LN v Commissioner of Police [2025] 6 HKC 139, [2025] HKCFI 3604 (Albert NB Wong)
Albert NB Wong represented the applicant in LN v Commissioner of Police [2025] 6 HKC 139, [2025] HKCFI 3604.
The applicant was arrested at the Hong Kong International Airport in possession of 1.4145 kg of cocaine. Under caution, she said that she was offered a reward to carry some things to Hong Kong; however, she had no knowledge of the things in the suitcase being dangerous drugs. She was convicted after a trial before a judge of the Court of First Instance sitting with a jury. Her application for leave to appeal against conviction was refused by a single Justice of Appeal. At no time from her arrest until the refusal of her application for leave to appeal did the applicant raise any claim that she was a victim of trafficking in persons (TIP), nor raise any defence of duress. However, after a renewed application for leave to appeal was made, the applicant requested the Commissioner of Police to screen and to identify her as a TIP victim. Her case that she was a TIP victim was essentially the same as her case in the criminal trial. After screening interviews, the Commissioner informed the applicant that she was not so classified. The applicant sought leave to apply for judicial review to challenge the Commissioner’s decision refusing to classify her as a TIP victim. The Commissioner filed an initial response pursuant to the direction of the Court of First Instance. It transpired that the Commissioner’s decision was based on a view that the applicant’s application amounted to an abuse of process in the sense that it was a collateral attack on the jury’s verdict. The Court granted leave on papers, and ordered a rolled-up hearing. The applicant advanced, inter alia, the following grounds for judicial review. Firstly, it was contended that the Commissioner had failed to provide adequate reasons for his decision. Secondly, it was contended that the Commissioner’s operational practice was fundamentally unjust as (i) it was a policy which relied on the opinion of persons not trained as to the law on estoppel in the criminal process, and who should not be standing in an adversarial or interrogative situation, which (ii) depended on a positive claim to victimhood to result in a dismissal of that claim, so that (iii) the design of the policy was to negate the need for an investigation even if the claim was true. In other words, the applicant contended that the operational practice led to the consequence that it was impossible for persons in her situation to make a TIP claim or have it fairly considered.
Held, granting leave for judicial review on the grounds in relation to inadequate reasons and the operational practice, and dismissing the judicial review, that:
(1) The starting point was that the concepts of res judicata or issue estoppel must also apply in judicial review proceedings. The concepts were based upon a principle of fundamental importance, and there was no distinction between public and private law. Whilst it may remain possible on an appeal to argue that the prosecution of the person convicted was an abuse of process because that person was a TIP victim, there was a public interest in criminal convictions only being challenged by way of appeal, and for them not otherwise to be called into question. There might be a broad, merits-based judgment which took into account of the public and private interests involved, it being preferable to ask whether in all circumstances a party’s conduct was an abuse than to ask whether the conduct was an abuse and then, if it was, to ask whether the abuse was excused or justified. R (DN (Rwanda)) v Secretary of State for the Home Department [2020] UKSC 7, [2020] AC 698, [2020] 3 All ER 353; Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273, [1990] 1 All ER 65, [1990] 2 WLR 1; Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, [2014] AC 160, [2013] 4 All ER 715, Hunter v Chief of the West Midlands Police [2013] UKSC 46, [1982] AC 529, [2013] 4 All ER 715; Arthur JS Hall & Co v Simons [2002] 1 AC 615, [2000] 3 All ER 673, [2000] 3 WLR 543; Salahuddin v Director General of the Security Service [2015] EWCA Civ 653; and Allsop v Banner Jones Ltd [2021] EWCA Civ 7, [2022] Ch 55, [2021] 4 All ER 397 considered (paras 88-100).
(2) It may be right that the officers making the assessment were not trained lawyers, but they were hardly strangers to the criminal prosecution process, where it was not difficult to see if a factual assertion put forward as a defence to a criminal charge was the same as or contradicted a factual assertion put forward in the context of the TIP assessment. That did not put them in an adversarial situation. Also, it was not correct that the policy depended on a positive claim to result in a dismissal. Rather, what was looked at was whether acceptance of the factual assertion(s) made in the TIP assessment could have the effect of casting doubt on the safety of the conviction, thereby amounting to a collateral attack. Further, the design was not to negate the need for an investigation even if the claim was true. Rather, it meant that there may come a point in the investigation when it could be seen that there was or would be an abuse (para 105).
(3) A point-blank refusal to conduct any TIP assessment of a person following a criminal conviction against that person would usually not be correct. After all, and though there may be exceptions, matters giving rise to a potential abuse would ordinarily only be discovered as a result of beginning the assessment. Further, there was in effect a duty to perform a screening when there was or ought to be an awareness of credible suspicion. However, an assessment could be brought to a relatively early conclusion if a clear abuse was identified at an early stage. This was what the evidence showed in the present case. The Government was entitled to take the view that despite the ongoing appeal, the conviction for the moment stood, and it would be an abuse to permit an attack on the conviction. It was not the case that the operational practice created an unfair ‘damned if you do, damned if you don’t’ situation. There was also no difficulty with taking into account inconsistencies between what was said in the criminal proceedings and what was said during the TIP assessment, or taking into account that what was said during the TIP assessment went to an issue materially the same as was raised in the criminal proceedings and already necessarily rejected. In the present case, the applicant’s knowledge about the dangerous drugs was a fact featuring in both the criminal charge and her TIP claim. Accepting her TIP story would necessarily conflict with the factual findings made by the criminal courts. However, such conflict was not inevitable in every case. R v L(C) [2013] 2 Cr App R 23 considered (paras 106-110).
(4) Similarly, there was no procedural unfairness for the assessor to take into such matters. Further, it was not right to view the TIP screening or assessment process as being adversarial just because the officer asked the applicant about what she said under caution. The complaint about the lack of opportunity to explain inconsistencies did not hold water as the applicant must have had full knowledge of the things which the police might take into account on the assessment, including what she had said under caution. DM v Commissioner of Customs & Excise [2023] 1 HKLRD 233, [2022] HKCFI 3476, [2022] HKCU 5781 considered (paras 151-158).
(5) The TIP decision letter simply said that the Commissioner had conducted a holistic view on the available evidence and it was assessed that the applicant was not a TIP victim. It did not make clear or identify how such assessment result was reached. Without going so far as to say that any form of reasoning needed to be provided for every TIP / forced labour assessment, in this particular case, not least where a reasoned request or TIP assessment had been made, the applicant was entitled to know, and should have been told, at least the broad basis of the reasons for the decision on that assessment. Without such information, the applicant could not realistically understand the decision. However, any reasoning did not need to be of any great length or detail. Now that the full reasoning had been provided, there was no need to further consider this matter in so far as it might lead to the grant of any relief (paras 142-150).
Obiter
(6) It was not accepted that the duty of candour would in general arise prior to the grant of leave for judicial review. The grant of leave was merely the threshold point, and looked merely at whether the intended grounds of review were reasonably arguable with a realistic prospect of success. The duty of candour was not triggered just because the Court might permit or direct a putative respondent to provide an initial response (paras 174-175).
[The above is excerpted from the headnote to the report in HKC.]
