Introduction

It has come to attention of the Immigration Department (“ImmD”) that recently Mainland photographers have been utilising social media platforms to advertise photography services in Hong Kong. Upon investigation, the ImmD identified several suspected illegal Mainland photographers and initiated an anti-illegal worker operation. ImmD officers disguised as customers made enquiries and booked photography services from these Mainland photographers. On 14 and 15 August 2024, ImmD officers arrested three Mainland photographers, who entered Hong Kong as visitors, when they were providing photography services in Hong Kong. The arrested suspected illegal workers comprised one man and two women, aged 25 to 30.[1]

This news has sparked widespread attention and discussions across various platforms, including Xiaohongshu, WeChat and media such as Yahoo News HK. Users on these platforms debated the implications of Mainland photographers working illegally in Hong Kong. The incident has triggered a larger conversation about cross-border work and the need for compliance with immigration laws.

Can Mainland visitors work in Hong Kong?

Unless a visitor holds the appropriate work visa, the answer is “No”. This prohibition applies to all forms of work, whether it be casual, short-term, part-time, or freelance. Even informal or one-time services, like photography or catering, can violate this condition if the visitor is working without a valid employment visa.

Visitors working illegally in Hong Kong may face penalties under section 41 (Breach of condition of stay) of the Immigration Ordinance (Cap. 115) (“ImmO”). Any person who contravenes a condition of stay in force in respect of him shall be liable on conviction to a fine up to HK$50,000 and imprisoned for up to two years.

Can I employ a Mainland visitor for short-term jobs?

Employers in Hong Kong are subject to stringent legal obligations when it comes to hiring staff. Section 17I (Offence to be employer of a person who is not lawfully employable) of the ImmO imposes a strict legal duty on employers to ensure that anyone they hire is lawfully employable in Hong Kong.

Most employers know that hiring visitors for traditional office jobs or long-term positions is illegal. However, rightly or wrongly, it appears that some employers have mistakenly thought or assumed that hiring visitors for short-term part-time work or on a one-off basis is permissible. They cannot be more wrong. The law makes no distinction between full-time, part-time, or casual employment when it comes to the legal work status of an individual. Even hiring a visitor to work for just a few hours is illegal.

Employers must take proactive measures to verify whether the potential employee concerned is lawfully employable. Section 17I(1A) of the ImmO provides a potential defence for employers who can prove that all practicable steps were taken to determine whether the employee was lawfully employable and that is was reasonable to conclude that the employee was lawfully employable.

Employers should consider adopting the following measures:

1.      Check documentation: Employers should ask all job seekers, especially those from outside Hong Kong, for identification documents, including Hong Kong identity cards or passports. Employers should not hire visitors with a landing slip indicating they are tourists under any circumstances.

2.      Verify work visa status: If a candidate does not hold a Hong Kong ID card, employers must verify that the individual has the proper work visa. Relying on oral assurances from the job seeker is not enough, written proof of work authorization is required.

3.      Keep detailed records: Employers should maintain copies of any relevant documents, such as identity cards, passports and work visas, for all employees. In case of an inspection by ImmD officers, these records can help demonstrate that practicable steps were taken to ensure legal compliance.

 

The above measures are not exhaustive. In order to invoke a section 17I(1A) defence, the employer has to prove that all practicable steps were taken to determine the employee was lawfully employable and that it was reasonable for the employer to conclude that the employee was employable.

Possible sentence for employers: Case law illustrations

An employer who is found guilty of a section 17I offence is liable to (a) a fine of $350,000 and 3 years imprisonment if the employee is not a prohibited employee; and (b) a fine of $500,000 and 5 years imprisonment if the employee is a prohibited employee. However, the Court will consider a range of factors when deciding on the specific sentence.

A “prohibited employee” is a person who is prohibited from taking any employment or establishing or joining in any business under section 38AA (Prohibition of taking employment and establishing business, etc.) of the ImmO. This includes people who have unlawfully entered Hong Kong and remain without the authority of the Director of Immigration, those subject to a removal or deportation order, people who have been in breach of the limit of stay after being granted entry, and individuals who were denied permission to land in Hong Kong.

In the leading case of Secretary for Justice v Ho Mei Wa and Secretary for Justice v Wu Ying Bor [2004] HKCA 250, the Court of Appeal (“CA”) highlighted the serious legal risks that employers may face when they hire visitors without proper work visas. Both cases involved hiring of Mainland visitors in casual or temporary roles, and the employers in both cases faced significant legal consequences. The CA used this opportunity to clarify the sentencing principles behind section 17I offence.

Deterrent sentencing

The sentencing framework under section 17I is designed to prevent unlawful employment within Hong Kong, with a specific focus on activities involving visitors from the Mainland. It protects the local labour market by preventing foreign workers from competing with Hong Kong residents for jobs, and discourages illegal entries for the purpose of employment.

The CA made it clear that deterrence is the primary goal in sentencing offenders under section 17I. The offence is one of strict liability, where the employer’s knowledge or intent is not always required for prosecution; the law is firm in its stance. This harsh stance is to reinforce public policy, ensuring that Hong Kong remains a lawful and regulated marketplace, where all workers are vetted and authorised to work.

Guideline principles

For first-time offenders hiring a single prohibited person on a casual basis, and where no aggravating factors exist, the courts generally consider a three-month custodial sentence as the appropriate punishment after trial. However, the CA made several important clarifications regarding this guideline:

1.      Immediate custodial sentence: The sentence imposed is not a suspended one but rather an immediate custodial sentence. This reflects the seriousness of the offence, even though it is not a "truly criminal" act, such as fraud or theft.

2.      Application to first-time offenders: The three-month sentence applies even to first-time offenders, emphasizing the strict liability nature of the offence.

3.      Commercial or business employment: The guideline applies to cases where the illegal employment was for commercial purposes, not domestic or personal situations.

4.      Casual employment defined: “Casual” employment refers to jobs of short duration, typically days rather than weeks or months. Even though these jobs may seem insignificant, they still fall under the purview of the law.

Aggravating factors

The CA also considered aggravating factors when sentencing. Aggravating factors include hiring multiple illegal workers, exploiting employees, or engaging in repeat offences. These factors indicate a deliberate disregard for the law may result in harsher sentences.

Takeaway

 The recent arrests of the Mainland photographers serve as a reminder the importance of adhering to immigration laws in Hong Kong. As demonstrated by the ImmD’s recent operation, even short-term freelance work without the appropriate visa is illegal under section 41 of the ImmO.

For employers, they should ensure that the persons they hire are lawfully employable; otherwise they may face severe penalties under section 17I of the ImmO. As illustrated above, the CA in Secretary for Justice v Ho Mei Wa and Secretary for Justice v Wu Ying Bor made it very clear that section 17I is to prevent unlawful employment in Hong Kong and deterrent (including immediate custodial sentence) is the primary goal in sentencing. It is therefore crucial for employers to take all practicable steps to ensure the person they are hiring is lawfully employable.

 

For enquiries, please feel free to contact us at:

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2024