Two illegal workers jailed

9 January 2017

A Bangladeshi illegal worker holding a recognisance form and a Vietnamese illegal worker were jailed at Shatin Magistrates' Courts on January 6 and 7 respectively.

Immigration Department (ImmD) investigators received a referral from the Hong Kong Police Force to further investigate an illegal employment case in October 2016. Enforcement officers arrested a male Bangladeshi worker, aged 41, conveying goods in Tai Po. Upon identity checking, he was found to be a holder of a recognisance form issued by the ImmD, which prohibits him from taking employment, and further investigation revealed that he was a non-refoulement claimant. An employer suspected of employing the illegal worker was also arrested and the investigation is ongoing.

During an anti-illegal employment operation mounted on January 4, ImmD investigators raided a restaurant in Western district and arrested a male Vietnamese, aged 43. When intercepted, he was found washing dishes in the restaurant. After questioning, he was arrested on suspicion of using and being in possession of a suspected forged Hong Kong identity card, and further investigation revealed that he was an illegal immigrant. An employer suspected of employing the illegal worker was also arrested and the investigation is ongoing.

The two arrestees were each charged at Shatin Magistrates' Courts on January 6 and 7 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. After the trial, they were sentenced to 15 months, and 22 months and two weeks' imprisonment, respectively. One of them was also charged with using a forged Hong Kong identity card and was sentenced to 15 months' imprisonment. The two charges 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. 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.