LCQ10: Conviction records withheld under Rehabilitation of Offenders Ordinance
Section 2(1) of the Rehabilitation of Offenders Ordinance (Cap. 297) provides that where an individual has been convicted for the first time of an offence in respect of which he has not been sentenced to imprisonment exceeding three months or to a fine exceeding $10,000, and has not been convicted of an offence again within three years, such a conviction may be considered spent. In addition, the withholding of the record of his spent conviction by the individual concerned shall not be a lawful or proper ground for dismissing or excluding him from any office, profession, occupation or employment, and for prejudicing him in any way in that office, profession, occupation or employment. On the other hand, some members of the public have relayed to me that when they, on request of their prospective employers, applied to the Police for access to their criminal conviction data, the data they obtained included their criminal conviction records which might be withheld under Cap. 297, and that the prospective employers refused to employ them upon learning of such conviction records. Such members of the public consider that this situation is not in line with the spirit of Cap. 297. In this connection, will the Government inform this Council:
(1) of the number of complaints received by the authorities in the past three years concerning members of the public being refused employment by prospective employers upon learning of their conviction records which might be withheld;
(2) of the measures currently in place to prevent inappropriate disclosure of the conviction records of members of the public which may be withheld; and
(3) whether the Police will review the scope of the criminal conviction data to be released under the existing mechanism for access to criminal conviction data, so as to ensure that it is fully in line with the relevant requirements and the spirit of Cap. 297?
The Rehabilitation of Offenders Ordinance (Cap. 297) (ROO) aims to facilitate the rehabilitation of persons who are convicted for the first time and whose offences are minor in nature, and to prevent unauthorised disclosure of their previous convictions.
According to section 2(1) of ROO, where an individual has been convicted for the first time in Hong Kong of an offence in respect of which he was not sentenced to imprisonment exceeding three months or to a fine exceeding $10,000 and a period of three years has elapsed without that individual being again convicted in Hong Kong of an offence, the individual shall, three years after his conviction, be deemed to have no conviction record save for the exceptions specified in ROO. Sections 3 and 4 of ROO set out the exceptions to which the above arrangements concerning the "spent" conviction do not apply. Such exceptions cover proceedings relating to the admission, employment and authorisation, etc. concerning certain occupations (such as barristers, solicitors and accountants) and offices (such as staff of various ranks of the disciplined services, officers on or above Point 27 on the Master Pay Scale, directorate officers, judicial officers and personnel of certain financial regulatory bodies).
Regarding the questions raised by Hon Dennis Kwok, my reply is as follows:
(1) According to section 2(1)(c)(iii) of ROO, save for the exceptions set out in sections 3 and 4, if the conviction of any individual becomes "spent" under ROO, that "spent" conviction or any failure to disclose it shall not be a lawful or proper ground for dismissing or excluding that individual from any office, profession, occupation or employment or for prejudicing him in any way in that office, profession, occupation or employment.
The Criminal Conviction Data Office (CCDO) of the Hong Kong Police Force (HKPF) is responsible for handling the public's request for access to their criminal conviction records. In the past three years, CCDO did not receive any complaint from the public concerning refusal by prospective employers to employ them upon learning of their criminal conviction records which might be withheld.
(2) and (3) Section 6 of ROO lays down provisions that prevent unauthorised disclosure of conviction records specified as "spent" under ROO. In gist, unless otherwise specified in sections 6(4) and (5) of ROO, any person who has or, at any time, has had custody of or access to any records kept by a public officer relating to persons convicted of offences, or any information contained therein, and who, otherwise than in the course of his duties as a public officer, discloses any information about the "spent" conviction to any other person commits an offence. In addition, any person who obtains any information about the "spent" conviction from any record kept by a public officer by means of any fraud or dishonesty also commits an offence.
The Police's mechanism for access by members of the public to their data on criminal conviction records must comply with the stringent requirements under ROO and the Personal Data (Privacy) Ordinance (Cap. 486) (PDPO). Anyone who intends to access data on their criminal conviction records in accordance with PDPO (Note) must, unless exempted, submit their request at CCDO in person. If HKPF holds criminal conviction data of the subject, the data will be provided to the applicant in writing in accordance with the provisions of PDPO. If the relevant information concerns a "spent" conviction, this will be specified in the Police's written reply. The Police will not disclose such information to any other party (including employers or prospective employers). The subject is also not obliged under ROO to disclose the "spent" conviction record to his employer or prospective employer.
In sum, persons who are convicted for the first time and whose offences are minor in nature are protected by ROO. The Police will not disclose their previous convictions to others without authorisations. ROO, as it stands, has struck a balance between assisting the rehabilitation of offenders and safeguarding public security, and is not incompatible with the current mechanism for access to data on criminal conviction records.
Section 18(1) of PDPO stipulates that an individual, or a relevant person on behalf of an individual, may request to be informed by a data user whether the data user holds personal data of which the individual is the data subject and, if the data user holds such data, to be supplied by the data user with a copy of the relevant data. "Relevant person", in relation to an individual, means:
(a) where the individual is a minor, a person who has parental responsibility for the minor;
(b) where the individual is incapable of managing his own affairs, a person who has been appointed by a court to manage those affairs; or
(c) where the individual is mentally incapacitated within the meaning of section 2 of the Mental Health Ordinance (Cap. 136), "relevant person", as the case may be, refers to a person appointed under the relevant provisions of that Ordinance to be the guardian of that individual; or the Director of Social Welfare or any other person, in whom the guardianship of that individual is vested, or by whom the functions of the appointed guardian are to be performed.
Ends/Wednesday, June 21, 2017
Issued at HKT 16:08
Issued at HKT 16:08