Hong Kong commission recommends expanding background checks for sex offenders to personal tutors, volunteers working with children
- Law Reform Commission stops short of calling for screening to become mandatory
- Sexual offenders whose conviction has been treated as ‘spent’ after three years should not be scrutinised, it says
Hong Kong’s Law Reform Commission has recommended expanding background checks for sexual offences to personal tutors and NGO volunteers working with children and mentally vulnerable people but stopped short of making the screening mandatory.
The statutory independent body acknowledged there were opposing views on the issue, although it called for the government to “seriously consider” the option in its report released on Monday.
“We maintain our view that as far as prospective employees are concerned … we do not see an immediate demand for the Sexual Conviction Record Check Scheme to become a comprehensive legislative scheme,” the report said.
“Having said that, we note the responses received, which show that there is indeed a demand from the community that the government should give due consideration to optimising the current administrative scheme, [such as] extending it to cover all existing employees, self-employed persons, and volunteers by implementing all of our recommendations made in the report.”
Yet, in the long run, the government should “seriously consider” mandating the scheme, it added.
The current framework, introduced in December 2011, only allows employers to check on their new hires provided companies can prove to police that their work is related to children or mentally incapacitated people.
However, the company must undergo a lengthy verification process before police can subject an employee to a criminal record check.
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Pointing to the importance of rehabilitation, the commission said that the convictions of individuals charged with minor sexual offences were treated as “spent” after a period of three years and should not be included in the scheme at the moment. It added that the situation required further discussion.
The commission said non-governmental organisations had conveyed their reservations about expanding the scheme, arguing that extra scrutiny could deter people from volunteering.
But the report maintained that if volunteers could come into contact with children or mentally incapacitated people, they should be included.
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The commission excluded from the proposed expansion first-time offenders with a “spent conviction”, which is written off after three years, provided the person was handed a prison term of no more than three months or a fine of less than HK$10,000.
Barrister Peter Duncan SC, who chairs the subcommittee in charge of the commission, said the government should consider strengthening its existing specialised rehabilitation services, such as psychological and psychiatric treatment for discharged sex offenders.
The senior counsel said the present administrative scheme, proposed by the commission in 2011, was intended to be an interim measure due to the long process involved to turn it into law.
“We have learnt that, notwithstanding the [commission]’s recommendations made in 2010, the [Sexual Conviction Record Check Scheme] currently in operation does not yet cover all existing employees, self-employed persons or volunteers,” he said.
Duncan added that, given the extensive use of the scheme, the commission did not see “an immediate demand” to make it legally mandatory. However, he also urged the government to “seriously consider” legislating such measures in the long run.
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However, Li Yu-hin, the director of the STEM Enlightenment Education Centre, said the proposed changes would make it easier for employers to screen staff and allowed self-employed individuals to access the scheme.
“In the past, we had to issue proof first for the interviewees to get the record from the police,” he said, referring to the background check conducted by the force.
In the past 16 years, the commission has conducted multiple rounds of consultation and released numerous reports that resulted in the proposal of new offences of voyeurism and upskirt photography.
The final round of reports focused on sentencing for sex crimes and rehabilitation.
It suggested that the current penalty for rape, life imprisonment, should apply to the new offence of sexual penetration without consent. The new offence was proposed earlier as part of the review to close a loophole that arose when a perpetrator did not use his genitalia during the assault.
The commission also recommended the government consider introducing an incentive scheme to motivate sex offenders to actively participate in treatment and rehabilitation following their release.
