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Posted: January 15, 2021
Hong Kong, officially known as the “Hong Kong Special Administrative Region of the People’s Republic of China (HKSAR),” is a densely populated metropolitan area with over 7.5 million residents. Hong Kong operates with its own currency, passport and immigration channels, and legal system.
Prior to implementing a background screening program in Hong Kong, companies need to understand the data protection landscape, labor laws and the Rehabilitation of Offenders Ordinance, which all impact background screening in Hong Kong.
Best Practices of Conducting Background Checks in Hong Kong:
Here are a few considerations for conducting background checks in Hong Kong:
Legal and Data Privacy Considerations of Conducting Background Checks in Hong Kong
Hong Kong’s Rehabilitation of Offenders Ordinance protects individuals with criminal history with regard to employment purposes, meaning that companies cannot consider prior convictions when making employment decisions. This pertains to individuals who were convicted in Hong Kong for offense of less than three months of imprisonment or a fine exceeding HK$10,000. This only applies if the individual has not been previously convicted of any other offense in Hong Kong. These convictions are determined to be “spent, which means that the individual can legally claim that they do not have a criminal history. Hong Kong’s comprehensive data privacy legislation, the Personal Data (Privacy) Ordinance (PDPO), was among the first legislation to be adopted in the APAC region. The ordinance addresses personal information, including identity card numbers and employment records. It also outlines requirements for data owners collecting, processing and transferring personal data via six data protection principles. Before collecting, processing and transferring personal data in Hong Kong, individuals must be notified of the purpose, who may receive the data and if it is mandatory or voluntary to provide the information requested (unless it is obvious from the circumstances). Consent is recommended for background screening purposes, and express consent (that is freely given) is required for data transfers. Individuals have the right to withdraw consent at any time, and also have the right to access and correct personal data. The six data protection principles are:
Hong Kong Criminal (Illicit Activity Database) Records Search
A traditional criminal records search is not available in Hong Kong and the Hong Kong Police Force will only issue a Certificate of No Criminal Conviction for purposes including travel visas and adoption purposes. In Hong Kong, it is not feasible to conduct criminal checks through court houses since they do not always have a defendant’s ID number and file their records by case number and year, so they would not be able to conduct an accurate search. Additionally, courthouses in Hong Kong maintain their records separately so there is no way to conduct a consolidated search. Courthouses do not have a standard process for criminal checks, which means there is no guarantee on deliverables.
The Police Force will not issue the Certificates to third parties unless the applicant is present. Info Cubic does offer an Illicit Activity Database search. This proprietary database will pull information from various sources including publicly available records from the High Court, District Court and Magistrates’ Court. While this search will provide insight into an individual’s past, it should not be considered a true, comprehensive criminal history review. Where available, the search result will cover the courthouse, date of hearing, nature or description of the offence and in certain cases, the sentences. Since this is a criminality search sourced from private databases and media sources, the search is not exhaustive.
Available Background Checks in Hong KongWhile the most common background checks in Hong Kong are Criminal Record Searches, education verifications and employment verifications there are many other background checks available in Hong Kong. Here is a rundown:
For more information on conducting Hong Kong background checks, or for information on international background checks in general, please feel free to reach out to the Info Cubic team at (877) 360-4636.
It is important to note that the preceding is offered as general educational information and is not intended to constitute legal advice. Given the intricacies of the pertinent laws and regulations, consultation with qualified legal counsel is recommended.