Qbd v. Secretary for Security and Others

HCAL 1530/2024

[2026] HKCFI 2620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1530 OF 2024

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J U D G M E N T

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A.  Introduction

1.This case is another one of a recent series of cases which, it might be said, identify at least (1) the importance of timing when considering the question of trafficking in persons (“TIP”) in the context of potential or actual criminal proceedings, (2) the utility or otherwise of screening for TIP, depending on that timing, and (3) the desirability at least for lawyers practising in the relevant area to be properly familiar with the applicable principles.

2.By his Form 86 dated 6 September 2024, the Applicant sought leave to apply for judicial review so as to challenge a number of claimed decisions and failures made or committed by the Respondents (“Secretary for Security”, “DPP”, “SJ”, and “Commissioner” respectively) individually or collectively, being:

(1)  the decision (“VIS Refusal Decision” or “Refusal”) made by the DPP, communicated by letter dated 5 June 2024, not to conduct with the Applicant a victim identification screening (“VIS”) for TIP;

(2)  the failure (“TIP Investigative Failure”) by the Secretary for Security and/or Commissioner promptly to conduct, and the continuous failure to conduct, with the Applicant a VIS for TIP since the conclusion of the cautioned video-recorded interview (“VIR”) held with the Applicant on 2 July 2018;

(3)  the failure (“BOR4 Investigative Failure”) promptly to investigate, and the continuous failure to investigate, if the Applicant is a victim of forced or compulsory labour within the meaning of paragraph (3) of Article 4 of the Hong Kong Bill of Rights (“BOR4”); and

(4)  the failure (“BOR4 Legislative Failure”) to, or decision not to, legislate a statutory and complete defence to any criminal charge, for any defendant who is or may be a victim of forced or compulsory labour within the meaning of BOR4 and has committed the offence with which he/she is charged in the course, as a result and/or a facet of such forced or compulsory labour.

3.On 10 September 2024, I granted leave on the papers, and gave directions to bring the matter to a substantive hearing.

4.In support of his application, the Applicant filed his affidavit dated 5 September 2024. In opposition to the application were filed: (1) the affirmation dated 30 May 2025 of Wong Tsz Hin Alvin, Assistant Secretary for Security (on behalf of the Secretary for Security); (2) the affirmation dated 30 May 2025 of Senior Inspector Tong Wai Kwok (“SIP Tong”) of the Hong Kong Police Force (“HKPF”) (on behalf of the Commissioner); and (3) the affidavit dated 2 June 2025 of Audrey Marie Parwani, Senior Public Prosecutor (on behalf of the DPP and SJ).

5.At the substantive hearing, the Applicant was represented by Mr Kay KW Chan, Mr Tasman Tam and Ms Dorothy Tang of Counsel, and the Respondents were represented by Mr Martin Ho and Mr Adrian Kwan of Counsel.

6.At the end of the hearing, I reserved my decision to be handed down later, in light of and with the benefit of the materials previously filed by the parties and the oral submissions made by Mr Chan and Mr Ho.

7.This is my Judgment.

B.  Background Facts

8.The Applicant, born on 28 September 1981, is a Colombian national brought up in Pereira, Colombia.

9.The former girlfriend of the Applicant at the material time (“JSA”), born on 1 February 1992, is also a Colombian national. They have a teenage son born out of wedlock.

10.At the material time, the Applicant had the following surviving family members in Colombia: his parents (the Applicant’s father passed away after the Applicant’s arrival in Hong Kong), and three older brothers. JSA’s family in Colombia comprised her parents and eight siblings.

11.Before early 2017, the Applicant worked as a gym instructor in Pereira earning a monthly salary of US$500-600. He then decided to venture into the business of importing and reselling gym equipment to gym owners in Bogota or Pereira, Colombia. He required capital of about Colombian Pesos 30 million (equivalent to about US$10,000) but was unable to secure a loan from the local banks due to insufficient credit record.

12.The Applicant therefore sought a private loan. He was introduced, at shopping mall, to a man named Mauricio Arango Ospina (“Ospina”). Ospina owned a video films and electronic equipment retail shop and represented himself to be a money lender.

13.They verbally agreed to an unsecured loan of Colombian Pesos 30 million to be repaid in 10 instalments of (in its USD equivalent) about US$1,250 each (US$1,000 in capital and US$250 in interest) over a period of 8 months (“Loan”). At the time of the agreement, Ospina asked for personal information in relation to the Applicant’s family: names, ID numbers, addresses and telephone numbers, as security, stating that without such information he would not be lending the Applicant any money. The Applicant provided the information accordingly.

14.About a week later, the Applicant and JSA collected the Loan sum in cash from Ospina.

15.The Applicant used a substantial part of the Loan to purchase gym equipment and sold it on credit to a gym owner in Colombia (“Purchaser”). After paying for 20% of the price, the Purchaser absconded and defaulted on the balance.

16.The Applicant therefore asked Ospina for more time to repay the Loan. Ospina agreed for him to pay only interest, but not capital, over several months.

17.On about 20 or 21 June 2018, Ospina arranged a meeting with the Applicant and JSA. Ospina allegedly produced a pistol across a table and pointed at the Applicant, demanding he and JSA transport drugs to Hong Kong as repayment of the Loan, failing which he would kill them and their families. He also said that, on completion of delivery, the Loan would be regarded as fully repaid and they would each be rewarded US$5,000. The Applicant later claimed he did not believe Ospina would actually pay them the reward.

18.It later came to the knowledge of the Applicant and JSA that Ospina was not only involved in drug trafficking but also the leader of a criminal gang.

19.According to the Applicant, he and JSA were then detained and monitored by several armed henchmen of Ospina at a hotel room. They were allowed to contact family members but only to say they were safe. They were given water and chicken soup but no other food.

20.About two days later, the Applicant and JSA were brought to a shopping mall to meet Ospina, who instructed them to pack up a small suitcase of belongings and take their travel documents with them. They were then sent back to their respective homes to gather their belongings and passports, while being closely monitored by Ospina’s henchmen.

21.The Applicant was also sent to a telephone shop to buy a new SIM card, which he was instructed to hand over, together with his phone, to Ospina later in the day when they were returned to meet with Ospina. Ospina entered several unknown numbers and contacts into the Applicant’s phone. The Applicant and JSA were then sent back to the hotel room.

22.About another 2 days later, on 24 or 25 June 2018, the Applicant was instructed to visit a travel agency nearby and look for a lady named Marta. Upon arrival, he was asked to hand over his and JSA’s passports for processing. The Applicant was escorted by a henchman of Ospina until he returned to the hotel room.

