Immigration Focus Week: Immigration Offences and Penalties

Immigration Focus Week: Immigration Offences and Penalties

Immigration Focus Week: Immigration Offences and Penalties 1200 800 Adam Hugill

Hong Kong’s immigration laws are strictly enforced by way of fines and, more usually, imprisonment. We highlight below some of the main offences under the Immigration Ordinance (the “Ordinance”) and illustrate how they are enforced with relevant case law:

Overstaying

This means failing to leave Hong Kong on or before the expiry of any visa or permission to stay in Hong Kong. The offender will normally be expelled from Hong Kong. As happened in the case HKSAR v. Andersson, Marie Ulla Pernilla [2016] HKCFI 2195 who served an 11 month prison sentence for overstaying for more than 20 years.

Breach of conditions of stay

This means working (paid or unpaid) in Hong Kong without approval from the Immigration Department, where such approval is required. Section 41 of the Ordinance stipulates that the offender shall be liable to a maximum fine of HK$50,000 and imprisonment for 2 years. The case HKSAR v. Liu Chenghao and Hong Liang [2013] HKCFI 1602 two Mainland visitors’ were convicted for breach of condition of stay for illegally working in Yaumatei, but such conviction was quashed due to the magistrate’s error in disregarding evidence giving rise to reasonable doubt.

Making false statements

This means giving false information to the Immigration Department for the purposes of obtaining a travel document, certificate of entitlement or entry permit, or in support of an application for permission to enter or to work in Hong Kong. This is often regarded as being an aggravating factor in cases concerning overstaying or breach of condition of stay. According to section 42 of the Ordinance, the offender shall be liable to a maximum fine of HK$150,000 and imprisonment for 14 years (on conviction on indictment), or to a maximum fine of HK$100,000 and imprisonment for 2 years (on summary conviction). In HKSAR v. Ipan (also known as Ivan Sulaiman) [2012] HKDC 449, the defendant, an Indonesian citizen, came to Hong Kong on a passport stating a false birth date in order to avoid a deportation order previously issued against him. Ipan was sentenced to 15 months imprisonment for making false statements and a total of 22 months imprisonment due to other immigration offences.

Employing illegal workers

As mentioned in the section on employment visas, only two groups of people are entitled to work in Hong Kong without requiring prior permission from the Immigration Department. These two groups of people are:
I. Hong Kong permanent residents (i.e. holders of permanent identity cards); and
II. non-permanent resident identity card holders whose passports or travel documents are endorsed with permission that does not restrict employment.

It is important to note that under section 17I of the Ordinance, employers who hire illegal workers are also liable to criminal punishments including, on conviction, fines of up to HK$350,000 and 3 years’ imprisonment. In the case Secretary for Justice v. Ho Mei Wa and Secretary for Justice v. Wu Ying Bior [2004] HKCA 250, Ho pleaded guilty to employing two illegal Mainland China workers in a poultry shop and aiding and abetting breach of condition of stay and Wu pleaded guilty to illegally employing one Mainland worker for cleaning work. Ho was sentenced to 2 months’ imprisonment suspended for 2 years and a fine of $1,500 for the section 17I offence and 1 month’s imprisonment also suspended for 2 years and a fine of $1,500 for the aiding and abetting offence. Wu was sentenced to 1 month’s imprisonment suspended for 2 years and a fine of $1,500 for the section 17I offence.

Requirement to Inspect Documents

Section 17J of the Ordinance requires employers to inspect documents of new employee, in fact: “No person shall in Hong Kong enter into a contract of employment to employ any other person unless he/she first inspects: the identity card held by such other person and where the identity card held by such other person is not a permanent identity card a valid travel document held by him/ her”. Any person who contravenes this subsection commits an offence and is liable to a fine of HK$150,000 and to imprisonment for 1 year.

Our team at Hugill & Ip has extensive experience in dealing with Immigration issues – so if you need further advice on this subject, get in touch with us.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

Adam Hugill

Adam Hugill

Adam advises on a wide range of contentious and non-contentious legal and commercial issues, with a special emphasis on employment law in Hong Kong and the Asia Pacific region.

All articles by : Adam Hugill
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