Dm v. Commissioner of Customs & Excise and Another

HCAL 460/2022

[2022] HKCFI 3476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 460 OF 2022

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Before:  Hon Coleman J in Court

Date of Hearing:  18 November 2022

Date of Decision: 24 November 2022

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D E C I S I O N

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A. Introduction

1.The Applicant is currently serving a long prison sentence after her conviction for ‘trafficking in dangerous drugs’.  She believes she is herself a victim of trafficking in persons (or of forced labour).  But her defence to the criminal charge, based on the argument that she acted under duress as a credible victim of trafficking, was rejected.

2.It is against that very broad background in this case that each side’s submissions commenced by posing a rhetorical question, as follows:

(1)  On behalf of the Applicant, Mr Abraham Chan SC, leading Mr Albert NB Wong of Counsel, posed the following question: What is it like for an inmate far from home to be told that the same process that led to her criminal conviction somehow did double-duty – serving not only to put her behind bars, but purportedly to discharge the Government’s constitutional duty to fairly and properly assess her as a potential human trafficking or forced labour victim?

(2)  On behalf of the Putative Respondents, Mr Martin Ho of Counsel posed the following question: How could it possibly be just and fair to allow a convicted person, who had already exhausted all available judicial remedies in the criminal proceedings, to attempt to collaterally attack adverse findings made against her, by artificially requesting the conduct of a fresh trafficking in person assessment in February 2022 (more than 5 years after her criminal conviction by a jury in October 2016) based on the very same factual story that was rejected on three previous occasions by judge, jury and the appeal court?

3.The responses or answers to those questions must await the analysis which follows.  But it is first helpful to put those questions in proper context.

B.  Factual Context

4.The Applicant is a Venezuelan national.  She arrived in Hong Kong on 9 August 2015, arriving at the Hong Kong International Airport on a flight from São Paulo, Brazil (via Abu Dhabi).

5.Upon interception, the Applicant was found to have carried eight packets of white powder wrapped in plastic bags, strapped to her calves.  The white powder was later shown to be cocaine weighing a total of 1.664 kg.

6.The Applicant was arrested by officers of the 1^st Putative Respondent’s department (“C&E”) and detained for interview.  A preliminary inquiry made by C&E officers elicited that the Applicant appreciated that the substances wrapped on her legs were illegal substances, although she claimed that she was unaware of the precise type of illegal substance.  She did not consent to cooperate with C&E officers and to conduct a controlled delivery operation.

7.On the next day, 10 August 2015, C&E officers conducted a Video Recorded Interview (“VRI”) of the Applicant, with the assistance of a Spanish interpreter.  During the VRI, and under caution, the Applicant proffered an elaborate story, as Mr Ho put it – or she recounted her ordeal, as Mr Chan put it – of how she was coerced into bringing drugs to Hong Kong.  The key elements of her account included the following:

(1)  She was offered a job relating to advertising and marketing through the internet, and she travelled from Venezuela to Brazil to take up the job.

(2)  She first entered Brazil on 21 June 2015, but claimed that the border was closed when she arrived by car on that day, and she was able to enter Brazil without obtaining any immigration stamp in her passport.

(3)  Upon arrival in São Paulo on 21 June 2015, she was brought from the airport to the house of an African male (“M”).

(4)  She was then detained, beaten, raped and threatened with harm to her and her family by M at his house for about a month, before she left Brazil for Hong Kong.

(5)  She had once travelled to the border between Paraguay and Brazil in order to have her passport stamped with an immigration stamp by the Brazilian Immigration authority.

(6)  She was once forcibly asked by M to swallow an illegal substance, but she refused to do so.  She was then threatened by M to deliver the illegal substances to Hong Kong.

(7)  The associates of M wrapped the packets around the Applicant’s legs.  M instructed the Applicant to go to a hotel room upon arrival in Hong Kong, from where an unknown person would pick up the packets.

(8)  She was frightened, as she believed that M was a powerful figure and held power in several parts of the world, and that M knew the contact means of her family and showed to her photos of her family members.

(9)  Her reward for bringing the packets to Hong Kong was freedom.

(10)  M was an African male who spoke no Spanish and only little English, and they only communicated by hand signs and gestures.

(11)  Whilst unable to provide any proof of her claim of M’s alleged powers, she was under such impression because of M’s forceful manner during their mutual communications.

(12)  M showed the Applicant the contact numbers and address pictures of the Applicant’s family (using an electronic device), and threatened to harm the Applicant’s family members.

(13)  She once sent a SMS message to M during the trip from Brazil to Hong Kong to inform him that she was on the flight.

(14)  She was alone on her trip to Hong Kong. However, she did not report to Police or seek any assistance because she was afraid that the personal safety of her family members would be endangered by M if she did so.

8.Upon further investigation and after consideration, the C&E officers considered the Applicant’s story to be implausible, for a combination of the following reasons (in summary):

(1)  Though the Applicant claimed to have been threatened by M, he had not shown her any proof of his power.  The Applicant admitted that she was travelling to Hong Kong alone, but had not sought assistance.  Her claim to have been subject to threats was in doubt.

(2)  The Applicant had a Venezuelan passport issued on 5 September 2012.  It had only one Brazilian entry stamp dated 1 August 2015 and one Brazilian exit stamp dated 7 August 2015.  The absence of a Brazilian entry stamp in June 2015 did not support the Applicant’s claimed travel history of entry into Brazil on 21 June 2015.

(3)  The Applicant also had one Spanish passport newly issued on 31 July 2015 at São Paulo.  In response to a request, the Consulate General of Spain in Hong Kong provided information that the Applicant had applied for renewal of her Spanish passport on 27 July 2015 at the Consulate General of Spain in São Paulo, Brazil and that the Applicant had bought a ticket to travel to South Africa and Hong Kong on 31 July 2015. The Applicant did not seek assistance whilst inside the Consulate General of Spain in São Paulo.

(4)  The Applicant was in possession of a document of the National Civil Aviation Agency of Brazil (“ANAC”) dated 22 July 2015, which stated that she should have taken a flight from Manaus (another city in Brazil) to Guarulhos (the airport in São Paulo).  But she flew to Belo Horizonte (another airport in Brazil) because of a mistake made by the airline.  Whilst the date she missed the flight was not mentioned on the ANAC document, the date of 22 July 2015 was shown at the bottom of that document.  The fact that the Applicant was in possession of a document dated 22 July 2015 cast doubt on her assertion that she arrived in Brazil in June 2015 and that she was being detained for a month, during which time she was not allowed to contact anyone except M and his associate.  It also contradicted the Applicant’s claim that she had travelled from Venezuela to Boa Vista (another city in Brazil) and took a domestic flight to São Paulo on 21 June 2015.

(5)  The Applicant was in possession of a mobile phone, from which it was identified that she had sent a message to M’s phone number (which she identified) on 7 August 2015.  The message read “Bby im at plane im ok and you?”.  Whilst the Applicant explained in the VRI that M had requested her to text him like chatting with a boyfriend when she was on the plane so that he could know, that explanation was not considered reasonable in the circumstances that she was travelling alone and could have sought assistance.

