Employment of a Person Not Lawfully Employable

Under section 17N, a person found at a workplace where employees are working may, unless evidence shows otherwise, be presumed to have entered into a contract of employment with the employer and to be employed there.

Section 17I is a strict liability offence. The prosecution does not need to prove that the employer knew the worker was not lawfully employable. Instead, the employer bears the legal burden of establishing the statutory defence on the balance of probabilities.

Under section 17I(1A) of the Immigration Ordinance (Cap. 115), an employer can avoid conviction for hiring an illegal worker if they can prove that:

• All practicable steps were taken to determine whether the employee was lawfully employable.
• The employee's original identity document was inspected, the necessary inquiries were made, and there was no reasonable doubt about the employee's right to work.

The courts will not ordinarily accept being too busy, relying on a person's appearance, or being unaware of the law as an excuse where the required checks were not carried out.

The statutory obligations extend beyond asking a prospective employee whether they may work in Hong Kong.

• Document inspection: Section 17J of the Immigration Ordinance (Cap. 115) requires an employer to inspect the prescribed identity document before employing a person. Depending on the person's status, this may include a Hong Kong identity card, travel document, visa, permission from the Director of Immigration, certificate of exemption, or another approved document. Failure to comply can result in a fine of up to HK$150,000 and one year's imprisonment.
• Reasonable inquiries: Merely looking at an identity card may not be enough. Where circumstances raise doubt, the employer should make appropriate inquiries about the prospective employee's immigration status, work entitlement, experience, and other relevant circumstances.
• Employment records: Section 17K requires employers to keep prescribed records, including the employee's full name and the type and number of the identity document inspected. The records must be kept up to date and available for inspection.