29 May 2017
An Indian illegal worker was jailed at Shatin Magistrates' Courts on May 26.
During a joint operation conducted by the Immigration Department (ImmD), the Hong Kong Police Force and the Labour Department codenamed "Champion" on March 28, enforcement officers raided a stall in Mong Kok. A male Indian illegal worker, aged 30, was arrested. When intercepted, he was found setting up the stall. Upon identity checking, he was unable to produce for inspection any proof of identity. Further investigation revealed that he was an illegal immigrant.
The illegal worker was charged at Shatin Magistrates' Courts on May 26 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, and was sentenced to 16 months and two weeks' imprisonment. Furthermore, he was also charged with breach of a deportation order and having landed in Hong Kong unlawfully, and remaining in Hong Kong without the authority of the Director, and was sentenced to 18 months' and 15 months' imprisonment respectively. Parts of the sentences are to run concurrently, making a total of 20 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 also warned that it is an offence for any person in respect of whom a deportation order is in force is in Hong Kong in contravention of the order. Offenders are liable upon conviction to up to seven years' imprisonment. Furthermore, it is an offence for any person to have landed in Hong Kong unlawfully, and to remain in Hong Kong without the authority of the Director. Offenders are liable upon conviction to a maximum fine of $25,000 and up to three 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.