Phoebe Y
In 2023, Hong Kong reported 90,000 crimes, marking a 29% increase from 2022. Several studies suggest that fraud and deception cases have significantly contributed to this rise. With more reports of scams and financial crimes, it’s no surprise that the importance of thorough criminal check of potential hires has grown manifold for employers. It can be challenging to look beyond the surface when evaluating potential hires solely based on their resumes. However, criminal checks can help employers navigate this challenge more easily. In this article, we will give you a thorough analysis of criminal checks in Hong Kong, their importance, methods, alternatives, and more!
What is a Criminal Check?
A criminal check is a screening process used to assess a potential employee’s suitability for a job by reviewing their past convictions, criminal record, and related information.
In sectors where job roles involve handling sensitive data or working closely with vulnerable populations (e.g., children, mentally or physically disabled persons, senior citizens), criminal checks become especially important. Criminal checks typically reveal details like past convictions or arrests, outstanding warrants, court records, violent crimes, sexual offenses, and drug-related infractions. Based on these findings, employers can make informed hiring decisions.
Importance of Criminal Checks for Employment Purposes
Conducting criminal background checks for employment purposes holds immense significance. As a matter of fact, poor hiring decisions can result in substantial costs for businesses, including wasted time and resources, harm to the organization’s reputation, diminished morale among existing employees, and exposure to potential legal risks. Therefore, employers must exercise utmost diligence in selecting their workforce. Let us delve into a comprehensive examination of the importance of criminal checks in the employment process:
Maintain a safe workplace: One of the foremost benefits of conducting criminal checks is the assurance it provides employers in safeguarding the well-being of their employees, customers, and other stakeholders. A secure work environment ensures the protection of all parties involved and contributes significantly to enhancing employee productivity.
Ensure regulatory compliance: Compliance plays a pivotal role in safeguarding corporate reputation within the business landscape. Thus, adhering to local regulations and legal frameworks minimizes conflicts and enhances the reputation of ethical hiring practices. In specific industries, regulatory compliance isn’t optional; it’s a mandate enforced by regulatory authorities. For instance, the HKMA (Hong Kong Monetary Authority) has mandated reference checking for banks under the MRC (Mandatory Reference Checking) scheme in Hong Kong. Given the elevated risk of hiring candidates with criminal records, strict adherence to regulatory standards becomes even more imperative.
Maintain a brand’s integrity: Employees serve as the embodiment of a brand’s image. Incidents such as violence or criminal offences in the workplace can result in adverse publicity, significantly impacting a brand’s reputation. Therefore, selecting candidates whose values resonate with the organization’s values is crucial for upholding the brand’s integrity. This fosters a positive public perception and mitigates the risks associated with reputational damage.
Encourage a positive culture in the workplace: Trust, comfort, security, and strong interpersonal connections characterize a positive work environment. Employers can ensure the fulfillment of these essential elements of a positive work culture by implementing preventive measures during the hiring process. This proactive approach reflects the employer’s commitment to fostering positivity and contributes significantly to creating a conducive and harmonious work environment.
Making better hiring decisions: The cornerstone of a resilient workforce rests in making well-informed hiring decisions. Moreover, criminal checks are potent tools for employers to enhance their ability to select the most suitable candidates. Without such checks, there exists a significant risk of overlooking crucial information about potential hires.
How to Conduct Criminal Checks in Hong Kong?
The process of conducting criminal checks in Hong Kong varies depending on several factors. Hence, determining which type of criminal check is relevant for recruiting for a particular role is the first step of this process. This is to ensure that there is no bias or discrimination and that a person’s privacy rights are well-protected.
Certificate of No Criminal Conviction (CNCC): The CNCC is a charged service provided by the Hong Kong Police Force (HKPF) in specific situations (e.g., application for visas, immigration purposes, adoption of children ), confirming a person’s criminal conviction status in Hong Kong. However, it is not usable for employment background check purposes.
Police check: A police check is an official check conducted through the HKPF to check if someone has a criminal record. This verification is commonly necessary for endeavours such as employment or immigration. Additionally, the procedure entails the individual presenting themselves in person at the HKPF headquarters, where their identity is validated and investigations are conducted into their past criminal activities.
Criminal (alt) check: Criminal (alt) check aka National Irregularity Check is the umbrella term for various crime-related records to explore a person’s potential background;
- Alert lists (global & local)
- Media searches (newspaper)
- Sanction lists
- Reported criminal record
- Court search (criminal records)
How to Conduct a Police Check?
Candidate consent & information briefing: The employers must gather the candidate’s consent and explain the use of the information before initiating the police check process.
Collection of candidate information: Gather the candidate’s information, including their full name in both English and Chinese, as well as their Hong Kong ID card number.
Contacting the HKPF: Contact the Hong Kong police force to request a police check with all the necessary documents as requested by the police. This may include proof of the organization’s legitimacy and the candidate’s written consent form.
Waiting for results: Await for the results as the police will communicate an estimated timeframe for delivering check results. (please note that the result will be confirmed verbally, and no certificate will be released if there is no criminal record.)
Examination and decision-making: After receiving the result, scrutinize the information and determine how it aligns with your hiring decision based on your company’s policy.
Common Questions About Police Checks
The police check results include information regarding whether a person has committed any criminal offences such as murder, manslaughter, theft, robbery, or financial crime. It may also contain any sexual conviction record of sexual offences such as rape. Please note that once a person has been convicted of a criminal offence, the criminal record cannot be deleted from the police or court files (unless the offender successfully appealed against the conviction).
