Immigration Department Prosecution

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Immigration Offences

There is a wide range of offences investigated and prosecuted by the Immigration Department. They range from Hong Kong Identity Card Offences (e.g. having in your possession the ID card of another) and passport offences (e.g. making a false representation to an Immigration Officer) to overstaying (in breach of condition of stay) and employing a person not lawfully employable. As well as the legislation, the Immigration Department also follow policy guidelines set down by the Director of Immigration. Currently many immigration offences are investigated from the Immigration Department offices at Skyline Tower in Kowloon Bay. If the matter goes to court it will most likely be at Shatin Magistrates’ Court. If you are under investigation by the Immigration Department we can assist you through the process so that you understand what is going on and how matters could develop. We can represent you in your dealings with the Immigration Department and, if necessary, in court, to try to achieve the best result possible for you. We have also assisted clients where a removal order, or the more serious deportation order, is in force in respect of that client. Commonly encountered charges are:

Breach of Condition of Stay contrary to section 41 of the Immigration Ordinance, Cap 115.

If you overstay in Hong Kong you could be charged under this section. See overstaying below. But if a person comes into Hong Kong on a tourist visa as a visitor and starts working in a company here you could be charged under this section. The maximum sentence is a fine of HK$50,000 and imprisonment for 2 years.
Breach of Deportation Order contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115.

A deportation order when given to a person requires that person to leave Hong Kong and not to come back. If that person comes back to Hong Kong he could be found guilty under this section. This offence is seen as a more serious offence than unlawfully remaining (see below) and if convicted, most often results in a custodial sentence.
Being an employer of a person not lawfully employable contrary to section 17I of the Immigration Ordinance, Cap 115.

If a person employs a person who is not permitted to work in Hong Kong, both the employer and the employee commit an offence. This is a ‘strict liability” offence where if charged, the accused may need to show, on the balance of probabilities that all practicable steps were taken to determine whether the employee was lawfully employable and that it was reasonable to think that the employee was lawfully employable. Please see Immigration Law Update.
Making a False Representation to an Immigration Officer contrary to section 42(1)(a) of the Immigration Ordinance, Cap 115.

When a passport is obtained with, for example, the particulars as to date and place of birth stated wrongly and the holder then knowingly uses it at an immigration checkpoint this could give rise to the operation of this section. This offence is considered serious and often results in imprisonment.
Overstaying contrary to section 41 of the Immigration Ordinance, Cap 115.

Sometimes people come into Hong Kong and forget that there is a limit to the amount of time they can stay here. If you do this we can advise you of the options available to you.
Possession of a forged travel document contrary to section 42(2)(c)(i) of the Immigration Ordinance, Cap 115

If convicted under this section a custodial sentence is very often imposed.
Remaining in Hong Kong without the authority of the Director of Immigrationcontrary to section 38 (1)(b) or section 38AA of the Immigration Ordinance, Cap 115.

Most people come into Hong Kong lawfully. But sometimes people come into Hong Kong without lawful authority. This section could come into operation if, for instance, you came into Hong Kong in breach of a deportation order or a removal order and remained here.
Morley Chow Seto is recommended for its Immigration Law Practice by Happy Hong Konger

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