Illegal worker jailed

20 April 2017

An Indian illegal worker holding a recognisance form was jailed at Shatin Magistrates' Courts yesterday (April 19).

During an anti-illegal worker operation conducted on March 15, Immigration Department (ImmD) investigators intercepted a male Indian worker, aged 25, removing construction waste in a shop under demolition in Kowloon City. Upon interception, he attempted to flee and resisted arrest but was immediately subdued and arrested. 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 also arrested and the investigation is ongoing.

The illegal worker was charged at Shatin Magistrates' Courts yesterday 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, and also assaulting, resisting or obstructing a member of the Immigration Service acting in the execution of his duty. After the trial, he was sentenced to 15 months' imprisonment.

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 any person who assaults, resists or obstructs any member of the Service acting in the execution of his duty, or aids or incites any person to assault, resist or obstruct any such member of the Service, shall be guilty of an offence and shall be liable on summary conviction to a fine at level 1 (i.e. $2,000) and to imprisonment for six months.

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.