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:
- Since Chinese and English are both considered “official” languages in Hong Kong, most people have two names (Chinese and English), which can make conducting background checks very tricky at times. It is best practice to search both names (Chinese and English) for the same subject.
- In order to obtain the most accurate search possible, it is necessary to use an individual’s Hong Kong Identification Card Number (HKID), which is an alpha-numeric number that looks like this: A12345.
- Hong Kong laws dictate that it is necessary to obtain written consent from subject prior to collecting, processing and transferring personal data.
- There is not an official criminal check available in Hong Kong, so it is necessary to conduct a criminal check using the subject’s name to search against public sources, including private litigation databases and media sources.
- While it is not possible to obtain a Certificate of No Criminal Conviction for employment screening purposes in Hong Kong, an applicant is able to access his or her own criminal records.
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:
- Collection of Personal Information in Hong Kong
- Laws in Hong Kong laws dictate that personal information is collected in a fair, reasonable and lawful manner that is not overly intrusive. Additionally, companies collecting personal sensitive information must have a legitimate business purpose for doing so although exceptions exist if the individual who owns the personal information consents to a new purpose. It is also necessary to notify not only the individual of the purpose, along with other organizations that the data may be transferred to.
- Accuracy and Retention of Personal Information in Hong Kong
- When conducting background checks in Hong Kong, companies must ensure that any personal information collected from subjects is accurate and up to date. Additionally, the private information may only be kept for as long as necessary to fulfill the legitimate business purpose.
- Organizations can only use the data for a directly related legitimate business purpose. Exceptions exist if the individual who owns the personal information consents to a new purpose.
- Organizations must have strict security measures in place to safeguard personal information from unauthorized or accidental access, use, processing, erasure, or loss.
- Organizations must make their personal data policies, practices, and procedures publicly available regarding the types of personal information data they hold and how that data is used. These policies must be available to any individual.
- Data Access and Correction
- Organizations must allow individuals to access their own personal information data. Individuals are allowed to review this information and correct an inaccuracy that they find.
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 Kong
While 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:
- Hong Kong Civil Records Search – Nationwide – This search is conducted at the nationwide level. Report may include case type, file date, case number, name of court where case was filed, plaintiff, defendant and disposition if a case can be located. Requirements: Full name in English or/and Chinese (HK ID is preferred), date of birth, address.
- Hong Kong Bankruptcy Records Search – This search is conducted at the local level through the court based on the jurisdiction of the address provided. Report may include file date, case number, name of court where case was filed and case status if a bankruptcy case can be located. The Privacy Commissioner for Personal Data places a significant emphasis on employers collecting only the minimum amount of personal data needed for recruitment and employment purposes and has noted that reviewing an individual’s financial details will rarely be necessary for employment purposes. Requirements: Full name in English or/and Chinese, HK ID, date of birth, address.
- Education Degree Verification in Hong Kong – It is common to verify only the highest degree obtained by a candidate. Educational institutions will be contacted to verify dates of attendance, graduation date and degree information. Requirements: Full name in English or Chinese, date of birth, school name, degree, major, dates attendance, city of school, hand signed release form.
- Employment Verification in Hong Kong – Employers will be contacted to verify the individual’s title, dates of employment and if the candidate is eligible for rehire. Typically, employment verifications do not extend beyond a 7-year time frame absent a legal or regulatory requirement to obtain that information. Current employers will only be contacted with express consent from the applicant. Requirements: Full name in English or Chinese, date of birth, employer name, contact information, release form, date of employment.
- Reference Check in Hong Kong – This search is conducted via telephone (or at times e-mail) with the individual’s personal or professional references using a standard list of questions.
- Motor Vehicle Records – Passport could be used instead of HK ID as long as the candidate can provide the same passport that was used while the candidate was in Hong Kong. Requirements: Name, DOB, Address, Release, Passport. Requirements: Full name in English or Chinese, reference’s relationship, contact name and contact information (including phone number and email address).
- Credit Reports in Hong Kong – The individual credit report provides a summary of an individual’s credit history. Other information provided in the report may include information on the individual’s bad debt and collections, trade account information, bankruptcies and court liens or judgments. The Privacy Commissioner for Personal Data places a significant emphasis on employers collecting only the minimum amount of personal data needed for recruitment and employment purposes and has noted that reviewing an individual’s financial details will rarely be necessary for employment purposes. Requirements: Name, Date of Birth, Address, Identification Number, Signed Release Form.
- Global Monitor Check – The Global Monitor Check (GMC) is database product that searches a variety of databases. Requirements: Name, date of birth, address.
- ID Check in Hong Kong – A validation and/or verification of the data subject’s identity documents. Requirements: Name, DOB, Address, Consent Form, Identification Card Color Copy (Front and Back).
- Directorship Check in Hong Kong – A search to determine if a candidate had fiduciary or board of directors responsibilities for a company. Requirements: Name, date of birth, address, passport copy, company name where directorship was held, company address, In-Country Residence History Form