7 November 2016
Four illegal workers comprising two Indians and two Vietnamese, each holding a recognisance form, were jailed at Shatin Magistrates' Courts and Fanling Magistrates' Courts on November 4 and 5.
During a joint operation with the Hong Kong Police Force and the Labour Department codenamed "Sahara" mounted on August 10, enforcement officers conducted raids at Tung Choi Street in Mong Kok district. Two male Indian illegal workers, aged 22 and 27, were arrested. When intercepted, they were found setting up stalls. Upon identity checking, they produced for inspection recognisance forms issued by the Immigration Department (ImmD), which prohibit them from taking employment. Further investigation revealed that they were non-refoulement claimants.
In addition, during operation "Twilight" mounted on November 3, ImmD investigators raided two restaurants in Quarry Bay and Ma Wan. Two female Vietnamese illegal workers, aged 42 and 48, were arrested. When intercepted, they were found washing dishes. Upon identity checking, they produced for inspection recognisance forms issued by the ImmD, which prohibit them from taking employment. Further investigation revealed that they were non-refoulement claimants. Two employers suspected of employing the two illegal workers were also arrested and the investigations are ongoing.
The four illegal workers were charged at Shatin Magistrates' Courts and Fanling Magistrates' Courts on November 4 and 5 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 were each sentenced to 15 months' imprisonment. As one of the male arrestees committed a related offence during his suspended sentence, the Court sentenced him to another six weeks' imprisonment, running consecutively, making a total imprisonment term of 15 months and six weeks.
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.