23.On the morning of 27 June 2018, the Applicant and JSA were brought to meet Ospina at a cafeteria. They were then taken to a nearby but different hotel. Ospina instructed his two henchmen, one male and one female (named La Gorda), to take them to a double room at the 2^nd floor. They were kept at each side of the double room separated by a curtain.

24.According to the Applicant, they were each threatened by the henchmen to swallow pellets of drugs and carry them to Hong Kong, otherwise they and their family members would be killed. They complied.

25.The Applicant and JSA struggled with swallowing the pellets. The Applicant recalled that Ospina threatened JSA, with a gun in his hand, that if she did not swallow them, he would kill her family and son.

26.In the end, the Applicant ingested 73 pellets, and JSA ingested 29 pellets. Ospina told the Applicant that their final destination would be Macau, and asked him to call “Tonuelas”, the person who would be receiving them, when they landed in Hong Kong. The Applicant recalled that Ospina again threatened to kill their family members if they did not obey his orders.

27.On 28 June 2018, the Applicant and JSA boarded a flight EK382 from Bogota, Colombia to Hong Kong via São Paulo, Brazil and Dubai, United Arab Emirates. All tickets were arranged and paid for by Ospina. They were given medicine to take to prevent them from discharging the drugs until they reached Macau.

C.  Arrest

28.On 30 June 2018, the HKPF conducted a joint operation with the Customs and Excise Department and the Immigration Department against drug trafficking by passengers arriving at the Hong Kong International Airport. At 1415 hours, Senior Inspector Ho gave a briefing on the joint operation to his team. In gist, intelligence suggested that a Colombian couple, namely the Applicant and JSA, would come to Hong Kong from Dubai by flight, bringing dangerous drugs into Hong Kong.

29.At about 1525 hours, the Applicant and JSA arrived at the Hong Kong International Airport from Colombia via São Paulo, Brazil and Dubai. At 1606 hours, they were intercepted by the Customs Officers at the transit counter E2, Arrival Level, 5^th Floor, Terminal 1 of the Hong Kong International Airport. The Customs Officers brought them to the immigration office for the arrival formalities and clearance. They were refused entry to Hong Kong by the Immigration Department.

30.At 1910 hours, upon personal search conducted by the Customs Officers, nothing illegal was found on the Applicant and JSA or in their luggage. However, suspecting that the Applicant and JSA had contraband internally concealed in their bodies, they were then taken to the North Lantau Hospital for X-ray examination. At 2025 hours, it was found that there were many pellets of suspicious foreign objects in the Applicant’s body cavity.

31.At 2026 hours, the Applicant was arrested for the offence of “Trafficking in a Dangerous Drug” and cautioned in English. According to the HKPF, under caution the Applicant replied saying “I understand”. He then admitted to concealing cocaine inside his body and claimed that there were about 40 items in there.

32.At 2150 hours, the Applicant arrived at Queen Elizabeth Hospital.

33.On the next day (i.e. 1 July 2018), the Applicant discharged 73 pellets, which were subsequently certified to be 1,230 grammes of a dry solid containing 740 grammes of cocaine. JSA discharged 29 pellets, which were certified to contain 493 grammes of a dry solid containing 342 grammes of cocaine.

34.The estimated street value of the drugs seized was $2,292,095.

35.On 2 July 2018, a cautioned VRI was held with the Applicant by the HKPF, assisted by a Spanish interpreter. The Applicant stated, amongst other things, the following:

(1)  He took a flight from Bogota, Colombia to Hong Kong via São Paulo, Brazil and Dubai, United Arab Emirates.

(2)  He suspected that the 73 pellets of yellow condoms contained cocaine.

(3)  He obtained the 73 Pellets from a man named Ospina in his country to whom he owed 30 million Colombian Pesos.

(4)  Since the outstanding amount owed to Ospina kept growing, Ospina told the Applicant that if he wanted to fully repay him, he should bring dangerous drugs for him. In addition, he would be paid a reward of 14 million Colombian Pesos (equivalent to US$5,000) for completing the drug delivery, although the Applicant also claimed that he did not believe he would be paid the reward.

(5)  Ospina told the Applicant that if the amount of the Debt increased, he would harm the Applicant and his family members, but no detail of the alleged threat was given by the Applicant.

(6)  Upon Ospina’s instructions, he swallowed the 73 Pellets on 27 June 2018 in a hotel room in a city in Colombia called Pereira, and he would go to Hong Kong then Macau for drug delivery.

(7)  JSA also swallowed the pellets of drugs because she wished to help him to complete the task for settling the Debt and she and her family were also threatened by Ospina, but no detail of the alleged threats was given.

(8)  Ospina had arranged flight tickets for him and JSA to go to Hong Kong and further ferry tickets to Macau.

(9)  When asked about Ospina, the Applicant only said that:

(a)  Ospina was Colombian;

(b)  he did not know the exact residential address of Ospina;

(c)  he had Ospina’s phone number;

(d)  Ospina told him to delete the records of WhatsApp conversations between them after each chat.

36.In a written recorded interview on 2 July 2018, JSA stated, amongst other things, the following:

(1)  The Applicant was her ex-boyfriend.

(2)  The Applicant was indebted to a Colombian male called Mauricio Arango Ospina, who instructed them to swallow drugs and transport them to Hong Kong.

(3)  The Applicant swallowed over 70 pellets of drugs whilst she had swallowed 29 pellets of drugs in a hotel in Colombia.

(4)  She confirmed she discharged 29 pellets, which she believed contained cocaine.

37.Both the Applicant and JSA admitted that, at the material time, they had knowingly possessed the drugs for the purpose of unlawful trafficking.

38.In the context of the arguments raised in this case, it is also fair specifically to note that during the VRI, the Applicant did suggest that if the debt owed to Ospina increased further or took longer to repay, Ospina might have retaliated or done something bad to him and his family, who were threatened. Similarly, JSA stated in terms that Ospina, to whom the Applicant owed money, forced them to swallow the capsules. On the other hand, it is also fair to note that numerous questions were put to the Applicant about what happened in the hotel and about the circumstances when the Applicant and JSA swallowed the pellets, which elicited little or no further detail of any alleged threats or duress, or information about Ospina.

D.  Prosecution

39.On 2 July 2018, the Applicant and JSA were charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134, namely jointly trafficking 1,082 grammes of cocaine. The HKPF continued with investigations, including obtaining the Government Chemist Certificate and medical reports.

40.On 31 October 2018, the Prosecutions Division (“PD”) advised the HKPF that there was sufficient evidence to charge the Applicant and JSA jointly for trafficking in a dangerous drug and so to proceed with the charge against the Applicant.

