29 December 2016
Two Indian illegal workers were jailed at Shatin Magistrates' Courts yesterday (December 28).
Immigration Department (ImmD) investigators received a referral from the Hong Kong Police Force to further investigate an illegal employment case in April. Enforcement officers found two male Indian illegal workers, aged 25 and 28, working in refuse collection in Tai Po. 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. A Hong Kong resident employer was also arrested for employing illegal workers and was convicted in October at Shatin Magistrates' Courts.
The two arrestees were each 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. After the trial, they were sentenced to 22 months and two weeks' 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. 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.