LN v Commissioner of Police [2025] 5 HKLRD 578, [2025] HKEC 4031, [2025] HKCFI 3604 (Albert N. B. Wong)

Albert N. B. Wong represented the applicant in LN v Commissioner of Police [2025] 5 HKLRD 578, [2025] HKEC 4031, [2025] HKCFI 3604.

X arrived in Hong Kong on a flight from India, and was arrested at the airport here upon 1.4145 kg of cocaine with a street value of more than $2.2 million being found by customs officers in her suitcase. She was convicted after trial in the High Court, and was sentenced to 24 years and 3 months’ imprisonment. Her application to a Single Judge for leave to appeal against conviction was dismissed on 20 August 2019. From the time of her arrest on 13 September 2015 until 5 March 2020, when her solicitors asked the Commissioner of Police to identify her as a victim of trafficking in persons (TIP), X had not raised any claim of being a victim of TIP or raised any defence of duress. On 18 May 2022, after five screening interviews, the Commissioner informed X of his decision (the TIP Decision) not to classify her as a victim of TIP. On 13 October 2022, X took out an application for leave to apply for judicial review of the TIP Decision. A rolled-up hearing was heard on 11 and 12 May 2023. Judgment was reserved. While judgment was pending in the judicial review proceedings, the Court of Appeal, on 31 July 2024, dismissed X’s renewed application for leave to appeal against conviction. Three grounds of review were advanced. Ground 1 was that the Commissioner had failed to give reasons for the TIP Decision in that he merely informed X that she was not a victim of TIP, that the contents of the witness statements, transcripts of previous court proceedings and the relevant case materials had been studied, and that a holistic review had been conducted. The complaint under Ground 2 was of procedural unfairness. The arguments under this ground ran thus. The screening process did not conform with the requirements of procedural fairness commensurate with the circumstances of the case. Supplemental reasons provided in an initial response could not cure a lack of contemporaneous reasoning. And the supplemental reasons so provided showed that the TIP Decision did not meet the high standard of fairness required under the Bill of Rights. Although the Commissioner had professed the conducting of a holistic review, he had simply relied upon the findings in the criminal proceedings. That did not satisfy the requirements of procedural fairness. Alleged disparities between what X said when interviewed in the criminal process and her statements in her screening interviews were not put to her for clarification. The circumstances of an interview in the criminal process were anathema to the environment appropriate to TIP screening. It was acknowledged on X’s behalf that Grounds 1 and 2 were ultimately interrelated. Ground 3 concerned the applicable Policy, the Government’s “Action Plan to Tackle Trafficking in Persons …” (March 2018) (the Action Plan) and what was termed as the Operational Practice (which the Commissioner contended was a principled stance rather than a formal policy) pertaining to TIP screening. It was argued that the Operational Practice was inconsistent with the Policy and Action Plan in that it allowed the assessing officer to say “I do not care”, which was anti-meritorious. Further, it was argued that the Operational Practice allowed the assessing officer to take into account irrelevant matters, and left obscure the standard by which “undermining the basis of the criminal conviction” was to be measured. It created a “damned if you do, damned if you don’t” situation. Its underlying premise was incorrect in treating justice as the servant of finality. Finally, it was argued that the Operational Practice was, taken with the other Grounds, an interference with access to justice, making the assessing officer the gatekeeper to access to justice.

Held, dismissing the application, that:

(1) The key focus of review being the Operational Practice, it was convenient to deal with Ground 3 first. The key features of the Operational Practice were, it was submitted on X’s behalf, these. It relied on the opinion of persons who were not trained as to the law on estoppel in criminal proceedings, and should not be standing in an adversarial or interrogative situation, which depended on a positive claim to victimhood to result in a dismissal of that claim, so that the design of the policy was to negate the need for an investigation even if the claim was true. There should also be, it was said on X’s behalf, reference to the potential public interest beyond the interests of an individual applicant, and there may be room for other investigation. As a result of these features, it was submitted on X’s behalf, that the Operational Practice was highly exclusionary, and in effect brought any screening to an end before it began. That was, the submission continued, antithetical to the purpose of screening, an unlawful and unconstitutional fetter on the Government’s duties under the Bill of Rights, and it rendered the TIP Decision made pursuant to it unfair and unlawful. However, the Court did not think that the features were as described on X’s behalf. First, the officers 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 a TIP assessment. It did not put them in an adversarial situation. Secondly, 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 criminal conviction (thereby amounting to a collateral challenge). Thirdly, 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. In this particular case, the criminal appellate process was ongoing, so X could have sought to raise the point in that process. Accordingly, the Operational Practice did not create a “damned if you do, damned if you don’t” situation. There was no difficulty in: (i) taking into account inconsistencies between what was said in the criminal proceedings and what was said in the TIP assessment: and (ii) taking into account that what was said upon the TIP assessment went to an issue materially the same as was raised in the criminal proceedings and already necessarily rejected in those proceedings. Contrary to the tenor of the submission as it was developed, X was not in an impossible situation. This was an openly admitted collateral challenge. It was open to X to raise the issue in the criminal appeal process, though she apparently chose not to in the end. Although reasonably arguable, Ground 3 failed on substantive review (R v L(C) [2013] 2 Cr App R 23, DM v Commissioner of Customs & Excise [2023] 1 HKLRD 233 considered). (See paras.101-141, 162.)

(2) As to Ground 1, it must be accepted that the letter by which X was informed of the TIP Decision did not identify why the assessment result had been reached. There was really only a statement of the conclusion without any reasoning for it. X should have been told what she needed to know in order realistically to understand – and, if desired and appropriate, take advice on – the decision which was the result of the assessment. It was clearly a part of the thrust of the decision-making in the case that the view was taken that it would be an impermissible abuse to permit any conclusion or finding which would undermine the criminal verdict. That could also have been readily stated. But the full reasoning having now been provided, there was no further need to consider this Ground in so far as it might lead to the grant of any relief. This ground was not only reasonably arguable, but there was an initial failure to give proper reasons for TIP Decision. But the Ground 1 point was essentially rendered academic over time. (See paras.142-150, 160.)

(3) The essence of the complaint under Ground 2 was that the manner in which the TIP claim was compared and contrasted with what had been said in the criminal process was inevitably coloured by the Operational Practice, and was fundamentally unfair. But what was being considered was the material contained in X’s interviews in the criminal process in comparison with what she later asserted in her TIP interviews. It was to be remembered that X did not testify at her criminal trial, at which she relied on the exculpatory parts of her interviews in the criminal process. The TIP assessment was said on X’s behalf to have been adversarial. She knew what she had said before and what she was saying in the assessment. Fairness did not require putting discrepancies to her. There was nothing improper in taking discrepancies into account. The alleged procedural unfairness under Ground 2 was not reasonably arguable (DM v Commissioner of Customs & Excise [2023] 1 HKLRD 233 considered). (See paras.151-158, 161.)

Application

This was the rolled-up hearing of an application for leave to apply for judicial review of a decision of the Commissioner of Police not to classify the applicant as a victim of trafficking in persons.

[The above is excerpted from the headnote to the report in HKLRD.]