Following is a reply by the Acting Secretary for Security, Mr Lai Tung-kwok, to a question by the Dr Hon Margaret Ng in the Legislative Council today (June 15):
A member of the public has recently relayed to me that at the time when he filled in an application form relating to the services of the Immigration Department (ImmD), he and his wife were undergoing divorce proceedings but had not yet divorced. As such, he accurately put down "married" on the application form. Yet, ImmD claimed that he had already "divorced" and charged him for providing false information. In another case, a married couple, despite living separately in two countries, had neither separated nor divorced, yet the husband was instructed by ImmD that he must put down "separated" on the application form. He then sought assistance from a lawyer who suggested ImmD to seek legal advice from the Department of Justice (DoJ) on the definition of "divorce" and "separation". Subsequently, ImmD accepted his application. In this connection, will the Government inform this Council:
(a) of the respective numbers of cases in which ImmD had instituted prosecution in the past three years against the applicants concerned who were suspected to have provided false information on marital status and cases in which the applicants were convicted;
(b) of the definition of different marital status (including "married", "divorced" and "separated") adopted by ImmD, and whether DoJ's advice has been sought; and
(c) whether ImmD has taken the initiative to assist the applicants concerned in understanding the definition of different marital status when they fill in application forms; if it has, of the details; if not, the reasons for that?
We will not comment on individual cases, nor is it appropriate for us to do so. In general, however, if immigration officers suspect that the information on marital status provided by the applicant is incorrect while processing an application under relevant legal provisions, they will allow the applicant to give an explanation. If the explanation furnished is both reasonable and satisfactory, the Immigration Department (ImmD) will proceed with the application according to procedures for processing the applications. However, if the immigration officers have reasonable grounds to suspect that the applicant has furnished false information, further investigations will then be made. The investigations made and possible prosecution action taken by the ImmD will certainly be based on facts and evidence.
My reply to the three parts of the question is as follows:
(a) As regards marriage registration, in respect of cases in which prosecution was instituted against those who had made a false declaration for the purpose of procuring a marriage and in contravention of the Crimes Ordinance, there were 68 in total for the period between 2008 and 2010, 65 of which were convicted.
During the same period, there were 678 prosecutions for conspiracy of defraud by means of false marriage (or commonly referred to as "bogus marriage"), with 624 convicted. Among them, three cases involved visa applications or extensions of stay.
(b) Under the law of Hong Kong, "marriages" include those entered into in Hong Kong under the Marriage Ordinance (Cap 181), which means the voluntary union for life of one man with one woman, and that a rite of marriage recognised by law has been performed in accordance with law. Furthermore, in accordance with the Matrimonial Causes Ordinance (Cap 179) and the Married Persons Status Ordinance (Cap 182), a monogamous marriage contracted outside Hong Kong in accordance with law will also be recognised as a legal marriage. Any person who is a party to the above "marriage" is considered "married".
Under the Matrimonial Causes Ordinance, "married" persons may file a petition or an application for divorce to the court in Hong Kong. The "divorce" will become effective upon conclusion of proceedings and granting of a divorce certificate by the court. Divorces obtained outside Hong Kong are also recognised under Hong Kong law.
In accordance with the Matrimonial Causes Ordinance, a husband and a wife may enter into a separation agreement or, in other cases, either party may apply to the court for separation under the ordinance. Under the common law, apart from considering whether the applicant is living with his/her spouse, factors such as whether the applicant is still maintaining husband-and-wife relationship with his/her spouse (e.g. whether they have ceased to recognise the existence of their marriage and whether he/she intends to reconcile with his/her spouse, etc.) will be taken into account before judging whether they have been "separated".
(c) Immigration officers will provide appropriate assistance to applicants in case they raise any doubt when filling in their marital status. Meanwhile, they may also request applicants to provide supporting documents as appropriate in relation to their marital status, such as marriage certificates, divorce certificates, deeds of separation or other relevant legal documents.
Ends/Wednesday, June 15, 2011
Issued at HKT 13:02