Bills Committee on the
Immigration (Amendment) (No. 2) Bill 1996

Election of Chairman

Ms Emily LAU was elected Chairman of the Bills Committee.

Action

The Bill

2. Ms Ingrid HO informed members that as part of the Administration’s efforts to step up enforcement activities against illegal employment, the amendments proposed in the Immigration (Amendment) (No. 2) Bill 1996 were intended to rectify anomalies in the existing provisions of the Immigration Ordinance (Cap. 115) (the “Ordinance”) which had hindered effective prosecution for irregularities, in particular against employers of foreign domestic helpers (FDHs) and imported workers (IWs). The salients points of the proposed amendments are summarized below.

(I) Section 17G of the Ordinance: Lawfully employable person

3. Clause 2 of the Bill proposed to amend the definition of a “lawfully employable person” in section 17G(2) as the holder of a Hong Kong Identity Card (HKIC) who had not breached any condition of stay (if any) imposed on him under the Ordinance. This would plug the existing loophole that an employee being the holder of a HKIC would be lawfully employable even though he might be in breach of condition of stay. Instead, he would become a person not lawfully employable, as far as his new and unauthorised employer was concerned, and as such it would be possible to prosecute the new employer for contravening section 17I of the Ordinance.

(II) Section 17J: Employers to inspect documents of new employee

4. Clause 3 of the Bill proposed to amend section 17J to impose a duty on an employer to inspect the valid travel document of any person who was not a Hong Kong permanent resident before entering into a contract of employment with such person. The amendment served to minimise the chance of workers like FDHs and IWs taking up unapproved employment, since employers had an obligation under this clause to examine the travel documents of these persons all of which would bear endorsements of their restrictive conditions of stay.

5. To make it easier for employers to identify FDHs and IWs who were not permitted to take up unapproved employment, the Immigration Department had since the end of 1995 issued W-prefix HKICs to FDHs entering Hong Kong for the first time, or who applied for a replacement of their original HKIC. These W-prefix HKICs were the same as that issued to Iws. In addition, a bilingual, easy-to-read immigration stamp would be put on the travel documents of FDHs and IWs, spelling out that the holder of the document was only allowed to work for a specific employer under a specific contract, and that change of employment was not permitted. This is to ensure that, even for those who were not yet issued with W-prefix HKICs, the restriction on their employability would be conspicuous enough for identification by employers. The new bilingual stamp would be put on the travel documents of FDHs and IWs who applied for extension of stay or who came back from a trip outside Hong Kong or who entered Hong Kong for the first time. The process of imposing the bilingual stamp had started since May 1996.

Discussion on the Bill

6. In reply to Mr Bruce LIU’s question, Mr Ambrose LEE Siu-kwong said that as FDHs and IWs normally had to apply for extension of stay after a period of 12 months, it would take about one year for all of them to have the new bilingual stamp on their travel documents. The process of replacing HKICs issued to FDHs was expected to take two years. Therefore, in a year’s time, all FDHs and IWs would have either the new stamp on their travel documents or the W-prefix HKICs or both. Ms Ingrid HO informed members that the Immigration Department had been providing a hot-line service to answer enquiries on matters relating to the employment of FDHs and IWs. Alternatively the public could also send their enquiries by fax to the department where an answer would normally be available in a day’s time.

7. Mr Ronald ARCULLI pointed out that quite a large number of FDHs had their travel documents held as security for loan. These FDHs would therefore not be able to produce the documents for inspection by prospective employers. Mr Ambrose LEE advised that it was illegal practice for money-lending companies to hold the travel documents of borrowers as security for a debt payment. On the other hand, FDHs had a duty to keep in safe custody their travel documents, which were important documents which must be produced to the Immigration Department in case they wished to change employment.

8. Mr Howard YOUNG and Mr ARCULLI enquired whether an employer would be subject to any liability under the Ordinance in cases where, for instance, his employed FDH sought the relief assistance from another helper, who was not his employee, to carry out voluntary work at his place during the temporary absence of his employed helper, such as on a rest day. Mr Vidy CHEUNG advised that an important consideration in this context was whether it could be established that there existed a contract of service, i.e. an employer/employee relationship, between the two parties, which in turn depended upon a variety of tests to be applied in individual cases. As far as Part IVB of the Ordinance was concerned, it applied only to cases where a contract of employment as defined under section 17G(1) was involved. If the work performed by the temporary FDH was an one-off assignment but not on a continual basis, it could be argued that only a contract for service existed and the employer would not be subject to the requirements under that Part of the Ordinance. Whether or not the work done by the FDH was paid for would be another relevant, though not conclusive, factor to be taken into account. Mr CHEUNG’s view was shared by Mr LEE Yu-sung.

9. Mr James TO stated that he recalled there had been a Court of Appeal judgment which ruled that an employer could be prosecuted for contravention of section 17I for engaging a person not lawfully employable, even the latter was employed on a contract for service basis. At members’ request the Administration agreed to clarify, with reference to the relevant court ruling, the application of the law as against a contract of service/contract for service scenario.