9.Though chronologically misplaced, it can be noted at this point that it was subsequently established through the evidence adduced in the subsequent criminal process that the interviewing C&E officers had no experience or training in relation to human trafficking.

10.On 26 November 2015, the Prosecutions Department (“PD”) of the Department of Justice (“DOJ”) advised to proceed with the charge of ‘trafficking in a dangerous drug’ against the Applicant.

11.Upon being charged, the Applicant’s legal representatives made representations to the prosecutor (“Ms Ko”) that the Applicant had given a credible description of ‘trafficking in person’ (“TIP”), leading to dangerous drugs being brought into Hong Kong, and requested the PD to drop the prosecution.  This was put forward in a letter dated 15 June 2016, in which the Applicant’s representatives also referred to potential judicial review proceedings based on her situation as a TIP victim.

12.Ms Ko sought further information to consider those representations, but having considered the various materials, Ms Ko thought the account given by the Applicant was inherently improbable and contradictory.  She therefore concluded that the Applicant was not a credible victim of TIP.

13.While in custody, the Applicant gave birth to a baby son on 3 February 2016.

14.Instead of bringing judicial review proceedings, the Applicant made an application for permanent stay of the criminal proceedings on the grounds that (1) a fair trial was not possible, and (2) even if possible, to continue with the proceedings would be an abuse of process which amounted to an affront to the public conscience given the Applicant’s claim as a TIP victim.  The application for a permanent stay was resisted by the PD.  It was heard before Barnes J on 19 to 23 September 2016.

15.In making the application, it was submitted to Barnes J that:

(1)  A Hong Kong jury, using everyday experience of Hong Kong, could not assess the situation in Venezuela and Brazil to decide what had happened to the Applicant.

(2)  Because the situation in the case was so far outside of the everyday experiences of the Hong Kong jury, it was impossible or virtually impossible for them to assess what a reasonable person would do in the situation in which she found herself.

(3)  Expert testimony on human trafficking might assist, but even then it was hard to see how the jury could relate that to the Applicant without some experience or basic knowledge of human trafficking, drug trafficking, and the norms, customs, legal, economic and political situation in Venezuela and Brazil.

(4)  What the Applicant had described fitted in with the “identifiers” of human trafficking contained in the ‘Statement of Prosecution Policy and Practice’ (“SPPP”) issued by the DOJ, so that the prosecution and continuation of the case to trial had no proper basis.

(5)  What had been said by the Applicant in the VRI clearly showed that she was a victim of human trafficking.  Yet the Hong Kong authorities failed to take swift and appropriate action which would or could have confirmed the Applicant’s evidence of duress.

(6)  Because the SPPP states that human trafficking cases are to be handled by prosecutors with an appropriate level of understanding, skill and sensitivity, the same standard should be applied to the investigating authority as well.

(7)  There was no evidence to rebut the Applicant’s clear evidence that she was a victim of human trafficking.

(8)  Despite the SPPP, Hong Kong had not fully complied with international standards in combating human trafficking, and the Court should exercise its discretion to find that a fair trial was not possible, or should rule that there had been an abuse of process amounting to an affront to the public conscience, requiring the proceedings to be stayed.

16.In resisting the application, it was submitted to Barnes J that:

(1)  The Prosecution did not consider that the Applicant was a TIP victim.

(2)  What the Applicant had said during the VRI, without more, was mere self-serving assertions, with inherent improbabilities and contradictions.

(3)  The real issue and ultimate question before the Court – and for the jury’s determination – was to decide whether the Applicant’s claim of her situation which resulted in her being compelled to bring dangerous drugs to Hong Kong was credible, and whether such compulsion would substantiate the defence of duress.

(4)  A fair trial was not impossible, and there was no abuse of process.

17.On 26 September 2016, Barnes J rejected the Applicant’s contentions and dismissed the permanent stay application.  From the decision delivered by Barnes J, it is clear that Barnes J was aware that the applicable threshold was one of a credible suspicion.  She emphasised the key word “credible” found in the passage in the SPPP which she quoted as follows (emphasis as added by Barnes J):

18.  Human Exploitation Cases

18.1     Under Article 1 of the Universal Declaration of Human Rights all human beings are born free and equal in dignity and rights.  The exploitation of persons in the trafficking of them for that purpose are both serious crimes and violations of fundamental human rights and freedoms.  The trafficking of a person involves the recruitment, transportation, transfer, harbouring or receipt of persons for the purpose of exploitation by means of:

(a)   threat or use of force or other forms of coercion;

(b)   abduction;

(c)   fraud;

(d)   deception

(e)   the abuse of power or of a position of vulnerability; or

(f)   the giving or receiving of payments or benefits to achieve the consent of the person having control over another person.

The trafficking of a child involves these elements except for the requirement of the means.

18.2.    Human exploitation includes activities that demean the value of human life such as sexual exploitation, and forced labour, domestic servitude, debt bondage and organ harvesting.  Human exploitation is a domestic and international concern which should be handled by prosecutors with an appropriate level of understanding, skill and sensitivity.  In appropriate cases, a prosecutor should consider a credible claim that a defendant or intended defendant is a victim of trafficking.  If such a claim is found, a prosecutor should appropriately deal with the case bearing in mind that the person is a victim of trafficking.  In this regard, reference can be made to applicable international standards and practices concerning victims of trafficking.

18.Barnes J’s conclusion was that, by reference to the VRI and having considered what the Applicant had said, she agreed with the Prosecution that there were inherent improbabilities or contradictions within the Applicant’s assertion.  Barnes J gave various examples of what she thought to be those inherent improbabilities or contradictions.  She did not think that the Prosecution had no evidence to refute or rebut the Applicant’s claim, but in any event did not think that she had to consider whether Prosecution had that evidence when considering the question whether a fair trial was impossible.  As she identified, once a defendant raises the defence of duress during the trial, it is for the Prosecution to prove that duress does not apply.  There is no onus or duty on the defendant to prove that she was acting under duress.

19.I also note that, though the application for a permanent stay was refused, Barnes J did note in her decision (amongst other things) that:

(1)  she was satisfied that the Applicant did repeatedly mention, on the day of her arrest, that she had been raped, beaten, and forced to bring the stuff to Hong Kong against her will, with threats to harm her family, and that the Applicant also mentioned that she was pregnant on 9 August when the Spanish interpreter was present;

(2)  she accepted that the Applicant did have some bruises on her leg prior to her admission to Tai Lam, and she also accepted the evidence that the consular officer later saw some small bruises on the Applicant’s forearms.

20.By virtue of the rejection of the application for a permanent stay, the trial then proceeded.  The Applicant had entered a plea of ‘not guilty’ on a defence of duress.

21.At the end of the trial, on 6 October 2016, Barnes J gave her summing up to the jury.  I will not rehearse the content of it here, but the transcript of that summing up identifies that the Applicant’s account was extensively covered, in great detail, by Barnes J. Of course, Barnes J also directed the jury that it was for the Prosecution to disprove any allegation of duress advanced by the Applicant, and not the other way round where the Applicant did not bear any burden of proof.

