TNAG-1734-FCO40-2447-Minutes-and-Hansards-of-the-Legislative-Council-of-Hong-Kong-1988 — Page 302

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HONG KONG LEGISLATIVE COUNCIL 11 May 1988

MRS. TAM: Sir, may I refer to paragraph 4 of the answer? Could the Secretary for Security inform this Council whether it would not be simpler to make reference to the maximum penalty of an offence in deciding whether it should be recordable, rather than to rely on a list of very subjective criteria?

SECRETARY FOR SECURITY: Sir, under the law as it is at the moment, the commissioner has a duty to come to his decisions based on these criteria. This has been recently supported in a court case, Sir.

MR. MARTIN LEE: Sir, as I have got a long prepared supplementary question, I have given prior notice of it to my hon. neighbour, the Secretary for Security. Bearing in mind that the legislative intent behind the Rehabilitation of Offenders Ordinance is to allow an individual to erase a past minor misdeed, and bearing in mind that the Attorney General's statement when this Ordinance was introduced that it was a modest proposal which might be extended at a later time; will the Administration inform this Council whether it is prepared to conduct an urgent review of the scheme under this Ordinance and in particular on the following: (1) whether the Commissioner of Police should be allowed to circumvent the clear spirit and intent of this Ordinance by revealing an individual's 'spent' conviction to overseas immigration authorities;

(2) whether the Administration feels that the time has now come to expand the scope of the scheme along the lines of the corresponding British legislation; and

(3) whether the power of the magistrate to order the conviction not to be recorded be reinstated, a proposal which enjoys the support of the Hong Kong Bar Association and the Law Society of Hong Kong as well as the Magistrates' Association?

SECRETARY FOR SECURITY: Sir, although strictly outside the main point of the question, I am prepared to ensure that the points raised by my hon. Friend are properly considered together with any additional representations received from the Bar Association and the Law Society.

MR. SOHMEN: Sir, the Secretary for Security has said that any person who applies for a Certificate of No Criminal Conviction with a previous conviction for an offence which is no longer recordable is issued with a certificate. Does the annual change in the list of recordable offences not create an inequity or half-truth because whether a certificate is issued or not is then determined by the date the application is lodged even though the offence might have been recordable at the time it was committed?

SECRETARY FOR SECURITY: That is correct, Sir. The list of recordable offences which at present number 94 is reviewed annually; sometimes new offences are added and sometimes offences are taken off. Sir, my hon. Friend is correct in what he has said but it does not, of course, mean that when confronted with the question from the foreign consulate, 'Have you ever been convicted?', the individual is absolved from answering it truly.