The following can only be a brief introduction of the legal subject concerned. Before you take any action which may have legal consequence, you should first seek advice from your own lawyer or make an appointment at any District Office to see a volunteer lawyer of the Free Legal Advice Scheme.




(305) RIGHTS OF A PERSON CHARGED BUT NOT CONVICTED OF A CRIMINAL OFFENCE AND SPECIAL TREATMENT OF MINOR CRIMINAL OFFENDERS

Update in progress

This tape deals with the treatment of criminal defendants in three situations. First: If the court acquits or discharges an accused person after trial, that person has the right to demand from the police all photographs, including negatives and copies, fingerprint records and other measurements taken by the police after arrest. Alternatively, the police must destroy them. However, a person who has a previous conviction has no right to demand the return of any records.

Second: where a magistrate decides that the accused is guilty but should be treated leniently. Here, the magistrate must convict, but after conviction may discharge that person without any punishment at all. The magistrate may impose conditions on the discharge of that person without punishment but the magistrate has no power to order that the conviction not be recorded. This means that even without punishment the convicted person will now have a criminal record.

The third situation involves the protection of convicted persons from the permanent disgrace of a criminal record. This protection only applies to persons who are convicted for the first time and not sentenced to imprisonment exceeding 3 months or a fine of more than $10,000-. Three years after conviction, the law will treat such a person as having a clear record provided the conviction is then said to be "spent".

The Rehabilitation of Offenders Ordinance provides penalties for anyone who reveals that such a person has been convicted. Also, if the convicted person is asked if he has a criminal record he can truthfully say "No, I do not". This also applies to persons sentenced to detention in a reformatory school, detention centre or training centre. However, the law only protects the convicted person after three years from expiry of the period of supervision following release from that detention.

But the Rehabilitation of Offenders Ordinance contains many exceptions where convicted persons are not protected. For example, you must disclose any previous conviction if you are applying for a special type of job, such as in the police, correctional or fire services, or as a lawyer or accountant, or some special activity which requires a licence, permit or registration. When a person with a "spent" conviction wishes to emigrate and asks the police to issue a certificate of clear record, the certificate will still record the previous conviction. But it will show an endorsement that the conviction is regarded as "spent in Hong Kong", that is, it is no longer treated as a conviction at all. This will tell the foreign country that the offence committed in Hong Kong was only minor. There are also other exception. You should check to see if any of the exceptions apply to you.

Date of amendment: 17^th November 2023