29 November 2016
Two illegal workers comprising one Vietnamese and one Pakistani, each holding a recognisance form, were jailed at Shatin Magistrates' Courts yesterday (November 28).
During an anti-illegal worker operation conducted on November 25, Immigration Department (ImmD) investigators raided a hair salon in Mong Kok at which a Vietnamese female, aged 25, was arrested. When intercepted, she was found washing hair in the salon. Upon identity checking, she 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. She was also suspected of using and being in possession of a suspected forged Hong Kong identity card.
ImmD investigators also received a referral from the Hong Kong Police Force to further investigate an illegal employment case this month. Enforcement officers arrested a Pakistani male worker, aged 29, conveying goods in Kwai Chung. Upon identity checking, he produced for inspection a recognisance form issued by the ImmD, which prohibits him from taking employment. Further investigation revealed that he was a non-refoulement claimant. Two employers suspected of employing the illegal worker were arrested and the investigations are ongoing.
The two illegal workers were charged at Shatin Magistrates' Courts yesterday with taking up 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. One of them was also charged with using a forged Hong Kong identity card. They pleaded guilty to the charges and were sentenced to 15 and 16 months' imprisonment respectively.
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 also warned that it is an offence to use or possess a forged Hong Kong identity card. Offenders are liable to prosecution and a maximum penalty of a $100,000 fine and up to 10 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.