41.On 28 November 2018, the HKPF received the Applicant’s handwritten letter dated 21 November 2018 (“Handwritten Letter”) addressed to the Security Bureau (“SB”), which was referred to the HKPF for handling. In the Handwritten Letter, the Applicant expressed that he would assist the HKPF in “prosecuting an male who introducing as well as constructing a drug trafficking syndicate and is responsible to receive and deal in Hong Kong the drugs (cocaine) I brought provenance from Colombia” (sic).

42.On 31 January 2019, two officers of the HKPF visited the Applicant at Lai Chi Kok Reception Centre to serve the materials of the criminal case (i.e. committal bundle) on him, and apparently to ask him if the Applicant had any information to give in relation to the drug trafficking scheme. No Spanish interpreter was arranged. According to the HKPF, the Applicant could speak simple English and he did not mention the Handwritten Letter or provide any information assisting in the HKPF’s criminal investigation and prosecution of drug offences of other persons, as he claimed he would in the Handwritten Letter.

43.On 26 March 2019, two police officers visited the Applicant at Lai Chi Kok Reception Centre in relation to the letter. No Spanish interpreter was arranged. According to the HKPF, the Applicant could speak simple English and he did not request interpretation service. The Applicant was asked as to what drug-related information he knew and wished to provide. According to the HKPF, the Applicant replied that he had knowledge of the frequent air travel routes for drug couriers from South America but he could not provide the courier’s name or flight details. No statement was taken from the Applicant.

44.According to the Applicant, the first visit lasted 5 minutes, and the second visit lasted 14 minutes.

45.According to the HKPF, during the two visits, the Applicant did not mention any threats or duress from Ospina and did not make any request to conduct on him any VIS for TIP.

E.  Criminal Proceedings

46.On 10 March 2021, being the first day of trial in HCCC 301/2019, the then Counsel for the Applicant asked the Court to give a preliminary ruling on his intended defence of duress. It was on this occasion that the Applicant (through Counsel’s submissions) provided to the Court some information as to how he says he was threatened and forced to deliver the dangerous drug to Hong Kong.

47.Campbell-Moffat J gave a Preliminary Ruling, [2021] HKCFI 2515. In it, she acknowledged that she had not yet heard any actual evidence about the alleged threats. Her assessment was therefore based solely on the submissions, not on witness testimony or other proof. Nonetheless, as the defendants’ defence hinged on the claim that they were threatened by Ospina, she said she would therefore take the defence case at its highest (§7, §18). Campbell-Moffat J went on to explain the many indications that the defence of duress would fail (§§21-25).

48.On 16 March 2021, the Applicant and JSA pleaded guilty to the alternative count alleged against them.

49.On 9 April 2021, Campbell-Moffat J sentenced the Applicant to a term of imprisonment of 13 years and 1 month, [2021] HKCFI 968. She did so on the basis of the mitigation advanced, which included references to threats.

50.On 6 May 2021, the Applicant applied for leave to appeal against conviction, on the ground that his plea of guilty was null and void because he had been coerced into entering the guilty plea.

51.On 26 April 2022, the Applicant was granted an appeal legal aid certificate to address his sole ground of appeal due to the unusual circumstances in which he pleaded guilty to the count alleged against him. It was directed that he be assigned a new legal team in order to address the nature of the ruling sought by defence counsel, whether the ruling was appropriate and correct in the circumstances, and whether the ruling or anything else inappropriately or unfairly influenced the Applicant to abandon the defence of duress and to plead guilty to the offence he faced.

52.Mr Jeremy Cheung was assigned as counsel to represent the Applicant. He filed perfected grounds of appeal on 29 June 2022, which can be summarised as follows: (1) the Judge procedurally erred in giving an exposition on the legal ingredients of the defence of duress; and (2) the Judge’s exposition on duress caused the Applicant not to run this defence and to enter a plea of guilty.

53.During the leave hearing, Mr Cheung was asked if an assessment had been made concerning the nature and quality of the evidence to be adduced in support of the defence of duress and whether the Applicant had been appropriately advised on the consequences of a successful appeal. Mr Cheung was given time to consult the Applicant, after which he informed the court that the Applicant had instructed him to withdraw the application, adding that he had already served half his sentence. The Applicant confirmed his instructions in open court. The leave application to appeal against conviction was withdrawn, and the Applicant’s appeal was dismissed.

54.On whether the preliminary ruling by Campbell-Moffat J inadvertently put undue pressure on the Applicant to abandon the defence of duress, Zervos JA said – see [2022] HKCA 1750 – the Preliminary Ruling involved the Judge giving a formal ruling on the Applicant’s defence as opposed to having a discussion with Counsel as to issues of law and factual matters that normally takes place in the conduct of the trial (§37). He also said the Judge was right to respond to Counsel’s application on the Court’s directions on the defence of duress, but should have taken more care not to express a view by way of a formal ruling on the viability of the defence of duress in the present circumstances (§39).

55.On 2 December 2022, the Applicant applied for leave to appeal against sentence (out of time). According to Ms Parwani, the Applicant simply stated that he felt the sentence was “manifestly excessive” without elaboration. He did not mention any reason or circumstances which would suggest that he was a potential TIP victim.

56.On 13 November 2023, Mr Cheung wrote to the DPP requesting a Tier 1 VIS for TIP. On 29 November 2023, Ms Parwani wrote back to seek Mr Cheung’s clarification as to the purpose and relevance of the requested Tier 1 VIS for TIP at this stage.

57.On 30 November 2023, Mr Cheung and Ms Dorothy Tang, Counsel acting on behalf of the Applicant under the Bar Free Legal Service Scheme, filed the Perfected Grounds of Appeal against Sentence and written submissions in CACC 98/2021, in which three grounds were advanced: (1) the Judge failed to take into account duress as a mitigating factor in sentencing and give appropriate sentencing reductions accordingly; (2) the Judge erred in failing to consider that the Applicant was a victim of TIP; and (3) in all the circumstances, the sentence imposed was not fair, balanced and just. The second ground was obviously seeking expressly to raise the point that the Applicant was or may potentially have been a victim of human trafficking, recruited to commit the crime by means of the threat or use of force or other forms of coercion. Indeed, specific reference was made in the Perfected Grounds of Appeal that the TIP issue had never been raised by any party nor had an application for permanent stay of the criminal proceedings been made, and that up to that date no human trafficking screening had been performed.