22.The Applicant was convicted by the jury on the same day.  When sentencing the Applicant, Barnes J noted that the jury had, by its verdict, obviously unanimously decided that the Prosecution had proved that duress did not apply in the case.  She also noted the fact that the jury did not take very long to return its verdict would also indicate that the jury did not find the Applicant’s account believable.  (In passing, it is also fair to point out that the question of duress has a subjective/objective element, and it is impossible to know the jury’s analysis or thinking.)

23.The sentence imposed upon the Applicant’s conviction was one of 25 years’ imprisonment.

24.By letter dated 23 December 2016, the solicitors for the Applicant in the criminal matter, who had been assigned by Legal Aid, wrote to the Commissioner of C&E and the Commissioner of Police.  In the letter, the solicitors stated (amongst other things) that:

(1)  the full details of the Applicant’s defence of duress to the criminal charge can be found in the evidence of the application for a stay of the proceedings heard on 19 to 26 September and in the trial from 27 to 30 September 2016;

(2)  the Applicant’s account that she was kidnapped, held prisoner, raped, assaulted and generally maltreated by a gang of men led by M had been provided to C&E officers during her VRI, when she also showed bruises to the officers interviewing her;

(3)  evidence of bruising from injuries was confirmed by the interpreter at the VRI, and later by the Venezuelan Consul;

(4)  an internet search of “[an offered name] São Paulo” showed a number of photographs one of which the Applicant said closely resembled one of the men who was in the gang who dealt with her;

(5)  it appears that C&E officers did not make proper or timely attempts to investigate the allegations of rape, assault and ill-treatment;

(6)  there appears to be an increasing number of young women coming from São Paulo arrested by C&E officers at the Hong Kong International Airport, and timely positive action taken through Interpol to the federal police in São Paulo might well have led to a ring of drug organisers being investigated, hopefully saving a number of other victims from this type of exploitation;

(7)  the question can be asked what steps could be taken to ensure that both the complaints of the Applicant, although by then “rather stale”, and also of “other drug mules from São Paulo” could be investigated.

25.To follow up on the request made in that letter, a C&E officer wrote to the solicitors on 11 January 2017 enquiring if the Applicant was willing to provide a non-prejudicial statement about the alleged drug syndicate.  No reply was ever received.

26.Meanwhile, by letter dated 30 December 2016, different solicitors acting for the Applicant referred to an “intended application” for leave to apply for judicial review concerning the Government’s failure to investigate and protect victims of TIP, stating that the Applicant is a victim of TIP for sexual exploitation and drug trafficking from Venezuelan.  The letter gave a further recitation of the Applicant’s version of events, and the procedural history.  Amongst other matters, the letter also requested the Police to reassess the Applicant’s rape story on the basis of her medical condition which was described, and for which urgent medical forensic evaluation and/or examination was invited.  Other than a holding reply dated 7 January 20I7, I do not know what, if any, further response there was to that letter, but no judicial review proceedings were in fact commenced.

27.The Applicant took her criminal conviction on appeal, which was heard on 6 and 7 November 2019.  In the appeal, the Applicant raised, amongst other challenges (irrelevant for present purposes), the argument that Barnes J was wrong to refuse a permanent stay of the proceedings since the Applicant had raised a credible suspicion of being a TIP victim.  This was Ground 1 in the Re-Amended Perfected Grounds of Appeal against Conviction settled by leading Counsel.  The sub-paragraphs of that Ground 1 included that Barnes J:

1.2   failed to consider whether there had been abuse of process by the Prosecution wrongly exercising its discretion to proceed with the charges against the Applicant, in circumstances where there are reasonable and credible grounds to believe that she is a victim of human trafficking, which are sufficient to raise the defence of duress

1.3   failed to recognise that the court’s power to intervene and grant a stay of proceedings in circumstances where a prosecutor has wrongfully exercised its discretion is integral to its power to ensure that Hong Kong complied with its positive obligations to protect victims of human trafficking under Art. 4 of the Hong Kong Bill of Rights, see: ZN v Secretary for Justice (No.2) [2017] 1 HKLRD 559.  This is in line with the approach outlined by the English Court of Appeal in R v J and others (human trafficking) [2017] EWCA Crim 36, at §§9-28, 158-159; and R v M(L), B(M) and G(D) [2010] EWCA Crim 2327, [2011] 1 Cr App R 12, at §§ 15-19

1.4   failed to consider whether the Prosecution had wrongly concluded that the Applicant’s claim was not credible, in spite of the clear and consistent account provided by the Applicant in the VRI, alongside objective documentary evidence, in support of her claim that she is a victim of human trafficking

1.5   failed to take into account the strong indicators of human trafficking provided by the Applicant in her VRI as sufficient to properly raise the defence of duress to the requisite standard of proof

28.By its Judgment dated 25 March 2020, the Court of Appeal dismissed the appeal against conviction, and also dismissed the application for leave to appeal against sentence.  The Judgment of the Court (also comprising Poon CJHC and Lam VP – the latter a former Judge in charge of the Constitutional and Administrative Law List) was given by Macrae VP.

29.Ground 1 raised by the appeal was dealt with in the Judgment at §§99-109, with a supplementary comment at §127.  At §99, the Court of Appeal stated:

This ground is predicated on the assumption that the applicant’s assertions about her kidnapping and rape, resulting in her being forced to commit a crime she would not otherwise have committed, were credible.  Since they were credible, the prosecution had a duty to investigate her claims.  If there was a failure to do so, the court should have stayed the proceedings as an abuse of the process of the courts.

30.It was pointed out in §100 that the difficulty with that argument, and the assumption which underlies it, is that the prosecution did not regard the Applicant’s claims as credible, and nor did the judge.  Moreover, the Applicant declined to give evidence on the stay application, leaving the judge to determine the issue on the Applicant’s bare assertions in her VRI, without them ever being given on oath or tested in cross-examination.  It was pointed out that, in her lengthy written Reasons for Decision, the Judge expressly found that the Applicant’s claims were not credible.

31.At §103, the Court of Appeal stated that it saw no reason to disagree with the views of the prosecution, the assessment of the judge or the verdict of the jury.  At §§104-108, the Court of Appeal traversed the authorities relied on in support of the Applicant including the ZN case (see below).  Specific reference was made to the principle that in order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the state authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being exploited within the meaning of BOR4.

32.At §109, the Court of Appeal concluded (italics in original):

We are satisfied that the present case does not even arrive at the question of whether the alleged treatment of the applicant could amount to “human trafficking”, within or without the meaning of Article 4 of BORO, because there was no credible case that the applicant was ever a victim of such trafficking.  In our judgment, following an extensive review of the evidence and circumstances before her, and in the absence of any credible claim of duress or human trafficking, the judge properly resolved the application for a stay on the well-established principles enunciated in [cases cited].  In our judgment, there is no substance whatsoever in the complaint under Ground 1.

33.At §127, the Court of Appeal also said (at the end of the discussion of a different ground of appeal):

We would make one final observation on this matter.  In dealing with Ground 1, we noted another exchange between the judge and trial counsel during the application of ‘no case to answer’, where the judge indicated that she agreed with the prosecution’s submissions that “(the applicant’s) claim is not a credible one”.  That exchange took place in the morning of Friday, 30 September 2016, at about 10:15am.  By Monday, 3 October 2016, the applicant had apparently resolved that she would not be giving evidence. To what extent her decision may have been influenced by the judge’s comment, we cannot say and the matter has not been adverted to in the applicant’s affidavits.  However, one interpretation would be that the applicant took a not unrealistic view over the weekend that she was better off with the VRI presenting her defence of duress as well as it could be presented before the jury, without the risk of it being undone by cross-examination.

