Hong Kong resident employer and three non-ethnic Chinese illegal workers jailed

27 September 2016

A Hong Kong resident employer and three non-ethnic Chinese illegal workers comprising one Indian, one Pakistani and one Vietnamese holding recognisance forms were jailed at Shatin Magistrates' Court yesterday (September 26).

The Immigration Department (ImmD) mounted a joint operation with the Hong Kong Police Force and the Labour Department codenamed "Champion" on August 17. During the operation, enforcement officers raided a restaurant in Tsuen Wan and one Indonesian female was arrested for working as a dishwashing worker and overstaying. She was charged with breach of condition of stay and sentenced to five months' imprisonment on August 20. The Hong Kong resident employer was charged as she had not inspected the identity document of the Indonesian female or made further enquiries to ascertain whether she was lawfully employable prior to employment. She pleaded guilty to the charge of being an employer of a person who is not lawfully employable and was sentenced to two months' imprisonment at Shatin Magistrates' Court yesterday.

Furthermore, in May and also this month, ImmD investigators received referrals from the Hong Kong Police Force to further investigate two illegal employment cases. Enforcement officers arrested three male workers comprising an Indian, a Pakistani and a Vietnamese,  aged between 28 and 45, who were conveying goods in a recycling yard in Lok Ma Chau and performing renovation work inside a shop in Ngau Tau Kok. Upon identity checking, they produced for inspection recognisance forms issued by the ImmD, which prohibit them from taking employment, and further investigation revealed that they were non-refoulement claimants. An employer suspected of employing the illegal workers was arrested. The investigation is ongoing.

The three arrestees were each 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. They pleaded guilty to the charges and were each 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 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.