LN v. COMMISSIONER OF POLICE

HCAL 1090/2022

[2025] HKCFI 3604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1090 OF 2022

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J U D G M E N T

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A. Introduction

1.  On 12 September 2018, following a High Court jury trial, the Applicant was convicted of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134 (“Offence”). The Offence was committed on 13 September 2015, the day she was arrested at the Hong Kong International Airport in possession of 1.4145kg of cocaine. The Applicant was subsequently sentenced to – and is currently serving – imprisonment for a period of 24 years and 3 months.

2.  On 20 August 2019, the Applicant’s application for leave to appeal against conviction was refused by a Single Judge of the Court of Appeal. At the time of the hearing in the present case, a renewed application for leave to appeal made on 2 September 2019 was yet to be heard (because a previously fixed hearing date was vacated). It seems that between 30 September 2019 and 19 August 2022, the Applicant filed various documents, seeking to advance grounds which were not raised before the Single Judge. Ultimately, the renewed application for leave to appeal was heard on 23 April and 31 May 2024 by reference to only one argued ground. By its judgment dated 31 July 2024, the Court of Appeal refused leave to appeal against conviction and the appeal was dismissed.

3.  At no time from the date of her arrest until the refusal of leave to appeal by the Single Judge did the Applicant raise any claim that she was a victim of ‘trafficking in persons’ (“TIP”), nor raise any defence of duress. However, on 5 March 2020, the Applicant’s current solicitors (“PHA”) requested the Putative Respondent (“Commissioner”) to screen and to identify the Applicant as a TIP victim.

4.  On 18 May 2022 – after five screening interviews with the Applicant, and the material consideration – the Commissioner informed the Applicant that she was not classified as a victim of TIP (“TIP Decision”). In subsequent correspondence in response to PHA’s enquiries, the Commissioner informed the Applicant that (1) the TIP Decision was made in accordance with the TIP victim screening mechanism under the Action Plan, and (2) the Commissioner had no further supplement on the matter.

5.  By Form 86 dated 13 October 2022, the Applicant – referred to in these proceedings as “LN” under an anonymity order – sought leave to apply for judicial review to challenge the TIP Decision refusing to classify the Applicant as a victim of TIP. The Form 86 was later amended on 17 January 2023, in circumstances identified below.

6.  I gave directions for the Commissioner to file an Initial Response, and to permit the Applicant to file a Reply, and I informed the parties that – depending on the contents of those documents – the Court would decide whether to deal with the application for leave to apply for judicial review on paper, and might proceed to do so without further notice to the parties.

7.  As already stated, the Applicant’s Form 86 was issued on 13 October 2022. At the time, the Applicant was acting in person, but the Form 86 was clearly drafted with the assistance of professional legal input (provided pro bono through the assistance of a non-profit organisation). The Form 86 identified intended judicial review proceedings challenging (1) the Decision that the Applicant is not a victim of TIP, and (2) the Commissioner’s refusal to provide detailed reasons for the Decision.

8.  The directed Initial Response was filed by the Commissioner on 9 December 2022. It was signed by Ms Yvonne Cheung, Senior Government Counsel, together with Ms Cassandra Fung and Mr Mike Yau, both Government Counsel. The Initial Response was, of course, directed at the original Form 86.

9.  As well as setting out the facts relating to the TIP assessment and screening of the Applicant, the Initial Response opposed the grant of leave to apply for judicial review on the basis that: (1) the application amounts to an abuse of process; (2) the application lacks any useful purpose; (3) by virtue of the fact that the reasons underlying the TIP Decision had been provided in the Initial Response, the ground of intended challenge relating to lack of reasons has become academic; and (4) there is in any event no duty to give reasons, and any failure to give reasons alone is not a sufficient basis to suggest that the TIP Decision is flawed in any way as might lead to its being quashed. The Initial Response also provided various documents, including the Screening Form used at the full debriefing stage of the assessment (“Full Debriefing Form”).

10.  In PHA’s letter, under cover of which it served and filed the Applicant’s Reply dated 13 January 2023, it was noted that the Initial Response revealed for the first time the reasoning behind the TIP Decision. Correspondingly, the Applicant sought leave to amend her Form 86 to provide clearer focus of the judicial review application and specifically to address the new evidence. The draft Amended Form 86 was provided.

11.  On 17 January 2023, I granted leave for the amendment. The Amended Form 86 (“AF 86”) sought leave to challenge (1) the Decision, (2) the Commissioner’s refusal to provide detailed reasons for the Decision, (3) the Full Debriefing Form, disclosed with the Initial Response, and (4) the Supplemental Reasons contained in §§21-25 of the Initial Response.

12.  Also on 17 January 2023, I further directed a timetable for any supplemental Initial Response and further or Supplemental Reply.

13.  Ms Cheung (and Ms Fung and Mr Yau) provided the Commissioner’s Supplemental Initial Response dated 7 March 2023. PHA provided the Applicant’s Supplemental Reply dated 24 March 2023.

14.  Having considered the available materials, I granted leave on the papers on 24 March 2023, and I gave directions for evidence leading to a substantive hearing, and fixed the date for 11 and 12 May 2023.

15.  Following that, evidence was filed which gave rise to the Applicant wishing to re-amend the AF 86. A draft Re-Amended Form 86 (“RAF 86”) was put forward, which sought to make reference to and to make a challenge to (as it was termed, and as described in the RAF 86) the Operational Practice to refuse a TIP/Forced Labour claim which, if accepted, might lead to a conclusion that the criminal conviction is wrong or unsafe. It is fair to say that the Operational Practice became the main focus of the case, and of the judicial review challenge.

