Immigration Offences

Overview

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.

Breach of Condition of Stay

1. General

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.

2. Aiding and Abetting

Aiding and abetting a breach of condition of stay in Hong Kong refers to the act of assisting or facilitating another person in breaching his/her condition of stay in Hong Kong. Individuals who aid and abet a breach of condition of stay may face legal consequences, including fines and imprisonment. This includes actions such as providing employment to an individual who is not lawfully employable without the Director of Immigration's prior permission. Hong Kong authorities actively investigate and prosecute cases of aiding and abetting to maintain the integrity of the immigration system and discourage any involvement in unlawful activities related to breaches of condition of stay.

The Court will often sentence someone found guilty of this offence to imprisonment.

3. Overstaying

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 might sometimes be appropriate depending on the circumstances of the case and how long the person has overstayed his / her visa in Hong Kong.

Making False Statements

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.

Employing Illegal Workers

Employing a person not lawfully employable is an offence contrary to section 17I(1) of the Immigration Ordinance (Cap. 115). The Immigration Department states that the following persons are lawfully employable:

a person holding a Hong Kong permanent identity card which contains the following statement on the back of the card: 'The holder of this card has the right of abode in Hong Kong'; or
a person holding a Hong Kong identity card who is free to take up employment in Hong Kong without the Director of Immigration's prior permission and has not breached any condition of stay.

The starting sentence for this type of offence is 3 months of imprisonment.

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 9474 9363.

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 police or the Department of Justice;
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.