58.On 5 June 2024, in response to the followed-up request for TIP screening, Ms Parwani sent the VIS Refusal Decision. In the letter, it was stated (italics in original):

Regarding the Applicant’s requests for TIP screening, we are given to understand that he wishes screening to be conducted in the hopes that this will aid in his application for leave [to appeal] against sentence out of time, following his withdrawal of application for leave to appeal against conviction.

It remains our view, as set out in the Respondent’s submissions that screening at this stage, raised only 5 years after the Applicant’s arrest and post-conviction serves no practical purpose, bearing in mind that the objective of TIP screening is to identify potential TIP victims so as to provide them with timely protection and support as set out [in] the Action Plan to Tackle Trafficking in Persons and to Enhance Protection of Foreign Domestic Helpers in Hong Kong. Further, the trial judge had already taken into account the claimed threats and circumstances faced by the Applicant in sentencing, which resulted in a discount on the Applicant’s sentence.

59.It might be thought that the letter specifically identified both (1) the importance of the timing when raising such factual assertions, and (2) the potential disconnect between screening for TIP and the ability nevertheless to raise the same underlying factual assertions in criminal proceedings or when facing possible criminal charges.

60.On 6 June 2024, the Applicant’s Application for Leave to Appeal against Sentence was heard before Zervos JA. On 7 June 2024, the Court of Appeal (“CA”) handed down judgment [2024] HKCA 526, dismissing the application. As regards the second ground of appeal advanced (see above), it was noted that a request for assessment as a victim of human trafficking was now raised over five years after the commission of the offence. Reference was made to the defence case on threats by Ospina (§§16, 17, and 18). Zervos JA acknowledged that Campbell-Moffat J, in coming to the sentence, accepted that threats had been made to the Applicant, and took that into account in mitigation (§§19, 29, 33, 42). As with the other grounds of appeal, this ground was held to be not reasonably arguable.

F.  Judicial Review: Grounds of Review

61.As set out in the Form 86 and Mr Chan’s skeleton submissions, two grounds of review were raised and pursued by the Applicant, as follows:

(1)  Ground 1: TIP investigative failure and refusal, and BOR4 Investigative Failure; and

(2)  Ground 2: absence of practical and effective protection against forced labour and absence of fair trial.

G.  Relevant Legal Context and Framework

G.1  Previous Cases

62.Before dealing with the Grounds, it is helpful to set out the legal basis and framework for preventing and protecting against TIP and BOR4 violations, as adopted by the HKSAR Government. These have been canvassed at some length in previous decisions to which reference can be made: see CB v Commissioner of Police [2024] HKCA 172 §§6-14 (“CB(CA)”) and [2022] HKCFI 1046 §§17-23 (“CB(CFI)”), and N and M v Secretary for Security [2024] HKCFI 1983, §§14-24 (“N&M”).

63.A further review can be set out briefly below.

G.2  Trafficking in Persons (TIP)

64.In 2010, the People’s Republic of China acceded to the international Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (“Palermo Protocol”). But, having consulted the Government, a declaration was made that the Palermo Protocol shall not apply to the HKSAR unless otherwise notified by the Central People’s Government. However, notwithstanding the absence of specific laws in Hong Kong prohibiting human trafficking, the Government had nonetheless adopted a framework modelled upon and built around the Palermo Protocol. The basis for claiming protection against TIP has to rely on that policy.

65.The framework adopted by the Government is in summary that:

(1)  An inter-departmental joint investigation team was set up in 1998 that enabled intelligence exchange and joint investigation or law enforcement action to combat human trafficking activities. An inter-departmental working group was set up in 2010, led by the SB, to enhance the policy and enforcement strategy against human trafficking and forced labour. Since 2015, a human trafficking VIS mechanism was introduced;

(2)  In 2016, the Government issued a set of guidelines called “Guideline on Inter-departmental Cooperation for the Handling of Suspected Cases of Trafficking in Persons”. In March 2018, a high-level inter-bureau/departmental Steering Committee to Tackle Trafficking in Persons and to Enhance Protection of Foreign Domestic Helpers in Hong Kong (“Steering Committee”), chaired by the Chief Secretary for Administration, was established to provide strategic and policy guidance within the Government;

(3)  At the operations level, there is an inter-departmental JIT, comprising of Customs and Excise Department, the Department of Justice (“DoJ”), the Immigration Department, the Labour Department and the HKPF, set up to enable cooperation in day to day operations; and

(4)  At the same time, the Government adopted and published the Action Plan. In March 2019, the Guideline, being a revised version of the guideline referred to above, was issued.

66.As stated in the Guideline, departments which may encounter potential TIP victims should put in place a suitable mechanism best suiting their enforcement circumstances. The mechanism should identify the scope of potential victims, a list of standard questions/parameters for identifying such victims, the follow-up actions to be taken once a victim is identified, and provide for guideline on referral of cases to other departments if necessary. There is a questionnaire adopted by the Commissioner for VIS annexed to the Guideline.

67.The VIS mechanism as outlined in the questionnaire consists of two parts. The first part (Tier 1) is an initial screening. Only when there is one or more “Yes” answer(s) to the seven questions in the initial screening should the process proceed to the second part: a full debriefing (Tier 2), to be completed by way of an interview with the suspected victim. The questions are designed to find out the existence of the three elements of TIP (act, means and purpose) as defined by the Palermo Protocol.

68.Following positive identification, the officer is asked to ascertain the types of assistance which the victim needs, presumably applicable if the officer is satisfied after the full debriefing that the interviewee is a TIP victim. The purpose of the screening process is to identify the presence or absence of the relevant credible suspicion.

69.When a human trafficking case is identified by any department, the case is to be transferred the OCTB of the HKPF for coordination and follow-up. Where there is credible suspicion that an arrested person is a human trafficking victim, that case must be approached with care. Departments are to bring these cases to the attention of the DoJ which will then decide the appropriate prosecutorial response.

70.For the purpose of this specific case, I think it can be noted that one recognized common TIP scenario is where any vulnerable person or illegal worker has been forced to traffic in dangerous drugs (though it is probably unhelpful to be drawn into the potentially circular question as to whether a drug trafficker is a vulnerable person or illegal worker, or whether it is his vulnerability which has caused him to traffic). Whether any particular case falls into the recognized common scenario must be considered on the appropriate circumstances of the particular case viewed in the round, where the indicators and questions serve as a guide to the evaluation process. Indeed, the objective of the full debriefing (Tier 2) screening is to expand the assessment in order to establish whether the vulnerable person is a genuine TIP victim.

G.3  Forced or Compulsory Labour

71.Protection from forced labour (“FL”) is specifically provided for by law under BOR4. “Forced or compulsory labour” within paragraph 3 or BOR4 has the same meaning as defined in Article 2(1) of the Forced Labour Convention 1930:

… the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.

