at a police station.

 

Any property deposited in a police station in accordance with the provisions of Regulation 55(1) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D) shall be disposed of in accordance with sections 40, 41 and 43 of the Police Force Ordinance (Cap. 232): see Regulation 55(2) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

6. Complaint Mechanism of Public Transport

6. Complaint mechanism of public transport

Transport Complaints Unit

 

The Transport Complaints Unit (TCU) was set up under the Transport Advisory Committee in 1980 to receive and handle complaints and suggestions from the public on transport matters. All the complaints and suggestions received by TCU will be referred to the relevant government departments and public transport operators for follow-up action (extract from the homepage of the Transport Advisory Committee, Transport Complaints Unit at https://www.tcu.gov.hk/eng/index.html).

 

Citizens who would like to launch a complaint on transport or traffic matters may access and fill in the complaint form at https://www.tcu.gov.hk/eng/traffic-complaint.html. For complaint on taxis, please fill in the Taxi Complaint Form.

 

Transport Department

 

The Transport Department is the authority for administering the Road Traffic Ordinance and legislation for the management of road traffic, regulation of public transport services and operation of major transport infrastructures (extract from the homepage of the Transport Department at https://www.td.gov.hk/en/about_us/welcome_message/index.html).

 

The Commissioner for Transport in the Transport Department is responsible for the management of traffic and transport planning in HK. The role of the Commissioner for Transport includes that to register and license vehicles, rails and bus operators. The regulation of registration and licensing of vehicles can be found under Section 6 of the Road Traffic Ordinance (Cap 374).

 

Police

 

The public should report to the HK Police Force if it is apparent to them laws under any Ordinance, Regulation and By-laws are contravened. Law enforcement and investigation proceedings will be commenced thereon. The contact details of police report rooms can be found at https://www.police.gov.hk/ppp_en/contact_us.html#IslandRR.

 

In relation to road safety enforcement, if a driver (a) is involved in a traffic accident; (b) has committed a traffic offence while the vehicle is in motion; or (c) is suspected of driving under the influence of specified illicit drugs or other drugs or driving after use or consumption of specified illicit drugs, a police officer may require the driver to undergo one or more of the following preliminary drug tests either at roadside or in a police station (a) Drug Influence Recognition Observation; (b) Impairment Test (extract from https://www.td.gov.hk/en/road_safety/safe_motoring_guides/drug_driving/index/police_enforcement/index.html).

 

 

Q1. What could the passengers do if they wish to lodge complaints to drivers of public transport services?

Q1. What could the passengers do if they wish to lodge complaints to drivers of public transport services?

Citizens who would like to launch a complaint on transport or traffic matters may access and fill in the complaint form at https://www.tcu.gov.hk/eng/traffic-complaint.html. For complaint on taxis, please fill in the Taxi Complaint Form at https://www.tcu.gov.hk/eng/taxi-complaint.html.

 

Strictly speaking, a passenger can directly report to police if there is any suspected contravention of any provisions, regulations or requirements under the Public Bus Services Regulations (Cap. 230A) or the Road Traffic (Public Service Vehicles) Regulations (Cap. 374D).

 

Q2. What could the drivers of public transport services do when they receive complaints from passengers that they regard as unjustified?

Q2. What could the drivers of public transport services do when they receive complaints from passengers that they regard as unjustified?

The driver may ask the passenger to file a complaint at the Transport Complaint Unit, which would investigate into the case and decide whether it is substantiated. The Transport Complaint Unit deals with over 30,000 cases yearly and provides readily accessible electronic complaint forms to prospective complainants at https://www.tcu.gov.hk/eng/traffic-complaint.html.

 

What kind of resources can the drivers use if they have received complaint from the passengers?

 

If a driver receives a complaint from passenger, the driver is of course entitled to use any evidence available to him to disprove any complaint or charge against him, this would include the video clips that recorded the dialogue between them and the passengers as evidence.

 

What kind of procedures would they need to face?

 

According to website of Transport Complaints Unit (see:  https://www.tcu.gov.hk/chi/index.html), all the complaints and suggestions received by Transport Complaint Unit will be referred to the relevant government departments and public transport operators for follow-up action.

