Employers often seek to carry out criminal and other background checks on new employees as part of their pre-hire processes. The discovery of a prior criminal conviction may in some cases result in an offer being withdrawn, or at least another look at the business’ decision to hire a particular candidate.
There is a clear and obvious tension between the needs of an employer to have sufficient information to ensure they are hiring the right person for the role and the public interests in protecting an individual’s right to privacy and the rehabilitation of offenders.
In Hong Kong, the Rehabilitation of Offenders Ordinance (the “ROO”) and the Personal Data (Privacy) Ordinance (the “PDPO”), among other legislation, seek to strike an appropriate balance between these competing interests. However, it is not always easy to know when an employer can require an employee or candidate to disclose prior convictions, and whether the employee can refuse.
Criminal background checks in Hong Kong
The starting point is that at common law, an employee has no duty to disclose any prior convictions, but the employer is entitled to ask about them. However, if the employee chooses to answer, he must do so truthfully. Failure to tell the truth will usually entitle the employer to withdraw or terminate the employment contract.
In Hong Kong, employers rely to a large extent on disclosures made by employees, either voluntarily or pursuant to a contractual obligation to disclose. This is because, compared to some other jurisdictions, it is not as easy for employers to obtain independent confirmation as to a candidate or employee’s criminal history (say via a police check).
While the Hong Kong police hold certain criminal records, they will only issue a certificate of no criminal conviction in limited circumstances. That is, where such certificate is required for the purposes of adoption or an application for a visa to visit or reside in a location outside Hong Kong. The Hong Kong police will not issue a certificate of no criminal conviction for the purposes of employment.
The position is however slightly different for employers in industries where workers are required to have frequent contact with children or mentally incapacitated persons, as a result of the Sexual Conviction Record Check operated by the Hong Kong police since 2011. This process enables employers in such industries to apply for convictions against prospective employees for certain sexual offences employers to be disclosed, upon application.
Does an employee have to disclose spent convictions?
Even where an employee elects (or is obliged) to disclose prior convictions, the ROO entitles them to treat certain convictions as “spent”. A spent conviction need not be disclosed and failure to disclose them must not be used as a basis for dismissing that person, refusing to hire them or otherwise discriminating against them in relation to employment.
A conviction will be deemed to be spent if the conviction did not result in imprisonment of 3 months or more or a fine exceeding HK$10,000 and three years have passed since the conviction without the individual reoffending.
However, a recent court decision involving the Law Society of Hong Kong demonstrates that not all such convictions will be treated as spent for all purposes. In that case, the court agreed with advice given by the Law Society in response to an enquiry from a solicitor’s clerk that his convictions some years earlier for certain offences involving dishonesty would not be treated as spent and would need to be disclosed if he applied for registration as a trainee solicitor.
This is because: (i) section 53(3) of the Legal Practitioners Ordinance prohibits a solicitor from employing a person who they know has been convicted of a criminal offence involving dishonesty; and (ii) under the ROO, the rule against disclosure of spent convictions does not apply in respect to such prohibition.
Other circumstances where a conviction will not be treated as spent include, for example, applications for admission as a lawyer, barrister or accountant, decisions relating to a person’s suitability to obtain or hold any licence or registration (for example, for the conduct of regulated activities in the financial sector) or for those employed in the banking industry.
In such cases, the public interest of ensuring that persons in these types of roles or engaging in these types of activities can be trusted to perform their duties honestly and with integrity overrides such competing interests as the individual’s right to privacy and the public interest in rehabilitating offenders.
Absent an express contractual obligation on an employee to disclose prior criminal history, an employer does not have a right to compel such disclosure. In general, if a conviction is ‘spent’, then an employee is not obliged to disclose it and an employer is not entitled to rely on it or any failure/refusal to disclose it when making employment related decisions.
That is, unless an exemption such as those discussed above applies.
In any case, information on prior convictions is personal data and is subject to the protections of the Personal Data (Privacy) Ordinance. In collecting, using, storing, disclosing and disposing of that information, employers must take care to ensure that their processes are fully compliant with applicable requirements.
Written by Gareth Thomas, Partner