Cap 297 s 2 Protection of rehabilitated individual (Rehabilitation of Offenders Ordinance)

Contents of Section

Chapter:	297	Title:	Rehabilitation of Offenders Ordinance	Gazette Number:	E.R. 1 of 2012
Section:	2	Heading:	Protection of rehabilitated individual	Version Date:	09/02/2012

(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 $10000; (Amended 24 of 1993 s. 22)

(b) he has not been convicted in Hong Kong on any earlier day of an offence; and

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 $10000 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;

(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 Offences) 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)

(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 Offences) 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) 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;

(d) conviction of an offence in respect of which an individual is not sentenced to imprisonment exceeding 3 months or to a fine exceeding $10000 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 $10000 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)

(Enacted 1986)
(Amended 10 of 1996 s. 3)