An Overview of 3 Common Immigration Offences in Hong Kong – Overstaying, Making false representation and Employment of illegal workers

After the COVID-19 pandemic subsides and the borders between countries reopen, there has been a noticeable increase in prosecutions related to immigration offences in Hong Kong, such as overstaying and making false statements.

In Hong Kong, the Immigration Department is the primary law enforcement agency responsible for handling such cases. If you are suspected of committing immigration offences, you will usually be required to attend an interview with the Investigation Unit of the Immigration Department located at the Skyline Tower in Kowloon Bay. In the event that you are charged, you will be required to attend a court hearing, most likely at the Shatin Magistrates’ Court.

1. Overstaying contrary to Section 41 of the Immigration Ordinance (Cap.115):

The offence: A person who overstays in Hong Kong beyond the permitted period of stay as specified in his/her travel document may be charged under this offence.

There has been an increasing number of cases where individuals visiting Hong Kong continue to stay in Hong Kong beyond the time allowed without applying for a renewal or extension of their visas, especially during the COVID-19 pandemic where most people were restricted from travelling to other countries.

Possible sentence: The principles for determining the sentences for overstaying cases were laid down in HKSAR v Manalad Tiongson Patricia. In summary the penalty normally depends on the length of time a person has overstayed, imprisonment can be avoided if there are good mitigating factors.

Taking up employment whilst overstaying without any work visa is considered as a very serious aggravating factor and normally results in imprisonment.

2. Making a False Representation to an Immigration Officer contrary to Section 42(1) of the Immigration Ordinance

The offence: A person who had provided false information or had made false statements to immigration officers, either during the visa application process or at immigration checkpoints, may be charged under this offence.

The Immigration Department nowadays places heavy scrutiny on the information submitted with visa applications. Even apparently minor discrepancies in particulars of date and place of birth may trigger an investigation.

Possible sentence: Conviction of this offence usually results in a custodial sentence. Those who make a false representation to an immigration officer should expect the same punishment as that for using a false travel document, namely, 12 months’ imprisonment after a guilty plea.

3. Employment of Illegal Workers contrary to Section 17I of the Immigration Ordinance Immigration Ordinance

The offence: Employers may be charged under this offence for hiring individuals who do not possess valid documents (for example, a work visa) that permit them to work in Hong Kong.  Where the employer in question is a company, under Section 101E of the Criminal Procedure Ordinance, the director of the employer or other officer concerned in the employer’s management will also be liable if the offence is committed with their consent or connivance.

Employers will still be in breach of the law and liable notwithstanding that the employee has had a valid work visa to work in Hong Kong when he/her was employed, but that work visa has expired and has not been renewed in a timely manner due to Covid-19 or other reasons.

Statutory defence: An employer who is charged with this offence may establish a defence by demonstrating, on a balance of probabilities, that he/she took all practicable steps to determine whether the employee was lawfully employable and that it was reasonable to conclude that the employee was lawfully employable.

Possible sentence: A custodial sentence usually follows a conviction of this offence. The Court will take into account whether the offence involves a single employee, whether the employment is on a causal basis, and if there are any other aggravating factors (such as exploitation, multiple employment or repeat offending). 3 months’ imprisonment is appropriate for a first offender if no aggravating factor is present.

How can we help?

Our Dispute Resolution Team is experienced in assisting clients in the Immigration Department’s investigation process concerning a wide range of immigration offences. We are proud to be praised by clients as smoothing the otherwise unpleasant process and helping them achieve the best possible outcome.

Pamela Mak, Russell Bennett and Adam Hoi

If you are seeking legal representation, please contact:

Pamela Mak
Partner | E-mail

Russell Bennett
Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.