Two Vietnamese illegal workers jailed

3 October 2016

Two Vietnamese illegal workers were jailed at Shatin Magistrates' Courts on October 1.

During operation "Twilight" mounted on September 29, Immigration Department (ImmD) investigators raided a commercial building in Jordan and a restaurant in Yuen Long. Two female Vietnamese illegal workers aged 41 and 45 were arrested. When intercepted, they were performing cleaning work in a commercial building and washing dishes in a restaurant respectively. Upon identity checking, one of them produced for inspection a recognisance form issued by the ImmD, which prohibits her from taking employment, and further investigation revealed that she was a non-refoulement claimant. The other female was an illegal immigrant. She was also suspected of using and being in possession of a suspected forged Hong Kong identity card and breaching a deportation order. Two employers suspected of employing the illegal workers were also arrested and the investigation is ongoing.

The two arrestees were each charged at Shatin Magistrates' Courts on October 1 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 sentenced to 15 months' imprisonment. One of them was also charged with using and possessing a forged identity card and breach of deportation order. She was sentenced to 15 months' and 18 months' imprisonment respectively. Parts of the sentences are to run concurrently, making a total of 21 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 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. It is also an offence for any person in respect of whom a deportation order is in force to breach the order. Offenders are liable upon conviction to up to seven 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. Otherwise, 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.