20 October 2016
Three illegal workers comprising two Vietnamese and one Indian, each holding a recognisance form, were jailed at Shatin Magistrates' Courts yesterday (October 19).
During an anti-illegal worker operation mounted on October 17, Immigration Department (ImmD) investigators raided two restaurants in Sham Shui Po and Prince Edward. Two Vietnamese men aged 34 and 37 were arrested. When intercepted, they were found working inside the kitchens. Upon identity checking, they produced for inspection recognisance forms issued by the ImmD, which prohibit them from taking employment. Further investigation revealed that they were non-refoulement claimants. In addition, investigators seized copies of forged Hong Kong identity cards of the two illegal workers at the scene. One employer suspected of employing the two illegal workers was also arrested and the investigation is ongoing.
In addition, ImmD investigators earlier received a referral from the Hong Kong Police Force to further investigate an illegal employment case. Enforcement officers arrested one Indian male worker aged 43 selling fruits on a pavement at Yuen Long. Upon identity checking, he produced for inspection a recognisance form issued by ImmD, which prohibits him from taking employment, and further investigation revealed that he was a non-refoulement claimant.
The three illegal workers were 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. They were sentenced to 15 months' to 22 months and two weeks' imprisonment. Two of the male arrestees also pleaded guilty to the charge of using forged Hong Kong identity cards and were 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. 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.