Bills Committee on Immigration (Amendment) (No.2) Bill 1998 (Minutes) 20 Nov 98

Legislative Council

LC Paper No. CB(2)2567/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/7/98

Bills Committee on Immigration (Amendment) (No.2) Bill 1998

Minutes of Meeting held on Friday, 20 November 1998 at 4:30 pm in Conference Room B of the Legislative Council Building

Members Present:

Hon James TO Kun-sun (Chairman)
Hon LEE Cheuk-yan
Hon Ronald ARCULLI, JP
Hon CHAN Kam-lam
Hon YEUNG Yiu-chung
Hon TAM Yiu-chung, JP

Members Absent:

Hon David CHU Yu-lin
Hon HO Sai-chu, JP
Hon Michael HO Mun-ka
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon MA Fung-kwok
Hon CHAN Yuen-han

Public Officers Attending:

Mr K S SO: Principal Assistant Secretary for Security
Mr David YIP: Assistant Secretary for Security
Mr K K YIP: Assistant Commissioner of Police, Operations
Mr K Y MAK: Assistant Director of Immigration
Mr Byron LEUNG: Government Counsel

Clerk in Attendance:

Mrs Constance LI: Chief Assistant Secretary (2) 2

Staff in Attendance:

Mr Arthur CHEUNG: Assistant Legal Adviser 5
Miss Flora TAI: Senior Assistant Secretary (2) 2

I. Election of Chairman

Mr James TO was nominated by Mr Ronald ARCULLI as Chairman of the Bills Committee, and the nomination was seconded by Mr YEUNG Yiu-chung. Mr TO accepted the nomination. There being no other nomination, Mr James TO was elected as Chairman of the Bills Committee.

II. Meeting with the Administration
[LegCo Brief Ref : SBCR 4/2091/95(96) and LC Paper No. CB(2)637/98-99]

2. At the invitation of the Chairman, Principal Assistant Secretary for Security (PAS for S) informed members that the objects of the Bill were to extend to APEC Business Travel Card and Travel Pass the existing penal provisions in the principal ordinance relating to false statements, forgery of documents and use and possession of forged documents; and to penalise the employment on a construction site of persons not lawfully employable. He then briefed members on the salient points of the Bill as set out in the Legislative Council Brief on the Bill.

3. Members noted that prosecution of employers in the construction industry under section 17I of the Immigration Ordinance (Cap. 115) had been difficult because under the sub-contracting system adopted by the construction industry, there were generally several employers on a construction site. It was difficult to identify the employer of an illegal worker on a construction site for prosecution under section 17I. The existing section 38A was therefore introduced in 1990 to hold construction site controllers liable if illegal immigrants were found on their construction sites. Although the existing section 38A had been effective in combating the employment of illegal immigrants on construction sites, the statistics had indicated a trend that illegal workers on construction sites comprised more Two-way Permit Holders (TWPHs). The Bill therefore sought to amend section 38A to include other types of illegal workers, such as TWPHs. The gist of the ensuing deliberation on the general principles of the Bill is summarised in the following paragraphs.

Travel Pass and APEC Business Travel Card

4. PAS for S briefed members on the background of the Travel Pass Pilot Scheme and the APEC Business Travel Card Scheme introduced in 1998. Members noted that Immigration (Amendment) (No. 2) Regulation 1997 was made on 9 December 1997 empowering the Director of Immigration to issue the Travel Pass to frequent visitors to Hong Kong, and APEC Business Travel Card to Hong Kong residents travelling to APEC economies, and to charge fees for these documents.

