HKSAR v. Nacua Hazel Cabigas

HCMA 1019/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1019 OF 2009

(ON APPEAL FROM STCC 5888/2009)

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BETWEEN

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Before: Hon Wright J

Date of Hearing: 9, 18 & 25 February 2010

Date of Judgment: 25 February 2010

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J U D G M E N T

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1.The appellant appeals her conviction, after trial, by Ms L K Loh, sitting in Sha Tin Magistracy, of a single charge of breach of condition of stay contrary to s. 41 of the Immigration Ordinance, Cap. 115 in that, having been granted permission, pursuant to s. 11 of that Ordinance, to remain in Hong Kong until 9 August 2009 she overstayed, remaining in Hong Kong on 10 August 2009. She was ordered to pay a fine of $500.00.

2.There was no dispute as to the facts. The appellant arrived in Hong Kong on 26 May 2009 and was granted permission to remain as a visitor for 14 days. On 9 June she applied for and was granted an extension until 5 August. On that day she applied for a further extension, which was refused. She was notified, in writing, of that refusal and of the fact that she was to leave Hong Kong on or before 7 August. She ignored that direction: on that day she applied for yet another extension: again it was refused.

3.Again she was notified of that refusal. She was served with a notice which read, in part, “Please note that you are required to leave Hong Kong on or before 9 August 2009”. Nothing could be more clear. Once again she ignored the notice served on her. On 10 August she yet again applied for an extension. For the third time, the application was refused: on 14 August she returned to the Immigration Department and was arrested.

4.At trial, she was represented by Mr Phillip Ross, of counsel, on the instructions of the Duty Lawyer Scheme: he appears for her again in this appeal, as part of the Bar Free Legal Service Scheme, she having been refused Legal Aid. One point was taken before the magistrate, which is repeated here.

5.It is, simply, unarguable.

6.The contention advanced is that because 9 August was a Sunday the appellant was not obliged to leave until Monday 10 August by virtue of the operation of s. 71(1) of the Interpretation and General Clauses Ordinance, Cap. 1, which provides:

“(1) In computing time for the purposes of any Ordinance-

(a) a period of days from the happening of any event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;

7.In support of the submission, several contentions were advanced which, with respect, simply fail to advance the appellant’s case.

8.Whether or not the letter issued by the Immigration Department was an “instrument” for the purposes of the Ordinance does not assist. Apart from any other consideration it is the decision of an Immigration Officer which the appellant is required to obey: that decision was that she depart Hong Kong “on or before” 9 August. The letter merely confirmed that decision to her.

9.Moreover, it is plain that the effect of s. 11 of the Immigration Ordinance, Cap. 115, which provides the express power to impose a limit of stay, renders the provisions of s. 71, Cap. 1, inapplicable to acts performed under that section: a commonsense reading of that section clearly indicates “the contrary intention” contemplated by s. 2, Cap. 1. If s. 71, Cap. 1, were to apply to orders made under s. 11, Cap. 115, it would render the powers created by that section nugatory.

10.It is also submitted that s. 71(1)(d) does not apply to computation of time whilst it is accepted that the preceding sub-sections do: such a contention is untenable and ignores the structure of the section and, specifically, its opening words.

11.This, being an appeal from a magistrate, is a rehearing on the evidence before the magistrate. The magistrate succinctly, and correctly, said in regard to this submission:

“The said letter, specified a date, and not a period of time. In other words, the appellant was required to leave on or before 9 August 2009 – it did not require her to leave in “one day”, or “two days”, etc. No time computation was involved, and section 71(1) of Cap 1 is in respect of time computation, and therefore does not apply to the said letter.”

12.S. 71 expressly states that its purpose is to provide for the computation of time. I am satisfied that the notice given to the appellant stipulated a fixed date on or before which she was to depart Hong Kong. There was no question of any period of time which was required to be computed. As a consequence the provisions of s. 71(1) were not triggered, even had they applied to a decision made under s. 11, Cap. 115.

13.The appellant was correctly convicted. The appeal is dismissed.

Ms Anna Lai, Senior Public Prosecutor, Department of Justice, for the respondent.

Mr Phillip Ross, instructed by Bar Free Legal Service Scheme for the applicant