OVERVIEW
A breach of condition of stay in Hong Kong is a serious criminal offence under section 41 of the Immigration Ordinance (Cap. 115), punishable by a maximum fine of HK$50,000 and 2 years' imprisonment. It occurs when a person contravenes a restriction attached to their permission to enter or remain in Hong Kong.
Common types of breaches
Unauthorised employment: Working in paid or unpaid employment, or undertaking freelance or part-time work, outside the scope of an approved visa or employment condition. One example is a foreign domestic helper undertaking work outside the approved employment arrangement.
Overstaying: Failing to leave Hong Kong on or before the expiry of the permitted limit of stay recorded on the person's travel document.
Business activity: Establishing or joining a business without a valid work visa.
Unauthorised study: Enrolling at a school, university or other educational institution without a condition of stay permitting study.
STATUTORY PROVISIONS
Section 41 of the Immigration Ordinance (Cap. 115)
The relevant part of the current statutory provision states:
“Any person who contravenes a condition of stay in force in respect of him shall be guilty of an offence.”
ELEMENTS OF THE OFFENCE
The Condition of Stay
The prosecution must identify a valid condition of stay and prove conduct that contravened it. This may include remaining in Hong Kong after the permitted period has expired, undertaking unauthorised employment or engaging in unauthorised study.
The required circumstances
The conduct must fall within the scope, definitions and territorial application of Section 41 of the Immigration Ordinance (Cap. 115).
The mental element
The prosecution must prove the facts of the authorised stay and the alleged contravening conduct. The relevance of knowledge, a genuine factual mistake or exceptional circumstances depends on the statutory issue and the available evidence.
Absence of lawful authority or defence
Any express statutory exception, lawful authority or defence raised on the evidence must be addressed according to its proper legal burden.
SENTENCING CONSIDERATIONS
Aggravating Factors
A breach of condition of stay may be treated more seriously where it is accompanied by illegal employment, document fraud, repeated offending or a breach of an existing deportation order. Some of this conduct constitutes a separate offence carrying its own sentence, rather than merely an aggravating feature of the section 41 offence.
- Taking illegal employment: An overstayer who works in Hong Kong may also be prosecuted under section 38AA of the Immigration Ordinance. The courts apply a deterrent sentencing policy, and a 15-month imprisonment starting point has been adopted for the illegal-employment offence. Where there are multiple charges, whether sentences run concurrently or consecutively depends on the facts, the relationship between the offences and the totality principle.
- Using false or forged documents: Using a false or forged passport, altered landing slip or other travel document may result in a separate charge under section 42. Sentencing authorities have used starting points in the region of 12 to 18 months for some possession or use offences, but the appropriate sentence depends on the precise subsection, the document, its intended use and the offender's role.
- Breach of a prior deportation order: Returning to or remaining in Hong Kong in breach of a deportation order is a separate and serious offence. Appellate authority has considered a 3-year imprisonment starting point for breach of a deportation order; the ultimate sentence and its relationship with any unlawful-remaining sentence depend on the circumstances and the totality principle.
Maximum Penalty
- A fine of up to HK$50,000 (Level 5) and up to 2 years' imprisonment.
- Possible deportation or removal: An offender may face a deportation order or removal order after serving a sentence or following prosecution.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.