B. The Rehabilitation of Offenders Ordinance
As criminal law is concerned with the rehabilitation of offenders rather than simply punishment, in certain limited situations, convictions may become “spent”. A spent conviction is a conviction which, under the provisions of the Rehabilitation of Offenders Ordinance (Cap. 297) (“RHO”), is, subject to some exceptions, ignored after a specified period of time.
The objective of the RHO is to allow offenders to put a past mistake behind them. When a conviction has become “spent” under the RHO, offenders can, subject to exceptions set out in the RHO, claim not to have a criminal record, and the spent conviction cannot be held against them. Unless convictions are regarded as spent, they remain on the offenders’ records for the rest of their lives. The spent conviction provisions of the RHO apply only within Hong Kong. Even when a conviction is spent under the RHO, applicants for visas to visit a foreign country are required to disclose any convictions they have.
Under section 2(1) of the RHO, subject to certain exceptions, the conviction of a person who is not sentenced to imprisonment exceeding three months, whether that sentence takes effect immediately or is suspended, or to a fine exceeding $10,000, and who has not previously been convicted in Hong Kong of any offence will be treated as spent once three years has elapsed without another conviction for an offence in Hong Kong. The “spent” conviction provisions of the RHO are very limited. They apply only if there has not been a previous conviction, if the present conviction is dealt with by imprisonment not exceeding three months or a fine not exceeding $10,000, and if the person is not convicted of a subsequent offence within the three-year qualifying period.
If a conviction has become spent section 2(1)(c)(i)(ii)(iii) of the RHO provide that, subject to section 3(3) and (4)of the RHO, no evidence about that conviction is admissible in any proceedings. Neither the spent conviction nor any failure to disclose it justifies dismissal or exclusion from any office, profession, occupation or employment or any form of prejudice in that office, profession, occupation or employment.
It is the length of the prison sentence imposed that counts, not the actual time served. Under Rule 69 of the Prison Rules (Cap. 234A), a person sent to prison for a period of more than one month may, on the ground of industry and good conduct, be granted remission of sentence. That remission cannot exceed one third of the sentence imposed by the court. For example, a person sentenced to imprisonment for 120 days (i.e. four months) might, allowing for good conduct, be released after serving 80 days (less than three months). However, the conviction cannot become spent because the sentence imposed exceeded three months’ imprisonment.
If an offender is convicted of more than one offence at the same court hearing, the spent conviction provisions in section 2 of the RHO still apply, provided the sentence for each offence does not exceed three months’ imprisonment or a fine of $10,000. In addition, the aggregate sentence cannot exceed three months' imprisonment or a fine of $10,000, irrespective of whether the sentences run concurrently or consecutively (one after the other).