Cap. 297 - Rehabilitation of Offenders Ordinance

To rehabilitate offenders who have not been reconvicted for 3 years, to prevent unauthorized disclosure of their previous convictions and for connected purposes. [1 August 1986](Format changes—E.R. 1 of 2012) 1. Short title This Ordinance may be cited as the Rehabilitation of Offenders Ordinance. 1A. Interpretation In this Ordinance, unless the context otherwise requires—foster parent (寄養父母) means a person who is recruited by the Central Foster Care Unit of the Social Welfare Department or a non-governmental welfare organization to provide temporary care for a child on a voluntary and non-charging basis;motor vehicle (汽車) means any mechanically propelled vehicle constructed or adapted for use on a road and includes any vehicle constructed for use on a railway or a tramway;vocational driver (職業司機), in relation to a motor vehicle, means any person who is in charge of or assisting in the control of such vehicle for the purposes of earning a living and includes a chauffeur.(Added 10 of 1996 s. 2) 2. Protection of rehabilitated individual (1) Where—(a) an individual has been convicted in Hong Kong (before or after the commencement of this Ordinance) of an offence in respect of which he was not sentenced to imprisonment exceeding 3 months or to a fine exceeding $10,000; (Amended 24 of 1993 s. 22)(b) he has not been convicted in Hong Kong on any earlier day of an offence; and(c) a period of 3 years has elapsed without that individual being again convicted in Hong Kong of an offence, then—(i) subject to section 3(3) and (4), no evidence shall be admissible in any proceedings which tends to show that that individual was so convicted in Hong Kong;(ii) any question asked of that individual or any other person relating to, or any obligation imposed on that individual or any other person to disclose, that individual’s previous convictions, offences, conduct or circumstances shall be treated as not referring 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, profession, occupation or employment.(1A) Where—(a) an individual has been convicted in Hong Kong (before or after the commencement of this Ordinance) of an offence under section 19, 20, 21, 22 or 23 of the Societies Ordinance (Cap. 151) in respect of an unlawful society within the meaning of section 18 of that Ordinance—(i) in circumstances in which that unlawful society is, or is deemed to be, a triad society under that last mentioned section; and(ii) in respect of which he was not sentenced to imprisonment exceeding 3 months or to a fine exceeding $10,000 but has subsequently renounced his membership of the triad society concerned under section 26G(1) of that Ordinance;(b) he has not been convicted in Hong Kong on any earlier day of an offence;(c) a period of 3 years has elapsed from the date of the conviction without that individual being again convicted in Hong Kong of an offence;(d) he has made a written request to the Triad Renunciation Tribunal established under section 26A of the Societies Ordinance (Cap. 151) or, where sections 26A and 26B of that Ordinance are not in operation under section 26N of that Ordinance, to the Triad Renunciation Secretariat established under section 26BA of that Ordinance, to issue a certificate under section 26I(3) of that Ordinance to the Commissioner of Police that he has renounced membership of the triad society concerned and the date on which he renounced his membership; and(e) he has provided such information, including his fingerprints, as may be required by the Commissioner of Police to enable his conviction record to be verified and for this purpose, a police officer may take or record the individual’s fingerprints and the fingerprints so taken or recorded shall be destroyed or delivered to the individual as soon as reasonably practicable after his conviction record has been verified, then—(i) subject to section 3(3) and (4), no evidence shall be admissible in any proceedings which tends to show that that individual was so convicted in Hong Kong;(ii) any question asked of that individual or any other person relating to, or any obligation imposed on that individual or any other person to disclose, that individual’s previous convictions, offences, conduct or circumstances shall be treated as not referring 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, profession, occupation or employment. (Added 10 of 1996 s. 3)(1B) Where an individual pays or is ordered to pay a fixed penalty, or any additional penalty, under the Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237), the Fixed Penalty (Criminal Proceedings) Ordinance (Cap. 240), the Fixed Penalty (Public Cleanliness and Obstruction) Ordinance (Cap. 570), the Fixed Penalty (Smoking Offences) Ordinance (Cap. 600) or the Motor Vehicle Idling (Fixed Penalty) Ordinance (Cap. 611), then— (Amended 24 of 2001 s. 21; 26 of 2008 s. 19; 3 of 2011 s. 33; 4 of 2016 s. 9)(a) subject to section 3(3) and (4), no evidence shall be admissible in any proceedings which tends to show that that individual has so paid or has been so ordered to pay;(b) any question asked of that individual or any other person relating to, or any obligation imposed on that individual or any other person to disclose, that individual’s previous convictions, offences, conduct or circumstances shall be treated as not referring to that payment or order to pay; and(c) that payment or order to pay, 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.