Thirteen illegal workers jailed

2 April 2019

Thirteen Vietnamese illegal workers were jailed by Shatin and Tuen Mun Magistrates' Courts on March 29 and 30.

During an anti-illegal worker operation conducted on March 27, Immigration Department (ImmD) investigators raided food factories, a restaurant, a residential building and a cleaning service company in Tuen Mun, Tsuen Wan, Quarry Bay and Sham Tseng. Nine male Vietnamese and four female Vietnamese illegal workers, aged 21 to 56, were arrested. Upon identity checking, two men and three women produced for inspection recognisance forms issued by the ImmD, which prohibit them from taking employment. Further investigation revealed that they were non-refoulement claimants. Furthermore, three men and two women were also suspected of using and being in possession of a forged identity card. In addition, two men were also suspected of using and being in possession of a false instrument. Three employers suspected of employing the illegal workers were arrested and the investigation is ongoing.

The 13 illegal workers were charged at Shatin and Tuen Mun Magistrates' Courts on March 29 and 30 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 sentenced to 15 months' imprisonment. Meanwhile, two male illegal workers were also charged with one count of using a forged Hong Kong identity card and were sentenced to 15 months' imprisonment. All sentences are to run concurrently, making a total of 15 months' imprisonment. Furthermore, one male and two female illegal workers were also charged with two counts of using a forged Hong Kong identity card and were sentenced to 15 months' imprisonment with parts of the sentences to run consecutively, making a total of 20 months' imprisonment. In addition, two male illegal workers were also charged with one count of possessing a false instrument and were sentenced to 12 months' imprisonment. All sentences are to run concurrently, making a total of 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. Under the prevailing laws, it is an offence to use or possess a forged Hong Kong identity card or a Hong Kong identity card related to another person. 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 to make, possess or use false instruments. Upon conviction, offenders are liable to a maximum penalty of 14 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.

Under the existing mechanism, the ImmD will, as a standard procedure, conduct initial screening on 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.