5. Responding to the Chairman, PAS for S confirmed that if Travel Pass and APEC Business Travel Card were added to section 42 of the Immigration Ordinance, the penalty for false statements, forgery of documents and use and possession of forged documents in connection with these documents would be of the same level as that for other travel documents such as entry permit, re-entry permit, certificate of identity and document of identity. The Chairman then asked about anti-forgery measures of Travel Pass and APEC Business Card. Assistant Director of Immigration (AD of I) advised that the security features of Travel Pass were similar to other entry permits issued by the Director of Immigration, and that a high anti-forgery standard had been endorsed by the Asia Pacific Economic Co-operation for the APEC Business Travel Card. He supplemented that a holder of APEC Business Travel Card would still have to present a valid travel document for immigration clearance at the control point of participating economies. At the Chairman's request, AD of I agreed to provide samples of Travel Pass and APEC Business Travel Card issued by HKSAR Government and other participating economies for members' reference.

(Post-meeting note : The Administration had provided a sample each of the Travel Pass and APEC Business Travel Card which were shown to members at the meeting held on 8 December 1998.)

Adequacy of existing legislation

6. Referring to the fact that prosecution against employers for illegal employment could be instituted under section 17I of the Immigration Ordinance if they employed TWPHs, Mr YEUNG Yiu-chung asked the Administration why amendments to section 38A were considered necessary to combat against illegal employment on construction sites. PAS for S explained that given the complicated sub-contracting system adopted by the construction industry, it was very difficult for the enforcement departments to identify the employer of illegal workers on construction sites. This had rendered prosecution difficult under section 17I. With the increased number of TWPHs arrested on construction sites, it was necessary to tighten control of the problem. The proposed amendment to section 38A sought to hold construction site controllers liable if a person who was not lawfully employable had breached a condition of stay by taking up employment on their construction sites, unless they could prove that all practicable steps had been taken to prevent persons who were not lawfully employable from taking employment on the construction site. In this regard, Mr LEE Cheuk-yan said that he supported the Administration's proposal to combat employment of illegal workers. Mr LEE then asked whether there were syndicates of illegal employment of TWPHs in Hong Kong. AD of I responded that there was no evidence at the moment that this was an organised crime. Mr LEE said that he suspected some established arrangements for recruitment of TWPHs, and Sai King had become a gathering place for TWPHs waiting for employment. AD of I pointed out that the gathering place and employment opportunities might have been circulated by word of mouth among TWPHs.

7. Mr LEE Cheuk-yan asked whether it would be difficult to prove that a TWPH was taking employment on a construction site. PAS for S responded that if there was sufficient evidence to prove that TWPHs were under the employment of a contractor, subcontractor or sub-subcontractor, prosecution would be taken against that contractor or subcontractor concerned. If it was not possible to pinpoint the employer of the TWPH, the construction site controller would be prosecuted. He explained that under the new section 38A, the construction site controller was held liable if persons not lawfully employable were found taking employment on his site. PAS for S pointed out that it was a defence in proceedings for the construction site controller charged to prove that he had taken all practicable steps to prevent person who were not lawfully employable from taking employment on the site. The Chairman asked whether the Administration considered it feasible for a construction site controller to prevent TWPHs from taking up employment on his site as proposed in the new subsection 38A(5). PAS for S responded that the construction industry had devised a set of guidelines for its members to follow in taking practicable steps to prevent illegal employment on construction sites. The Administration had also been requested to comment on the guidelines. With regard to the question of whether the practical steps taken by a particular contractor was a defence under section 38A, PAS for S advised that it would be up to the courts to determine having regard to the circumstances of each case.

Consultation with the Hong Kong Construction Association (the Association)

8. PAS for S informed members that the Administration had discussed with the Hong Kong Construction Association Limited (the Association) the proposed legislative amendments and had noted the Association's concerns. He stressed that a construction site controller would not be liable under the proposed sub-section 38A(3) simply because a person not lawfully employable, such as a TWPH, was found on his site. The controller would be liable only if that person took up employment on the site. He further clarified that the definition of construction site controller under section 38A referred to a principal or main contractor and included a subcontractor, owner, occupier or other person who had control over or was in charge of a construction site.

