2. Two Court judgments, R V Shun Shing Construction & Engineering Co. Ltd. [1993] 1HKCLR 69 at 74 and R V HUI Wai-man [1994] 2HKCLR 169 referred to as Annexes A and B respectively in the Administrations information paper were tabled at the meeting.

3. Mr LAI Tung-kwok briefed members on the Administrations reply to the issues raised at the first meeting (Appendix to LegCo Paper No. CB(2) 2034/95-96) :

(a) The application of contract of employment under Part IVB of the Immigration Ordinance (Ordinance), Cap. 115 as against a contract of service or contract for service

4. Mr LAI Tung-kwok advised that the Administration had not been able to find any precedent case which expressly stated that a person was liable to an offence under section 17I of the Ordinance (employing a person not lawfully employable) even though the relationship between the parties was one of contract for service. Legal advice from the Attorney Generals Chambers was that while it was important to ascertain whether the contract was one of service or one for service, there were other considerations as well. For example, if a contractor employed an independent sub-contractor with knowledge that the latter was a person not lawfully employable, then the former contractor might still be liable under section 17I. In addition, it was for the court to decide whether a contract was one of service or one for service, depending on the facts and circumstances of the case.

5. Mr Vidy CHEUNG said that Part IVB of the Ordinance only applied to cases which involved employees working under a contract of employment. A contract of employment was defined, under section 17G, as "any agreement......whereby one person agrees to employ another and that other agrees to serve his employer as an employee......" "Employee", on the other hand, meant "any person who has entered into a contract of employment to be employed by any other person as an employee......" Mr CHEUNG held that if the issue was viewed in the perspectives of these definitions, then section 17I did not cover cases of contract for service, since people working under a contract for service were not employees but independent contractors. Senior Assistant Legal Adviser added that in a case where an employer employed persons who were not lawfully employable under a sham arrangement of a contract for service, or the defence in a prosecution under section 17I contended that a particular contract was one for service instead of one of service, it would be for the court to decide the actual nature of the contract, based on the particular facts of the case. Mr Bruce LIU and Mr LEE Cheuk-yan shared the view that section 17I should not cover contract for service relationships.

6. Mr Ronald ARCULLI said that the Administration should clarify whether the policy intent was to exclude contracts for service from the application of section 17I. He illustrated his query with a hypothetical example, where a person A engaged the services of B, who was an independent contractor, under a contract for service relationship, for the performance of a job which was actually done by C working for B as an employee, and C was a person not lawfully employable. Mr ARCULLI asked if A would be liable for breach of section 17I. Mr LAI Tung-kwok and Mr YIM Kwan-hoi replied that in these circumstances B would be prosecuted under section 17I since B was the direct employer of C. A would not be liable under section 17I because there was no contract of employment relationship between A and B, or between A and C. Mr Bruce LIU enquired if A would be liable if A had knowledge that C was a person not lawfully employable. Mr Vidy CHEUNG said that section 17I was intended to target at the offending employers and therefore A, not being the employer of C, would not be liable. Mr YIM remarked that if, however, A had arranged for C to work as an employee of B with the knowledge that C was a person not lawfully employable, then A would be liable for prosecution for aiding and abetting an employee to breach a condition of stay under section 41 of the Ordinance.

7. Mr LAI Tung-kwok concluded that section 17I did not include cases where the relationship between the parties was one of contract for service. Where prosecution was instituted against an employer under the section and there was defence in proceedings on the ground that no contract of employment existed, the case would have to be determined by the court.

8. Mr IP Kwok-him questioned if it could be stated clearly in the law situations that would fall outside the ambit of section 17I. Mr Vidy CHEUNG replied that it was impracticable for the law to spell out all possible circumstances. Mr LEE Cheuk-yan said that because of the complexities of the contracting systems in industries and the intricacies involved in differentiating the employment relationships in a wide variety of cases, the best option was to leave it to the court to decide any contentious issues.

9. Mr Ronald ARCULLI asked if more could be done to confirm if there was a Court of Appeal authority as asserted by Mr James TO at the last meeting as regards the application of section 17I of the Ordinance in a contract for service scenario. As advised by the Chairman, the Clerk would write to Mr TO to see if he would be able to provide the court ruling.

[Post-meeting note : Mr James TO has been asked on 3 September 1996 to provide the information.]

