Pasa Danaville Dizon v. HKSAR

FAMP No. 2 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2 OF 2009

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMP NO. 2468 OF 2009)

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Between:

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Coram: Mr Justice Ribeiro PJ

Date of Hearing : 17 December 2009

Date of Ruling : 17 December 2009

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RULING

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Mr Justice Ribeiro PJ :

1.The applicant came to Hong Kong as a visitor on 13 July 2008 having been granted permission to stay for 14 days. She applied for and was granted 8 extensions of stay, all linked with certain proceedings brought by her against the Government in the Small Claims Tribunal. She eventually departed from Hong Kong on 23 August 2009 and returned two days later, again as a visitor. On 8 September 2009, she applied for a further extension of stay but this was refused and she was required to leave on or before 13 September 2009, a Sunday.

2.She applied unsuccessfully to Andrew Cheung J on 11 September for leave to institute a judicial review of the Director of Immigration’s decision and for interim relief. In his judgment,[1] his Lordship noted that the applicant had purported to sue the Government for one hour’s alleged false imprisonment in relation to such a period of questioning by an Immigration Officer as she was departing from Hong Kong for Macau in July 2008; that the claim had been dismissed by the Small Claims Tribunal; that legal aid had been refused for an appeal; and that the basis for her seeking a further extension of her stay was purportedly to pursue her legal aid appeal. His Lordship also noted that her Small Claims proceedings had enabled her to remain in Hong Kong since January 2009 and, in the light of her many trips to and from Hong Kong since 2006, he expressed serious doubts regarding her suggestion that she would be unable to afford to return to Hong Kong to prosecute her appeal if she was not allowed to stay. Summarising the position, Andrew Cheung J stated:

“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.”

3.Notwithstanding his Lordship’s judgment, the applicant did not in fact leave on or before 13 September as required but, on 14 September 2009, she went to the Immigration Department to make a fresh application for an extension. She was arrested and placed on immigration bail.

4.On 18 November 2009, she was charged with having overstayed by one day. On 20 November, she pleaded not guilty, counsel appearing on her behalf indicating that she wished to raise as a point of law the question whether section 71(1)(b) and (d) of the Interpretation and General Clauses Ordinance operated so that the requirement that she leave on 13 September, being a Sunday, did not take effect until 14 September, with the result that she had not overstayed as alleged. The magistrate, Mr W C Li, revoked bail and fixed the trial on the overstaying charge for 12 January 2010. On 1 December 2009, the applicant unsuccessfully applied for bail before Maggie Poon J. The prosecution had objected to bail on the basis of a concern that the applicant would fail to surrender to custody.

5.On 14 December the applicant took out a motion for leave to appeal to the Court of Final Appeal from the Judge’s refusal of bail on the substantial and grave injustice ground. On the same day, she issued the present summons for bail “pending determination of her appeal”.

6.Also on 14 December 2009, the Registrar of the Court, being of the opinion that the application discloses no reasonable grounds for leave to appeal, issued a Rule 7 summons requiring the applicant to show cause why the application should not be dismissed.

7.It is against this background that the summons for bail pending determination of the proposed appeal has come before me.

8.Section 34 of the Court’s statute relevantly provides as follows:

“(1) The Court, the Court of Appeal or the Court of First Instance, as the case may be, may on the application of a person appealing or applying for leave to appeal or on the application of a person in custody pending the determination of the appeal, grant the person in custody bail pending the determination of the appeal.

...

(3) If a person is refused bail on an application made under subsection (1), he shall not thereafter be entitled to make a fresh application for bail-

(a) before the commencement of the hearing of the appeal, except to the Court, the Court of Appeal or the Court of First Instance and only if he satisfies the Court, the Court of Appeal or the Court of First Instance that since the refusal, there has been a material change in relevant circumstances; or

(b) during the hearing of the appeal, except to the Court.”