72.The components are, therefore, first, work or service; secondly, the menace of a penalty; and thirdly, involuntariness on the part of the victim. There must also be a causal connection, a nexus between the work and the menace.

73.There is no separate VIS mechanism devised for forced or compulsory labour. The Government deploys the same framework for combating TIP, to tackle forced or compulsory labour.

G.4  Prosecutorial Policy in Cases of TIP and FL

74.It has been held that one purpose of VIS is to consider whether a potential suspect in a crime is in fact a TIP (or forced or compulsory labour) victim and then, contingently, whether it is appropriate to prosecute or grant immunity: see DM v Commissioner of Customs & Excise [2022] HKCFI 3476 §49.

75.Section 18 of the Prosecution Code, published by the DoJ, governs cases involving human exploitation. Paragraph 18.2 reads:

Human exploitation includes activities that demean the value of human life such as sexual exploitation, enforced 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.

H.  Ground 1: Investigative Failure and Refusal

76.The gist of the submissions relied upon by Mr Chan under Ground 1 is directed at the continuous lack of VIS conducted since the Applicant’s arrest by the Police, and the ultimate refusal to conduct a post-conviction VIS by the Prosecution on 5 June 2024 (i.e. the VIS Refusal Decision). He contended that the HKSAR Government has committed a twin breach of legitimate procedural expectation arising from its published TIP/FL policy and of its substantive investigative duty under BOR4.

77.Mr Chan submitted that the Applicant’s primary position is that, since the time of the Applicant’s VRI and also the cautioned interview of JSA, the Applicant had met the first threshold to trigger a VIS, namely an encounter (i.e. arrest) with a vulnerable person (a body packer forced to perform illegal work of drug transporting and delivering). The claim of the HKPF and Prosecution that a VIS is needed only when there is credible suspicion of the Applicant being a TIP victim is wrong, because that is the second threshold (if met after a VIS) for referring the case to the OCTB for coordination and the DoJ for advice on immunity: TIP Guideline §4.14).

78.Mr Chan further criticised the fallback argument of the Respondents that, since there was no credible suspicion of the Applicant being a TIP/FL victim, QBD would still have been prosecuted and convicted regardless of whether a VIS or an investigation into victimhood had been conducted, which is a “counterfactual” question tied closely with:

(1)  The broader question of whether the HKPF had committed further investigative failure on TIP/FL victimhood: TIP Guideline §4.8. It will be wrong to allow the HKSAR Government to benefit from their own failings; and

(2)  Whether the HKSAR Government has discharged its investigate duty under BOR4: CB(CFI) at §158, CB(CA) at §79 and VCL v The United Kingdom (ECHR No. 77587/12, 5 July 2021) at §160.

79.In support of the main plank of his contention that the crux is still one of whether the Respondents know, or ought to have known, circumstances that would give rise to credible suspicion that the Applicant was a TIP/FL victim, Mr Chan provided the following reasons.

80.First, had the VIS questions been posed to the Applicant (which are likely to be returned with two positive indicators under initial screening at Tier 1), the HKPF should have been able to obtain sufficient details or evidence in full debriefing, similar to those presented in the Applicant’s mitigation or in his affirmation. Police officers are required to be very alert to victims’ reluctance to speak out or assist police investigation under fear (see TIP Aide Memoire §26). By claiming that the Applicant would not have revealed anything more in a VIS is no different than allowing the Respondents to take the benefit of their own failure. The Applicant’s and JSA’s TIP/FL claims are, on the face of them, believable, as reflected in the Campbell-Moffat J’s Reasons for Sentence.

81.Secondly, despite having offered to co-operate with the HKPF or SB in the VRI and his letter, the Applicant was not invited (nor was JSA) to give any further cautioned or non-prejudicial statement and was also not invited to take part in any controlled delivery.

82.Thirdly, the Respondents relied on the two police visits made to the Applicant on 31 January 2019 and 26 March 2019 to claim that the Applicant failed to give any constructive information, and that they had conducted a thorough investigation in discharge of their duty, which are problematic (including but not limited to the absence of arrangement of Spanish interpretation service and the blind trust in internal record and/or investigation reports) and could not be supported by the evidence filed by the parties in the judicial review proceedings. Mr Chan provided submissions at some length, but I do not think it is necessary to repeat them in full. In gist, he contended that there is every reason to believe the Applicant’s version, and that the HKPF ended the investigation prematurely.

83.Fourthly, the assessment was supposed to be made by taking into account all information provided by the Applicant (and JSA) thus far, and therefore it is completely unknown whether DSIP Wong (who, with another police officer, made the visit to the Applicant on 26 March 2019) had considered the cautioned statements before his assessment.

84.Fifthly, regarding the rest of the reasons provided by SIP Tong, they give rise to suspicions of retrospective rationalisation, wrong and without proper bases for the following reasons:

(1)  As regards the assertion that the Applicant did not show any proof of Ospina’s power to harm the Applicant’s and JSA’s family, the Immigration Department was able to obtain on 28 December 2020 (i.e. 3 months before trial) the official criminal records of Ospina (showing gang leadership and being suspected of extortion, threats and coercing people to transport drugs internationally).

(2)  Regarding the assertion that the Applicant did not show that he and his family were in danger at the hands of Ospina, the HKPF were judging from a “beyond reasonable doubt” standard, rather than from a “credible suspicion” standard.

(3)  Possible settlement of outstanding debts and additional monetary rewards and additional monetary rewards are points in favour of the Applicant.

(4)  Given the standing of Ospina in Colombia, the fact that the Applicant (and JSA) did not seek assistance to protect themselves and their family members, which was unrealistic to obtain (especially after their departure from their home country), is unimportant.

85.Sixthly, none of the police officers and prosecutors handling the case were trained in TIP/FL matters.

86.With respect, I do not agree with Mr Chan’s analysis, which was made out of proper context.

87.On the contrary, I accept Mr Ho’s submission that there is a Threshold Question, namely, whether the information disclosed in the VRI (even if read together with the Cautioned Interview of JSA) was so scant that it reasonably could not have created any credible suspicion of TIP/FL, which is to be decided within the confines of the criminal investigative or prosecuting process.

88.Further, as correctly pointed out by Mr Ho, even a ruling favourable to the Applicant in the judicial review proceedings would not be admissible in a fresh appeal against conviction. Yet the exercise of the Court exercising its judicial review jurisdiction scrutinising whether the Threshold Question has been passed would necessarily call into question the safety of the criminal conviction (and hence bring the administration of justice into disrepute): see LN v The Commissioner of Police [2025] HKCFI 3604 (“LN”) at §§128 and 140.

