Four illegal workers jailed

3 April 2017

Four illegal workers comprising one Indonesian and three Vietnamese holding recognisance forms were jailed at Shatin Magistrates' Courts on March 31.

During a joint operation conducted by the Hong Kong Immigration Department (ImmD), the Hong Kong Police Force and the Labour Department codenamed "Powerplayer" on February 28, enforcement officers raided a car washing shop in Pat Heung, Yuen Long, and arrested a male Indonesian, aged 20. When intercepted, he was found washing a car. Upon identity checking, he produced for inspection a recognisance form issued by the ImmD, which prohibits him from taking employment and further investigation revealed that he was a non-refoulement claimant.

Furthermore, during operation "Twilight" conducted on March 29, ImmD investigators raided a food stall in Ma On Shan. Three Vietnamese comprising one male and two female, aged from 25 to 45, were arrested. When intercepted, they were found working as odd job workers and a dish wash worker in the kitchen. Upon identity checking, the two females produced for inspection recognisance forms issued by the ImmD, which prohibit them from taking employment. The male was unable to produce for inspection any proof of identity. Further investigation revealed that he was a holder of a recognisance form issued by the ImmD, which prohibits him from taking employment. The three illegal workers were non-refoulement claimants. In addition, they were suspected of using and being in possession of suspected forged Hong Kong identity cards or a false instrument. An employer suspected of employing the illegal workers was also arrested and the investigation is ongoing.

The four illegal workers were charged at Shatin Magistrates' Courts on March 31 with taking 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. After the trial, they were sentenced to 15 months' imprisonment. Among them, three illegal workers were also charged with using forged Hong Kong identity cards or false instrument and they were each sentenced to 15 months' imprisonment. All sentences are to run concurrently.

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 also warned that it is an offence to use or possess a forged Hong Kong identity card. Offenders are liable to prosecution and a maximum penalty of a $100,000 fine and up to 10 years' imprisonment.

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.