34.No further steps were taken by or on behalf of the Applicant on this matter until February 2022, when the Applicant’s solicitors requested the Security Bureau (“SB”) to conduct a fresh assessment of the Applicant under the TIP Guideline and Action Plan, based on the same factual account that was previously rejected by judge and jury, and on appeal. Using the refusal by the 2^nd Putative Respondent (“Secretary”) to conduct an assessment, given in his letter dated 11 March 2022, the Applicant filed the Form 86 in this action on 10 June 2022.

35.Shortly prior to that, the Applicant had sought and obtained, from K Yeung J, orders granting her anonymity throughout the judicial review proceedings, and that no report of the proceedings should directly or indirectly identify the Applicant or any member of her family.  At the hearing on 21 November 2022, I reminded the public and media of these orders, and that they would apply even though the earlier criminal proceedings had been conducted in open court.

36.After the issue of the Form 86, I gave directions for filing evidence and for a rolled-up hearing.

37.After the filing of the evidence for the Commissioner of C&E and the Secretary, an application was made to amend the Form 86.  The argument at the rolled-up hearing proceeded on the basis of the Amended Form 86.

C.  Grounds of Review and Relief Sought

38.In the Amended Form 86, the focus of the challenge is identified as:

The Decision of the Secretary for Security communicated by a letter dated 11 March 2022 not to conduct a Victim Identification Screening for Forced Labour or Trafficking in Persons on the basis of the Applicant’s prior prosecution and conviction for Trafficking in Dangerous Drugs.

39.The substantive relief sought is:

2.  A declaration that the Commissioner has failed to conduct an independent Victim Identification Screening (“VIS”) pursuant to the Revised Guideline on Inter-departmental Cooperation (“the Guideline”) for the Handling of Suspected Cases of Trafficking in Persons (“TIP”) issued by the Security Bureau.

3.  A declaration that the Commissioner has failed her procedural obligation to investigate whether the Applicant is a victim of compulsory labour in contravention of Article 4 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“BOR4”).

40.Hence, the Applicant has made a distinction between TIP and BOR4 in the substantive relief identified in the Amended Form 86. However, Mr Chan does not seek to make the same distinction in the formulation of the grounds of review.  The thrust of the Applicant’s position up to the time when the question came before Barnes J in 2016 seems to be that she was a victim of human trafficking, i.e. TIP, rather than one of forced labour.  This is possibly because at the time it may have been thought that BOR4 was wide enough to cover TIP, until the proposition was ultimately rejected by the CFA in January 2020 in the ZN case.  That may also explain the “within or without BOR4” remark made by the Court of Appeal in the Applicant’s criminal case, in its Judgment delivered in March 2020.  Since neither Mr Chan nor Mr Ho has seen fit to rely on the distinction in any way, I have not found it necessary to make such a distinction in the present case.  But it may be necessary to keep it more firmly in mind in future cases.

41.In the Amended Form 86, the headings of the two intended grounds of review identified are as follows:

(1)  Ground 1 – Failure to conduct VIS;

(2)  Ground 2 – Criminal Process inherently unsuitable.

42.Ground 1 is fact specific, whereas Ground 2 is systemic and apparently not constrained by the specific events of this particular case.  But, in his written submissions, Mr Chan says that these two grounds are substantially interlinked and can be taken together.  He says both grounds rest on the same core question, namely whether the criminal process is a lawful substitute for the VIS as required by the TIP Guideline and the positive obligations under BOR4.

43.To an extent, the battleground in this case is identified by Mr Ho’s response to that question, which he says is advanced on a false premise.  Mr Ho says that the proper question is not a general and blanket question, but – on the facts of this case, where the Applicant has already unsuccessfully tried on multiple occasions to convince the Hong Kong courts that she was a victim of TIP/forced labour (and where she decided not to mount any public law challenge there and then) – whether it is right now to allow the Applicant a further ‘bite of the cherry’ as would undermine or cast doubt on the concluded criminal proceedings in which adverse findings were made against her.

D.  The Relevant Duty

44.In my recent decision in AM v Director of Immigration [2022] HKCFI 1046 – reported at [2022] 4 HKC 445 – at §§16-63, I traversed in some detail the Hong Kong framework for combating TIP and/or forced labour, and how it had varied over time.  It is not necessary for present purposes to rehearse that detail, but a number of points of emphasis can usefully be made:

(1)  The Hong Kong Government has adopted a single framework for both TIP and forced labour.  The Government takes the view that TIP and forced labour commonly manifest themselves in an array of shared forms of exploitation such as physical confinement, assault, criminal intimidation, threats of physical abuse or death, fraud, deception, misrepresentation, and so forth.  Therefore, the same framework is deployed to tackle both evils.

(2)  The framework is modelled upon the Palermo Protocol, adopted by the United Nations to supplement the 2000 Convention against Transnational Organised Crime to prevent, suppress and punish TIP.

(3)  Though the Palermo Protocol is not applicable to Hong Kong, and the Hong Kong Government has no international obligation to give effect to its provisions, the Government has nevertheless chosen to adopt the Palermo Protocol as a matter of policy.  Any attempt to claim protection against TIP has to rely on such policy, rather than the Palermo Protocol directly.

(4)  On the other hand, the right for protection against forced labour is grounded in BOR4(3), which is constitutionally entrenched via Article 39 of the Basic Law.

(5)  In ZN v Secretary for Justice (2020) 23 HKCFAR 15 (“ZN (CFA)”), the Court of Final Appeal (“CFA”) held that the Government’s framework or ‘approach’ is an acceptable method to comply with its duty to provide practical and effective protection against BOR4 breaches.

(6)  BOR4 imposes on the Hong Kong Government a positive duty to provide practical and effective protection to victims of forced labour.  The Government has a wide margin of discretion as to how to comply with such a positive duty, but such duty also entails a procedural obligation to carry out investigation once the Government is aware or ought to be aware of circumstances giving rise to a credible suspicion of such abuses.

(7)  One of the most important documents setting out the Government’s framework is the ‘TIP Guidelines on Inter-Departmental Cooperation for the Handling of Suspected Cases of Trafficking in Persons’ (“TIP Guideline”), which was first published in December 2016 and revised in 2019.

(8)  The framework in place must be preventive as well as remedial, as must the Government’s policy to combat TIP.

(9)  The TIP Guideline is intended to put in place a mechanism to identify victims (“VIS”) and to identify appropriate assistance or protection for an identified victim.

(10)  Whilst it is correct that there are often overlapping indicia, what might not amount to TIP might still be forced labour, and vice versa.

(11)  The key obligation as regards the Government’s constitutional and public law duties with regards to rights such as BOR4 is procedural in nature.  It is a duty not of result, but of means.