(Added 10 of 1996 s. 3)(2) The period of 3 years mentioned in subsection (1)(c) or (1A)(c) shall be reckoned from the date on which the individual was sentenced for the offence mentioned in subsection (1)(a) or (1A)(a), as the case may be, save that, in the case of an individual sentenced to detention in a training, detention or rehabilitation centre, that period shall be reckoned from expiry of the period of supervision following release from that detention. (Amended 11 of 2001 s. 17)(3) The payment or recovery of a fixed penalty, or any additional penalty, under the Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237), the Fixed Penalty (Criminal Proceedings) Ordinance (Cap. 240), the Fixed Penalty (Public Cleanliness and Obstruction) Ordinance (Cap. 570), the Fixed Penalty (Smoking Offences) Ordinance (Cap. 600) or the Motor Vehicle Idling (Fixed Penalty) Ordinance (Cap. 611) is not a conviction for the purposes of subsection (1) or (1A). (Replaced 10 of 1996 s. 3. Amended 24 of 2001 s. 21; 26 of 2008 s. 19; 3 of 2011 s. 33; 4 of 2016 s. 9)(4) For the purposes of subsection (1)(a) or (1A)(a)—(a) imprisonment (監禁) does not include detention in a reformatory school, in a detention centre, in a place of detention, in a training centre or in a rehabilitation centre; (Amended 11 of 2001 s. 17)(b) a sentence of imprisonment or a fine shall be such a sentence, whether or not it is suspended or postponed;(c) an individual is not sentenced to imprisonment where he is detained as a consequence of failing to pay a fine; and(d) conviction of an offence in respect of which an individual is not sentenced to imprisonment exceeding 3 months or to a fine exceeding $10,000 includes convictions in the same proceedings or on the same day of more than one offence in respect of which he is not sentenced to an actual term of imprisonment exceeding 3 months (irrespective of whether the term or terms of imprisonment are wholly or partly consecutive or concurrent) or to fines exceeding $10,000 in total. (Replaced 10 of 1996 s. 3)(e) (Repealed 10 of 1996 s. 3)(4A) For the purposes of subsection (1)(a), offence (罪、罪行) does not include an offence of contravening section 20(2) or 24 of the Societies Ordinance (Cap. 151) or of contravening section 19, 20(1), 21, 22 or 23 of that Ordinance in circumstances in which the unlawful society is, or is deemed to be, a triad society. (Added 10 of 1996 s. 3)(5) For the purposes of this section and sections 3 and 4, proceedings (程序) means any proceedings in Hong Kong by any court, body or person having power to determine any application by, or any question affecting the rights, privileges, obligations or liabilities of, any person or to receive evidence affecting the determination of any such application or question.(6) For the purposes of subsections (1)(i), (ii) and (iii) and (1A)(i), (ii) and (iii) and section 3, a conviction shall include—(a) the offence which was the subject of that conviction;(b) the conduct or circumstances constituting that offence; and(c) anything relating to that conviction which, if disclosed, would tend to show that the individual committed, was charged with, was prosecuted for, was convicted of or was sentenced for the offence which was the subject of the conviction.(7) For the purposes of subsection (1B)(a), (b) and (c) and section 3, a payment or an order to pay shall include—(a) the offence or contravention which was the subject of that payment or order to pay;(b) the conduct or circumstances constituting that offence or contravention; and(c) anything relating to that payment or order to pay which, if disclosed, would tend to show that the individual committed, was charged with, was prosecuted for, was convicted of or was sentenced for the offence or contravention which was the subject of the payment or order to pay. (Added 10 of 1996 s. 3)(Amended 10 of 1996 s. 3) 3. Exceptions relating to proceedings (1) Nothing in section 2 shall affect—(a) the recovery of any fine or other sum adjudged to be paid;(b) any proceedings in respect of a breach of a condition or requirement imposed following a conviction; or(c) the operation of any law under which the individual is subject to any disqualification, disability, prohibition or other penalty.(2) Nothing in section 2 shall affect the determination of any issue, or prevent the admission or requirement of any evidence, relating to the conviction—(a) in any proceedings relating to the interests of an infant;(aa) in any proceedings relating to the consideration of an application as a foster parent; (Added 10 of 1996 s. 4)(b) in any proceedings where the individual expressly consents to the admission of evidence relating to the conviction; or(c) in any proceedings where the tribunal is satisfied that justice cannot be done except by the admission of evidence relating to the conviction.