16.  By the time of the hearing, I had not given leave for the RAF 86, and so it was dealt with on a de bene esse basis, because if the points raised in the proposed re-amendments were unarguable, then leave to re-amend would be refused. Whilst that is technically correct, the argument in fact preceded by reference to the RAF 86, and I think it more convenient simply to grant leave and to address that document – though obviously without losing sight of the principled objections made to the points raised by the amendments.

17.  In addition to seeking leave to apply for judicial review, the RAF 86 seeks the claimed substantive relief of: (1) a declaration that the Commissioner has breached his duty to give sufficient reasons as to why the Applicant is not identified as a victim of TIP and/or forced labour; (2) a declaration that the TIP Decision was unfair, and in breach of Article 4 of the Hong Kong Bill of Rights Ordinance Cap 383 (“BOR4”); (3) an order to quash the TIP Decision and the Full Debriefing Form; and (4) an order mandating a TIP/BOR4 screening to be conducted consistent with the high standards of fairness required.

18.  At the rolled-up hearing, the Applicant was represented by Mr Abraham Chan SC leading Mr Albert NB Wong of Counsel, and the Commissioner was represented by Mr Martin Ho of Counsel. At the end of the hearing, I reserved judgment.

19.  This is my Judgment.

B.  The Intended Grounds of Challenge

20.  In the RAF 86, the intended grounds of judicial review, and the sub-headings, are identified as:

(1)  Ground 1: Failure to Provide Reasons for TIP Decision a breach of the high standards of fairness.

(a)  The Commissioner had not given reasons for the TIP Decision.

(b)  Even if the Commissioner contends that reasons were given by the disclosure of the Full Debriefing Form, they were inadequate.

(2)  Ground 2: Procedural Unfairness / Inconsistent with BOR4.

(3)  Ground 3: Fettered Discretion / Unlawful Practice / Restriction on Access to Justice.

(a)  Interpreting the effect.

(b)  “I Don’t Care” / Anti-merit.

(c)  Fettered discretion / irrelevant considerations.

(d)  Fundamentally incorrect premise: finality is the servant of Justice.

(e)  Interference with access to justice.

21.  The argument put forward on Ground 1 might be summarised as follows:

(1)  A person in the Applicant’s position should be able to see with sufficient reasoning why her claim to TIP victimhood is dismissed, and the failure to show how the crux of the case was analysed and reasons against fails to meet the necessary high standards of fairness.

(2)  The failure to give sufficient reasoning “disarmed” the Applicant from the remedy of judicial review, and inevitably leaves her with feeling that she did not receive a fair assessment.

(3)  Contemporaneous reasons for the TIP Decision must be stated in the Full Debriefing Form and cannot be remedied by lawyers in subsequently responding to an application for judicial review.

(4)  The appropriate standards of fairness depend on all aspects relating to the decision in question, including its context and its nature and subject matter. Where the decision is of momentous importance to the individual concerned, high standards of fairness must be demanded in the making of that decision.

(5)  Further, the person concerned must be given every reasonable opportunity to establish his or her claim, which must be properly assessed, and lead to a reasoned decision.

(6)  The reasons need not be elaborate but must be sufficient to permit the person concerned to consider the possibilities of further review.

(7)  The given reasons can be expected to set out the issues and the evidential basis for determinations made, and a failure to do so will in normal circumstances result in the decision being quashed.

(8)  Merely stating or barely asserting that the decision-maker has considered and made a review of the case, or has taken into account all information, falls short of satisfying the requirements of natural justice.

(9)  In this case, the Applicant was merely informed that she was “not a victim of TIP” after “studying the content of [the] witness statements, transcripts of the previous court proceedings, and the relevant case materials”, concluding that a “holistic review” had been conducted.

(10)  The purpose of screening of the sort on a TIP assessment is also to fulfil the Government’s obligations under BOR4, where the Government has a positive duty to tackle the evils of forced labour and human trafficking.

(11)  Dismissing a claim to TIP victimhood with no reasons provided contradicts the Government’s own stated determination to tackle TIP, as set out in its ‘Action Plan to Tackle Trafficking in Persons …’ (March 2018) (“Action Plan”).

22.  The argument put forward on Ground 2 might be summarised as follows:

(1)  The screening process must conform with the requirements of procedural fairness necessary to match the circumstances of the case.

(2)  The supplemental reasons provided in the Initial Response cannot rescue the lack of contemporaneous reasoning.

(3)  Alternatively, the supplemental reasons show that the TIP Decision was reached in breach of the high standards of fairness required and the Government’s BOR4 obligations.

(4)  Although professing to have conducted a holistic review, the Commissioner has simply relied on the findings in the Applicant’s criminal proceedings. That does not satisfy the requirements of procedural fairness.

(5)  The alleged disparity between (a) what was said by the Applicant in her video-recorded interviews (“VRIs”) in the criminal process and (b) the statements given by her in the screening interviews were not put to her for her to offer clarification.

(6)  The circumstances of a VRI – after an arrest and where the arrested person is threatened with prosecution – are anathema to the environment appropriate for TIP victim screening. This is not least because questions in a VRI are geared towards establishing suspicion of the arrested person, rather than viewing her as a potential victim.

