Source: Hong Kong Government special administrative region
The Immigration Department (ImmD) mounted a series of territory-wide anti-illegal worker operations codenamed “Swordfish”, for eight consecutive days from April 7 to April 14, targeting foreign domestic helpers (the helper) who breached their conditions of stay. A total of 43 persons, including 35 suspected illegal workers and eight suspected employers were arrested.
During the operation, ImmD’s investigators raided 58 target locations including restaurants, retail stores, commercial and residential buildings. The suspected 35 illegal workers comprised eight men and 27 women, aged 20 to 60. Among them, seven persons were the current helpers, 14 persons were overstaying ex-helpers, nine persons were permitted to stay in Hong Kong on visitor status, two persons were found to be holders of recognisance forms, which prohibit them from taking any employment in Hong Kong, two persons were the imported workers and one person was the holder of an employment visa. ImmD investigators found most of the suspected illegal workers at restaurants performing various jobs, including dish washing, food processing and cleaning etc. A forged Hong Kong identity card was also found during the operation. Meanwhile, eight suspected employers, comprising three men and five women, aged 44 to 64, were in charge of the involved companies or restaurants and suspected of employing the suspected illegal workers.
Among the illegal workers arrested, 21 of them were charged respectively at the Shatin Magistrates’ Courts with offences including taking employment while being a person who, having been given permission to land in Hong Kong, had remained in Hong Kong in breach of their limit of stay imposed in relation to the permission, breaching of their conditions of stay in Hong Kong and possessing a forged Hong Kong identity card. The concerned illegal workers pleaded guilty to their respective charges and were sentenced to imprisonment ranging from 16 days suspended for one year to 14 months and three weeks. The cases are still under investigation, and the ImmD does not rule out the possibility of further arrests or prosecutions.
“The helper should only perform domestic duties for the employer specified in the contract. The helper should not take up any other employment, including part-time domestic duties, with any other person. The employer should not require or allow the helper to carry out any work for any other person.” an ImmD spokesman said.
The spokesman also said, “any person who contravenes a condition of stay in force in respect of him/her shall be guilty of an offence. Also, visitors are not allowed to take employment in Hong Kong, whether paid or unpaid, without the permission of the Director of Immigration. Offenders are liable to prosecution and upon conviction face a maximum fine of $50,000 and up to two years’ imprisonment. Aiders and abettors are also liable to prosecution and penalties.”
Under the laws of Hong Kong, any person who makes false representation to an Immigration officer commits an offence. Offenders are liable to prosecution and, upon conviction, subject to the maximum penalty of a fine of $150,000 and imprisonment for fourteen years. It is also an offence to use or possess a forged Hong Kong identity card or a Hong Kong identity card related to another person. Offenders are liable to prosecution and upon conviction face a maximum fine of $100,000 and up to ten years’ imprisonment.
The 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 any business. Offenders are liable upon conviction to a maximum fine of $50,000 and up to three years’ imprisonment.
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 ten 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 an 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.