(b) The statutory defence of taking "all practicable steps" under sections 17I(1A) and 38A(3) of the Ordinance

10. Ms Ingrid HO and Mr LAI Tung-kwok advised that there was no statutory definition of "all practicable steps" in section 17I(1A) which an employer was required to take to determine the employability of an employee. The phrase "all practicable steps" had been interpreted by the court as meaning steps which were feasible and capable of being carried out within known means or resources. The concern was whether the steps taken were possible and practicable. The intention of the legislation was to encourage employers to be vigilant and, if in doubt, take feasible actions to check whether the employee was lawfully employable. It was not possible, however, to lay down any general principles, or any hard and fast rules, as to how a test should be applied in practice. For a statutory defence to be established, the court would have to be satisfied that all possible measures were taken by the employer, having regard to the circumstances of the case. The Administration had taken steps to help employers to discharge their legal obligations, such as the introduction of a new bilingual immigration stamp on the travel documents of contract workers and the issue of W-prefix identity cards for foreign domestic helpers (FDHs) and imported workers. Publicity had been stepped up and the Immigration Departments telephone hot-line and faxline also handled public enquiries which could normally be replied within the same day. Mr LAI assured that the Administration had been very careful in examining each case, giving due consideration to any explanation adduced by the employer, and seeking legal advice if necessary, before instituting prosecution.

11. In response to Mr Bruce LIUs enquiry on the level of responsibilities under "all practicable steps" and "reasonable steps" respectively, Senior Assistant Legal Adviser said that the duty to take all practicable steps, though not absolute, was higher than all reasonable steps. As revealed in R V HUI Wai-man [1994] 2HKCLR 169 (Annex B of Appendix to LegCo Paper No. CB(2) 2034/95-96), the Court of Appeal held that the employer had not taken all practicable steps to confirm the status of the two illegal immigrants employed by him, despite the employer had inspected the workers identity cards as required by the law. In the particular circumstances of the case, the Court held that the employer should have taken other feasible measures such as asking more questions about their personal circumstances and previous working experiences, and calling the Immigration Departments hot-line to confirm the authenticity of the identity cards produced by them. Mr LIU expressed that given the growing public concern on illegal employment activities in Hong Kong, he agreed that the imposition of a higher level of duty on the part of the employers was desirable.

12. Mr LAI Tung-kwok briefed members on the case of R V Shun Shing Construction & Engineering Co. Ltd. [1993] 1HKCLR 69 at 74 (Annex A of Appendix to LegCo Paper No. CB(2) 2034/95-96) where a construction site controller, despite having undertaken a number of preventive measures on the site, was convicted under section 38A(2) of the Ordinance. The appeal was subsequently dismissed as the Court of Appeal held that the provision of only one security guard on duty by himself on a site of such size and nature was not sufficient to enable it to be said that all practicable steps had been taken to prevent unlawful entry to the site. Mr LAI pointed out that a difference between section 38A(2) and section 17I(1A) was that the former did not involve the existence of a contract of employment. Senior Assistant Legal Adviser remarked that the prosecution was under a different section and the case should be considered in the light of its own facts. Once it was proved that an illegal immigrant was on the site, the controller was guilty unless he proved that he had taken all practicable steps to prevent illegal immigrants from entering the site. In the particular facts, the court held that only employing one guard was not enough in view of the size of the site, and accordingly the court held that the controller had not taken all practicable steps. Mr Ronald ARCULLI remarked that these two Court of Appeal rulings should be studied in more detail, noting that the relevant sections imposed legal obligations on citizens who might not have the legal knowledge to enable them to fully comply with the requirements. Mr IP Kwok-him expressed that the Administration should promulgate detailed guidelines for the public to follow.

13. In reply to a question by Mr Ronald ARCULLI on the handling of enquiries by the Immigration Department (the Department), Mr YIM Kwan-hoi said that all public enquiries would be acted upon at the earliest opportune moment by Immigration Officials. Records of the enquiries were kept for a period of time as deemed necessary by the Department. Ms Ingrid HO stated that publicity activities aimed at providing guidance to the public on compliance of statutory provisions and promoting the use of the Departments enquiry hot-line would be implemented after the passage of the Bill. These publicity efforts included, among other things, the publication of information leaflets and TV Announcements of Public Interest. At the request of the Chairman, the Administration agreed to advise in writing on the operation of the telephone hot-line and the system in keeping records of enquiries made by the public on matters relating to the employment of FDHs and imported workers.