23.  The AF R86 also acknowledges that, ultimately, Grounds 1 and 2 are inter-related. As it is put in the last paragraph: (1) the Applicant has never been informed that, in deciding whether she is a victim of TIP and/or forced labour, a key deciding issue might be the consistency or otherwise of her statements in the screening with statements previously made in the VRIs; (2) she has never been asked to explain the alleged inconsistencies; and (3) she has never been told, even if the Full Debriefing Form had been disclosed to her, that these were the reasons for rejecting her case.

24.  The argument put forward on Ground 3 might be summarised as follows:

(1)  The effect, intent, and logic of the Operational Practice can only be interpreted from the description of it given in the affirmation evidence.

(2)  The Applicant’s understanding of the effect of the Operational Practice is consistent with how it is described in the letter from the Commissioner dated 25 April 2023.

(3)  The Operational Practice was ‘front and centre’ of the TIP Decision, where it had been stated that assessing officer “hence rejected the Applicant’s VIP claim”.

(4)  Being inconsistent with the Action Plan and the applicable Policy, the Operational Practice allows the assessing officer to say “I do not care”, and is anti-meritorious. Indeed, the greater the merit, the more likely it will be dismissed.

(5)  The Operational Practice expanse of discretion to allow the assessing officer to take into account irrelevant matters, and leaves obscure the standard by which “undermining the basis of the criminal conviction” is to be measured.

(6)  The Operational Practice creates a ‘damned if you do, damned if you don’t’ situation, which is systematically unfair.

(7)  The fundamental premise underlying it is incorrect, because finality is the servant of justice, not the reverse. Exceptional circumstances permit extensions of time for appeal, or for new evidence, or for petitions, when injustice only comes to light after a long period of time.

(8)  Taken together with the position against giving reasons, the Operational Practice is an interference with access to justice. The effect is to make the TIP/Forced Labour assessment officer the gatekeeper to access to the courts.

25.  In light of Mr Ho’s primary stance that the judicial review application amounts to an abuse of process and lacks any useful purpose (because it amounts to a collateral attack on the criminal conviction), it may be pertinent to note here that Mr Chan does not shy away from the fact that the Applicant was seeking a TIP screening in aid of the criminal process. As Mr Chan put it in reply submissions, there is no question of seeking to make a ‘back door’ challenge to the conviction, and instead the Applicant is seeking to go through the ‘front door’, and to obtain evidence for going through that door. Hence, he asserted that it would help if a positive screening of the Applicant as a victim of TIP were made, as that might be admitted as new evidence in the appeal process (or in any appeal/petition to the Chief Executive) – and that help is available in a way which is not abusive and does not conflict with, but is consistent with, the aims of justice.

26.  The extent of the merits in these various arguments can conveniently be addressed broadly by reference to the points taken by the Commissioner in response to the application (amalgamating as appropriate the responses to the original Form 86, the supplemental response to the AF 86, and the further response to the RAF 86).

27.  But, before doing so, it is convenient to consider some further background factual material.

C.  Background Facts

28.  The Applicant had previously worked as a beautician and therapist in India. Her husband and family members all live in India.

29.  The precise circumstances as to why she came to Hong Kong can be dealt with below, in the context of considering what explanations have been given by the Applicant at various times.

30.  However, on 13 September 2015, the Applicant arrived at Hong Kong International Airport on a flight from Calcutta, India – after a transit flight from Delhi to Calcutta. She was intercepted and arrested by the Customs and Excise Department (“C&ED”) at the airport, because she was found to be carrying in her suitcase 14 packets of soap and two boxes of cosmetics, with 2.8095 kg of powder containing a total of 1.4145 kg of cocaine. The cocaine had a street/retail value of more than HK$2.2 million.

31.  The Applicant was interviewed under caution in VRIs on 14 and 15 September 2015, conducted with the assistance of an English-Hindi interpreter. I expressly note that neither of those languages is the Applicant’s native language.

32.  In the VRIs, the Applicant said, amongst other things:

(1)  In May/June 2015, the Applicant was introduced to someone named ‘Mercy’, who called and asked the Applicant if she wished to travel. The Applicant expressed interest in working in Malaysia and gave Mercy her passport, but Mercy said that it was not for a job, but to bring soap and cosmetics to a friend. Mercy would arrange a visa and tickets for her, and give her US$500 as reward when she returned to India. The Applicant was willing to carry those things as she did not have to pay any money.

(2)  Around 2 to 3 days before departing for Hong Kong, having been informed to go to Vietnam by Mercy, the Applicant refused the offer as the salary was cheap there. Then on the following day Mercy offered her a trip to Hong Kong instead and paid her US$700 to deliver the soap and other cosmetic products to her friend. As soon as the Applicant reached the hotel, she would inform Mercy the hotel room number, and Mercy would then arrange someone to locate her.

(3)  On the Applicant’s day of departure for Calcutta, she met Mercy in front of a restaurant, where Mercy gave the Applicant the money and luggage containing the things to be given to her friend. Mercy eventually only paid US$500, with which the Applicant was content.

(4)  When the Applicant received the goods, she checked the soap in front of Mercy and found the soap smelled of soap, and she also pressed the soap from outside but without opening it or checking the cosmetics. When the Applicant attempted to check the suitcase, Mercy refused and asked her to hurry up. At the Delhi airport, the Applicant opened the luggage in front of many people, took everything out and packed it again.

(5)  The Applicant thought she would go sightseeing and shopping after Mercy’s friend came to pick up the things. Mercy had sent her a phone message containing a hotel address, on her flight.

