Adam Hugill and Carmen Tang discuss the topic of immigration offences related to employment, including duties and criminal liabilities for employers, the investigation, the rights of the employee and the interview process.
Show Notes
00:20 Criminal offences
01:10 The investigation
01:34 The interview
02:01 Employers’ duties
03:15 Top-tier employment visas
TRANSCRIPT
Adam Hugill 00:08
All visitors to Hong Kong that do not have the right of abode will be subject to some condition of stay. For example, those visiting Hong Kong as tourists are not permitted to study or work in Hong Kong without additional visa approval.
For those who have a working visa, they are only permitted to work for their sponsor. The Immigration Ordinance makes any contravention of a condition of stay a criminal offence: any person who contravenes a condition of stay in force in respect of him shall be guilty of an offence and shall be liable on conviction to a fine a 50,000 Hong Kong Dollars and two years imprisonment. Employers who hire an employee who’s not lawfully employable also committed an offence and could be subject to fines and imprisonment.
The Court of Appeal has issued guidance that the appropriate sentence on a single employee who was involved on a casual basis and without there being any aggravating factors is three months imprisonment.
Carmen Tang 01:10
The Immigration Department receives reports on suspected cases on breach of the immigration ordinance, for example, breach of condition of stay, the department will initiate investigation on the matters concerned. To facilitate the investigation, relevant parties may be invited to attend interview conducted by the case officer.
The case officer will inform you in advance on the time and date of the appointment. Upon completion of visitor’s registration, you will be led to the interview room. Before the interview commences, you will be provided with a notice to persons in custody or involved in inquiries. In brief, the said notice reminds you of your rights, for example your right to seek legal assistance, including having a lawyer present during any interview with the Immigration Department.
Thereafter, the case officer will then go through the questions which he or she has prepared earlier. Before taking a statement from you, the case officer will caution you by saying: “You are not obliged to say anything unless you wish to do so, but whatever you say will be put into writing and may be given in evidence”.
You may choose whether or not to answer any question asked by the officer as you have a right to remain silent. If you choose to answer any of the officers questions, all the questions and answers will be written down as record of interview. Upon conclusion of the interview, the officer has an obligation to provide you with a copy of the record of interview.
Adam Hugill 02:01
The immigration ordinance imposes a duty on all employers to inspect documents for every new employee. Original not photocopy documents should be inspected to ensure that they are not forgeries.
Employers should not ask employees to commence any type of work in Hong Kong. That includes freelance work was visa applications are being processed. Both employers and employees should diarize visas are due to expire to ensure that any application for extension of time is made in a timely manner.
Employees earning over 2 million Hong Kong Dollars per year should consider applying for a top-tier visa that will be issued for six years and will allow the employees greater flexibility to move between employers.
This video is for informational purposes only. Its contents do not constitute legal or professional advice.