 

According to Transport Complaints Unit Report 2020 (https://www.tcu.gov.hk/annual/docs/tcu2020.pdf) at paragraph 3, investigations were to be conducted. After investigation, the result would be categorized as “substantiated”, “unsubstantiated”, or not pursuable due to lack of evidence. For “substantiated” cases, relevant government departments / public transport operators had either taken steps to rectify the situation or were considering possible solutions to the problems identified.

 

If the complainants agreed to be court witnesses, the cases would be referred to the Police for further investigation. Amongst the cases referred to the police, some drivers were summonsed.

 

Do they need to hire a lawyer?

 

Once an investigation is laid against the drivers, whether by the Transport Complaint Unit or the Police, a potential criminal charge may be laid against the drivers. Thus, in order to protect the drivers’ interests or ensure the drivers be well-informed of their legal rights, they may have to hire lawyer throughout the investigation process.

 

Is there any means for them to reconcile with the passengers, or minimize the potential cost to be paid?

 

It depends on whether the disputes between the drivers and passengers are giving rise to a civil claim or potential criminal offence.

 

Where the disputes between the drivers and the passengers only give arise to a contractual dispute, for example, whether the drivers have breached any terms of a contract, it is up to the parties to reconcile either by themselves or to resort any alternative disputes resolution instead of litigation.

 

However, where the disputes between the passengers and the drivers are caused by a potentially criminal conduct on the part of the driver or giving rise to a potential criminal proceeding, to reconcile may amount to a concealment of the commission of an offence. This may amount to perverting the course of public justice. 

 

Thus, in a criminal context, there may not be any other means for drivers and passengers for reconciliation.

 

7. Unlicensed Services (Uber)

7. Unlicensed Services (Uber)

As said by the Court of Final Appeal in HKSAR v Yuong Ho Cheung & Ors [2020] HKCFA 29, over the past decade, a form of transport has developed in many cities around the world from the use of new computer and internet technologies, including mapping and payment software programmes, that enable drivers of cars and passengers to locate one another, whether or not through third parties, and to request, provide and pay for carriage through the medium of their smartphones.

 

The use of Uber in Hong Kong has no doubt been prevalent in Hong Kong. However, the legality of it has been questioned by many, for example, where Uber is running a business without licence as a taxi driver do.

 

In the following section, we would explore whether the service of Uber or Uber Taxi is legal or illegal.

 

Q1. Is Uber legal?

Q1. Is Uber legal?

 

No, it is illegal.

 

The Hong Kong Court of Final Appeal had reaffirmed the illegality of Uber in the case HKSAR v Yuong Ho Cheung & Ors [2020] HKCFA 29. Under Section 52(3) of the Road Traffic Ordinance (Cap. 374) :-

 

No person shall—

 

(a) drive or use a motor vehicle; or

 

(b) suffer or permit a motor vehicle to be driven or used, for the carriage of passengers for hire or reward unless –

 

(i) the vehicle is licensed as a public bus, public light bus or taxi;

 

(ii) the vehicle is licensed as a private bus and the passengers are students, teachers or employees of an educational institution, disabled persons, or persons employed to assist disabled persons;

 

(iia) the vehicle is licensed as a private light bus and is used—

 

(A) as a school private light bus; or

 

(B) exclusively for the carriage of persons who are disabled persons and persons assisting them; or

 

(iii) a hire car permit is in force in respect of the vehicle.”

 

Since Uber is not licensed as a public bus, public light bus or taxi, the driver of Uber vehicle may be treated as driving or using a motor vehicle for the carriage of passengers for hire or reward, in the absence of any licence. The driver of Uber may be charged under Section 52(3)(a)(i) of the Road Traffic Ordinance (Cap. 374).

 

For the owner of the Uber vehicle, he or she may be charged under Section 52(3)(b)(i) of the Road Traffic Ordinance (Cap. 374) for suffering or permitting a motor vehicle to be driven or used for the carriage of passengers for hire, in the absence of any licence, provided that the owner of the vehicle has the requisite knowledge or intention or recklessness.

 

Any person who contravenes Section 52(3) of the Road Traffic Ordinance (Cap. 374) commits an offence and is liable in the case of a first conviction for that offence to a fine at $5,000 and to imprisonment for 3 months, and in the case of a second or subsequent conviction for that offence to a fine at $10,000 and to imprisonment for 6 months: see Section 52(10) of the Road Traffic Ordinance (Cap. 374).