(6)  The Applicant also brought some “smokeless tobacco” inside the suitcase for self-consumption.

33.  The Applicant was committed for trial on 26 February 2016. However, the trial was delayed for about 2½ years, because of difficulties in finding an interpreter who speaks the Applicant’s native dialect, Thadou.

34.  At the trial, the Applicant did not give evidence herself, nor did she call any witnesses on her behalf. Her defence was essentially based on the exculpatory parts of her two VRIs.

35.  On 12 October 2018, by a majority jury verdict, the Applicant was convicted of the Offence. On 22 October 2018, the Applicant was sentenced to 24 years and 3 months’ imprisonment: see [2018] HKCFI 2698. In his sentencing remarks, the Judge specifically set out the basis of the conviction, and hence the sentencing decision, as follows:

(1)  Based on the VRIs, the Applicant came to Hong Kong because of a person called Mercy offering her a free trip, and also US$500 for bringing some stuff to Hong Kong for someone’s collection (“Finding on Purpose”).

(2)  The Applicant claimed that she had no knowledge of the stuff in the suitcase being dangerous drugs. However, by their verdict, the jury found otherwise (“Finding on Knowledge”).

36.  The Applicant sought leave to appeal against conviction. The grounds of appeal advanced on her behalf by her Counsel were solely based on the empanelling of the jury, the English language ability of its members, and the manner in which the jury foreman announced the verdict.

37.  Leave to appeal against conviction was refused on 20 August 2019: see [2019] HKCA 953. In refusing leave to appeal, Macrae VP took into account and acknowledged that the Prosecution had relied heavily on the Applicant’s confession that she felt that there was something illegal about the arrangement by Mercy.

38.  From 2015 to 2019, the Applicant attended 30 court hearings at both first instance and appellate levels, on 19 occasions (which included mention hearings, voir dire and trial) with the assistance of a Thadou interpreter, chosen by the Defence from India and qualified by the Court Translation Office of the Judiciary as a court interpreter. The Applicant was also legally represented.

39.  However, at no time during the criminal proceedings did the Applicant raise any TIP complaints, nor any defence of duress. No evidence was sought to be adduced as to the Applicant being a victim of TIP. Further, in so far as it may be relevant, no complaint was made by or on behalf of the Applicant at the criminal trial, or on the first application for leave to appeal, as to any deficiency of interpretation.

40.  On 2 September 2019, the Applicant lodged a renewed application for leave to appeal against conviction to the Court of Appeal. As it turns out, the proposed grounds of appeal advanced were different on the renewed application as were originally put forward to the Single Judge. After some to-ing and fro-ing in the materials, the sole ground pursued by the Applicant at the renewed hearing related to the quality of the trial interpretation, being a complaint that the interpreter at trial could not translate what the Applicant wanted to convey and that she was not sure of what went wrong or what was going on. This was notwithstanding that the interpreter in question was an interpreter of the Applicant’s own choice.

41.  As is now known, the Court of Appeal dismissed the renewed application on 31 July 2024. Amongst other things, the Court of Appeal stated:

30. This was a straightforward case. Most of the facts were not in dispute. Three sets of Admitted Facts were signed on the applicant’s behalf by trial counsel and read out in court. The issue was a narrow one: whether the applicant had knowledge that she was bringing dangerous drugs into Hong Kong or whether she was duped by Mercy. That central issue would not have been difficult for either the applicant or the [interpreter] to understand. In fact, the evidence demonstrated that the applicant was well aware of the issue even at the investigation stage. She had mentioned Mercy as early as the preliminary inquiry and went on to elaborate how she was tricked by Mercy in detail in her video-recorded interviews.

42.  The reference to the narrow issue at trial, is the issue on which there was the Finding on Knowledge. In other words, did she know or was she deceived? In light of one of the points raised in argument by Mr Chan on behalf of the Applicant, it may be relevant to keep in mind that the argument on these judicial review proceedings occurred between the grounds of appeal sought to be raised before, and the decisions of, the Single Judge and the Court of Appeal. Despite that, no ground of appeal or attempt to adduce new evidence was pursued on matters relating to claimed victimhood of TIP/Forced Labour.

43.  Meanwhile, on 5 March 2020, PHA (as the Applicant’s solicitors assisting with the request for TIP screening/assessment) asked the Police and Immigration Department for an urgent TIP screening or investigation to be conducted based on the material facts surrounding the Applicant’s circumstances. It can be noted that, despite the attempt in these proceedings to extend the challenge so as to invoke the concept of forced labour, the actual request for screening related to TIP (and not forced labour, a potentially significant matter where BOR4 does not embrace human trafficking). Hence, in response to the request for the TIP screening, the obligation on the part of the Government was to adhere to its own formulated policy under the Action Plan.

44.  I suppose it might be said that in some cases of importation of drugs like that of the Applicant, the suspect may present as vulnerable and not very sophisticated, such that investigating LEAs might be triggered to conduct an assessment for TIP/forced labour. But, for whatever reason – perhaps one arising from the potential tension between investigating TIP/forced labour and investigating and prosecuting crime – that seems not to have happened in this case.

45.  In gist, by the request PHA contended that the Applicant was a TIP victim recruited by deceptive means (i.e. without any knowledge that she was used to transport the drugs in question) in order to exploit her as a ‘drug courier’. The letter specifically requested that, upon prompt screening, the Applicant should be identified swiftly as a victim of TIP (on the facts as asserted in the letter).