9. Mr Ronald ARCULLI disagreed with the Administration's response. He informed members that the Association was given the understanding at meetings with the Administration that a construction site controller would be liable only if there was proof of employment relationship between the site controller and the TWPH found on the construction site. He therefore sought further clarification from the Administration on the issue. PAS for S clarified that in enforcing the proposed sub-sections 38A(3), (4) and (5), the enforcement departments would make every effort to trace the employers of the illegal workers in the first instance. However, proof of employer-employee relationship between the principal or main contractor and the illegal worker was not necessary under the proposed sub-section 38A(4). In this regard, Mr ARCULLI expressed dissatisfaction that the Administration's response contradicted the explanation previously given by the Secretary for Security to the Association. The Chairman therefore advised the Administration to provide copies of the correspondence between the Administration and the Association on the proposed legislative amendment for members' reference. He further suggested that the Association might consider presenting its views to the Bills Committee.

(Post-meeting notes : The Secretary for Security had provided copy of her letter of 18 September 1998 to the Hong Kong Construction Association Ltd and a letter of 4 December 1998 from the Hong Kong Construction Association vide Paper Nos. CB(2)783/98-99(01) and CB(2)809/98-99(01) respectively.)

Proof required for prosecution under the proposed sub-section 38A(4)

10. In response to the Chairman, PAS for S said that the policy objective was that employer(s) concerned should be held responsible for the employment of illegal workers subject to availability of evidence to prove the employer-employee relationship. Mr YEUNG Yiu-chung asked and AD of I confirmed that contravention of a condition of stay under section 41 included taking employment, whether paid or unpaid, during the period of stay as a visitor. The Chairman added that prosecution against the employers could have been instituted under section 17I of the Ordinance if there was sufficient proof of the employer-employee relationship. However, the proposed section 38A would have the effect that prosecution against a construction site controller could be instituted if a person not lawfully employable had taken up employment on his site even though the employer of the illegal worker could not be identified. Mr Ronald ARCULLI queried how the proposed sub-section 38A(4) could apply if the enforcement departments could not prove the existence of an employer-employee relationship. Some members also expressed concern that the English version of "taking employment on a construction site " in the proposed sub-sections 38A(4) & (5) might not be consistent with the Chinese version which read. They sought clarification as to whether it was necessary to prove that the TWPHs concerned were actually under employment before prosecution could be taken under the proposed section 38A.

11. In response to members' concern, Assistant Legal Adviser advised that under the proposed sub-section 38A(4), prosecution against the construction site controller should only be instituted after a conviction under section 41 of the Ordinance that the person who was not lawfully employable had breached a condition of stay by taking up employment on his construction site. Assistant Secretary for Security added that the certificate issued by the Director of Immigration under the proposed sub-section 38A(6) would only certify that the person concerned was not lawfully employable and the definition of "not lawfully employable" had been clearly set out in legislation. The Chairman asked and PAS for S confirmed that it was the legislative intention that the conviction was necessary in order to institute prosecution against the construction site controller under the proposed sub-section 38A(4). Considering that the Government Counsel might hold a different view on the interpretation of the section, the Chairman requested the Administration to confirm in writing as to whether conviction of unlawful employment under section 41 was necessary for the construction site controller to be prosecuted under proposed sub-section 38A(4).

(Post-meeting notes : The Administration has provided a written response after the meeting that a conviction of the "illegal worker" under section 41 is not required for the prosecution of the construction site controller to proceed under the proposed sub-section 38A(4). What is required is evidence to prove beyond reasonable doubt that the "illegal worker" has committed an offence under section 41 by taking employment. However, as a matter of policy and in practice, the Administration confirms that it will prosecute the "illegal worker" and secure a conviction under section 41 before proceeding to prosecute the construction site controller.)

III. Date of next meeting

12. Members agreed that the Bills Committee would hold its next meeting on Tuesday, 8 December 1998 at 2:30 pm to continue discussion with the Administration and proceed to clause-by-clause examination of the Bill.

13. There being no other business, the meeting ended at 5:40 pm.

Legislative Council Secretariat
15 July 1999