Two illegal workers jailed

22 November 2016

Two Indian illegal workers each holding recognisance form were jailed at Shatin Magistrates' Courts yesterday (November 21).

In an anti-illegal employment operation jointly mounted by the Immigration Department (ImmD) and the Labour Department on October 26, enforcement officers found a male Indian illegal worker, aged 22, working as waiter at a restaurant in Tsim Sha Tsui. Upon identity checking, he produced for inspection a recognisance form issued by the ImmD, which prohibits him from taking employment. Further investigation revealed that he was a non-refoulement claimant. An employer suspected of employing the illegal worker was arrested and the investigation is ongoing.

ImmD investigators also received a referral from the Hong Kong Police Force to further investigate an illegal employment case in October. Enforcement officers arrested a male Indian worker, aged 47, collecting garbage from pavements in Tsuen Wan. Upon identity checking, he produced for inspection a recognisance form issued by the ImmD, which prohibits him from taking employment. Further investigation revealed that he was a non-refoulement claimant and was also involved in anther illegal employment case. An employer suspected of employing the illegal worker was arrested and the investigation is ongoing.

The arrestees were charged at Shatin Magistrates' Court yesterday with taking up employment after landing in Hong Kong unlawfully and remaining in Hong Kong without the authority of the Director of Immigration or while being a person in respect of whom a removal order or deportation order was in force. The arrestees pleaded guilty to the charges and were sentenced to 15 and 21 months' imprisonment respectively.

The ImmD spokesman warned that, as stipulated in section 38AA of the Immigration Ordinance, illegal immigrants or people who are the subject of a removal order or a deportation order are prohibited from taking any employment, whether paid or unpaid, or establishing or joining in any business. Offenders are liable upon conviction to a maximum fine of $50,000 and up to three years' imprisonment. The Court of Appeal has issued a guideline ruling that a sentence of 15 months' imprisonment should be applied in such cases.

The spokesman reiterated that it is a serious offence to employ people who are not lawfully employable. The maximum penalty is imprisonment for three years and a fine of $350,000. The High Court has laid down sentencing guidelines that the employer of an illegal worker should be given an immediate custodial sentence. According to the court sentencing, employers must take all practicable steps to determine whether a person is lawfully employable prior to employment. Apart from inspecting a prospective employee's identity card, the employer has the explicit duty to make enquiries regarding the person and ensure that the answers would not cast any reasonable doubt concerning the lawful employability of the person. The court will not accept failure to do so as a defence in proceedings. It is also an offence if an employer fails to inspect the job seeker's valid travel document if the job seeker does not have a Hong Kong permanent identity card. The maximum penalty for failing to inspect such a document is imprisonment for one year and a fine of $150,000.