21 September 2016
An Indian illegal worker holding a recognisance form was jailed at Shatin Magistrates' Courts yesterday (September 20).
Immigration Department (ImmD) investigators received a referral from the Hong Kong Police Force in June to further investigate an illegal employment case. Enforcement officers arrested an Indian male worker, aged 38, sorting electronic parts in a recycling yard in Tin Shui Wai. 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. One employer suspected of employing the illegal worker was arrested and the investigation is ongoing.
The illegal worker was charged at Shatin Magistrates' Courts yesterday with taking employment without the authority of the Director of Immigration while being a person in respect of whom a removal order or deportation order was in force. After the trial, he was sentenced to 22 months and two weeks' imprisonment.
The 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 stating 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.