89.I accept Mr Ho’s submission that Ground 1 does not operate if the declarations now sought by the Applicant are a collateral attack on the criminal proceedings, and that this ground must fail in consideration of the proper context of the present case, as pinpointed and relied upon by Mr Ho, for the following reasons.

90.First, the duty to perform a screening generally arises where there is or ought to be an awareness of a credible suspicion of TIP and/or FL: see LN at §§73(6) and 106. That will depend on the input of materials provided by the Applicant himself: see LN at §136. The following context is important:

(1)  A purported victim of TIP/FL was himself the apparent perpetrator of a crime and came to the investigating authorities in that context: see LN at §77.

(2)  Nearly every one of the Applicant’s assertions of victimhood are based on facts which, if true, were kept secret from the authorities for years. The responsibility of the Government is to approach this case with realism and suspicion, and there is nothing inherently wrong if it considers that this has hampered the credibility of the Applicant’s allegations: see LN at §§123 and 126.

91.In passing, I acknowledge the proper concern that explanations offered in the context of proceedings such as these may be susceptible to ex post facto embellishment or rationalisation, or might give rise to some tension between what might or might not have been concluded on a Tier 1 VIS at the time (had one been performed), and what might or might now be thought by reference to the materials when a Tier 1 VIS was not in fact performed.

92.Secondly, however, there is room for reasonably thinking that there was no credible suspicion. The Applicant’s only references to threats in the VRI are passing mentions of a person (which he later identified as Ospina and/or his associates) that threatened to retaliate against the Applicant, JSA, and his family the longer he took to repay his debts to Ospina (though I have also pointed to the perhaps clearer expression of threat given by JSA). The Applicant gave no information detail about what those threats were.

93.All that the Applicant could say about Ospina was as follows: he was unable to provide Ospina’s home address to the HKPF (despite claiming to be in possession of such information) and simply explained that it was a ‘closed’ residential area with twenty flats or houses and a security post; while the Applicant claimed he had Ospina’s phone number on WhatsApp (saved as a contact named “Pipo”), there were no messages apart from a greeting because Ospina told him to delete the messages every time they spoke; and when asked, the Applicant stated that he had no further information about Ospina.

94.There was nothing to suggest that the Applicant felt any apprehension about disclosing information to the investigating authorities. Indeed, the Applicant offered his apology to the HKSAR Government and stated on several occasions that he would “collaborate” with the HKPF.

95.At the completion of criminal investigations, the reasons for the HKPF to come to the view that there was no credible suspicion of the Applicant being a victim of TIP/FL which might trigger a VIS were that:

(1)  There was no real indication during the entire investigation by the HKPF, let alone credible suspicion, of TIP/FL.

(2)  The Applicant accepted there was an actual monetary incentive for him to traffic drugs, namely, to settle his outstanding debts as well as benefit from what was at least a ‘theoretical’ possibility of earning extra cash once he delivered the drugs.

(3)  The Applicant’s phone records retrieved by the HKPF showed no sign of any threat or duress at all: only one message on the Applicant’s phone was marked as “Deleted by Sender”; and the only message between the Applicant and Ospina was a text where the Applicant said, “What’s up, partner”, which the Applicant described during his VRI as a greeting. There were at least several messages where drug trafficking was discussed, sometimes, even explicitly, when the Applicant passed through customs.

(4)  The Applicant did not seek assistance when he was transiting through São Paulo or Dubai. His demeanour did not suggest that he was under threat or fear.

96.Thirdly, a significant part of the Applicant’s story relayed in his first affidavit (“QBD 1”) in challenging, amongst other things, the failure to conduct a VIS at the conclusion of the VRI, was never brought up by the Applicant. What is crucially missing from the VRI – despite several opportunities afforded to have given more information – are the extremely elaborate “death threats” that the Applicant (and JSA) apparently faced from Ospina and his henchmen, of which some mention would be expected at the first opportunity. Neither the Applicant nor JSA referred to them: §§24, 26, 27, 36, 38 and 42 of QBD 1. The gist of those assertions was only submitted verbally to the Court for the first time in the mitigation during the criminal trial, and was only provided to the Respondents in writing by the filing of the Form 86 and QBD 1, at which time the Applicant sought to introduce more details.

97.In the Preliminary Ruling on the law of duress delivered shortly after the criminal trial began, though the trial Judge was not strictly addressing the Threshold Question, the trial Judge rightly appreciated that the mere hints or suggestions of “threats” in the VRI and JSA’s Cautioned Interview could not possibly give rise to a defence of duress, which makes it unmeritorious for the Applicant to complain that the Prosecution was “blind” to the Applicant’s VRI. Also, in the Reasons for Judgment dated 6 December 2022, Zervos JA concluded that it was obvious that the Applicant did not make it known to the trial Judge the evidence that he was to rely on in advancing a defence of duress (at §30), and pointed out that none of the messages retrieved from the Applicant’s mobile phone were threatening and the photographs were inconsistent with a couple terrified by death threats being forced to be reluctant couriers to traffic in drugs (§34). Hence, it is not clear what the Applicant seeks to achieve in this judicial review application by raising further criticisms of the Preliminary Ruling.

98.Fourthly, the Applicant did not claim to be a victim of TIP/FL in his application for leave to appeal against conviction, which was withdrawn shortly after the Court enquired with the Applicant’s then Counsel whether there had been an assessment on the nature and quality of the evidence to be adduced in support of the defence of duress.

99.Fifthly, prior to the VIS Request on 14 November 2023, the Applicant never claimed to be a victim of TIP. In the Applicant’s Perfected Grounds of Appeal against Sentence filed on 30 November 2023, it contended, inter alia, that the trial Judge had failed to consider that he was a TIP victim in the sentencing decision.

100.The Applicant’s application for leave to appeal against sentence was dismissed by Zervos JA on 7 June 2024. As Zervos JA recognised in his Judgment (at §§40-42, in finding the TIP-based ground of appeal inarguable), the purpose of the regime in Hong Kong for the identification of TIPs is for the involvement of the victim in the investigation of the case and the provision of timely protection and assistance. Therefore, if the Applicant was not appealing against his conviction, or inviting the Government to re-open its investigations on the Threshold Question, or asking for specific protective measures or assistance, the VIS Request would serve no practical purpose.

101.In any event, for the above reasons, Ground 1 falls to be rejected.

