21 November 2022
Two Vietnamese illegal workers holding recognisance forms were jailed by Shatin Magistrates' Courts on November 18.
During operation "Twilight" conducted on October 17, Immigration Department (ImmD) investigators raided a restaurant in Causeway Bay. A Vietnamese male, aged 31, was arrested while working as an odd job worker. Upon identity checking, he produced for inspection a recognisance form issued by the ImmD, which prohibits him from taking employment. Meanwhile, an employer suspected of employing the illegal worker was arrested and the investigation is ongoing.
In addition, during operation "Breakthrough" conducted on November 16, ImmD investigators raided a residential building in Shatin. A Vietnamese female, aged 62, was arrested while working as cleaning worker. Upon interception, she attempted to flee and resisted, but was immediately subdued. 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. An employer suspected of employing the illegal worker was also arrested and the investigation is ongoing.
The illegal workers were charged at Shatin Magistrates' Courts on November 18 with taking employment while being a person in respect of whom a removal order or deportation order was in force. Meanwhile, the Vietnamese female was also charged with one count of assaulting, resisting or obstructing a member of the Immigration Service. They pleaded guilty to the charges and were sentenced to 15 months, and 15 months and one week respectively.
The ImmD spokesman warned that, as stipulated in section 38AA of the Immigration Ordinance, an illegal immigrant, a person who is the subject of a removal order or a deportation order, an overstayer or a person who was refused permission to land is 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 spokesman also warned that any person who assaults, resists or obstructs any member of the Service acting in the execution of his duty, or aids or incites any person to assault, resist or obstruct any such member of the Service, shall be guilty of an offence and shall be liable on summary conviction to a fine at level 1 (i.e. $2,000) and to imprisonment for six months.
The spokesman reiterated that it is a serious offence to employ people who are not lawfully employable. Under the Immigration Ordinance, the maximum penalty for an employer employing a person who is not lawfully employable, i.e. an illegal immigrant, a person who is the subject of a removal order or a deportation order, an overstayer or a person who was refused permission to land, has been significantly increased from a fine of $350,000 and three years' imprisonment to a fine of $500,000 and 10 years' imprisonment to reflect the gravity of such offences. The director, manager, secretary, partner, etc, of the company concerned may also bear criminal liability. 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. Offenders are liable upon conviction to a maximum fine of $150,000 and to imprisonment for one year. In that connection, the spokesman would like to remind all employers not to defy the law by employing illegal workers. The ImmD will continue to take resolute enforcement action to combat such offences.
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 threats 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 intervention, medical services, counselling, shelter, temporary accommodation and other supporting services. The ImmD calls on TIP victims to report crimes to the relevant departments immediately.