46.  Attention can be drawn to the fact that, at §13.10 of the letter, it was specifically stated (in terms which must be inconsistent with the basis upon which the Applicant had been convicted):

In addition, Mercy also gave [LN] a small bag which appeared to contain some soap and cream, which Mercy said was for [LN] to bring for her husband, daughter and female cousin in Hong Kong. Not suspecting anything, [LN] took the smaller bag and placed it inside her luggage. [LN] did not find these packages of soap and cream to be suspicious.

47.  The matter was referred to the C&ED, which in a response dated 16 April 2020 identified that the Applicant had never raised such a complaint or claim before, and that the C&ED would not conduct additional TIP screening with the Applicant under the then current circumstances.

48.  However, on 3 June 2020, the Commissioner later acceded to PHA’s request and indicated agreement to conduct the TIP assessment for the Applicant. There was originally some delay in commencing the assessment because of difficulty in securing a Thadou interpreter. However, given that the Applicant was able to speak and understand English and Hindi, and as agreed by PHA, the interviews for TIP assessment were eventually agreed to be conducted in English, albeit with the assistance of an English-Cantonese interpreter.

49.  Five interviews with the Applicant (“TIP Interviews”) were conducted, each in the presence of a representative from PHA, on 24 November 2021, 2 December 2021, 22 December 2021, 30 December 2021 and 6 January 2022. In the TIP Interviews, the Applicant stated that:

(1)  Her friend introduced her to someone named Mercy, an employment agent/consultant, in New Delhi in May/June 2015. Mercy could arrange for the Applicant to work in a restaurant set up by Mercy’s husband in Hong Kong. Mercy asked the Applicant to pay her Rs70,000 and provide identity documents.

(2)  In late August 2015, Mercy met the Applicant and repeated the job offer in Hong Kong, and said it would bring a salary two or three times higher than her salary at the spa centre. However, half of the salary in the first two months would be charged as commission. The Applicant agreed to those arrangements and paid Mercy the Rs70,000.

(3)  On 8 September 2015, Mercy met the Applicant at a restaurant and asked her to attend a job interview and sign a contract. The Applicant refused as she was worried to lose the job. Eventually, the Applicant accepted as Mercy promised to lend her money and told her that the Hong Kong restaurant would definitely hire her. Mercy also told the Applicant that someone would bring pickles, herbal tea and dried bamboo to her at Calcutta airport for her to bring to Hong Kong for Mercy’s family.

(4)  Mercy then arranged a round-trip flight from New Delhi to Hong Kong, departing 12 September 2015.

(5)  On 12 September 2015, Mercy visited the Applicant’s home and gave her the air ticket, documents for a hotel reservation (which was only for showing to the immigration officers, as Mercy would provide the hotel address by text upon arriving in Hong Kong) and US$500. That sum comprised US$300 as her accommodation expenses and US$200 lent for her daily expenses, which would be deducted from her salary in Hong Kong.

(6)  Mercy also brought the Applicant a bag of stuff, including two bottles of a facial cream and around 10 soaps. Mercy claimed she would not go to Hong Kong until 2016 and asked the Applicant to help bring those things to her husband and daughter in Hong Kong. The details of the location in Hong Kong were not provided, save a new telephone number for the Applicant to call upon arrival.

(7)  The Applicant, without knowledge of the contents in the soap and the facial cream, accepted the request, checked the soaps by smelling it, and put them into the luggage after thinking the soap smells normal. She did not check the cream.

(8)  After arriving at Calcutta airport, Mercy called and told the Applicant that the sister would not come to give her the goods, and sent the Hong Kong hotel address via text.

(9)  When the Applicant sought to retrieve her suitcase upon arriving at Hong Kong, she was intercepted and arrested by C&ED, who examined the content of her suitcase.

(10)  A ‘controlled meeting’ was subsequently carried out. C&ED asked her to call two strangers and Mercy. One of the strangers told the Applicant that “now you know what the soap and cream are, which are more important than your life”.

(11)  The Applicant also sought to clarify what she said in the VRIs, in that in January/February 2015 the Applicant wished to enjoy a honeymoon with her husband in Vietnam, and that though she obtained the visas she eventually did not go.

50.  Upon completion of the TIP Interviews, PHA wrote to the Commissioner on 17 January 2022 setting out the arguments as to why the view might be formed that the Applicant was trafficked as a drug mule into Hong Kong.

51.  The initial screening officer (“DPC Man”) was briefed by the interviewing police officers relating to those interviews. Based on the Applicant’s claim that she was allegedly deceived into conveying drugs to Hong Kong, DPC Man stated on the TIP Screening Form that one of the seven TIP Indicators had been shown, namely allegedly being forced to do other unexpected work. Since there was one TIP Indicator found, the full briefing stage followed on, by reference to the 14 questions in Part II of the Full Debriefing Form, based on the contents of the TIP Interviews.

52.  The full debriefing was also conducted by DPC Man. Obviously, he was aware of the Applicant’s conviction, and reviewed the sentencing decision in the criminal case, as well as the decision of the Single Judge on the application for leave to appeal. Amongst the factual matters leading to the conviction which were taken into account by DPC Man were (1) the Applicant came to Hong Kong because of Mercy offering her a free trip and also US$500 to bring some stuff to Hong Kong for ‘someone’ as collection (i.e. the Finding on Purpose) and (2) the jury by their verdict disbelieved the Applicant’s claim that she had no knowledge of the stuff in her suitcase being dangerous drugs (i.e. the Finding on Knowledge). He further noted that the Single Judge had drawn specific reference to the Applicant’s confession that she had felt that there was something illegal about the arrangement by Mercy (“CA Acknowledgement”). He assessed the conviction to have been premised on those Findings and the CA Acknowledgement.

