Can a Hong Kong Resident Be Deported After a Criminal Conviction in Taiwan? Criminal and Immigration Laws Explained

23小时前

讀畢需時 5 分鐘

A criminal conviction in Taiwan does not automatically allow a court to order a Hong Kong resident’s deportation under Article 95 of the Criminal Code. However, separate immigration proceedings may still require the person to leave Taiwan.

💡Foreign nationals and Hong Kong or Macau residents facing criminal charges in Taiwan often worry about more than imprisonment. They may also ask whether a conviction will affect their residence permit or result in deportation after serving their sentence.

The Supreme Court case discussed below highlights an important distinction: a criminal court’s deportation order and an immigration authority’s removal decision have different legal foundations.Article 95 authorizes deportation of a foreign national sentenced to imprisonment or a more severe punishment, after completion of the sentence or a pardon. Its wording specifically concerns foreign nationals. mojlaw.moj.gov.tw

Hong Kong residents are subject to a separate legal framework. The inability to apply Article 95 directly does not guarantee continued permission to stay in Taiwan.

🚨This was not a case handled by Legal Consultant. The discussion is based on the supplied summary of a public judgment. Personal names and other identifying details have been omitted.

1. What Happened in the Case?

Case reference supplied: Supreme Court criminal judgment, 115年度台非字第121號.

The defendant, a Hong Kong resident, was convicted at first instance of attempted fraud jointly committed by three or more people. Alongside imprisonment, the court ordered deportation after completion of the sentence or a pardon.

The prosecutor subsequently appealed only the sentencing portion. Following the second-instance sentencing judgment, the case became final.

The Prosecutor General later identified an error in the first-instance deportation order and filed an extraordinary appeal to correct the legal error.According to the case summary, the Supreme Court revoked only the deportation portion. The findings of criminal responsibility and the finalized prison sentence remained unchanged.

2. Why Hong Kong Residents and Foreign Nationals Are Treated Differently

In everyday conversation, people may describe anyone from outside Taiwan as a “foreigner.” Taiwanese law, however, distinguishes between several legal categories.

Article 95 of the Criminal Code concerns foreign nationals. Deportation under this provision is a security measure that a criminal court may include in its judgment.

Hong Kong and Macau residents have a separate system governing entry, temporary stay, residence, settlement and departure under the Laws and Regulations Regarding Hong Kong and Macao Affairs and related regulations.

The legal principle discussed in the case is that a Hong Kong resident cannot simply be treated as a foreign national for the purpose of Article 95.

The issue is therefore one of legal status, statutory authority and the proper decision-making body. It does not mean that the defendant committed no crime, nor does it remove the National Immigration Agency’s authority to make a separate lawful immigration decision.

3. Does Revoking the Deportation Order Guarantee Permission to Stay?

No. Removing a criminal court’s deportation order does not automatically preserve a person’s immigration status.

Under the regulations governing Hong Kong and Macau residents, facts sufficiently indicating criminal conduct may provide grounds to refuse entry permission or revoke an existing permission. Residence-related decisions must also be assessed under the relevant provisions and the person’s circumstances. law.moj.gov.tw

Article 14 of the Laws and Regulations Regarding Hong Kong and Macao Affairs allows the National Immigration Agency to order departure or carry out compulsory removal in specified circumstances, including:

Entry without permission.
Overstaying an authorized period of stay or residence.
Revocation or cancellation of permission to stay, reside or settle.

The provision also contains procedural requirements concerning pending criminal proceedings, opportunities to make representations and review before certain removal decisions, subject to statutory exceptions. law.moj.gov.tw

The two processes should therefore be examined separately:

The criminal court decides criminal responsibility, punishment and legally authorized security measures.

The National Immigration Agency handles entry and residence permissions, their cancellation and administrative departure or removal procedures.

➠Both may affect whether a person can remain in Taiwan, but their legal grounds, procedures and available remedies differ.

4. Why Was Only the Deportation Portion Revoked?

The case also illustrates the importance of the scope of an appeal.

A criminal judgment may contain several distinct decisions, including the conviction, sentence, confiscation and security measures. An appeal limited to sentencing does not necessarily reopen every other part of the judgment.

According to the supplied summary, the legal error concerned the first-instance deportation order. That error could be separated from the findings of guilt and the finalized sentence.

➠The Supreme Court could therefore correct the deportation portion without overturning the entire case.

An extraordinary appeal is a special procedure for addressing legal violations in a final criminal judgment. It is not an ordinary opportunity to retry all facts or reconsider every unfavorable outcome.

➠Successfully challenging an unlawful deportation order does not, by itself, reverse the conviction or reduce the prison sentence.

5. Why the Criminal Judgment Is Only Part of the Picture

Foreign nationals and Hong Kong or Macau residents involved in criminal cases may face two parallel sets of legal issues.

▪️Criminal Proceedings

These may include police questioning, investigation, detention, prosecution, trial, sentencing, suspended sentences, confiscation and sentence execution.

▪️Immigration and Residence Proceedings

These may include entry permission, authorized stay, residence status, restrictions on departure, permit cancellation, departure orders and compulsory removal.

A non-prosecution decision, deferred prosecution, suspended sentence or reduced sentence may be relevant to an immigration assessment. It does not automatically prevent an administrative decision.

Likewise, a conviction does not authorize a criminal court to apply every provision concerning foreign nationals to a Hong Kong or Macau resident.

The assessment should consider:

The person’s legally recognized nationality and Hong Kong or Macau resident status.
The basis and validity of entry or residence permission.
The alleged offense and procedural stage.
The wording and legal effect of the judgment.
Any separate notices or decisions from immigration authorities.

A person’s passport alone should not replace a full assessment of their status under the applicable legislation.

6. Criminal Defense Should Address Immigration ▪️Consequences Early

For fraud, money laundering, drug offenses and other criminal allegations, defense preparation should consider more than the possible prison term.

A defendant with foreign nationality or Hong Kong or Macau resident status should identify the legal basis of their stay in Taiwan and obtain advice about any immigration consequences.

Relevant documents may include passports, identity documents, entry permits, residence permits, charging documents, judgments and correspondence from the National Immigration Agency.

Legal Consultant can help assess the criminal allegations, evidence, sentencing issues and procedural legality, while separately identifying immigration risks and the need for administrative remedies.

This includes checking whether a court has relied on the correct statutory authority and whether an immigration decision requires a separate response.

A sound defense addresses both the criminal case and the person’s legal status. Correctly distinguishing the powers of the court from those of immigration authorities can prevent an unlawful additional consequence from going unchallenged.

📢This article provides general information based on a public-case summary and relevant legislation. Individual outcomes depend on nationality or resident status, immigration documents, the allegations and the complete case record.