45.Also in the AM case, §§242-261, I identified what I saw to be potential tension between investigating TIP/forced labour and investigating and prosecuting crime.  Albeit in the context of person claiming to be both a victim of crime and a victim of TIP/forced labour (as to differing contexts, see further below), I stated the following:

(1)  The focal point for law enforcement action is bound to be by reference to specific criminal offences.

(2)  It is the essence of the investigatory and prosecutorial process that the Police and other enforcement agencies will look to see if they can detect the commission of a specific crime, for which they can bring a particular charge, and on which they will be able to produce evidence admissible to the proof of that charge.

(3)  The reality seems to be that an investigation under BOR4 (conducted by enforcement agencies) would make, and arguably should make, no impact on parallel criminal investigation and prosecutorial process.

(4)  There is something of a divorce between forced labour and the criminal justice system.

(5)  The manner of an investigation focused on conventional criminal offences may be different from an investigation specifically into TIP/forced labour offences, where a more nuanced or subtle approach to questions of consent may be warranted.  The essence of forced labour may also involve patterns of behaviour, so focusing on the results as regards one victim may not suffice if the position of other possible victims is not also properly addressed.

(6)  In short, investigating under the duty imposed by BOR4 – so as to give practical and effective protection against forced labour – is simply not the same thing as investigating the commission of an offence which might be shown to have occurred as a facet of forced labour.

46.It was for those reasons, amongst others, that I found on the facts of one of the applicants in the AM case (in their proper factual context) that a causal connection had been established between the particular failures in the case and the lack of a bespoke criminal offence – though that issue does not arise in the present proceedings.

47.But, I think it also right to identify and recognise that the relevant duty of investigation might arise in myriad varying circumstances (although necessarily with the common theme), and each case will require particular and individual consideration.  As with most things, context is important.  One example only will suffice for present purposes: in the AM case, and many others like it, the potential victim of TIP/forced labour was herself the apparent victim of a crime and came to the investigating authorities in that context; whereas, in this particular case, and there will be others like it, the Applicant was herself the apparent perpetrator of a crime and came to the investigating authorities in that context.

48.Mr Chan also relies on modern case law, which he says highlights a multi-pronged approach to fulfilling BOR4 obligations (as reflected in the TIP Guideline).  He points in particular to the case of VCL v UK (ECHR, No. 77587/12, 5 July 2021) at §156, which states:

It follows from the above that the general framework of positive obligations under Article 4 includes: (1) the duty to put in place a legislative and administrative framework to prohibit and punish trafficking; (2) the duty, in certain circumstances, to take operational measures to protect victims, or potential victims, of trafficking; and (3) a procedural obligation to investigate situations of potential trafficking.  In general, the first two aspects of the positive obligations can be denoted as substantive, whereas the third aspect designates the States’ (positive) procedural obligation …

49.As Mr Chan correctly points out, one purpose of VIS is to consider whether a potential suspect in a crime is in fact a TIP victim and then, contingently, whether it is appropriate to prosecute or grant immunity.  Of course, this is but one of the specific points of the VIS assessment, where one of the other points includes obtaining appropriate statistical information for the purposes of the ongoing battle against the twin scourges of human trafficking and forced labour.

50.Reference might also be made for present purposes to the point made by the Court of Appeal in its Judgment in the Applicant’s criminal appeal (see above).  At §108, it was noted that the pertinent aspects of the CFA’s decision in the ZN case included that the Palermo Protocol does not apply to the HKSAR, and it would be inappropriate to give a ‘backdoor’ application to a treaty which the PRC has expressly declared should not apply to Hong Kong, and further that the protection against slavery and servitude under BOR4 does not contain a prohibition against human trafficking either generally for exploitation or specifically for forced or compulsory labour.

E.  Applicant’s Submissions

51.Mr Chan stresses that the Applicant is not seeking to reopen the criminal case.  Rather, he says, this is a typical judicial review application, focused on the process – and no decision in these proceedings will amount to making any determination whether the Applicant is or is not a victim of TIP.  Nor will the grant of the relief sought necessarily identify what might follow, where a variety of things may be considered in consequence.

52.He says the Applicant’s initial interactions with the authorities were squarely in the context of her arrest and detention on suspicion that she had committed a crime, which imposed a ‘temporal guillotine’ to establish that suspicion, and which would not allow the conduct of any detailed, open-textured enquiries as to whether the Applicant’s account was credible.  However, as a matter of fundamental contrast, the purpose of a VIS is not to establish the innocence or guilt of a suspect but to fulfil obligations to prevent and protect against trafficking.  There being no dispute that the Government does have a constitutional duty to investigate, the question arises as to whether the criminal process is adequate for meeting that duty.  As Mr Chan puts it, there is an inherent structural mismatch between the focus and objectives of the criminal law and anti-trafficking regimes.  As he also puts it, the obvious point is that questions asked in different modes, and for different purposes, can and often will result in different answers.

53.Mr Chan is careful not to go so far as to say that in no circumstances can the criminal process address TIP and BOR4 requirements.  But he submits that (1) the criminal process generally is in serious tension with the requirements under BOR4, and (2) the criminal process failed the Applicant in this particular case.

54.By reference to the TIP Guideline (which came into effect after the criminal process in the Applicant’s case), Mr Chan points out that there is no complaint about the failure to follow a protocol which was not in place at the time.  Rather, the very existence of the TIP Guideline reflects the recognition that an earlier way of dealing with matters was not up to an appropriate standard, and the fact that the TIP Guideline was not then in place makes it more likely that the Government will have difficulty in establishing that it complied with its duty.  Mr Chan also submits that the burden is on the Government to show that it has complied, not least because it has all the material to show that it did – or to reveal that it did not.

55.Turning to the core of Mr Chan’s submissions, it relates to what he describes as the inadequacy of the criminal process for meeting the obligations relating to victim screening.  First, he says, there are general inherent problems, where screening should adopt a dynamic, multi-factorial and multi-dimensional approach.  Whereas, any process of litigation is naturally addressed by reference to the legal issues that have to be determined, and those issues set the agenda as to what facts and on what rules of evidence those issues will be considered.  He points to the consideration by Barnes J, found in her Reasons for Decision when dismissing the application for permanent stay, which identified the evidential constraints in the criminal process according to the applicable rules of that process.

56.Mr Chan relies on my own previous references of their being (1) a ‘divorce’ between forced labour and the criminal justice system, and (2) the potential need for a more nuanced and subtle approach in the former situation (see above).

57.As regards the Applicant’s potential victimhood of trafficking, Mr Chan submits that if everything rests on whether her story was plausible or not, the assessment of truth or credibility includes at least two dimensions, being (1) constitutive or generative, and (2) evaluative.

58.The former relates to how the account is drawn out or allowed to be given, and may be influenced by whether it is the subject of investigation, interrogation, any potential restraints, and the degree of facilitation.  Mr Chan points to the criminal context where there is always a risk of self-incrimination, where giving an account to the person whose role it is to investigate criminal wrongdoing and act on it may be inimical to a process of identifying and protecting victims of trafficking.

