Hong Kong resident employer and two illegal workers jailed

22 February 2018

A Hong Kong resident employer who employed three illegal workers was jailed at Shatin Magistrates' Courts yesterday (February 21). Two Vietnamese illegal workers were also jailed.

During an operation conducted by the Immigration Department (ImmD) codenamed "Twilight" on July 5, 2017, ImmD officers raided a shopping mall in Tsim Sha Tsui. Three Vietnamese illegal workers were arrested for working as cleaning workers. The Hong Kong resident employer of the illegal workers was also arrested.

The three illegal workers were jailed by Tuen Mun Magistrates' Courts earlier. The Hong Kong resident employer was charged at Shatin Magistrates' Courts yesterday with one count of being an employer of a person who was not lawfully employable and two counts of being an employer who had not inspected documents of new employees as he did not take all practicable steps to ascertain whether the applicants were lawfully employable prior to employment. After trial, he was sentenced to a total of six weeks' imprisonment.

Moreover, during an anti-illegal worker operation mounted on January 24, ImmD investigators raided a restaurant in Central. Two female Vietnamese illegal workers, aged 43 and 45, were arrested. When intercepted, they were found preparing food and washing dishes respectively. Upon identity checking, one of them produced for inspection a recognisance form issued by the ImmD, which prohibits her from taking employment. Further investigation revealed that she was a non-refoulement claimant. The other one was an illegal immigrant. One employer suspected of employing the illegal workers was also arrested and the investigation is ongoing.

The 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 pleaded guilty to the charges and were both 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.

Under the existing mechanism, the ImmD will, as a standard procedure, conduct initial screening of vulnerable persons, including illegal workers, illegal immigrants, sex workers and foreign domestic helpers, who are arrested during any operation with a view to ascertaining whether they are trafficking in persons (TIP) victims. When any TIP indicator is revealed in the initial screening, the officers will conduct a full debriefing and identification by using a standardised checklist to ascertain the presence of TIP elements, such as threat and coercion in the recruitment phase, and the nature of exploitation. Identified TIP victims will be provided with various forms of support and assistance, including urgent interference, medical services, counselling, shelter, temporary accommodation and other supporting services. The ImmD calls on TIP victims to report crimes to the relevant departments.