30 November 2016
A Vietnamese illegal worker holding a recognisance form was jailed at Shatin Magistrates' Courts yesterday (November 29).
During an anti-illegal worker operation conducted on October 29, Immigration Department (ImmD) investigators raided a residential flat in Sham Shui Po at which a Vietnamese male, aged 30, was arrested. He was suspected of working illegally as a cleaning worker, and using and being in possession of a suspected forged Hong Kong identity card and a false instrument. 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. One employer suspected of employing the illegal worker was also arrested and the investigation is ongoing.
The illegal worker was charged at Shatin Magistrates' Courts yesterday 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. He was also charged with using a forged Hong Kong identity card and being in possession of a false instrument. He pleaded guilty to the charges, for which he was sentenced to 12 months to 15 months' imprisonment respectively. All sentences are to run concurrently.
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. Moreover, anyone who has in his custody a false instrument commits an offence and is liable on conviction to imprisonment for 14 years.
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.