No. The employers can not obtain a certificate of no conviction record for employment purposes. Only verbal confirmation will be provided by the HKPF to the employers in person if no record is found. Please note that the HKPF issues CNCC only for specific purposes like visa application or adoption.
Yes, since no criminal record can be deleted from the police or court files, any record found will be revealed, including the date of sentence, charge(s), description of the offence, sentence, court reference, and report number. This is under the guidelines in section 2 of the Rehabilitation of Offenders Ordinance (Cap. 297). Also, note that the candidates don’t have to disclose ‘spent convictions’ (minor offences) to employers unless directly asked. However, this exception does not apply to certain professions like finance or law.
‘Spent Conviction’ refers to:
- Sentence that did not exceed three months or
- Fine under HK$10,000; or
- No other offences in Hong Kong; or
- Three years have passed since the conviction
No. It can be conducted only if a candidate is located in Hong Kong.
Common Questions About Criminal (alt) Check
The check may include possible records gathered from the Small Claims Tribunal or any court, including the High and District Court. Moreover, these findings are presented with discretion and due attention is paid to the privacy concerns of the individuals.
The processing system’s efficiency and specific circumstances may cause the turnaround time for a Criminal (alt) Check to vary, although it is relatively faster than standard procedures.
While criminal background checks aren’t mandatory for every industry, some fields prioritize them due to sensitivity. These include regulated industries like finance, insurance, social services, and education. Additionally, roles requiring security clearance typically emphasize criminal checks.
Yes, candidates have the right to request a copy of the results obtained from a Criminal (alt) Check to review the information collected about their criminal background.
Information Disclosure Expectations
| Criminal Checks | Employer's Ability | Candidate's Disclosure |
|---|---|---|
| Certificate of No Criminal Conviction (CNCC) | Similar to a police check, employers cannot use a CNCC to assess a candidate's criminal history for employment purposes. | As a CNCC only confirms the absence of convictions, there's no specific disclosure requirement for candidates. However, if a relevant conviction exists, honesty is still important. If the job requires a high level of trust or security clearance, the candidate might choose to disclose the situation proactively. |
| Police Check | While a police check reveals more than a CNCC, it may show less than spent convictions. Nevertheless, employers must consider the nature and timing of the offence before using this as the sole basis to disqualify a candidate. | Similar to the general point above, disclosure of spent convictions is not mandatory. However, transparency is key. If a non-spent conviction appears that could be relevant to the job, the candidate should be prepared to address it. |
| Criminal (alt) Check | These checks rely on sources outside official criminal records, such as reference checks or third-party employment verification. However, they wouldn't reveal criminal history directly. | As with the other options, disclosure of past convictions isn't mandatory for spent convictions. However, honesty remains important, especially if references or past employment might reveal relevant information. The candidate can choose to address any concerns proactively during the application process. |
In all three methods, compliance with the Personal Data (Privacy) Ordinance (PDPO) is crucial. Also, employers can only conduct checks with the candidate’s written consent and must follow proper data storage and disposal procedures.
Role of the PDPO in Conducting Criminal Checks in Hong Kong
The Personal Data (Privacy) Ordinance (PDPO) in Hong Kong is one of the oldest privacy laws in the Asia Pacific region. It aims to safeguard an individual’s right to privacy and also regulates the collection, processing, and handling of personal data.
Informed consent: Employers must obtain explicit & informed written consent from the applicant before initiating a criminal background check.
| Data Protection Principle | Description |
|---|---|
| Purpose and Manner of Collection | The collection of data must be lawful and under fair circumstances. The data subject (applicant) should know the following: Reason for collection Intended use Method of data disclosure Their rights to access or rectify data |
| Accuracy and Retention | Requires data users to implement measures to ensure data accuracy. Retain collected data only as necessary for its intended use. Article 26 of the PDPO mandates that entities delete personal data that is no longer needed unless legally required or in the public interest. |
| Data Use | Restricts data use to purposes related to the original reason for collection without consent. Data subjects can revoke consent with written notice. Direct marketing purposes require informed consent. Informed consent means providing full disclosure about: type and purpose of data usage; right to withdraw consent; other details regarding data use. |
| Data Security | Mandates adequate security measures for personal data protection. Data users must take precautions against: unauthorized access; processing; deletion; loss of data. Additionally, data processors must oblige to comply as a part of the contract. |
| Openness | Requires data users to inform data subjects about personal data handling practices, including: the type of data collected; reason for use. |
| Data Access and Correction | Provides guidelines for: correction of inaccurate data (upon request); handling of correction requests; time taken to process requests; rejection of correction requests (with provisions). |
PDPO should be in balance with Rehabilitation: The PDPO needs to be balanced with the Rehabilitation of Offenders Ordinance (ROO) which protects individuals with a criminal past. Additionally, the ROO dictates that employers cannot consider “spent convictions” (minor offences) for employment purposes after a certain period.
In conclusion, a criminal check stands as an indispensable safeguard for employers. In the intricate realm of background checks, it serves as a tool to unveil any concealed information about potential employees. It’s not merely about trust but about the necessary precautions for fostering a secure workplace while upholding data privacy standards. Employers should possess a comprehensive understanding of the available types of criminal checks and their procedures to determine the most suitable option for their organization. It’s important to remember that a thorough and compliant criminal check process can significantly contribute to cultivating a robust and trustworthy workforce within any organization.
