Re Pasa Danaville Dizon

HCAL 97/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 97 OF 2009

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Before: Hon Andrew Cheung J in Chambers (Not open to the public)

Date of Hearing: 11 September 2009

Date of Judgment: 11 September 2009

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J U D G M E N T

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[Permission to publish this judgment has been given]

1.The test for granting leave is whether the applicant has shown a reasonably arguable case. Interim relief is normally granted after the obtaining of such leave as per the Practice Direction, but in exceptional cases, interim relief such as the type of relief sought by the applicant in this afternoon’s hearing may be granted even before leave to apply for judicial review is obtained.

2.Having had the benefit of argument from the applicant as well as from the putative respondent, I am in a position to decide not only the application for interim relief but the application for leave to apply for judicial review as well.

3.I find the fact that the applicant would go to the extent of suing the Government for the alleged one hour’s false imprisonment in the circumstances of the present case rather surprising. I also find the argument that the applicant was not an overstayer for one day by reason of section 71 of the Interpretation and General Clauses Ordinance, Cap 1, which applies generally, not only to Ordinances but also to “instruments” as per section 2(1) of that Ordinance, in the context of a limit of stay granted by an immigration officer to a visitor to Hong Kong, equally surprising.

4.Even if one were to proceed on the basis that she did have an arguable case on her reading of the law, it would not, under normal circumstances, render the questioning of her by the immigration officer on 28 July 2008, when she and her companion sought to depart Hong Kong for Macau, unlawful. Section 4(1) of the Immigration Ordinance, Cap 115, clearly provides an immigration officer with the power to examine a person prior to his departure from Hong Kong if he has reasonable cause for believing that such a person is contravening, or has contravened, a condition of stay, including a limit of stay, in respect of him. Such a person may be required by the immigration officer to submit to further examination. In other words, I am not surprised at all that the applicant’s claim against the Government in the Small Claims Tribunal was dismissed.

5.The applicant then applied for legal aid in respect of her intended application for leave to appeal against the dismissal of her claim in the Small Claims Tribunal. Again, I am not surprised to find that her application has been refused. Apart from what I have observed regarding the merits of her claim against the Government, I also have doubt whether legal aid is available to such an application for leave, by reason of paragraphs 8 and 9 in Part II in Schedule 2 to the Legal Aid Ordinance, Cap 91, but I need not express any definite view in this regard.

6.The applicant now says that she should be given a further extension of stay to remain in Hong Kong to pursue her legal aid appeal, which will come on for hearing in early October. By reason of her proceedings in the Small Claims Tribunal, she has already been allowed to remain in Hong Kong since January this year. She claims that if she were forced to leave Hong Kong, she would have no financial means to return to Hong Kong to prosecute her legal aid appeal. That would be, in effect, denying her access to the courts in breach of her rights guaranteed under article 35 of the Basic Law.

7.Pausing here, it is plain beyond argument that article 35, which applies to Hong Kong residents, does not apply to the applicant directly because she is neither a permanent resident nor a non-permanent resident in Hong Kong. The definition of a ‘non-permanent resident’ is defined in article 24(4) of the Basic Law as a person who is qualified to obtain a Hong Kong identity card in accordance with the laws of the Region, but has no right of abode.

8.That said, I believe the applicant still falls within article 41 of the Basic Law which applies to persons in Hong Kong, other than Hong Kong residents. These persons also enjoy the rights and freedoms of Hong Kong residents prescribed in Chapter III of the Basic Law “in accordance with law”. In this regard, I would say that “law” must include, amongst other things, the Immigration Ordinance.

9.It is trite that the legislature has left immigration matters in the hands of the Director of Immigration, rather than the courts. The court, sitting in its public law function, only plays a supervisory role in these matters and the decisions of the Director of Immigration are entitled to great respect. The court does not lightly interfere with his decisions.

10.The alleged lack of means to return to Hong Kong and thus the alleged claim of denial of access to the courts is contradicted by the movement records of the applicant, which the applicant has failed to place before the Court. The records supplied by the putative respondent show that between 2006 and this year, there have been many trips to and from Hong Kong by this particular applicant. The records cast serious doubts on the claim by the applicant – and I would emphasise that it is a bare claim – that she will not have the financial means to return to Hong Kong to prosecute the legal aid appeal if she is not allowed to stay.

11.When confronted with the records, the applicant, through counsel appearing for her, via the good services of the Bar Free Legal Service Scheme, maintains that many of her previous trips were financed by her former boyfriend.

12.I have borne in mind the facts in the present case which are by no means ordinary; rather, I would describe them as peculiar and extraordinary. Because of an alleged hour’s false imprisonment in July last year, the applicant has managed to stay and remain in Hong Kong since then, until now, with the interruption of several short trips that she now says were financed by her former boyfriend.

13.Having borne in mind everything that I have said, including the fact that whatever protection under the Basic Law the applicant may have is to be in accordance with law, including the Immigration Ordinance which leaves immigration matters generally in the hands of the Director of Immigration, I am not satisfied that the applicant has shown a reasonably arguable case to apply for judicial review against the Director’s refusal to further extend her stay in Hong Kong.

14.For those reasons, the application for leave is refused and it must follow from that, that the application for interim relief is also refused.

15.No order as to costs.

Mr Philip Ross, instructed by Hong Kong Bar Association’s Bar Free Legal Service Scheme, for the applicant

Mr Clifford Tavares, SGC, of the Department of Justice, for the Director of Immigration