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. HCMA 1019 OF 2009

(ON APPEAL FROM STCC 5888/2009)

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J U D G M E N T

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1.  The Applicant applies for a certificate from this court to the fact that the judgment delivered yesterday raises points of law of great and general importance.

2.  The points of law are said to be as follows:

(1)   Whether Section 71(1)(d) of the Interpretation and General Clauses Ordinance applies to a decision by an immigration officer made under Section 11 of the Immigration Ordinance for a visitor to leave Hong Kong on or before a certain date which is not longer than 6 days after the decision.

3.  I pause to observe that no argument in those terms was advanced either before the Magistrate or before me.  However the Court of Final Appeal has said one must not be too demanding when looking at the questions which need to be certified.

4.  (2)   Whether Section 11 of the Immigration Ordinance evinces a contrary intention sufficient to dis-apply Section 71(1) of the Interpretation and General Clauses Ordinance.

(3)   Whether the powers under Section 11 of the Immigration Ordinance would be rendered nugatory were a decision under that section to be subject to Section 71(1) of the Interpretation and General Clauses Ordinance.

5.  This application arises from the Applicant’s conviction by a Magistrate at Shatin on a single charge of breach of condition of stay in that she overstayed without permission to remain in Hong Kong.

6.  She arrived as a visitor in May 2009 and after one extension was permitted to remain until 5 August.

7.  Subsequently, on the day to which she was allowed to remain, she applied for a further extension which was refused as were two further subsequent applications for extension.  Despite the fact of being given three fixed and designated dates on or before which she was required to depart Hong Kong, she remained.  As a consequence, she was arrested and charged with the offence. 

8.  She appears to have been convicted and sentenced on 13 November 2009.  She appeals her conviction.  I heard that appeal yesterday.  I dismissed the appeal and gave a detailed judgment setting out my reasons therefore.  I do not propose to repeat those reasons.

9.  Although this application was originally listed for hearing on 17 March, I directed it be re-listed for today because it appears that the Applicant was unaware that the Practice Direction requires that where a judgment with reasons is given and a certificate is sought the application for a certificate is to be made forthwith.  Consequently, I do not wish it to be suggested that the Applicant would be prejudiced by any delay and therefore directed it to be brought on today.

10.  At trial, the Applicant was represented by counsel instructed by the Duty Lawyer Scheme.  Yesterday on the appeal, she was represented by the same counsel, this time instructed by the Bar free legal services scheme.  She was unrepresented today.  She has handed in a written note which reads:

“My Lord,

This is my application for a certificate that there is a point of law or great and general importance.

Perhaps it could be argued that an immigration officer needs to know if Section 71 applies.

Other than that I rely on my points set out in my notice of motion.”

11.  The notice of motion of course does not set out any submission, simply the relief sought.  Consequently there are, in truth, no submissions before me as to why I should grant the certificate.

12.  It seems to me that the third question posed does not give rise to any question of law but rather is a question of fact.  The first two questions posed may give rise to points of law but there are no points that can properly be described as being of great importance, or of general importance or, as s. 32(2), Cap. 484, requires, of great and general importance.

13.  Consequently, I decline to certify any of those questions.