Two Vietnamese illegal workers were jailed by the Shatin Magistrates' Courts yesterday (August 21).
During an anti-illegal worker operation conducted on August 19, Immigration Department (ImmD) investigators raided a restaurant in Kowloon Bay. Two Vietnamese, a man aged 39 and a woman aged 37, were arrested while working as odd-job workers. Upon identity checking, the male Vietnamese produced a recognisance form issued by the ImmD for inspection, which prohibits him from taking employment. Further investigation revealed that he was a non-refoulement claimant. The female Vietnamese was found to be an illegal immigrant. An employer suspected of employing the illegal workers was also arrested, and the investigation is ongoing.
The illegal workers were charged at the Shatin Magistrates' Courts yesterday with taking employment while being persons in respect of whom a removal order or deportation order was in force. They pleaded guilty to the charge and were sentenced to 14 months and 10 days, and 17 months of imprisonment, respectively. Meanwhile, the female Vietnamese was also charged with one count of remaining in Hong Kong without the authority of the Director after landing in Hong Kong unlawfully and one count of breaching a deportation order. She was sentenced to 14 months and 10 days, and 17 months of imprisonment, respectively, with part of the sentences to run consecutively, resulting in a total of 22 months' imprisonment.
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 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 and employ 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.
