26 September 2018
Three illegal workers comprising two Pakistanis and a Vietnamese were jailed by Shatin Magistrates' Courts on September 24.
During an anti-illegal worker operation mounted on July 27, Immigration Department (ImmD) investigators raided a warehouse in Tseung Kwan O. Two male Pakistani illegal workers, aged 29 and 41, were arrested. When intercepted, they were both unloading goods. 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.
In addition, during operation "Twilight" on September 20, ImmD investigators raided a restaurant in Tai Wai. One female Vietnamese illegal worker, aged 44, was arrested. When intercepted, she was performing dish washing duty. 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 forged identity card. An employer suspected of employing the illegal worker was arrested and the investigation is ongoing.
The three illegal workers were charged at Shatin Magistrates' Courts on September 24 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 pleaded guilty to the charges and they were sentenced to 15 months' imprisonment. In addition, one of them was also charged with one count of using a forged Hong Kong identity card. She was sentenced to 15 months' imprisonment of which part of the sentence is to run consecutively, making a total of 18 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 to use or possess a forged Hong Kong identity card or an identity card relating to another person. 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.
Under the existing mechanism, the ImmD will, as a standard procedure, conduct initial screening of vulnerable persons, including illegal workers, illegal immigrants, sex workers and foreign domestic helpers, who are arrested during any operation with a view to ascertaining whether they are trafficking in persons (TIP) victims. When any TIP indicator is revealed in the initial screening, the officers will conduct a full debriefing and identification by using a standardised checklist to ascertain the presence of TIP elements, such as threat and coercion in the recruitment phase, and the nature of exploitation. Identified TIP victims will be provided with various forms of support and assistance, including urgent interference, medical services, counselling, shelter, temporary accommodation and other supporting services. The ImmD calls on TIP victims to report crimes to the relevant departments.