Adm

(c) Temporary/Part-time work by foreign workers

14. Mr LEE Cheuk-yan relayed that he had learned of allegations about unscrupulous employment agencies making use of employers sponsorships to bring in extra FDHs to undertake illegal employments, such as performing part-time work for local employers. He asked if any remedial actions had been taken by the Administration. Mr YIM Kwan-hoi replied that prosecution had been taken against six employment agencies this year for charges of conspiracy to defraud the Government or aiding and abetting a person to make a false statement to Immigration Officials. He agreed to provide the details of these cases after the meeting.

Adm

15. In connection with some members enquiries on whether greater flexibility could be exercised to allow FDHs to undertake part-time or temporary work for persons other than the authorized employers on specific, ad hoc occasions, Mr YIM Kwan-hoi and Mr Vidy CHEUNG maintained that if it could be established that there was a contract of employment between the parties, the work would not be allowed. In determining if a contract of employment existed, factors such as the continuity and regularity of the work and whether remuneration was paid etc. were important considerations. Whether or not prosecution would be instituted would depend on the merits of the case and the mitigating factors. Ms Ingrid HO supplemented that governments policy on importation of labour was to allow foreign workers to undertake only such employment as had been approved under the scheme. She stressed that there was a need to protect local workers as regards other employment opportunities. Mr LEE Cheuk-yan, Mr Bruce LIU and Mr CHENG Yiu-tong also argued against the relaxation of the law to permit foreign workers to do part-time work, emphasising it would bring about abuses of the policy and upset the effective monitoring of the system.

16. Mr LEE Cheuk-yan enquired if a foreign worker such as a FDH could do a part-time job whilst awaiting a verdict by the Labour Tribunal as regards a dispute with the employer, and with the approval of the Immigration Department to change employment being granted. Mr LAI Tung-kwok replied in the negative.

17. The Chairman opined that there was a genuine market demand for the service of part-time domestic helpers which could not be met by local workers. She urged the Government and the trade unions to assist in the job matching. Mr CHENG Yiu-tong asserted that a considerable number of employers were not aware that it was illegal to employ FDHs on part-time work. The Administration should therefore strengthen publicity in this area. On the other hand, employers should relax their requirements as far as possible when trying to engage local part-timers. Mr LEE Cheuk-yan expressed that the prevailing market rate of about $50 per hour should be acceptable to most of the local workers looking for part-time jobs. He suggested that to deter FDHs from taking up part-time work, the Administration could seek the co-operation of the Philippines Consulate to disseminate the messages with regard to the legal requirements and the penalties for contraventions. Mr LAI Tung-kwok responded that the Department had made wide distribution of leaflets which contained detailed information. In fact every foreign worker should have known their legal obligations when they came in. He assured that the Department would keep up its efforts to put the information across to all parties concerned.

18. Referring to a question by the Chairman, Mr YIM Kwan-hoi confirmed that there had been no known cases of FDHs engaging in election campaign activities. Mr Vidy CHEUNG said that if the service was provided out of goodwill with no consideration of a monetary reward, it would not constitute a contravention of the law.

(d) Inspection of valid travel documents

19. Mr Ronald ARCULLI enquired how the Department could assist a prospective employer to ascertain the status of a foreign worker, if the worker could only provide a photo copy of his travel document. Ms Ingrid HO said that in the absence of a valid document, it was impossible to confirm whether the worker was the genuine holder of the document. Mr YIM Kwan-hoi added that any prospective employer of that person had to go through all the procedures of application with the Department, which ultimately required the examination of the workers original travel document.

(e) Public views

20. In response to the Chairman, Mr LEE Cheuk-yan confirmed that he had received no comments on the Bill from employees associations.

III. Date of Next Meeting

21. Since Mr Ronald ARCULLI had proposed that the two Court of Appeal rulings be further discussed and there might be additional information to be provided by Mr James TO as per paragraph nine of the foregoing, the Chairman advised that another meeting should be held to cover any new issues that could arise.

22. The next meeting was scheduled for Monday, 16 September 1996 at 10:45 a.m.

23. There being no other business, the meeting ended at 12:45 p.m.

LegCo Secretariat
13 September 1996

* -- Away from Hong Kong
# -- Other Commitments

Last Updated on 14 December 1998

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

Minutes of the Second Meeting held on Monday, 2 September 1996 at 10:45 a.m. in Conference Room B of the Legislative Council Building

I. Confirmation of Minutes of Meeting

II. Meeting with the Administration