14 October 2016
A Hong Kong resident employer and an Indian holding a recognisance form were jailed by Shatin Magistrates' Courts yesterday (October 13).
Immigration Department (ImmD) investigators received a referral from the Hong Kong Police Force to further investigate an illegal employment case in September. Enforcement officers arrested a male Indian illegal worker, aged 28, who was 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. Further investigation revealed that he was a non-refoulement claimant. A Hong Kong resident employer of the illegal worker was also arrested.
The two arrested persons were jailed by Shatin Magistrates' Courts yesterday. The Hong Kong resident employer was charged with being an employer of a person who is not lawfully employable as he had not inspected the identity document of the illegal worker and taken practicable steps to ascertain whether he was lawfully employable prior to employment. He pleaded guilty to the charge and was sentenced to two months' imprisonment. The illegal worker was charged with taking up 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. He pleaded guilty to the charge and was 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.