59.The latter evaluative dimension brings into play what Mr Chan calls the ‘plausibility structure’, made up of background features recognised as true and reliable against which the truth or reliability of other matters are assessed and evaluated.  As Mr Chan submits, people get their ‘plausibility structures’ from personal or institutional experience, and from the broader vista of facts, data points and background.  Further, what is taken into account may depend on the ground rules or permissible parameters of inquiry.  For example, Barnes J excluded from her consideration the country of origin conditions sought to be relied on before her, but such matters are or may be of paradigm importance in assessment of trafficking.

60.Mr Chan also submits that there is a high hurdle of what is required to raise duress in the criminal context, which may be of a fundamentally different value than in the context of TIP/forced labour – even as to the relevant mental state requirements.  It is also important to recognise that the chronological point of focus may vary, which is one of the reasons why a person may be both a victim of TIP/forced labour and a perpetrator of a crime.

61.On the factual level, Mr Chan points to the facts that:

(1)  none of the C&E officers involved in the VRI had experience or training in TIP/forced labour;

(2)  the office of the Prosecutor (if ‘doubling up’ in the roles of prosecuting crime and assessing TIP/forced labour victimhood) necessarily gives rise to potential conflict between those roles;

(3)  in this case, the Prosecutor did not meet the Applicant to seek clarification or explanation or elaboration, but simply proceeded with an assessment of credibility on the materials already available as elicited during the criminal investigation process;

(4)  the threshold on the permanent stay application gave the trial judge a binary choice, where what may be only one element of fairness in the criminal context may be fundamental in the TIP context – for example, as to the acceptance of bruising on the Applicant’s arms and leg;

(5)  no proper reliance could be placed upon whatever decision-making process was undertaken by the jury, the members of which are not versed in TIP/forced labour, and which process in any event cannot be known;

(6)  the appellate process did not require a focused, specific and dedicated consideration of the requirements under BOR4.

62.Mr Chan also relies on the lack of records, which must cast doubt on whether any proper assessment has in fact been performed.  To the extent that any person says that an assessment was performed, whether it was a fair assessment must ordinarily require some documentation.  Mr Chan submits that the absence of records therefore means (1) it cannot be shown that there was a proper process followed in this case, and (2) the lack of records is itself unfair where fairness requires proper documents.

63.I see the strong force of many of those submissions in general terms.  There can be no doubt that there will be many factual situations where a person involved in some aspect of a criminal process simply cannot be fairly and properly assessed as to potential victimhood of TIP/forced labour by just the criminal process.  But it is necessary to consider the Applicant’s claim in this case on its own particular facts.  For example, save perhaps as may have influenced a decision not to give evidence at the criminal trial, but rather to rely on the content of the VRI alone, it does not seem that the Applicant was significantly constrained by any fear of self-incrimination.  Similarly, and though it would not by itself absolve from the duty to investigate, the Applicant did not respond to the invitation to give a non-prejudicial statement for the purposes of providing further information, when invited to do so after her legal advisers pressed for a conclusion that she was a victim of trafficking.

64.As Mr Chan himself identifies, there are no hard and fast rules as to what is procedurally fair.  What is required is acutely sensitive to context, including the type of decision in question and the purpose for which the process is undertaken and the importance to the parties of the outcome.  Taken together with the proper acceptance that there may be circumstances in which the criminal process is sufficient to provide compliance with the relevant duties to investigate TIP/forced labour, this seems to me to identify that a fair approach can in an appropriate case arise from the relevant and necessary considerations in criminal proceedings.

65.In this case, the Applicant gave a full account of the factual circumstances which she and her legal advisers relied on to argue that she was herself a victim, not or not just the perpetrator of a crime.  The very essence of the Applicant’s argument on the application for permanent stay, and again on the criminal appeal, was whether the circumstances described by her gave rise to a credible suspicion of trafficking.  The question of credible suspicion was directly engaged.

66.But this also leads directly to the consideration of the core argument raised by Mr Ho.

F.  Whether Abuse of Process

67.Mr Ho submits that the Government has taken a principled objection to any fresh TIP/forced labour assessment and to these proceedings – an objection rooted in policy.  The objection is that it is an abuse for the Applicant to mount what is a collateral attack on previous decisions and so risk undermining or casting doubt on those decisions.

68.Mr Ho makes two preliminary points: (1) the concept does not depend on the Applicant’s motive; and (2) there need not be any symmetry between the two actions (here, between (a) the required elements for a stay of proceedings and the defence of duress and (b) meeting the threshold of credible suspicion under TIP/BOR4), so long as the objective consequence is to cast doubt on the earlier decision(s).

69.In this case, Mr Ho focuses and relies on the decisions of Barnes J and the Court of Appeal (and less on the steps taken by the Prosecutor or the C&E officers).  He refers to the Reasons for Decision of Barnes J to identify that the threshold question of whether the Applicant had demonstrated a credible case that she was the victim of trafficking was fairly addressed and squarely rejected.  He also points to the Judgment of the Court of Appeal which also fairly addressed and again rejected that case (in reasonably strong terms).

70.Therefore, Mr Ho submits that where that threshold question was live and determined, twice, then any finding to the contrary by the Government or by a Judge in a judicial review which casts doubt on those decisions would amount to or permit a collateral attack on those decisions in the way which is objectionable as a matter of policy.  I agree.

71.The starting point is that the concepts of res judicata or issue estoppel must also apply in judicial review proceedings. This question was considered by Lord Carnwath JSC in R (DN (Rwanda)) v Secretary of State for the Home Department [2020] AC 698 at §§45-57. There, reference was first made to the decision in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273, at 289, where it was made clear that for these purposes there is no distinction between public and private law, based upon a principle of fundamental importance.  After a review of various other authorities, Lord Carnwath referred, for completeness, to another decision of the UK Supreme Court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160.

72.In that case, at §§22-26, Lord Sumption JSC thought the following propositions to be established by authority:

(1)  Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action.

(2)  Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised.

(3)  Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (a) were not raised in the earlier proceedings or (b) were raised but unsuccessfully.  If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised.

(4)  Res judicata and abuse of process are genetically different.  Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court’s procedural powers.

(5)  They are distinct but overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation.  That purpose makes it necessary to qualify the absolute character of both cause of action estoppel and issue estoppel where the conduct is not abusive.

(6)  What is commonly known as ‘Henderson v Henderson abuse’ is directed against the abuse of process involved in seeking to raise in subsequent litigation points which could and should have been raised before.  It is both a rule of public policy and an application of the law of res judicata.

(7)  It is not necessary to identify any additional element, such as a collateral attack on a previous decision or some dishonesty, before abuse may be found.  But when those elements are present, the later proceedings will much more obviously be abusive.

73.Mr Ho also refers to Hunter v Chief of the West Midlands [1982] AC 529 at 541-542; Arthur JS Hall & Co v Simons [2002] 1 AC 615 at 687D-H; and Salahuddin v Director General of the Security Service [2015] EWCA Civ 653.

74.In the latter case, the Court of Appeal struck out a civil claim for damages for false imprisonment as an abuse of process, on the ground that the factual basis of the claim conflicted with the Court’s findings made in decisions (1) ruling that the Claimant’s confessions were voluntarily made and hence admissible, and (2) refusing a stay of the criminal proceedings.  There, the claimant’s story was that he was being tortured by UK agents in Pakistan which led to his false confessions.  He applied for a stay of the criminal proceedings in reliance on the allegations of unlawful detention and torture.  The stay application was dismissed, and the claimant was subsequently convicted.  The appeal against the conviction – and the judge’s refusal to stay the proceedings – was refused.