53.  In his affirmation filed for these proceedings, DPC Man then explained:

26. On the other hand, viewing the Applicant’s present TIP claim as a whole, I understood that the crux of her claim was that she was recruited as a “drug courier” by deceptive means, namely, (i) she had no knowledge of the soaps contents and (ii) she came to Hong Kong under the false promise of a job. Any matters related to or incidental of (i) must be considered in direct conflict with the Finding on Knowledge and the CA Acknowledgement. In a similar vein, any assertions connected to or associated with (ii) is contradicted by the Finding on Purpose.

27. In the premises, the factual basis of the Applicant’s present TIP claim would: (a) substantially or entirely contradict with; and (b) undermine the basis of her criminal conviction. This is simply unacceptable from a law enforcement and policy perspective. I hence rejected the Applicant’s TIP claim.

28. For completeness, I also carefully considered whether there are any new concrete and significant material(s), which (i) do not contradict with the basis of the criminal conviction (i.e. materials that are unrelated to the basis of the criminal conviction) and (ii) are relevant to the establishment of a TIP claim, identified in the present claim. After deliberation, I was satisfied that no such material had been identified throughout my assessment.

29. In light of the above analysis, and with the aid of the Form, I concluded that, despite the presence of the “Act” element, both “Means” and “Purpose” were not found and hence the applicant was not a TIP victim as follows:

(a) “Act”: I regarded that this element was fulfilled by reason of the Applicant’s recruitment by Mercy.

(b) “Means”: In light of the Finding on Knowledge and the CA Acknowledgement, I considered that the Applicant had knowledge as to the content of goods being illegal. There was thus no element of “deception” involved.

(c) “Purpose”: By reason of the Finding on Purpose and the CA Acknowledgement, I considered that the Applicant, on her own will, trafficked in the drugs-in-question into Hong Kong in exchange of Mercy’s provision of accommodation and financial support. There was thus no “exploitation” or “coercion” involved (“Initial Assessment”).

54.  The Initial Assessment was endorsed by SIP Man, to whose attention the case file was brought by DPC Man. SIP Man said in his evidence that he endorsed the Initial Assessment, in part because:

the Applicant’s TIP claim, if accepted, would (a) substantially or entirely contradict with; and (b) undermine the basis of her criminal conviction. It is plain that this is unacceptable from both a law-enforcement and policy perspective.

55.  SIP Man also carefully considered whether there were any new materials, and carried out a cautious scrutiny of the content of the TIP Interviews. From the latter, he noted various inherent improbabilities within the Applicant’s story. He concluded from the circumstances as a whole that there was no evidence to support that the Applicant was deceived or coerced to bring the drugs to Hong Kong and was being exploited in doing so.

56.  SIP Man later conducted a review of his own TIP assessment, including by making reference to the transcript of the VRIs. The review task was taken over by SIP Chan, who noted various irreconcilable inconsistencies between the Applicant’s narratives in the VRI’s and the TIP interviews. On the basis that the noted further discrepancies might have revealed some new materials, it was noted that many of them contradicted the Finding on Purpose, or were in direct conflict with the Finding on Knowledge, and all matters were inconsistent with the CA Acknowledgement. Alternatively, SIP Chan considered the details to be either irrelevant or insignificant to the TIP claim.

57.  It can be noted that SIP Man also stated in his evidence:

27. I should add that the subsequent review conducted by the Police is without prejudice to the general proposition that LEAs would not entertain TIP/forced labour claims which would: (a) substantially or entirely contradict with; or (b) undermine the basis of the claimant’s criminal conviction. The subsequent review reinforced the correctness of my earlier assessment that the Applicant’s TIP claim is not made out.

58.  PHA was notified of the result of the Applicant’s TIP screening, by letter from the Commissioner dated 18 May 2022 (i.e. the TIP Decision). The entire content of the letter following the heading was as follows:

[1.] I refer to your letter of 17 January 2022 and 16 February 2022 to the Commissioner of Police, which requested for the result of the TIP victim screening.

2. We have conducted five interviews with [LN] between November 2021 and January 2022 in the presence of her legal representative and the interpreter. After studying the content of these witness statements, the transcripts of the previous court proceedings and the relevant case materials, we have conducted a holistic review on the available information and it is assessed that [LN] is not a victim of TIP.

59.  By letter also dated 18 May 2022, PHA asked the Commissioner for detailed written reasons for the TIP Decision. By letter dated 14 June 2022, the Commissioner notified PHA that the victim screening had been conducted under the mechanism of the Action Plan, and the case of the Applicant was assessed holistically and considered she is not a victim of TIP. By letter dated 30 June 2022, PHA again sought detailed reasons, on the basis that the TIP Decision ultimately affects the Applicant’s constitutional and fundamental human rights, including a right to liberty, and that detailed reasons were necessary to consider whether there are grounds to challenge the decision by way of judicial review. By letter dated 14 July 2022, the Commissioner informed PHA that he had “no further supplement on the matter”.

60.  That is essentially where the matter stood, until the filing of the Initial Responses and evidence in these proceedings, as explained above.

D.  The ‘Operational Practice’

61.  What was similarly said by both the DPC Man and SIP Man (see above) is the essence of what is said to be the Operational Practice.