(3) Nothing in section 2 shall prevent the admission of any evidence relating to the conviction of an individual, for sentencing purposes, in any criminal proceedings in which he is subsequently convicted of a further offence. (Added 10 of 1996 s. 4)(4) Nothing in section 2 shall prevent the admission of any evidence relating to the conviction of an individual in any criminal proceedings if he is subsequently convicted of a further offence, regardless of whether he is the defendant. (Added 10 of 1996 s. 4) 4. Further exceptions (1) Section 2(1) and (1A) shall not apply to— (Amended 10 of 1996 s. 5)(a) proceedings in respect of a person’s admission as, or disciplinary proceedings against a person practising as, a barrister, a solicitor or an accountant;(b) disciplinary proceedings against a person holding a prescribed office; (Amended 10 of 1996 s. 5)(c) proceedings relating to a person’s suitability to be granted, or to continue to hold, any licence, permit or dispensation, or to be registered, or continue to be registered, under any law;(d) proceedings relating to a person’s suitability to be appointed to, or continue in, any prescribed office; and (Amended 10 of 1996 s. 5)(e) proceedings under the Insurance Ordinance (Cap. 41)—(i) relating to a person’s suitability to be authorized as an authorized insurer;(ii) by the Insurance Authority in the exercise of the powers conferred on the Authority by sections 27, 28, 29, 30, 31, 32, 32A, 33, 34, 35, 41P and 81 and Part X of that Ordinance; or (Amended 20 of 2023 s. 109)(iii) relating to a person’s suitability to become or continue to be a director or controller of an authorized insurer; (Replaced 12 of 2015 s. 112)(ea) proceedings under the Mandatory Provident Fund Schemes Ordinance (Cap. 485)—(i) relating to a person’s suitability to become or continue to be an approved trustee or a controller of an approved trustee; or(ii) relating to a person’s suitability to become or continue to be a trustee or controller of a trustee of an occupational retirement scheme in respect of which the members or a class of members and their employer are exempted under section 5 of that Ordinance or the subject of an application referred to in subsection (2)(a) of that section; (Added 4 of 1998 s. 11)(f) without prejudice to the generality of paragraph (c), proceedings under the Banking Ordinance (Cap. 155) relating to a person’s suitability to become or continue to be a controller, director, chief executive or alternate chief executive of an authorized institution; and (Added 10 of 1996 s. 5)(g) without prejudice to the generality of paragraph (c), proceedings under section 73 of the Banking Ordinance (Cap. 155) relating to the prohibition of certain persons from acting as the employees of authorized institutions except with the consent of the Monetary Authority. (Added 10 of 1996 s. 5)(2) Section 2(1) and (1A) shall not apply to any question asked by or on behalf of any person, in the course of the duties of his office or employment, or any obligation to disclose information to that person in the course of those duties, in order to assess the suitability of another person— (Amended 10 of 1996 s. 5)(a) for admission as a barrister, solicitor or accountant; or(b) for the grant of, or to continue to hold, any licence, permit or dispensation, or for registration, or to continue to be registered, under any law; or(c) for appointment to any prescribed office; or (Amended 10 of 1996 s. 5)(d) to be authorized as an authorized insurer under the Insurance Ordinance (Cap. 41), to be granted a licence as a licensed insurance broker or a licensed insurance agent within the meaning of that Ordinance, or to be approved as a responsible officer of a licensed insurance broker company or a licensed insurance agency within the meaning of that Ordinance; or (Replaced 12 of 2015 s. 112)(e) to become or continue to be a controller, director, chief executive or alternate chief executive of an authorized institution under the Banking Ordinance (Cap. 155); or (Added 10 of 1996 s. 5)(f) to act as the employees of authorized institutions as defined in the Banking Ordinance (Cap. 155); or (Added 10 of 1996 s. 5)(g) to be appointed as a foster parent; or (Added 10 of 1996 s. 5)(h) to become or continue to be a director or controller of an authorized insurer under the Insurance Ordinance (Cap. 41). (Added 10 of 1996 s. 5. Amended 12 of 2015 s. 112)(3) Section 2(1) and (1A) shall not apply to any dismissal or exclusion of an individual from practising as a barrister, solicitor or accountant or from any prescribed office. (Replaced 10 of 1996 s. 5)(4) Section 2(1B) shall not apply to any question asked by or on behalf of any employer or any individual who intends to employ a vocational driver, or any obligation to disclose information, regarding the suitability of another person for employment or continued employment as a vocational driver, unless a period of 3 years has elapsed from the date of payment or order to pay (whichever is the earlier) which is referred to in section 2(1B). (Added 10 of 1996 s. 5)(5) Section 2(1B) shall not apply to any dismissal or exclusion of an individual from his employment as a vocational driver unless a period of 3 years has elapsed from the date of payment or order to pay (whichever is the earlier) which is referred to in section 2(1B). (Added 10 of 1996 s. 5)(6) Section 2(1B) shall not apply