 

Q2. Are Uber drivers and passengers insured?

Q2. Are Uber drivers and passengers insured?

Uber drivers

 

Since a third party insurance would only cover passengers or other third parties, Uber drivers may not be insured.

 

Passengers

 

Most motor vehicle drivers in Hong Kong have purchased third party insurances, since it is a legal requirement under Section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272).

 

Despite the fact that Uber is not legal in Hong Kong, insurance company may nevertheless provide compensation to the victims injured in the accident pursuant to the third party insurance. However, whether the injured would ultimately be compensated depends on the terms of the insurance contract and the illegality of Uber might be a factor weight against the covering of insurance.

 

In the event that, the third party insurance does not cover the injury of the passengers of a Uber car, the passengers might only have a cause of action of negligence against the Uber driver.

 

Q3. Do Uber passengers who merely take a ride commit any offences?

Q3. Do Uber passengers who merely take a ride commit any offences?

Under the current law, there is no explicit prohibition on the taking a Uber ride. Thus, Uber passengers merely taking a ride may not commit any offences. As said by the Court of Final Appeal in HKSAR v Yuong Ho Cheung & Ors [2020] HKCFA 29:

 

Whether ride hailing services should be permitted to operate in Hong Kong, on the other hand, is a question of transport policy, not a question of law, and is not a matter for the Court to determine.”

 

It is difficult to establish that merely by taking a ride, Uber passengers are aiding, abetting, counselling or procuring the “driving”, “use”, “suffering or permitting a vehicle to be driven or used” of a Uber driver, because it is the voluntary and conscious decision of driver and/or owner to drive or use or suffer or permit to be driven or used the vehicle for carriage of passengers for hire or reward. A passenger did not take part in that particular decision to drive a Uber vehicle. A passenger did not aid, abet, counsel or procure a driver or owner of vehicle to drive, use, or suffer or permit the vehicle to be driven or used for that commercial purpose prohibited by the law. Thus, it is difficult to establish that a passenger is aiding, abetting, counselling or procuring driver’s commission of the offence under Section 52(3) of the Road Traffic Ordinance (Cap. 374).

 

Q4. If Uber or Uber Taxi is illegal, does the media broadcasting its advertisement to recruit drivers commit any offence?

Q4. If Uber or Uber Taxi is illegal, does the media broadcasting its advertisement to recruit drivers commit any offence?

A media broadcasting the advertisement to recruit drivers may constitute incitement to commit an offence, i.e., to inciting or inviting any person to become an Uber driver to suffer or permit a motor vehicle to be driven or used for the carriage of passengers for hire or reward. This is because the practical effect of allowing an advertisement to be published is to incite or invite any person to become an Uber driver, which is illegal.

 

However, the prosecution may still have to prove beyond reasonable doubt that the media intends to incite any person to become an Uber driver. Recklessness is not the requisite mens rea for incitement. The inciter must intend the other person to commit the substantive offence.

 

If it must be proved that the media by the act of broadcasting intended to incite any person to become an Uber driver, evidence to that effect must be adduced.

 

If the media has not read the advertisement before the publication, it could not be said that the media intends to incite any person to become an Uber driver.

 

Thus, it depends on the statement of the mind of the media at the time of the publication of the advertisement.

 

Q6. Some car-sharing apps can match people who wish to rent a car for a day and people who have a spare car to rent out at a cost. Can a private car owner rent his car to someone else? What is the potential risk to the car owner and the car renter? Does it make a difference if he just lends his car to a friend without charging him a fee?

Q6. Some car-sharing apps can match people who wish to rent a car for a day and people who have a spare car to rent out at a cost. Can a private car owner rent his car to someone else? What is the potential risk to the car owner and the car renter? Does it make a difference if he just lends his car to a friend without charging him a fee?

Can a private car owner rent his car to someone else?

 

Under Section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272) :

 

Subject to the provisions of this Ordinance it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Ordinance.”

 

A private car owner may only rent his car to someone else if there is in force a policy of insurance in relation to the user of the vehicle by that person or that other person. Thus, unless there is in force an insurance policy in relation to the renter driver of the motor vehicle, any person may not rent a motor vehicle in the absence of such third party insurance policy protecting him or her against third party’s claim.