I.  Ground 2: Lack of Practical and Effective Protection

102.The main plank of Mr Chan’s submission on Ground 2 is that the Applicant intends to go a step further than in LN and DM v Commissioner of Customs & Excise and Another [2023] 1 HKLRD 233 and to invite the Court to revisit the door the Court of Final Appeal (“CFA”) left ajar in ZN (2020) 23 HKCFAR 15 (“ZN(CFA)”) – that is, whether the measures adopted by the HKSAR Government do or do not afford practical and effective protection of BOR4 rights. He further submitted that the failure to afford practical and effective protection for FL victims is causally linked with the absence of a bespoke statutory defence, and that a statutory FL defence is the only effective remedy.

103.The reasons relied upon by Mr Chan to assert that there are consequential breaches committed by the HKSAR Government on the Applicant are in summary that:

(1)  The HKSAR Government’s investigative failures, in breach of the Applicant’s rights under BOR4, had brought about a chain of further violations of his human rights. Before making a prosecutorial decision, the DoJ was either blind to or chose to ignore at least parts of the Applicant’s VRI. As to the Applicant’s letter to the SB and the result of the two visits by the HKPF, the DoJ had fully adopted, without question, the “investigation” and assessment by SIP Tong and DSIP Wong, which are wrong. The DoJ’s assessment and the Refusal were tainted as they failed to take into account the relevant circumstances which give rise to a credible TIP/FL suspicion.

(2)  The investigative failures directly resulted in the public law breaches of (a) the failure to consider whether to make a decision to not prosecute and (b) in breach of §4.14 of the TIP Guideline and §18.2 of the Prosecution Code, the failure to make a proper and timely assessment as to whether prosecution immunity should be granted. Any decision on whether or not to prosecute a potential victim of trafficking should, insofar as possible, only be taken once a trafficking assessment has been made by a qualified person.

(3)  Any subsequent prosecutorial decision would have to take that assessment into account: see VCL at §§161-162. The only time the PD had considered whether to prosecute the Applicant and JSA, was on about 9 October 2018 when the HKPF referred the case to them for legal advice on the drug charge. The HKPF had not referred, brought to the attention or sought specific advice from the PD on the TIP/FL issues, therefore the question of exercising discretion to not prosecute never came up.

(4)  There was no subsequent review of the prosecutorial decision after the two visits on 31 January 2019 and 26 March 2019 by the HKPF. The DoJ fettered its discretion, which constitutes a further breach of BOR4 and also the Applicant’s right to a fair trial under Article 10 of the BOR. The HKPF and DoJ failed at the stage 1 of the “three-stage” approach in R v ADD [2022] 1 WLR at §18.

(5)  The facts of the present case show squarely the divorce between FL investigation and criminal investigation, because the TIP/FL matters are, in the eyes of the HKPF and DoJ, per se irrelevant to the constituent elements of the charge of trafficking in dangerous drugs, and wrongly understood to be irrelevant to the decision to prosecute or not.

104.As regards the alleged unavailability of the common law defence of duress by threats or circumstances, the gist of the argument advanced by Mr Chan is that, even if the Applicant had raised such kinds of defence at trial, they were bound to fail, and the trial Judge would not even leave them to the jury for deliberation. They are not realistically available defences.

105.Mr Chan submitted that, cumulatively, in view of the detected failures (including the suggested investigative failures, fettering of prosecutorial discretion, and consequential deprivation of the Applicant’s right to a fair trial), the only effective solution, or the remedy that must be adopted in the present case, is legislation of a statutory FL defence. He provided a number of reasons in support of his submission, which I have taken into consideration, but it is not necessary to rehearse them for the present purpose.

106.Although Ground 2 is framed as a challenge to the “systemic failure” (in Mr Chan’s words), there is some degree of overlap between Grounds 1 and 2 in terms of logic and underlying rationale.

107.I accept Mr Ho’s submission that Ground 2 is without merit in light of the pronouncements by the CFA in ZN(CFA) and CB v Commissioner of Police (“CB(CFA)”) for the following reasons.

108.First, there is no absolute and freestanding duty, under BOR4, on the part of the Government to legislate against forced labour. It is for the Government to decide, as a matter of policy, whether to legislate against forced labour: see ZN(CFA) at §§122(1)-122(2).

109.Secondly, any duty to enact specific legislation can only be based on the Court’s finding that the existing regime, short of bespoke legislation, cannot provide practical and effective protection of BOR4 rights: see ZN(CFA) at §93.

110.Thirdly, in circumstances where a breach of BOR4 is found (CB, in respect of certain investigative failures), the true question is whether, in addressing those breaches, nothing short of legislation would suffice. It is within the Government’s wide margin of discretion to decide on the appropriate measures to address the deficiencies as found/established. There is no proper basis for the Court to intervene and mandate the Government specifically to legislate against forced labour, when there are other options reasonably open to the Government to address the failures as found: see CB(CFA) at §§40-52; ZN(CA) at §158.

111.Fourthly, in the present case, it obviously cannot be shown that nothing less than a “statutory and complete defence” for all criminal offences advocated by the Applicant is the only effective solution to the alleged problem. In relation to the Applicant’s criminal proceedings, the underlying facts of the TIP/FL claim were deployed in the mitigation. In other cases, the option of staying criminal proceedings or raising a defence of duress might be available.

112.Fifthly, there was, and remains, no sizeable pool of cases to justify the conclusion that there was any systemic failure by reason of a lack of bespoke legislation, or that the failures as asserted are widespread phenomenon rather than an aberration: see CB(CA) at §140.

113.Ground 2 also fails.

J.  Issues Estoppel, Abuse of Process, and Futility

114.It is, of course, unsurprising that the topics of issue estoppel, abuse of process, and utility/futility also formed part of the battleground between the Applicant and the Respondents. Though I am dealing with these points after considering the grounds of review advanced, they might have been dealt with earlier in this Judgment (and have to some extent been touched on), and they really are determinative on their own.

115.As regards the alleged abuse of process and collateral attack on conviction, Mr Chan submitted that the starting point must be that there could be situations where a person’s TIP story or situation could be believed without casting doubt on the factual finding of the criminal courts and thus not engaging the abuse of process doctrine, as recognised in LN at §124 – though this seems to me at once to trigger a question of utility/futility. But Mr Chan submitted that the Applicant’s situation will warrant a case-specific analysis, as foreshadowed in LN at §118.

116.Mr Chan further submitted that, in contrast with the DM and LN cases, the TIP/FL story of the Applicant was neither put before the jury nor adjudicated by the criminal court in HCCC 301/2019, and therefore the acceptance of his TIP/FL story by the Court exercising its judicial review jurisdiction would not cast doubt on the factual basis of his conviction.

