RE DANGA MYRA RODRIGUEZ

HCAL 48/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 48 OF 2009

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J U D G M E N T

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1.  This is an application for leave to apply for judicial review to challenge the decision of the Director of Immigration granting an extension of stay to the applicant as a visitor to Hong Kong only up to the 9^th of this month, rather than the 13^th as the applicant has applied for.

2.  The applicant’s case is that she has to remain in Hong Kong until the 13th to take delivery of 150 pieces of mobile telephone which she ordered from a local company on 28 April 2009.  She entered into this contract after she came to Hong Kong from Macau on 27 April 2009, whereupon she was given permission to remain for five days, ie up to 2 May 2009.  The applicant, after entering into this contract, asked the Director to extend her stay up to the 13^th so as to enable her to take delivery of the mobile phones in Hong Kong before departure for the Philippines, where she came from.  The Director was only prepared to allow her to stay until the 9^th. 

3.  The applicant complains that, on those facts, the Director’s decision is Wednesbury unreasonable.  Put another way, there is no practically sensible reason for not allowing her to stay in Hong Kong for another four days so as to enable her to take delivery of the mobile phones.

4.  On the face of it, the applicant’s case looks reasonable and understandable enough.  But having heard the applicant this morning, I take the view that there is much beneath what appears on the surface.  First, I am far from convinced that the transaction in question is a genuine one.  According to the invoice, the 150 pieces of mobile phone cost $52,500 in total.  It has been chopped with the word “Paid”, thereby suggesting that the money has been fully paid, and the delivery date is said to be 14 May 2009.  That by itself is strange because, apparently, the applicant has fully paid for the goods when she made the order, well before the goods are to be delivered to her.  The invoice does not say how the money was paid and there is no evidence from the apparent vendor to confirm the sale. 

5.  What is more disturbing is that, at this morning’s hearing, the applicant tells the Court that in fact she has not fully paid the price for the goods.  What she has paid is only $30,000, which was paid on 28 April 2009 when the order was placed.  The remainder, ie $22,500, is only to be paid upon delivery on the 13^th.  Needless to say, this is a serious discrepancy when compared with what is set out in the invoice, which does not mention the payment of any deposit or any outstanding amount.  Rather, the invoice is chopped with the word “Paid” as described.  At today’s hearing, the applicant has not produced to the Court any catalogue for the goods in question, nor is any sample produced before the Court. 

6.  The applicant says that she has booked a return ticket to the Philippines.  The reservation was made on the 29^th, apparently, for a flight to the Philippines on 13 May.  Upon being asked this morning, the applicant told the Court that what she has done was simply to reserve a seat on the flight and pay a few hundred dollars to the agent for the reservation.  She would pay the balance when she picks up the ticket, hopefully, on the 10th after, again hopefully, obtaining an extension of her stay up to 13 May.  When asked for the production of the receipt for the deposit of a few hundred dollars for the reservation, the applicant was unable to produce the receipt.  She simply told the Court that all this was done through a friend whom she trusted and she did not have any receipt.

7.  Again, I am far from satisfied that the return flight has been genuinely booked, with the serious intention of the applicant returning to the Philippines on the 13^th. 

8.  The Director has been invited to attend Court this morning to assist the Court.  Very helpfully, the Director has, through counsel, briefed the Court on the past history of this applicant’s arrival and departure from Hong Kong.  From these materials, which are not disputed and as to which the applicant has been given a fair opportunity to make submission, the applicant has a rather unusual pattern of travelling to Hong Kong.  Thus, subject to a break of 29 days, another break of 11 days and other very short breaks, the applicant has spent roughly 70 per cent of her time over the past four months in Hong Kong.  There is also a pattern in which, save on one occasion, the applicant would remain in Hong Kong up to the limit of the stay (normally 14 days) and then she would depart to Macau for a day or two before returning to Hong Kong, asking for another permission to land as a visitor and to remain for a fresh period of 14 days.

9.  In relation to the present stay, what happened was that she last departed Hong Kong on 1 April 2009, came back to Hong Kong on the 12^th and she was given permission to remain for 14 days, ie until the 26^th.  Then on the 26^th she left Hong Kong for Macau for one day and then returned the next day, on the 27^th.  It was under those circumstances that she was granted permission to remain for only five days, ie until 2 May 2009, as I have described at the beginning of this judgment.  Then, allegedly, one day after she returned from Macau to Hong Kong, she entered into the present contract for the purchase of the mobile phones, well knowing, on the day of purchase, that delivery could not be made until either 13 or 14 May, ie beyond the five-day period of stay granted to her by the Immigration Department when she returned from Macau to Hong Kong.

10.  Furthermore, even before she got any extension of her permission to stay, she apparently booked a return ticket to the Philippines on the 29^th, for a flight on 13 May.  Then on 30 April, through her authorised immigration consultant, she made the subject application for an extension of stay up to 13 May 2009. 

11.  I must confess that I find all this fairly strange.  Coupled with the more specific points about the order in question as well as the travelling arrangement that the applicant says she has made, I am far from satisfied that the applicant has told me the true story, or the whole story. 

12.  It is trite that it is not for the court to run the business of the Director of Immigration.  The Director has been entrusted with the high responsibility of taking care of Hong Kong’s immigration affairs by the legislature.  Discretions have been given to the Director and the Director has policies regarding the exercise of his wide discretions.  Again, it is trite that the court does not lightly interfere with the Director’s exercise of discretion.  In a case of the present type, unless the Director’s decision is Wednesbury unreasonable, or unlawful, there is no scope for intervention.

13.  Given the materials and information that the Director has supplied to the Court, and given the Court’s own doubts regarding the genuineness of the applicant’s intention to stay, I am far from satisfied that the applicant has shown a reasonably arguable case to challenge the Director’s decision. 

14.  In particular, the Director has borne in mind the fact that the actual extension of stay that he is prepared to grant to the applicant would be quite sufficient for the applicant to make appropriate arrangements under her claimed circumstances, such as re-booking her flight back home, arranging for courier service or other delivery service of the mobile phones to the Philippines, or arranging for somebody in Hong Kong to take delivery of the mobile phones and to send them over to the Philippines for her. 

15.  In short, I am far from convinced that the Director’s decision to only grant the applicant an extension of stay for seven days is Wednesbury unreasonable.  The lawfulness of the decision is not in question at all and I can think of no other public law grounds for interfering with the Director’s decision.

16.  For all those reasons, the application for leave is refused. 

17.  I make no order as to costs.  The Court is grateful for the assistance rendered by counsel and the Director.  Their presence was due to the invitation by the Court so there is no justification for making the applicant responsible for the costs of the Director or counsel.  I therefore make no order as to costs.  As I say, I am grateful for the assistance rendered to the Court by the Director and counsel.