 

For the person who rented his car out, knowing that the renter of the car may not be covered under a third party insurance, he may be liable to “causing or permitting any other person to use a motor vehicle” without insurance.

 

The coverage of insurance policy is also a vital factor. Where the insurance policy only covers a private user instead of a commercial user, the rent of a car for commercial gain may not be covered under the original insurance policy.

 

However, some motor policy often contains a provision extending the insurance cover to any person driving the insured car on the order or with the permission of the assured but such kind of cover usually only apply to third party risks. Where the original motor policy contains a provision covering the insurance of a permitted driver, both the person who rented out the car or the person who rented the car may not contravene Section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272).

 

What is the potential risk to the car owner and the car renter:

 

Both the car owner and the car renter may be liable under Section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272) for “using”, or “causing or permitting any other person to use” a motor vehicle in the absence of a third party motor insurance in force.

 

Under Section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272), if a person acts in contravention of this section, he shall be liable to a fine at HK$10,000 and to imprisonment for 12 months, and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction.

 

For the car renter, in the absence of any third party insurance, any third parties may directly claim against that car renter instead of the insurer. Thus, there would be a risk of legal liability.

 

Does it make a difference if he just lends his car to a friend without charging him a fee?

 

No. The fact that the car is lent without charge does not exonerate the car driver or the renter/friend from ensuring that there is in force a policy of insurance in relation to the user of the vehicle by that person or that other person. Thus, it doesn’t matter whether the car owner lent his car for fee or not, a third party insurance is required and any default in purchasing an insurance would be contravention of Section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272).

 

Q7. Some ride-sharing apps can match passengers and drivers who wish to travel on the same route at the same time. Can a private car owner ride someone else who will reimburse him a small sum for the fuel cost and toll fee? What is the potential risk to the car owner (usually the driver) and the passengers?

Q7. Some ride-sharing apps can match passengers and drivers who wish to travel on the same route at the same time. Can a private car owner ride someone else who will reimburse him a small sum for the fuel cost and toll fee? What is the potential risk to the car owner (usually the driver) and the passengers?

Can a private car owner take on a passenger who will  reimburse him a small sum for the fuel cost and toll fee?

 

Under Section 52(3)(b)(iii) of the Road Traffic Ordinance (Cap. 374), no person shall drive or use a motor vehicle for the carriage of passengers for hire or reward unless a hire car permit is in force in respect of the vehicle.

 

However, in HKSAR v Yuong Ho Cheung & Ors [2020] HKCFA 29, it was held that :

 

48. The hire or reward arrangement envisaged in s.52(3) is a business one. In this context, it is useful to refer to the House of Lords’ decision in Albert v Motor Insurers’ Bureau. Although the issue in that case concerned whether a particular arrangement was carriage that required the driver to have compulsory third party insurance, the ratio of the decision was that “‘a vehicle in which passengers are carried for hire or reward’ meant a vehicle used for the systematic carrying of passengers for reward, not necessarily on a contractual basis, going beyond the bounds of mere social kindness and amounting to a business activity”. The point is perhaps most helpfully expressed by Lord Pearson in his speech where he said:

 

“One cannot fail to observe that a private motor car has passenger seats. The owner-driver of a private motor car can very easily be helpful and obliging to friends and acquaintances by giving them lifts in his car. He may himself like to have company on his journeys, but still he is conferring a favour. The passengers may, especially when this happens frequently, think it fitting that they should in return for the favour confer some benefit on the owner-driver. Many co-operative or reciprocal arrangements, which are natural uses of a private motor car, were suggested in the course of the argument. For instance, A and B may for their weekly game of golf travel to the golf course in A’s car driven by A, and B make his contribution by paying for A’s lunch or green fee or for the petrol that is bought on the journey. Mothers of children going to the same school may take turns at driving the children to and from the school. A party of men living in the same village and going to work in a city may take turns at driving the party in their respective cars. So long as such arrangements do not acquire the character of business arrangements they should be regarded as natural ways of using a private car as such and should not be regarded as involving the carriage of passengers for hire or reward.”

