Bind-over orders to rescue careers


In an increasingly regulated world, criminal convictions can destroy careers.

Many people, from bankers and accountants to travel agents and holders of liquor licences are regulated by their profession or industry and are subject to a requirement by their regulator that they are ‘fit and proper’.

These vague words certainly include a requirement for an honest character which, in this context, means that the applicant has no convictions for crimes involving dishonesty.  Traffic offences for speeding and similar things are not caught by this criterion.

A criminal conviction for dishonesty can have very different consequences for different people.  Contrast the effect of criminal conviction for, say, shop theft on a construction company director and an options trader.  The company director will be able to return to work with no difficulty while the options trader will almost certainly face disciplinary proceedings that may cost his licence and his career.  Once his licence is revoked or suspended the options trader cannot trade and will lose his job.  Once he has lost a job in these circumstances he will almost certainly be shunned in Hong Kong and may have trouble getting back into the industry anywhere in the world because regulators communicate.

For the options trader, a court ordered bind-over could save him.  A bind-over is a court order but not a criminal conviction.  A clear criminal record is maintained in exchange for acknowledging the basic facts of the case and responsibility without acknowledging guilt and a criminal offence.  The person bound over must also make a promise to the Court not to re-offend for a specific length of time.

A bind-over order certainly cannot be guaranteed but is a mechanism and solution that Tanner De Witt recommends and wants to achieve in many cases where the effect of a conviction is disproportionate to the gravity of the offence.

If you have a matter where any of these objectives could be relevant please call Philip Swainston, who heads TDW’s criminal law practice, or Mark Side who deals with SFC regulatory issues.

If this is a concern for you, please contact:

Mark Side

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.