Can regulated ‘offenders’ treat a criminal conviction as a ‘spent conviction’?

Section 2 of the Rehabilitation of Offenders Ordinance Cap 297 (“ROO”) is a godsend for offenders convicted for the first time and sentenced to a fine of less than HK$10,000 or to imprisonment of 3 months or less. An offender is entitled to treat the conviction as spent after the expiration of 3 years and recover their ‘good character’ and clear record.

Section 2(1) of ROO provides that

(ii) any question asked of that individual or any other person relating to any obligation imposed on that individual or the other person to disclose, that individual’s previous convictions, offences, conduct or circumstances shall be treated as not relating to that conviction and;

(iii) that 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, professional, occupation or employment.

However, there are exceptions.

Section 3(1) provides that nothing in section 2 shall effect –

(c) the operation of any law under which the individual is subject to any disqualification, disability, prohibition or other penalty.

Section 4 excludes application of Section 2 to regulated professionals in the course of their employment.

In respect of solicitors section 53(3) of the Legal Practitioners Ordinance Cap 159 provides that “a conviction involving dishonesty is never spent insofar as a person is to become a solicitor, a trainee solicitor or employee of a solicitor:. A solicitor is not entitled to the protection of the rehabilitative provision under section 2(1) ROO in connection with his employment or application for employment with a solicitor.  The HK Law Society is entitled to publish the conviction in its internal members only circulars.

The issue was considered in the case of HCAL 39/2016, Y v The Law Society of Hong Kong. This case involved a trainee solicitor applying to become a solicitor and without his consent the Law Society contacted the Director of Public Prosecutions and the Eastern Magistracy to verify the detail and then published the conviction in two circulars reminding solicitors not to employ staff convicted of dishonesty or other offences without written permission.

Section 53(3) of the Legal Practitioner Ordinance Cap 159 contains a “disqualification, disability, prohibition or other penalty” within the meaning of section 3(1)(c) of the Rehabilitation of Offenders Ordinance Cap 297.  Most professional bodies have similar provision.

Section 58(1) and (2) of the Personal Data (Privacy) Ordinance Cap 486 entitles the Law Society to publish convictions.

The Court in HCAL 39/2016 properly found that the provisions of ROO and the LPO where not unlawful and that it was in the public interest that regulated  professional bodies should continue to expect disclosure of all criminal convictions from its members or prospective members.

It is a relevant factor when asking the Director of Public Prosecutions to consider to deal with a charge by way of a bind over. A conviction, in particular of a dishonesty offence, would potentially disqualify an offender from their chosen profession for life. Disclosure of the conviction to a regulatory body is a lifetime mandatory requirement.

Philip Swainston

For further information, please contact:

Jeff Lane
Consultant | Email

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