62.  There has been some argument, which might look like an argument on labelling, where (1) Mr Ho emphasised that there was no newly established policy or guideline in the form of the so-called Operational Practice, but (2) Mr Chan stated that the Applicant was content to proceed on the basis that whatever the label, there is clearly an established practical approach to these matters in these and similar circumstances. Relying on what was said by Tang PJ in C v Director of Immigration (2013) 16 HKCFAR 280 at §38, labelling something as a policy or practice is a matter of semantics; where the Commissioner must exercise the powers under statutory or other provisions in a principled manner, it is surprising if the exercise of such power is not facilitated by a practice or policy, and it does not matter what label is used.

63.  Mr Chan also emphasised that the way in which the evidence came out, and the debate on whether there was even such a practice in operation, is instructive as to the continuing lack of clarity as to what the Government itself says it does in situations such as the present case.

64.  Mr Chan submitted that the Operational Practice has the following features:

(1)  it is based on policy;

(2)  it is decided by non-judicial officers who are not trained in ratio decidendi;

(3)  yet it is implemented on the basis of the opinion of those same officers regarding the criminal process (as opposed to by a Court determining issue estoppel);

(4)  it depends on a positive claim (“would” and “if accepted”) to result in a dismissal;

(5)  it uses terms which are both obscure and capable of covering every extreme example, while failing to properly recognise and attend to the many possibilities in between; and

(6)  it is designed to negate the need for an investigation even (or indeed in certain circumstances, particularly) if the claim is true.

65.  Hence, Mr Chan submitted, the Operational Practice allows assessing officers to form an opinion as to what may “substantially or entirely” in its content or effect either “contradict” or “undermine” the basis of the criminal conviction. Yet, he submitted, those terms have not been defined with greater precision and there is no real evidence as to what governs the Operational Practice. These are all the features which Mr Chan submitted compel close judicial scrutiny to ensure full compliance with the Government’s administrative and constitutional law duties in this important context.

66.  On the other hand, Mr Ho pointed to the evidence filed by the Government as to what actually occurred, as can be found in the affirmation of Cheung Tsz Pan Harold at §§40-48. Those paragraphs sought to set out how “operationally” a TIP/forced labour claim raised in the circumstances was properly and correctly dealt with. In other words, the evidence was intended to show how this assessment was dealt with operationally and as a matter of fact. The paragraphs state:

40. In the present case, the Commissioner of Police did properly (i) identify the relevant court findings which underline the basis of the criminal conviction, (ii) identify any other materials which may be relevant to the criminal conviction, and (iii) evaluate the claim holistically against the said materials with a view to ascertaining whether (a) the basis of the present claim may contradict entirely or substantially with that of the criminal conviction, and (b) there are any new, concrete and significant materials independent of the basis of the criminal conviction warranting a fresh assessment.

41. What the Commissioner of police did in the present case thus allows a careful balance to be struck between: (a) ensuring that the relevant assessments are being conducted fairly and carefully without undermining the reliability of the criminal court’s findings and/or rulings; and (b) observing the rights of the convicted defendants.

42. It also ensures a fair assessment to be conducted when a convicted defendant raises a TIP/forced labour claim that is independent of and does not undermine the correctness of the criminal conviction. In such circumstances, the Commissioner of Police would not have rejected the TIP/forced labour claim simply because the claimant had already been convicted in a criminal court.

43. On the other hand, we do not see any contradiction with the TIP guideline and Action Plan for the Commissioner of Police to reject a TIP/forced labour claim if it potentially undermines the correctness of a criminal conviction. This includes situations where the claimant’s story proffered for his/her TIP/forced labour claim, if accepted, might lead to a conclusion that the criminal conviction is wrong or unsafe. It matters not whether a TIP/forced labour claim was made in the criminal proceedings. The focus is on the substance, not on the form. To do otherwise would bring the administration of justice into disrepute, and would clearly be contrary to the public interest.

44. Having said so, it is recognized that each claim involves its own unique facts, and that, where the situation so warrants, the Commissioner of Police would take into account matters not specified in the preceding paragraph. After all, such exercise is by no means generic and the Commissioner of Police should have sufficient flexibility in order to ensure the screening be conducted fairly and comprehensively.

45. If, after a holistic evaluation, the Commissioner of Police, as in the present case, has come to the view that the present claim (a) is, entirely or substantially, in conflict with; or (b) undermines the basis of the criminal conviction, it is consistent with the TIP guideline and Action Plan for the Commissioner of Police to rely on the findings which form the basis of the criminal conviction and reject the claimant’s latest assertions; and then conduct an assessment accordingly.

46. In contrast, if any new, concrete and significant material(s), which (i) do not contradict with the basis of the criminal conviction (i.e. materials that are unrelated to the basis of the criminal conviction) and (ii) are relevant to the establishment of a TIP/forced labour claim, is identified, it is consistent with the TIP guideline and Action Plan for the Commissioner of Police to process the screening as per the prevailing procedures outlined under Part A4 above; and conduct a fresh assessment accordingly based on the new, concrete and significant materials so identified. A hypothetical example would be where a drug trafficker, duly convicted of a drug-related offence, claims that she was under a menace of penalty to come to Hong Kong for prostitution. The TIP/forced labour claim, if established, would not impugn the validity or correctness of the criminal conviction.