to any question asked by or on behalf of an insurer for the purpose of assessing and pricing a risk in respect of vehicle insurance, unless a period of 3 years has elapsed from the date of payment or order to pay (whichever is the earlier) which is referred to in section 2(1B). (Added 10 of 1996 s. 5)(7) Section 2 shall not apply to any action taken for the purposes of safeguarding the security of Hong Kong. (Added 10 of 1996 s. 5)(8) For the purposes of subsection (1)(ea), controller (控權人), in relation to an approved trustee of a mandatory provident fund scheme, or a trustee of an occupational retirement scheme, that is a company, has the same meaning as in section 2(1) of the Mandatory Provident Fund Schemes Ordinance (Cap. 485). (Added 4 of 1998 s. 11) 5. Exception relating to defamation actions Nothing in this Ordinance shall apply to any action for defamation begun—(a) before the commencement of this Ordinance; or(b) after the commencement of this Ordinance in relation to an alleged defamation committed before the commencement of this Ordinance or before the lapse of the period mentioned in section 2(1)(c). 6. Disclosure of information (1) Subject to subsections (4) and (5), 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 specified in subsection (3) to any other person commits an offence and is liable to a fine at level 4.(2) Any person who obtains any information specified in subsection (3) from any record kept by a public officer by means of any fraud or dishonesty commits an offence and is liable to a fine at level 5 and to imprisonment for 6 months.(3) The information mentioned in subsections (1) and (2) is any information contained in the records mentioned in those subsections which tends to show that a named or otherwise identifiable individual to whom section 2(1), (1A) or (1B) applies committed, was charged with, was prosecuted for, was convicted of or was sentenced for an offence. (Amended 10 of 1996 s. 6)(4) The Chief Executive may, in such circumstances as he thinks fit, authorize the disclosure of any information specified in subsection (3) and subsection (1) shall not apply to any person acting under that authority. (Amended 15 of 1999 s. 3)(5) The individual to whom section 2(1), (1A) or (1B) applies may authorize the disclosure of any information specified in subsection (3) which relates to him and subsection (1) shall not apply to any person acting under that authority. (Amended 10 of 1996 s. 6)(Amended E.R. 1 of 2012) 7. (Amendments incorporated) 8. (Amendments incorporated) 9. Prescribed offices (1) The offices mentioned in the Schedule are prescribed offices for the purposes of this Ordinance. (Amended 10 of 1996 s. 7)(2) The Chief Executive in Council may by order published in the Gazette amend the Schedule. (Amended 15 of 1999 s. 3) Schedule [s. 9]Prescribed Offices Part 1 Public Offices (Replaced 10 of 1996 s. 8) 1. Any judicial office. 2. Any office of police officer in the Hong Kong Police Force or the Hong Kong Auxiliary Police Force. (Amended L.N. 362 of 1997; L.N. 140 of 1999; 58 of 1999 s. 8) 3. Any office in the Correctional Services Department the holder of which is remunerated by reference to the General Disciplined Services Pay Scale. (Replaced L.N. 140 of 1999) 4. Any office of principal probation officer or probation officer to which a person is appointed under section 9 of the Probation of Offenders Ordinance (Cap. 298). 5. Any office in the Customs and Excise Service mentioned in Schedule 1 to the Customs and Excise Service Ordinance (Cap. 342). (Amended 68 of 1995 s. 2) 6. Any office in the Immigration Service mentioned in the Schedule to the Immigration Service Ordinance (Cap. 331). 7. Any office occupied, or to be occupied, by an officer on or above Point 27 on the Master Pay Scale. (Amended 10 of 1996 s. 8) 8. Any office occupied, or to be occupied, by an officer on the Directorate or Directorate (Judicial/Legal Group) Pay Scale. 9. Any person holding any rank in the Fire Services Department set out in the Sixth Schedule to the Fire Services Ordinance (Cap. 95). 10. Any office of the Directorate staff, the Commission Against Corruption Officer grade staff or in the Operations Department of the Independent Commission Against Corruption. (Added 10 of 1996 s. 8) 11. Any office occupied by the executive, professional, managerial, technical or secretarial staff of the Hong Kong Monetary Authority. (Added 10 of 1996 s. 8) 12. (Repealed 12 of 2015 s. 113) 13. Any office occupied by the executive, professional, managerial, technical, inspectorate or secretarial staff of the Mandatory Provident Fund Schemes Authority. (Added 4 of 1998 s. 11) 14. Any office of Senior Officer or Officer in the Government Flying Service mentioned in Schedule 1 to the Government Flying Service (General) Regulation (Cap. 322 sub. leg. B) (Added L.N. 140 of 1999. Amended E.R. 1 of 2018) Part 2 Other Offices 1. Any office occupied by the executive staff (including the Executive Directors) or the secretarial staff of the Securities and Futures Commission. 2. Any office occupied by the executive, professional, managerial, technical, inspectorate or secretarial staff of the Insurance Authority. (Added 12 of 2015 s. 113)(Part 2 added 10 of 1996 s. 8)