 

Thus, whether  ride-sharing apps matching passengers and drivers wishing to travel on the same route but the passengers only need to reimburse the drivers  for fuel cost and toll fee would be permissible depends on whether the whole arrangement amounts to business activity and there is a systematic carrying of passengers for reward (but not necessarily need to be on a contractual basis), going beyond the bounds of mere social kindness.

 

Therefore, it is likely that ridesharing is not a business. The ride-sharer only shares the cost, e.g. fuel cost, toll fee, with other passengers. There is no profit gain on the part of the car driver, but only cost being shared. And obviously ridesharing is not systematic way to make a business profit.

 

What is the potential risk to the car owner (usually the driver) and the passengers?

 

So long as the car owner has purchased a third party insurance and that the driver is not making a business profit, there is no risk for car owner to share the ride.

 

There is no risk for the passengers sharing the ride.

 

3. Review hearing against court order to pay fixed penalty, additional penalty, and costs

3. Review hearing against court order to pay fixed penalty, additional penalty, and costs

If the demand in Form 2 (a Notice Demanding Payment of Fixed Penalty) (the “Notice”) has not been met by you on time by paying the fixed penalty, a magistrate will order you to: (1) pay the fixed penalty; (2) an additional penalty equal to the amount of the fixed penalty; and(3) costs.

 

However, this court order may be rescinded, i.e. cancelled by the magistrate. At law, depending on the nature of the traffic contravention, this mechanism is provided for in section 3B of the Fixed Penalty (Criminal Proceedings) Ordinance (Cap. 240) and section 16A of the Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237). Similar mechanisms can be found in section 10 of the Fixed Penalty (Smoking Offences) Ordinance (Cap. 600) for smoking offences and section 10 of the for Fixed Penalty (Public Cleanliness and Obstruction) Ordinance (Cap. 570) for littering offences.

 

To have the court order rescinded by the magistrate, you have to first apply to the magistrate in writing, attend the review hearing as scheduled by the magistrate, and then testify in the witness box that: (1) the Notice has not come to your personal notice, and (2) you are not in neglect.

 

At the review hearing, you, as the applicant (if you continue to apply), will need to testify and explain the circumstances of why you have not received the Notice before the payment deadline, and why you are not in neglect in not receiving the Notice. The circumstances for not receiving the Notice can vary a lot, usually because of the late, wrong, or even missing delivery of the letters. Here are some examples:

 

(1) A letter in Hong Kong will usually, but not always, arrive within a few days after it was sent. However, when it arrives, the deadline for payment may have passed already. This may or may not be your neglect. For example, it maybe your neglect if you received the letter on time but you didn’t check your mailbox regularly or was too busy at work and forgot to pay.In contrast, it may not be your neglect if you are out of Hong Kong for some time so that you were not able to check your mailbox and there was no one who could help deal with the letters.

 

(2) It is the responsibility of the recipient of the letters to have a safe and secure mailbox, such as by having a locked mailbox. If the mailbox is left unrepaired for some time, it could be said that you are in neglect. Worse still, if there is no mailbox and the letters are merely left idle on the floor or at the iron gate at the whim of the post officers, then it would appear that you are in neglect.

 

(3) It is the responsibility of the recipient of the letters to provide a correct correspondence address. If the address provided by you is inaccurate or even incorrect, any delay or non-receipt of letters may be inevitable. This is likely to be your neglect because you should notify the Transport Department within 72 hours after you have changed your address (for example, you have moved out).

 

(4) If you have past experience of not receiving letters that you are expecting to receive, it is prudent to check with the caretaker or management office of the building to see whether there were letters misdirected to your neighbours. If you do nothing in this situation, then it may be your neglect. Nonetheless, it may be too much required of you if you have to use another address or to rent a post box at the post office just for the purpose of receiving the Notice.

 

After you testified and if the magistrate is satisfied that (1) you do not have notice of the Notice and (2) this is not due to your neglect, the magistrate will rescind the order. It means that you can either (a) pay the fixed penalty without the need to pay any additional penalty and costs, or (b) dispute the liability for the fixed penalty offence.

 

In contrast, if the magistrate is not so satisfied, the court order will remain in force, meaning that you have to pay the fixed penalty, an additional penalty, and costs.