A Moment of Poor Decision

In STCC 2332/2024, a domestic helper was charged with breaching her condition of stay for establishing a business. One afternoon in 2022, the maid was seen briefly tending a street stall selling scarves of small value and was caught in an operation against hawking.

What appears to be a simple hawking case turned out much more serious, as the officers discovered who they caught was a foreign domestic helper and referred the case to the Immigration Department. Eventhough, this case arose when a local acquaintance asked the maid she met to tend the stall for a moment while away to take care of other business.

It must be emphasised that the standard Employment Contract provided that a foreign domestic helper “shall only perform domestic duties” for the employer. This clause also formed part of the visa conditions, the breach of which is a serious criminal offence under s 41 Immigration Ordinance (Cap 115), which could result in a fine at level 5 ($50,000) and imprisonment for 2 years. The maid could also face deportation and lose her job in Hong Kong.

In HKSAR v Xie Chun-mei [2004] 1 HKLRD 865, the Court of Appeal considered the defendant’s sentence, who was in breach of her condition of stay by working while being a lawful visitor of Hong Kong. It was held in that case, that the proper sentence is two months’ imprisonment. While not a sentencing guideline, Xie Chun-mei demonstrated how serious the offence is.

In the end, representations of her background and circumstance were made on behalf of the maid by Mr Gordon Chan, persuading the Immigration Department that the offence was committed out of a lapse of judgment. A chance was given for the maid to be bound over and, more importantly, to continue working for her employer.

If not careful, immigration offences can easily arise out of seemingly ordinary daily circumstances. Worse still, it often attracts serious punishment and devastating consequences.