117.Mr Chan emphasised the following points:

(1)  The crucial question is whether the Applicant’s TIP/FL story could with reasonable diligence and should in all the circumstances have been raised in the criminal proceedings (either by way of defence case or a permanent stay application at trial, or on appeal to the CA on the basis of abusive prosecution) so that it would still be caught by issue estoppel – see LN at §89(3) – which, for a number of reasons, is a question that cannot be answered in the vacuum.

(2)  Whether apparently conflicting judgments would bring the administration of justice into disrepute, and render this judicial review an abuse of process, is a case-specific question.

(3)  Another case-specific question is whether the Applicant should be permitted collaterally to attack his conviction outside the criminal proceedings, or only to do so by criminal appeal: see LN at §§95, 98, 130.

(4)  Collateral attack on anterior criminal conviction is permitted: see Walpole v Partridge & Wilson [1994] QB 106 – though I note here that that case was one involving previous lawyers’ negligence in failing to advise.

(5)  In the present case, a trial Judge’s error of law compelling the Applicant to give up his TIP/FL story in the criminal proceedings, must also justify a collateral attack on the conviction in this judicial review. The criminal court’s role vis-à-vis an abuse challenge to prosecution decision against a TIP/FL victim is one of review and akin to that upon judicial review: see R v ADD at §§112-114.

118.Regarding the issues of utility and futility, Mr Chan submitted that the Respondents are lumping together multiple investigation failures with the question of remedy, and that the continuous failures to conduct a VIS for TIP and to investigate FL under BOR4, are public law breaches distinct from the breach committed by the Refusal, for the following reasons.

119.First, the correct threshold triggering a VIS is when law enforcement authorities (“LEAs”) encounter or arrest a vulnerable person: see TIP Guideline §4.5 and Annex G flowchart; TIP Aide Memoires Annex E1. The issue here is what is credible suspicion. The correct approach, on a correct interpretation of the published TIP policy, is that VIS should be deployed whenever an assertion or information that may ultimately give rise to a suspected TIP situation has surfaced at the initial encounter. The LEAs must, Mr Chan said, start initial screening once they encounter a vulnerable person.

120.Secondly, the Refusal cannot retrospectively justify the dual investigative failures. The utility of relief prayers 3 and 6 are obviously to lay foundation for Ground 2 and widen the pool of cases justifying any present or future finding of systemic failure.

121.Thirdly, as to the wrongful Refusal, utility of this judicial review and appropriate remedy, the Applicant admitted that one of the intended purposes of obtaining a mandatory VIS from the HKPF is for challenging the conviction, which is not abusive. Relief prayers 4 and 5 for a mandatory screening essentially invite the HKSAR Government to re-open its investigations on the credible suspicion threshold question.

122.Fourthly, Mr Chan submitted that the special facts of this case include that the Applicant has to appeal against his conviction to the CFA, very likely on the substantial and grave injustice limb, which cannot be an appeal on routine grounds. The real question is therefore not necessity, but relevance and utility.

123.With respect, after careful deliberation, I reject Mr Chan’s submissions. Indeed, I agree with Mr Ho that the Applicant’s contentions must be rejected for the following reasons:

(1)  The following principles (as summarised in DM at §§71-72 and applied in LN §§86-96) are relevant:

(a)  Except in special circumstances where injustice would be caused, issue estoppel bars the raising in subsequent proceedings of points which were not raised in the earlier proceedings or 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: see DM at §72(3) and Arnold v National Westminster Bank [1991] 2 AC 93, at 109A-C.

(b)  The possibility of apparently conflicting judgments would bring the administration of justice into disrepute by sowing confusion amongst the public. This rationale arises even where a guilty plea is entered and there is no judicial input per se: see Arthur JS Hall & Co v Simons [2002] 1 AC 615, at 687D-H and 705F-G.

(c)  As affirmed by the English Court of Appeal in Allsop v Banner Jones Ltd [2022] Ch 55 at §44(iv)(a), there is a public interest in criminal convictions only being challenged by way of appeal, and for them not otherwise to be called into question whether on a plea of guilty or a finding of guilty after a trial. The resulting conflict of judgments is the reason why the administration of justice is brought into disrepute: see also LN at §§95, 99-100 and 141.

(2)  The disputes about the Threshold Question can and should have been raised in the criminal proceedings from the outset. The facts as relied upon the Applicant now are broadly the same as those raised in mitigation before the trial Judge and which the Applicant must have known of all long. All the reasons mounted directly or indirectly to attack the safety of the Applicant’s criminal conviction in these proceedings could have been heard by the criminal court on appeal, and that includes the rigid fettering of prosecutorial discretion in failing to identify a defendant as a victim of TIP, such that the prosecution of him amounts to an abuse of process. Issue estoppel creates an absolute bar against the Applicant from setting up the Threshold Question again.

(3)  The abuse of process is greater where it can be shown that the present challenge had no utility apart from mounting a collateral challenge against the Applicant’s criminal conviction because:

(a)  The Applicant’s contention that he was deprived of material evidence in support of his TIP/FL claim is without merit. There is no other investigate efforts or evidence the Government could possibly pursue or obtain. The alleged event of trafficking took place over seven years ago in Colombia, and Ospina, the purported trafficker, has been dead for more than five years.

(b)  The Applicant was never prevented from securing evidence which might have constituted an aspect of his defence of duress.

(c)  A VIS for TIP/FL by the Government is certainly not necessary to the CA’s own assessment of TIP in a fresh appeal against conviction.

(d)  A ruling (i.e. opinion) of this Court would not aid the Applicant in any prospective challenge of his conviction in the CA or CFA. Any such opinion might undermine the safety of criminal conviction, which underscores the abuse.

K.  Result

124.On the law and principles applicable, the two grounds as put forward by the Applicant are rejected on the substantive application for judicial review.

125.Overall, I do not accept Mr Chan’s overarching submission that this case involves “truly exceptional circumstances” (his phrase), and I do not think the avowed intention to obtain a VIS now so as to take the Applicant’s criminal conviction to a final appeal changes the analysis on the grounds advanced or on the question of abuse – in fact, to the contrary.

126.As to costs, it seems to me that the costs should follow the event and the Respondents’ costs should be payable by the Applicant, to be taxed if not agreed, with certificate for two Counsel (which, in the exercise of my discretion, seems to be appropriate to the circumstances of the case). I also direct that the Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Kay KW Chan, Mr Tasman Tam, and Ms Dorothy Tang, instructed by Daly & Associates, for the applicant

Mr Martin Ho and Mr Adrian Kwan, instructed by the Department of Justice, for the respondents