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 theRehabilitation 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.

The "spent" conviction provisions of the RHO are very limited. 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

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.

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).

Where a conviction of an offender has become"spent"; under section 2(1) of the Rehabilitation of Offenders Ordinance, the spent conviction continues even if there is a subsequent conviction. However, the subsequent conviction cannot become "spent", because section 2 of the RHO applies only if an individual "has not been convicted in Hong Kong on any earlier day of an offence". This clause means that the subsequent conviction cannot become "spent", as it is outside the provisions of section 2 of the RHO. The RHO offers only one opportunity for rehabilitation in respect of the offences covered by section 2. The subsequent conviction means that the offender cannot claim to be of good character and it cannot become "spent".