9.Section 34 gives the Court a discretionary power (exercisable by a single Permanent Judge under section 46 of the Ordinance) to grant bail. However, it is clear from its provisions that the power is intended to be exercised only in cases where a sufficient case has been made out for grant of leave to appeal so as to cater for bail during the period before the substantive hearing. Thus, in subsection (1), while the application may be made by “a person ... applying for leave to appeal”, the order which the Court might make is an order for bail “pending the determination of the appeal”. In other words, it is envisaged that the Court will generally only grant bail where it decides to grant leave to appeal so that the order covers the period “pending determination of the appeal”. Obviously if leave to appeal is refused, there is no room for the grant of bail. Subsection (3) similarly proceeds on the footing that a substantive hearing of the appeal is to take place.

10.This is not to suggest that the discretion can never be exercised in favour of granting bail before the hearing of the leave application, but such cases will be quite exceptional. What must be emphasised is that the power to grant bail is intended to be exercised only in circumstances where the Court is satisfied that there will be a substantive hearing of the appeal, to cover the period pending that hearing. In practice, this means that the Court will only consider granting bail where the Appeal Committee has given leave to appeal or where the Court is satisfied that such leave will in all probability be granted.

11.Cases like the present fall far short of satisfying that test. Indeed, there is little basis for thinking that leave to appeal is ever likely to be granted from any decision refusing bail. Under section 31 of the Court’s statute, the Court has a discretion to grant leave to appeal only from any final decision of the Court of First Instance from which no appeal lies to the Court of Appeal. A final decision in that context must mean the lower court’s substantive decision disposing one way or another of the offence charged. A bail application does not involve any such determination. A decision to refuse or grant bail is not final. Bail granted can be revoked. The decision to refuse bail can be reopened on new circumstances being shown. It is therefore not at all surprising that the Registrar has issued a Rule 7 summons taking the view that the application discloses no reasonable grounds for leave to appeal.

12.The pending Rule 7 summons will be considered by the Appeal Committee in due course. Having expressed my views in this ruling, I will not participate in that determination. However, it is in my judgment clear that the present application for bail has not appropriately been brought before this Court and must be refused. A bail application in a situation like the present can only properly be made, if at all, to a judge of the Court of First Instance on the basis of a change in circumstances, should there be such a change.

13.I would add for future guidance that no bail applications should be entertained – and if made, should not be set down for hearing – in any case where a Rule 7 summons has been issued by the Registrar (whether before or after the application for bail has been lodged) unless and until the Appeal Committee directs under Rule 7(2) that there should be a hearing of the leave application. In such cases, the bail application should be made at the hearing so directed. In exceptional circumstances, where the Appeal Committee has directed a hearing under Rule 7(2), a bail application may be entertained by a single Permanent Judge, prior to the directed hearing upon sufficient reasons for such special treatment being shown upon affidavit or affirmation.

14.Returning to the present case, Mr Ross’s primary argument for the grant of bail is that holding the applicant in custody for some seven weeks pending trial is entirely disproportionate to the relatively minor penalty which she is likely to face for overstaying by one day, even if she is convicted after trial. There is a great deal of force in that argument. Although it was raised before Maggie Poon J, her Ladyship does not appear to have dealt specifically with it, but emphasised what she considered to be the lack of merit in the legal point sought to be argued, when refusing bail.

15.There has however been a very significant change of circumstance which would plainly justify a fresh application for bail to a first instance judge. Whereas the prosecution opposed bail at the hearing before her Ladyship, it has now very properly indicated that it no longer opposes bail, without prejudice to its position on the merits of the proposed appeal. However, in the light of my foregoing comments, such a fresh application is not appropriately made to this Court. An application ought to be made in the Court of First Instance for bail pending the trial. Since depriving the applicant of her liberty for some 7 weeks pending her trial on the overstaying charge has every appearance of being highly disproportionate in the context of the offence for which she is charged, it would be very surprising if the Judge to whom a fresh application might be made should refuse bail, especially in the absence of opposition to bail on the prosecution’s part.

16.The present application must nonetheless be dismissed for the reasons given above. A copy of this ruling will be made available to the applicant’s legal advisers as a matter of urgency to facilitate any fresh application for bail the applicant might be advised to make before a judge of the Court of First Instance.

Mr Phillip Ross and Ms Nisha Mohamed (instructed by Hong Kong Bar Association’s Free Legal Service Scheme) for the applicant

Ms Winsome Chan (of the Department of Justice) for the respondent