Do you have a criminal record? Scheme set in law needed to ensure certainty in Hong Kong
How do you know if you have a criminal record?
Say you were convicted of careless driving, do you have a criminal record? What if the conviction was for possessing unregistered Chinese medicines or tax evasion? Unfortunately the process used to decide these questions in Hong Kong is neither clear nor satisfactory.
Where a person has been convicted of an offence, the police have a discretionary power to retain the record of that offence and any other identifying particulars of the offender. The police, however, have a policy not to record every conviction. The problem is that the policy is not accessible on the Hong Kong Police Force website, even though it is routinely updated.
The policy has significant implications as it determines what gets entered into the police records database known as PONICS. This database is used for processing certificate of no criminal conviction applications and sexual conviction record checks, and providing criminal record information to the judiciary for sentencing and other functions.
From an access to information request, I obtained within a week the latest policy as of December 1st. This 2015 policy states that persons convicted of the “following offences by the courts of Hong Kong will be recorded by Police”, followed by more than five pages of listed recordable offences.
In this policy, careless driving is not a recordable offence but possessing unregistered Chinese medicines and tax evasion are. It is not clear when tax evasion was added because it was not listed in a 2004 version of the policy, which appears to be the only internet-accessible version after legislators raised the matter in the security panel.
If a person was convicted of tax evasion in 2006 and wanted to know if his conviction was “recorded”, he could only find out by asking the police, and, if told that it was, he might wonder whether the police were simply making it up after the fact, because without an official public statement of the policy at the relevant time no one could know for sure when the offence was listed.
There are other uncertainties about the policy. The 2004 version stated that if a person was sentenced to imprisonment, including a suspended sentence, the conviction would be recorded whether or not the offence was listed. The 2015 version omits this statement, making it unclear whether this practice continues or when it ended.
Since 2004, many more offences have been added to the list and few have been delisted. There remain some glaring omissions such as torture, misconduct in public office, maintenance and champerty. The scope of a listed offence category is sometimes unclear, leaving one to guess what is contemplated by “serious offences only” or “all related offences”.
Without knowing when minor offending is recorded by the police, one perpetually has difficulty answering the question “do you have a criminal record?” A scheme set in law would provide greater legal certainty and address the fear of retrospective criminal records.
Professor Simon Young Ngai-man is associate dean (research) in the Faculty of Law at the University of Hong Kong