Can I stay longer than the Condition of Stay as a non-Hong Kong resident?
If you are visiting Hong Kong from a foreign country, it is important to be aware of your Condition of Stay whether you are working or travelling.
In HKSAR v Palathanthirige  3 HKC 30, a domestic helper was sentenced for breach of condition of stay contrary to s.41 of the Immigration Ordinance (Cap.115) (IO). The domestic helper could stay until 23 September 2011 or two weeks after termination of employment, whichever was earlier. However, she overstayed for more than 5 years and 7 months after her contract was prematurely terminated because she wanted to avoid the divorce with her husband, which could prejudice the marriage of her daughter in tradition. She was even pregnant at the time of the appeal.
A foreigner is required to stay within the condition of stay under s.41 of IO. Foreigners who breach the condition of stay shall be liable to a fine of HK$50,000 and imprisonment for 2 years. A person commits an offence even if he/she has personal reasons, such as the domestic helper’s divorce in the case above.
In Palathanthirige, the court considered the policy reasons such as financial resources and security if a large number of people overstay. The court agreed that nine months sentence for the domestic helper was still within reasonable range to serve a deterrent effect. The judge however, mitigated the sentence to take into account of her early plea of guilt, pregnancy and her father’s terminal stage of cancer. Therefore, the court is strict when dealing with overstaying cases. It is important to apply for extension of stay if you want to extend your stay in Hong Kong.
If necessary, you can also apply for legal aid. Ms. Ngan is a member of the lawyers at the Legal Aid Department for Criminal, Divorce/Family Law, Employees’ Compensation, Personal Injury, Medical Negligence, and Land Disputes. If legal aid is approved, the aided person has the right to choose a lawyer to represent.