Immigration Offences

Immigration offences in Hong Kong have become a subject of increasing concern and scrutiny in recent years. As a vibrant global financial hub and a melting pot of cultures, Hong Kong attracts a significant number of migrants from around the world. However, the legal framework and strict immigration policies in place have led to a rise in immigration-related offences. These offences encompass a wide range of activities, including illegal entry, overstaying, unauthorized employment, and document forgery. Such offences not only undermine the integrity of Hong Kong's immigration system but also pose challenges to social cohesion and public safety. Understanding the nature and implications of immigration offences in Hong Kong is crucial in order to address the issue effectively and ensure the fair and equitable treatment of migrants within the territory.

The immigration offence of breach of condition of stay in Hong Kong is contrary to section 41 of the Immigration Ordinance (Cap 115). Section 41 specifically addresses the penalties and consequences for individuals who fail to comply with the conditions attached to a person's condition of stay in the territory. These conditions are typically outlined in the person's visa or entry permit. Common examples of breaching conditions of stay include working without the appropriate work visa, engaging in activities not permitted by the visa, or overstaying the authorized duration of stay (see overstaying below). A person found guilty of such offence could in theory be fined up to HK$50,000 and imprisonment for two years.

As this is considered a serious offence in Hong Kong, the Court will often sentence someone found guilty of this offence to imprisonment. After the custodial sentence has been served, the person would be asked to leave Hong Kong permanently.

The offence of overstaying in Hong Kong refers to the act of remaining in the territory beyond the permitted duration granted by the Immigration Department. Overstaying is technically a breach of conditions of stay offence and is taken seriously by the Hong Kong SAR government. Individuals who overstay their visas (e.g. tourist visa, employment visa, student visa) may face legal consequences, including fines, imprisonment, and a negative impact on their future immigration applications.

A lot of factors will be considered when such offence is investigated by the Immigration Department. Often it will result in criminal proceedings being instigated. A bind over application is often appropriate, depending on the circumstances of the case and how long the person has overstayed his / her visa in Hong Kong.

The immigration offence of making a false statement in Hong Kong is contrary to section 42 of the Immigration Ordinance (Cap. 115). Section 42 prohibits a person from making any statement or representation which he/she knows to be false or does not believe to be true to the Immigration Department, such as during visa applications, interviews, or any other immigration-related processes.

This offence is taken very seriously by the Hong Kong government, as it undermines the integrity of the immigration system and may pose security risks. Individuals found guilty of making false statements may face severe penalties, including fines and imprisonment. The enforcement of Section 42 emphasizes the importance of honesty and accuracy when dealing with immigration matters in Hong Kong, highlighting the commitment to maintaining a reliable and secure immigration process.

Under Hong Kong law, employing a person who is not lawfully employable is a serious criminal offence. Section 17I(1) of the Immigration Ordinance (Cap. 115) makes it unlawful for any person to be the employer of someone who is prohibited from taking employment in Hong Kong. The Immigration Department regularly reminds employers that this offence is treated seriously and may result in immediate custodial sentences in appropriate cases.

A person may be regarded as not lawfully employable if they are, for example, an illegal immigrant, an overstayer, a person subject to a removal order or deportation order, a person refused permission to land, or someone whose conditions of stay do not permit employment (such as certain visitors). Employers must not assume that a person is free to work simply because they are physically present in Hong Kong.

The maximum penalty for breaching section 17I(1) is severe: an employer is liable on conviction to a fine of up to HK$500,000 and imprisonment for up to 10 years. The Immigration Department has also stated that directors, managers, secretaries, partners and other responsible officers of a company may, depending on the circumstances, face criminal liability as well.

Employers in Hong Kong are therefore expected to take all practical steps to verify that a prospective employee is lawfully employable before employment begins. This usually includes inspecting the person’s Hong Kong Identity Card, and if the person does not hold a Hong Kong permanent identity card, inspecting their valid travel document and checking whether any conditions of stay restrict employment. The Immigration Department also emphasises that employers should make proper enquiries where there is any doubt.

For businesses, the message is clear: failure to carry out proper immigration checks can expose both the employer and its management to serious criminal consequences. If you are unsure whether a prospective employee is lawfully employable in Hong Kong, legal advice should be obtained before any offer of employment is made.

If you need urgent legal advice on a criminal matter (including if you or a loved one has been arrested), please contact our Mr. Francis Comtois by telephone or WhatsApp on +852 9547 5353.

We are able to assist our clients by doing:

• legal visits if they are under investigation or detained at a police station;
• bail applications;
• plea bargaining with the Immigration Department;
• bind over application;
• mitigation for sentence;
• criminal trials in court; and
• appeals.

If you wish to discuss your case with us, please contact us to schedule your free initial consultation.