Adm

10. Referring to the problems of unauthorised employment of FDHs to undertake part-time jobs and engaging FDHs in non-domestic work, Mr Ambrose LEE asserted that both were prosecutable offences under section 41 of the Ordinance for aiding and abetting the employee to breach a condition of stay. With the coming into force of the new legislation, the employers could also be prosecuted for an offence contrary to section 17I for employing a person not lawfully employable. The chance of prosecuting offending employers would therefore be enhanced. Contravention of section 41 carried a maximum fine of $50,000 and imprisonment for two years while a person who contravenes section 17I was liable on conviction to a fine of $350,000 and to imprisonment for three years

11. In response to members’ concern on the deterrent effect of the penalties, Mr YIM Kwan-hoi advised that the actual level of punishment imposed by the court would vary among cases, and would be affected by such factors as the degree of exploitation of the employees and the number of the employees involved etc. He said that before January 1996 when the maximum level of fine was raised, the actual fines for cases of aiding and abetting a breach of condition of stay were in the region of $2,000 to $7,500. Since then, fines had risen to fall within the range of $3,000 to $20,000. In a recent case involving the illegal employment of five FDHs in a garment factory, the employer had been fined, for aiding and abetting a breach of condition of stay, $20,000, and sentenced to three months’ imprisonment suspended for two years. Mr Ambrose LEE supplemented that the Security Branch and the Immigration Department had been relaying the concerns of the community to the judiciary for judges’ reference when deciding on the appropriate levels of fines.

12. Mr LEE Cheuk-yan enquired of the number of applications by the Attorney General for review of cases heard by the courts. Mr Ambrose LEE replied that there had been two such cases this year. In the first case, an employer had been convicted on 15 March 1996 on four charges of illegally employing people who were visitors to Hong Kong, and was fined a total of $10,000. Consequent to a review, the employer was sentenced to an additional two-month imprisonment suspended for one year. In the second case, an employer had been prosecuted for 21 charges of employing illegal workers and sentenced on 1 May 1996 to a total fine of $10,500 and a 3 months imprisonment. An application for a review of the sentence was being processed.

13. Mr LEE Cheuk-yan pointed out that he had been aware of cases where some FDHs were forced to undertake non-domestic work but these workers had refrained from revealing the facts for fear of losing their jobs. He enquired if government policy would encourage the employees to openly lodge complaints with the Immigration Department and allow them to change employment. Mr Ambrose LEE replied that each individual case would be examined according to its own merits. He cautioned on the danger of giving a blanket approval to change jobs under such circumstances, which could possibly lead to more unfounded complaints or fabricated allegations by the employees. In reply to related enquiries by Mr Bruce LIU, Mr Ambrose LEE said that every complaint would be investigated but there had been no precise figure of cases of false accusations. In the event of a dispute awaiting a verdict of the Labour Tribunal, a FDH would normally be granted approval for an extension of stay until the case was resolved. But the employee would not be allowed to work during the period, and she would have to return to her place of origin afterwards where she could reapply to enter Hong Kong for new employment.

14. Mr ARCULLI expressed concern that it was no easy task for an employer to find out whether a person was lawfully employable as defined under the law. For example, an ordinary person would have great difficulty in identifying a fake travel document. Ms Ingrid HO and Mr Ambrose Lee remarked that the law imposed a reasonable duty on the part of the employers, who were expected to take a common sense approach in acting to fulfil the requirements of the law. At any rate, the Immigration Department was prepared to offer advice to any person encountering problems in complying with the law. Mr Vidy CHEUNG and Mr LEE Yu-sung pointed out that section 17I (1A) provided that it was a defence in proceedings for an offence under this section for the person charged to prove that all practicable steps had been taken to determine whether the employee in question was lawfully employable, and that it was reasonable to conclude that the employee was lawfully employable. A similar provision was in section 38A (3) in respect of illegal immigrant found on construction site. Mr ARCULLI said that previous cases ruled by the Court of Appeal had underlined the extremely stringent standard of proof required of the employers. He asked the Administration and the Senior Assistant Legal Adviser to look into the court rulings and supplement with more information on how the court had dealt with claims by the employers that purported to substantiate a defence. Mr LEE Cheuk-yan opined that any attempt to diminish the obligation of employers would be a retrograde step in the move to combat illegal employment. He held that, with a view to getting a balanced evaluation of the issue, the study should also analyse cases where the employers had successfully adduced evidence to avail themselves of the defence provided in section 171(1A), resulting in their acquittal of the offence of employing a person not lawfully employable. The Chairman remarked that the matter should also be examined in the context of the likely impact on the government’s policy on illegal employment.

Adm/
Senior Asst Legal Advisor

15. In answer to Mr ARCULLI’s question, Mr Ambrose LEE stated that people who landed as visitors or students were not permitted to work in Hong Kong.

Consultation and Publicity

16. Members urged the Administration to strengthen publicity on the requirements of the law and activities that constituted breaches of conditions of stay such as part-time employment of FDHs and IWs and engaging these workers in duties other than those specified in their contracts of employment. Mr YIM responded that publicity leaflets would be issued and a press conference to draw the public’s attention to the new provisions would be held after the enactment of the Bill.

17. The Chairman called upon members to solicit views on the Bill from the relevant employers’ and employees’ associations. Members also agreed that a press release should be issued to invite public views on the Bill and interested groups to meet the Bills Committee at its next meeting.

(Post-meeting note: A press release has been issued on 18 July 1996)

Next Meeting

18. The next meeting was scheduled for Monday, 2 September 1996 at 10:45 a.m.

19. There being no other business, the meeting ended at 4:10 p.m.

LegCo Secretariat
7 August 1996