HKSAR v. Pasa Danaville Dizon

HCMA 54/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 54 OF 2010

(ON APPEAL FROM STCC 6855/2009)

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BETWEEN

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Before: Hon Wright J in Court

Date of Hearing: 18 March 2010

Date of Judgment: 18 March 2010

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J U D G M E N T

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1.The appellant in this matter seeks an adjournment of the hearing of the appeal in order to seek legal assistance.  On the facts of this matter, I am not prepared to grant that application.

2.It is important in this matter to go to the factual background.  The magistrate in his Statement of Findings described earlier events in these terms:

“3. … the defendant, a Filipino female aged 26, had previously frequently come to Hong Kong as a visitor between 2006 and 2008.  On 13 July 2008, she came to Hong Kong again as a visitor and was permitted to stay for 14 days.  Thereafter, she made various successful applications for extension of her stay in Hong Kong on the ground that she needed to pursue a claim in the Small Claims Tribunal against the Hong Kong Government.

4.    She eventually departed Hong Kong on 23 August 2009, but then returned two days later on 25 August 2009 when she was permitted to stay as a visitor until 8 September 2009.

5.    On 8 September 2009 she, again, applied for an extension of stay, but the application was refused and she was informed to leave Hong Kong on or before 10 September 2009.  She did not leave by that date.

6.    On 10 September 2009, the defendant made application for an injunction before the High Court to prevent the Director of Immigration from removing her from Hong Kong.  An order was obtained that the Director of Immigration would not remove the defendant, allowing her time to prepare for her application for judicial review.

7.    On 11 September 2009, the defendant made an application for leave for judicial review against the Director’s refusal of her extension application.  The application was made before Mr Justice Andrew Cheung, who refused the defendant’s application.

8.    Shortly before 6 pm on the same day, the defendant, accompanied by her Immigration consultant, one Mr Bullen, reached the Immigration extension section.  A letter dated 11 September 2009, Exhibit P3, was served on the defendant requiring her to leave Hong Kong on or before 13 September 2009.  The defendant signed and acknowledged receipt of the letter.

9.    On 14 September 2009, the defendant was still in Hong Kong and she went to the Immigration extension section, making another application for extension of stay in Hong Kong.  Her application was refused again, and the defendant was served a letter … informing her of the refusal of her application, and requiring her to report to the General Investigation Section on 17 September 2009.  The defendant was subsequently prosecuted for overstaying on 14 September 2009.”

3.At her trial the sole defence run by the appellant was that, by virtue of the provisions of section of 71(1)(b) and (d) of the Interpretation and General Clauses Ordinance, Cap. 1, she was not obliged to leave Hong Kong on 13  September 2009 as that was a Sunday.  The magistrate dismissed that defence and convicted the appellant.  He sentenced her to undergo imprisonment for three weeks.

4.At the time of conviction the magistrate said:

“It is surprising to see that the argument is put forward by counsel instructed by the Duty Lawyer Service at public expense for the defendant.  It is clear that the defendant has repeatedly attempted to abuse the loopholes in immigration control and even the legal process to extend her stay in Hong Kong.”

and, when sentencing, he observed

“Although the defendant has only overstayed for one day, she has demonstrated every attempt of manipulating the loopholes in the immigration control system.  She has even abused the legal process by taking out claims against the Hong Kong government and, hence, successfully obtained extension of stay in Hong Kong in order to pursue her claim”.

5.After conviction an application was made on her behalf for bail pending appeal.  The magistrate refused that application observing:

“… I am sure that the defendant will continue her attempts to abuse the legal process to extend her stay in Hong Kong.  In my view the defendant’s application has no chance of success and I doubt whether she would genuinely prosecute the appeal and surrender to custody.

The application for bail is refused.”

6.The magistrate may well have added that there had been other proceedings initiated by the appellant.

7.When she appeared in the magistracy on the charge of which she was ultimately convicted her bail, granted to her by the Immigration Department, was revoked and the trial fixed for hearing in January 2010.  On 1 December 2009 the appellant applied for bail before Maggie Poon J.  That application was refused.

8.On 14 December 2009 the applicant then took out a motion for leave to appeal the refusal of bail to the Court of Final Appeal on the ground of substantial and grave injustice.  Also on that day she issued a summons for bail pending determination of “her appeal”, that being the appeal against the refusal of bail, which resulted in the Registrar of the Court of Final Appeal issuing a Rule 7 summons.  That summons was heard by Ribeiro PJ on 17 December 2009 who dismissed the appellant’s application.

9.The applicant appealed the conviction by the magistrate but not the sentence imposed upon her.  That appeal was set down for hearing on 24 February 2010.  The applicant was given notice of that hearing and forwarded a copy of the appeal bundle on 21 January 2010 to her correspondence address in Hong Kong.

10.By fax, apparently despatched on 23 February 2010, the appellant wrote in seeking an adjournment asserting “I was sent back to the Philippines after I was convicted of overstaying one day.  I was sentenced to 3 weeks in jail.”.  In reality, she was not “sent back” but chose to return to the Philippines on 13 January 2010.  It is self-evident that in order to have been able to write in and seek a request for the adjournment of the hearing scheduled for 24 February 2010, she had received the notice of hearing which had been sent to her along with the appeal bundle.  She requested that a new hearing date be fixed for the “early part of March when I expect a friend from overseas to visit and help me with the ’plane fare”.

