Hong Kong resident employer and two illegal workers jailed

4 May 2017

A Hong Kong resident employer who employed an illegal worker, and two illegal workers comprising one Nepalese and one Saudi Arabian, were jailed at Shatin Magistrates' Courts today (May 4) and on May 2.

Immigration Department (ImmD) investigators earlier received a referral from the Hong Kong Police Force to further investigate an illegal employment case. Enforcement officers arrested a male Indian, aged 29, conveying construction waste in Sheung Shui. 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. A Hong Kong resident employer of the illegal worker was also arrested.

During operation "Twilight" conducted on March 29, ImmD investigators raided a restaurant in North Point. A male Nepalese illegal worker and a male Saudi Arabian illegal worker, aged 34 and 55 respectively, were arrested. When intercepted, they were found washing dishes. Upon identity checking, one of them 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. Furthermore, they were also suspected of using and being in possession of suspected forged Hong Kong identity cards or identity cards relating to other persons.

The Hong Kong resident employer who was suspected of employing the Indian illegal worker was charged at Shatin Magistrates' Courts today with being an employer of a person who is not lawfully employable as he had not inspected the identity document of the illegal worker and taken practicable steps to ascertain whether he was lawfully employable prior to employment. He pleaded guilty to the charge and was sentenced to eight weeks' imprisonment. Furthermore, the two illegal workers were charged at Shatin Magistrates' Courts on May 2 for breaching the condition of stay by taking up unapproved employment in Hong Kong as a visitor, and 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 respectively. After the trial, they were sentenced to 15 months' and six weeks' imprisonment respectively.

"Any person who contravenes a condition of stay in force in respect of him shall be guilty of an offence. Also, visitors are not allowed to take employment in Hong Kong, whether paid or unpaid, without the permission of the Director of Immigration. Offenders are liable to prosecution and upon conviction face a maximum fine of $50,000 and up to two years' imprisonment. Aiders and abettors are also liable to prosecution and penalties," an ImmD spokesman said.

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.