75.In the Court of Appeal, reference was made to the Hunter case and to a subsequent decision that identified that the motive for the subsequent proceedings was irrelevant.  At §21, the Court of Appeal stated:

One critical distinction between the decision made by the judge and that made by the jury lies in the fact that the judge determines admissibility (a question of law), whereas the jury determines reliability and weight (questions of fact).  Equally important, perhaps, is the fact that these potentially conflicting decisions form an integral part of the trial process, in which the jury returned a general verdict without having to make specific findings about issues which go to the weight of different aspects of the evidence.  Hunter’s case is authority for the proposition that the decision of the trial judge on a voire dire is a decision of a court of competent jurisdiction for the purposes of the principles of abuse of process.  In that case, as in the present case, the judge found as a fact that the confession had not been induced by violence, but it remained open to the accused to put the same evidence before the jury and invite them to reach a different conclusion.  As Lord Diplock observed at page 542F-H:

The fact that the whole matter of the circumstances in which the confession was obtained was gone into a second time before the jury and that the jury, in view of the judge’s direction to them, must clearly also have been satisfied beyond reasonable doubt that Hunter’s account of the assaults upon him by the police was a fabrication does not affect the finality of the judge’s ruling, though it would exacerbate the public scandal to the administration of justice that would be involved if Hunter, by changing the form of the proceedings to a civil action, were to be permitted to set up in that action the same case that must have been decided against him not only once but twice, even though technically it was only the first of those decisions that eventually qualified as the final decision against him by a competent court upon the very question that he now seeks to raise.

76.The Court held that that mirrored the case in which the appellant sought, but failed, to persuade the jury that his confessions were unsound because of his experiences in Pakistan.  As it was put in §44:

If the former decision was made in criminal proceedings leading to a conviction, it is proper to focus on the question whether the latter proceedings, if successful, would in substance undermine the conviction.  The differences between civil and criminal proceedings, to which Lord Hoffman drew attention in Arthur JS Hall & Co v Simons, explain the difference in approach.  Accordingly, although I accept that many of the individual issues to which the particulars of claim give rise are different from those which the judge had to decide on the voire dire, I consider that it is necessary to take a broader view of the matter.

77.In §46, it was stated:

Viewed objectively, whatever the appellant’s actual motivation, his attempt to establish that he was detained and tortured in Pakistan with the complicity of British officers does in my opinion constitute a collateral attack on his conviction.  It is unnecessary and inappropriate for this purpose to debate the nuances of the judge’s findings in the light of the disclosure material.  What matters is whether the essential elements of the case which the appellant now seeks to pursue were adjudicated upon.  If his evidence that he had been tortured with the complicity of the British officers had been accepted by the judge it is possible, perhaps even likely, that the judge would have been satisfied on the balance of probabilities that British officers had also been complicit in returning him to the United Kingdom.  In those circumstances the court might have concluded … that the indictment should be stayed.  Similarly, if the appellant had persuaded the judge that he had been, or might have been, tortured in Pakistan in the manner he described, the judge would have had to consider whether he could be sure that the confessions were not rendered unreliable as a result, since, if he could not be sure of that, he would have had to rule them inadmissible.  Accordingly, although success in the current proceedings would not lead to the conclusion that the outcome of the trial must inevitably have been different, it would seriously undermine the reliability of both rulings and thereby the safety of the appellant’s conviction.  In my view that is sufficient to render the present proceedings and abuse of process in accordance with the principle in Hunter’s case. That is all the more so given that the appellant has already had an opportunity to challenge the judge’s ruling on appeal and has done so.

78.As Mr Ho says, these reasons apply with equal force in the present challenge.  Both Barnes J and the Court of Appeal had specifically dealt with the question of whether a credible case had been raised that the Applicant was a victim of TIP/forced labour.  Both were aware of the Applicant’s account as disclosed in her VRI.  Both answered the question in the negative.

79.What matters is whether the essential elements of the matter which the Applicant now seeks to pursue were adjudicated upon.  Accordingly, although success in the current proceedings would not lead to the conclusion that the outcome of the trial must inevitably have been different, it would seriously undermine the reliability of both the rulings of Barnes J and the Court of Appeal, and thereby the safety of the Applicant’s conviction.  In my view that is sufficient to render the present proceedings an abuse of process in accordance with the principles set out above.  It is all the more so given that the Applicant had the opportunity to challenge the Barnes J’s ruling on appeal and she did so.

80.Further, whilst focus is on the decision of Barnes J – as the decision of the court of competent jurisdiction – as was upheld by the Court of Appeal, it can also be recognised that the whole matter of the circumstances in which the Applicant came to be carrying the dangerous drugs to Hong Kong was gone into a second time before the jury and that the jury must clearly also have been satisfied beyond reasonable doubt that her account was not to be believed.  That might also exacerbate the public scandal to the administration of justice that would be involved if the Applicant, by these judicial review proceedings, were to be permitted to set up the same case that must have been decided against her on more than one occasion.

81.If the approach taken is to identify to what extent the real issue which was decided earlier is being raised in a way which gives rise to a conflict which would bring the administration of justice into disrepute, I think that approach is satisfied on the particular facts of this case.  I reject Mr Chan’s reply submissions that it would not undermine the decisions of Barnes J or the Court of Appeal because the decision which I am invited to make looks only at ‘process’.

82.The Applicant’s application in these proceedings must, therefore, be dismissed as an abuse of court process.

G.  Tension between BOR4 and Abuse of Process?

83.Mr Chan submits that the principles on abuse of process are not absolute.  As set out above, the principle on cause of action estoppel is absolute.  But cause of action estoppel is not engaged; this is not a second judicial review of the challenged decision.  If Mr Chan refers to issue estoppel or abuse of process, his submissions must be right.  Lord Sumption JSC qualified the principles on issue estoppel with the exception where strict application of the principle would cause injustice (see above).  Further, the question of abuse of process is inherently a discretionary exercise of the courts’ powers in controlling the courts’ own procedures.  The courts retain a broad discretion to disapply the principle in the interests of “justice”, but that discretion is not without limits.  The essence of it is that one of the purposes of estoppel is to work justice between the parties, so that it is open to the courts to recognise that, in special circumstances, an inflexible application of it may have the opposite result.

84.So, whilst not put in such words by Mr Chan, in effect he has to persuade this Court why the present case is in the realm of special circumstances warranting the disapplication of issue estoppel or abuse of process when these principles would otherwise be applicable.

85.The special circumstances he seems to rely upon do not arise from any particular facts of this case, but the constitutional imperative of BOR4 protection generally.  The theme of Mr Chan’s submission is that to reject a fresh assessment of the threshold question outside the criminal process undermines BOR4 because it suggests that BOR4 protection only begins after a person has shown he or she is a credible victim.