11.On 24 February 2010 Beeson J was informed by the respondent that the appellant had undergone voluntary repatriation with no removal order having been made against her.  In the light of the appellant’s request, however, she adjourned the hearing of the appeal which was then listed to be heard before me today.

12.The appellant had been assisted in many of the earlier engagements by one Bullen who, it seems, carries on business as some form of “immigration consultant” under the style “Bullen Associates”.  When on 3 March 2010 the matter was refixed for hearing he was informed telephonically of the new date as had been requested by the appellant and, thereafter, the notice of hearing was sent to the appellant both at the address provided by her as well as, by fax, to Bullen.

13.On 15 March 2010 the appellant applied for Legal Aid which was refused on 17 March 2010.

14.On 15 March 2010 a letter was received from the appellant, despatched from the office of Bullen Associates, asserting that she had returned from the Philippines on 14 March 2010 and indicating that she had been “detained at the airport for three hours and interviewed interrogated extensively” on her arrival.  Given that a previous action unsuccessfully instituted by her in the Small Claims Tribunal against the government related to a supposed unlawful detention of one hour duration, caution needs to be exercised in ensuring that history does not repeat itself.  In that letter she indicated that she had applied for Legal Aid to represent her in the appeal but that should that application be unsuccessful she would “instruct Bar Free Legal Services”.  She was informed, upon my instructions, that the appeal would proceed as listed.

15.This resulted in a further fax dated 17 March 2010, also sent from Bullen Associates it appears, claiming that she had failed to mention that she had “not received the bundle”, by which I understand her to mean the appeal bundle.  As is clear from what I said earlier, I do not accept that to be so.  She also asserted that the Bar Free Legal Service scheme would not represent her until such time as a decision had been made in respect of legal aid.  Once again, she was informed that the appeal would proceed today: it was pointed out to her that it had already been adjourned previously at her request.

16.Given the history of this matter, which I have set out in some detail, and particularly given the fact that the matter was adjourned to the time period specifically requested by the appellant who has not provided, today, any sensible reason why she has not made timeous arrangements for her representation, I am not prepared to exercise my discretion in her favour to adjourn the hearing.

17.In regard to the merits of appeal, therefore, there is simply the basic Notice of Appeal that was filed in response to the conviction of the appellant.  That refers only to the first of the two defences that she raised at the trial, and asserted that the magistrate erred in law or misdirected himself by mis-applying the provisions of ss. 71(1)(b) or (d) of the Interpretation and General Clauses Ordinance.

18.I have had the advantage very recently in a matter where, although the dates differ, the facts were identical, of hearing from counsel, instructed by the Bar Free Legal Services scheme.  In fairness to the appellant, I will take into account the argument submitted to me on that application.

19.This appeal is unarguable.  The fundamental contention is that because the date on or before which the appellant was required to leave Hong Kong fell on a Sunday, she was not obliged to leave until the following day, the Monday, by virtue of the operation of s. 71(1).  That section provides as follows:

“In computing time, for the purposes of any Ordinance:

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(b)         if the last day of the period is a public holiday or a gale warning day or black rainstorm warning day the period shall include the next following day, not being a public holiday or a gale warning or black rainstorm warning day;

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(d)         where an act or proceeding is directed to or allowed to be done or taken within any time not exceeding 6 days, no public holiday or gale warning day or black rainstorm warning day shall be reckoned in the computation of that time.”

20.In terms of s. 11 of the Immigration Ordinance, Cap. 115, an Immigration Officer is entitled to decide for how long a person may remain in Hong Kong.  The decision of the Immigration Officer in this case was that she was required to depart Hong Kong on or before 13 September 2009. 

21.It seems to me self-evident that the effect of s. 11 of the Immigration Ordinance, which gives an Immigration Officer the express power to impose a limit of stay, renders the provision of s. 71, Cap. 1 inapplicable to acts performed under that section.  Any realistic interpretation of that section clearly indicates the “contrary intention” which is contemplated by s. 2, Cap. 1.  If it were right that the section 71(1), Cap. 1 applied to decisions made under section 11, Cap. 115, it would render ineffective the powers created by that section.

22.S. 71 expressly states that its purpose is to provide for the “computation of time”.  It applies where an act is required to be done within a period.  The notice given to the appellant stipulated a fixed date on or before which she was required to depart Hong Kong.  There is no question of any time period that required to be computed in these circumstances.

23.As a consequence, even if the provisions of s. 71 applied to a decision made under s. 11 of the Immigration Ordinance, the factual circumstances in this matter would not have triggered their operation.

24.The appellant did not seek to rely upon the magistrate’s finding in regard to the second issue raised before him in so far as this appeal is concerned.  For the sake of completeness, however, I will indicate that I agree with the magistrate’s finding.

25.As this is an appeal from a magistrate it is a rehearing on the evidence before him.  Suffice it to say that I would have arrived at precisely the same conclusion.

26.Consequently the appeal is dismissed.

Mr Anthony Chau, SPP of DOJ, for the Respondent

The Appellant, in person