For information
on 3 September 1998

LEGCO PANEL ON SECURITY

Proposed Amendments to Immigration Ordinance :
Illegal Employment on Construction Sites

Purpose

This paper informs Members of the Administration's plan to amend the Immigration Ordinance, in order to enhance our ability to tackle the problem of illegal employment on construction sites.

Background

2. The Government has always been vigilant against illegal employment and is determined to make every effort to combat the problem. We have been monitoring the effectiveness of our anti-illegal employment measures and the relevant legislative provisions. While the number of illegal immigrants has dropped substantially over the past few years, there is an increase in the number of arrests of illegal workers in recent months. This is largely due to a substantial increase in the number of Two-way Permit holders working illegally on construction sites.

Current Law

3. Under the existing provision of section 38A of the Immigration Ordinance, where it is proved that a person to whom section 38(1) applies (i.e. a person who has committed an offence of illegal remaining) was on a construction site, the construction site controller of that site commits an offence and is liable to a fine of $350,000. It is a defence in proceedings for an offence under this section for the person charged to prove that he took all practicable steps to prevent persons to whom section 38(1) applies from being present on the construction site.

4. The current section 38A was introduced in 1990 to tackle the problem of employment of illegal immigrants on construction sites. Prosecution of employers in the construction industry under section 17I of Immigration Ordinance (which makes it an offence to employ a person not lawfully employable) had been difficult because under the sub-contracting system adopted by the construction industry, there were generally several employers on a building site. It was difficult to identify the employer of an illegal worker on a construction site for prosecution under section 17I.

Recent trend

5. The existing section 38A has had a marked effect in reducing the employment of illegal immigrants on construction sites, as shown in the statistics below. However, the statistics also indicate a trend that illegal workers on construction sites increasingly comprise Two-way Permit holders:

Arrests on Construction Sites

Arrests on Construction Sites	1990	1991	1992	1993	1994	1995	1996	1997	1998 Jan - May
IIs	1,930	437	1,120	581	358	100	150	271	30
TWPHs	57	42	69	239	385	755	422	651	700

The number of Two-way Permit holders arrested on construction sites has increased from 57 in 1990 to 651 in 1997. The arrest figure for the first 5 months in 1998 is 700, which has exceeded the arrest figure for the entire year of 1997.

6. In so far as Two-way Permit holders are concerned, the number of arrests on construction sites now constitutes an increasing proportion of all Two-way Permit holders arrested for illegal employment at all places of work:

Two-way Permit holders arrested at work

		1995	1996	1997	1998 Jan - May
(a)	TWPH arrested on construction sites	755	422	651	700
(b)	Total number of TWPHs arrested at work (excluding prostitutes)	2,324	1,435	1,461	1,405
	Proportion (a) : (b)	32%	29%	45%	50%

7. This problem was raised at the Provisional Legislative Council Panel on Security meeting on 22 January 1998 and the Fight Crime Committee meeting on 23 May 1998.

Proposed amendment to section 38A

8. The change in the mix of illegal workers arrested on construction sites underlines the effectiveness of section 38A in tackling illegal immigrants working on construction sites, but reveals an inadequacy of the current law in tackling other types of illegal workers on construction sites.

9. To remove this loophole, we are working on a Bill to amend the Immigration Ordinance so as to include other types of illegal workers under section 38A. The Bill will add provisions to section 38A of the Immigration Ordinance so that -

1. if a person who is not lawfully employable has breached a condition of stay by taking up employment on a construction site, the construction site controller commits an offence and is liable to a fine of $350,000; and

2. it is a defence in proceedings for the person charged to prove that he took all practicable steps to prevent persons who are not lawfully employable from taking employment on the site.

10. It should be emphasized that under the Bill, a construction site controller will not be liable simply because a person not lawfully employable is found on his site. The controller will be liable only if the that person takes up employment on his site.

Timing

11. Subject to the approval of the Chief Executive in Council, we will introduce the Bill to LegCo on 4 November 1998. Drafting of the Bill is in progress.

Security Bureau
September 1998