86.The question therefore arises as to when the constitutional obligations are triggered.  In my view, the correct position is as follows.  The duty under BOR4 applies to the entirety of any potential assessment of victimhood.  In other words, it applies also to the initial assessment of whether there is a credible suspicion.  This seems to me to be clear from the requirement that the assessment is as regards circumstances which give rise, or ought to give rise, to a credible suspicion.  I agree with Mr Chan that to say otherwise would potentially undermine the point of BOR4, and that BOR4 is not indifferent to the process of determining the threshold of credible suspicion.  But, of course, if no credible suspicion is identified, that is the end of the process, and no further continuing constitutional obligation exists.  If a credible suspicion is identified, the constitutional obligation continues, with potential further assessment and the identification of relevant assistance and protection as might be provided.

87.There is no inherent tension between applying the principle of abuse of process and applying BOR4 to the entirety of any potential assessment of victimhood.  To the contrary, abuse of process will only come into play when the relevant question has already been asked and answered in at least one process, being a court of competent jurisdiction.  It is a recognition that the relevant issue – here being whether the Applicant was a credible victim – has been processed.  Unless the position is taken that the criminal process can in no circumstances be sufficient to meet the duty under BOR4 (a position expressly, and rightly, not taken by Mr Chan), engaging BOR4 itself is insufficient to establish special circumstances calling for the disapplication of abuse of process.  More is required to justify a departure from the usual application of the abuse of process principle.

88.This is also relevant to the present proceedings in the following way.  Leaving aside more general matters, at least a key element underpinning the Applicant’s identification as a victim of TIP/forced labour would be to seek assistance and protection including by a decision not to prosecute, or in a decision that any prosecution commenced should be permanently stayed.

H.  Utility or Futility

89.The question of utility or futility is raised in Mr Ho’s written submissions.  As he points out, the Court may exercise its discretion not to provide a remedy if to make an order would serve no practical purpose.

90.Mr Ho goes on to submit that the Applicant herself has not identified any positive utility in having this judicial review application entertained by the Court.  He says this is not surprising where:

(1)  the criminal proceedings have already concluded, and the Applicant’s fate as a prisoner is already sealed;

(2)  unlike in the case of AM, there is no suggestion that there can be any further fruitful investigations against any third-party, where there is no suggestion that M or any of his associates had ever been in Hong Kong, and where the Applicant’s credibility – as would need to be relied upon in any other criminal proceedings – has been rejected by the Hong Kong courts;

(3)  nor is this a case where the Applicant has been withholding relevant factual information from law enforcement authorities because of any fear of criminal prosecution, but on the contrary she has given an extensive account of her alleged experiences during the VRI, and again in attempting to dissuade the authorities from launching or continuing a prosecution against her.

91.Mr Ho also goes on to suggest that to ask for a fresh TIP assessment now, based on the very set of facts previously rejected, is but a ‘try on’, in the hope that the assessor would reach a conclusion different from the courts.  But I do not think I need to address that suggestion for present purposes, as it is unnecessary on the application of the relevant principle.

92.Mr Chan submits that the hurdle of demonstrating futility is high.  But, in any event, he says that the context in judicial review proceedings is consideration of the means, not the result. Therefore, if a failure in process is identified, the identification of the failure or defect is the point of utility.  He is right.  As he also puts it, vindication of the rule of law would be the core point of utility, not least in that it would relevantly help the Government to meet its obligations in future.

93.Mr Chan also points to the possibility that there might be utility in a declaration that there has been a failure to conduct an independent VIS or to meet the procedural obligations on the Government in possible future submissions regarding any parole matters, or a potential Chief Executive’s reference, or in obtaining consular assistance, or in the conditions under which the Applicant might serve her prison sentence.

94.If the question of utility or futility were to be in any way determinative on this application, I would not consider there must or could be no utility in the application as should lead to the refusal of leave.  However, where Mr Chan obviously found it difficult to give precise submissions as to what might happen if the relief sought by the Amended Form 86 were to be granted – preferring to identify only a range of possibilities, not all of which might be connected with criminal process – there might be difficulties on any subsequent discretionary exercise as to the grant of relief.

I.  Delay

95.More detrimental to the position of the Applicant is the significant delay in bringing these proceedings.

96.It is settled that an application for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose.  The Court should not extend that period unless there is good reason to do so, the identification of any good reason requiring a multi-faceted inquiry by the Court.

97.I agree with Mr Ho that it is pertinent to remember that time starts to run from the date when the grounds for the application first arose, not from the date of the decision sought to be challenged.  That is why the Court will not permit an applicant to ‘resurrect’ an old decision, simply by asking the decision-maker to reconsider the application.

98.In this case, the Applicant’s grounds of review arose when the PD refused to grant prosecution immunity or to consent to the stay application.  That was in September 2016.  The Applicant’s conviction was in October 2016.  Both before and after the conviction, the Applicant’s legal representatives – both firms being well-versed in the necessary area of law – referred to the possibility of or indicated the intention to commence judicial review proceedings in relation to the Applicant’s status as a victim of TIP/forced labour.

99.Even the time after the decision of the Court of Appeal in March 2020 until the request to the Secretary for a fresh assessment in February 2022 was a significant period of time.  I do not think that period is properly explained by any suggestion that further consideration or legal advice was necessary.  Nor, as is obvious from the above analysis, do I consider there are such strong merits as would point strongly in favour of any extended time.

100.There is also some force in Mr Ho’s point that it would be detrimental to the good administration of justice to allow an extension of time to a convicted person to challenge again, albeit collaterally, the safety of his or her conviction years after the conclusion of criminal proceedings.  As he puts it, there must be finality in criminal litigation. But, in any event, the timetable provided by the rules for any intended challenge by way of judicial review is there for sound reasons.

101.I see no proper basis in this case to extend that time in this case.

J.  Result

102.Insofar as it is necessary, the above matters seem to me to provide answers to the two rhetorical questions posed, which I identified at the beginning of this Judgment.

103.The Applicant’s application for leave to apply for judicial review is dismissed.

104.Even had I granted leave, I would have dismissed the substantive application.

105.I see no reason why costs should not follow the event.  Therefore, the Putative Respondents’ costs will be borne by the Applicant, to be taxed if not agreed.  The Applicant’s own costs will be taxed in accordance with the Legal Aid Regulations.

K.  Postscript

106.This case has been decided on its own particular facts.  It should be obvious that not every case involving potential identification of TIP/forced labour will give rise to consideration of the principles relating to abuse of process.  What triggers the application of the principles of abuse of process in this case is not the Applicant’s request for a fresh consideration or assessment as such, but the fact of her previous conviction in circumstances where the threshold question as to a credible suspicion had been squarely addressed and decided.

107.Perhaps in another case, before a charge is pressed or before any trial commences, an independent VIS outside the criminal investigation and prosecution process might be done and then possibly taken into account in the criminal process without risk of disturbing any findings to be made in that process as might bring the administration of justice into disrepute.  In such a situation, the potential inadequacy of the criminal process in properly addressing possible TIP/forced labour – which I have extensively canvassed above – may be given greater practical recognition.

Mr Abraham Chan, SC and Mr Albert N B Wong, instructed by Patricia Ho & Associates, for the applicant

Mr Martin Ho, instructed by the Department of Justice, for the 1^st and 2^nd putative respondents