47. Indeed, any challenge to the basis of criminal conviction could and should only be made through proper legal procedures in the criminal court. This includes the raising of such claims on appeal if applicable. Any collateral challenge to such factual findings and conclusions reached in the criminal proceedings would not be permitted for otherwise public confidence in the criminal justice system could not be safeguarded. Nonetheless, for any potential TIP claims which bear no impact on the criminal conviction, they would be assessed fairly based on the prevailing procedures.

48. I verily believe that what the Commissioner of Police did in the instant case allows a fair assessment of the Applicant’s claim while striking a proper balance between the conflicting interests at play and ensuring that justice is served for all parties, including the Government and the public.

67.  In any event, Mr Ho submitted that, consistent with the position adopted in DM, it is the Government’s principled stance that convicted criminals should not be allowed to use their TIP claim as a ‘backdoor’ application to challenge the safety of their criminal convictions. Accordingly, if the LEAs discern that the factual basis of the TIP claim would undermine the safety of the criminal conviction, they are not obliged to consider such claim, unless there are new materials independent of the criminal conviction that warrants a fresh assessment.

68.  I think by that Mr Ho was stating that the Government is putting forward a particular position in these proceedings, and it is doing so for good reason (or as a matter of principle). The evidence I have referred to was intended to set out how the assessment was achieved on this case on its facts – as well as to identify approaches which might be taken to different cases. There is, he said, no fixed policy to reject a TIP claim simply on the basis that it was made by a convicted criminal. What happened in this case, he said, was that the assessing officer refused to accept a factual assertion which was inconsistent with the essential premise underlying the conviction.

69.  I agree. Indeed, there is force in Mr Ho’s submission that the absence of the Operational Practice as asserted on behalf of the Applicant is evident from the differing ways in which the C&E and the Police handled the Applicant’s request for TIP screening. I also agree that it may be artificial to debate on whether there is any difference between (1) an outright refusal to conduct any TIP screening, and (2) a refusal of the assessor to reach any conclusion in the screening process that would undermine the criminal verdict. Whether there is such a difference may depend on the particular facts of the case, where for example it may be readily apparent that the factual basis of a TIP claim is such that accepting it would or would almost necessarily call into question or undermine the safety of the criminal conviction.

70.  But, for present purposes, I am content to adopt the label used for convenience by the parties, namely the Operational Practice, as describing what flows from the principled stance. Mr Chan invited the Court to focus on that for the purposes of the review.

E.  Screening and the Relevant Duty

71.  Both parties have made significant reference to my previous decision in DM v Commissioner of Customs & Excise [2022] HKCFI 3476, [2023] 1 HKLRD 233 (“DM”) – a case in which the representation for applicant and respondent was the same as in the present case.

72.  In that case, I also made reference to my decision in AM v Director of Immigration [2022] HKCFI 1046, [2022] 4 HKC 445 at §§16-63, where I traversed in some detail the Hong Kong framework for combating TIP and/or forced labour, and how it had varied over time.

73.  Again, it is not necessary here to rehearse that detail, and a shorter summary 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 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.

74.  The questionnaire adopted by the Police and ImmD and C&ED for victim identification is annexed to the TIP Guideline. The questionnaire is produced below:

Part A – INITIAL SCREENING

1	Are their identification/travel documents being kept by someone else involuntarily	Yes/No
2	Are they coached/taught with a cover story on what to say to police/immigration officers	Yes/No
3	Did they mention about salary being involuntarily deducted to pay off a debt/smuggling fee	Yes/No
4	Are they forced to perform sexual acts or other unexpected forms of work/labour	Yes/No
5	Are they prohibited from contacting others	Yes/No
6	Have they been threatened with harm or sexually/physically abused	Yes/No
7	Are they juveniles and suspected to be employed illegally	Yes/No

Part B-FULL DEBRIEFING (to be completed only if one or more “YES” to Q1-7 in Part A)

Element 1: Act
Q1	How were you recruited to come to Hong Kong? By what means and for what purpose
Q2	Did the recruiter promise you anything for your coming to Hong Kong, such as nature of job/activities, job securities, expected income/rewards, immigration status etc?
Q3	How did you travel to Hong Kong? How much did you pay for that?
Q4	Did anyone accompany you to the airport/ports at your home country?
Q5	Did anyone receive you and/or others in Hong Kong?
Q6	Where did you and/or others go afterwards for stay?
Element 2 -Means
Q7	Were you required to involuntarily pay any money, sign and debit note or undertake to pay any money for your coming to Hong Kong? If yes, how much?
Q8	Were you forced, beaten, threatened, deceived or subject to other illegal means in relation to your purpose of coming to Hong Kong or your activities in Hong Kong?
Q9	Have you or your family been afraid of, or threatened by anyone in Hong Kong or elsewhere, in relation to your purpose of coming to Hong Kong or your activities in Hong Kong?
Element 3 - Purpose
Q10	What is your purpose of coming to Hong Kong? What kind of activities /works did you do in Hong Kong?
Q11	Who told you to do such activities/works as mentioned in Q.10? Were you forced, beaten, threatened, deceived or subject to other illegal means to do so?
Q12	How much money did you earn? Who paid you and did you and did anyone keep a portion of your earnings?
Q13	Did you work all by yourself or with others? Where are those people now?
Q14	Were you exploited in any way? E.g. forced prostitution, organ removal, slavery, forced labour, physical/sexually abused, threatened, etc (examples not exhaustive)
Victims Assurance
What kind of assistance do you need? 󠆒Shelter 󠆒Food󠆒/clothes 󠆒Medical health services 󠆒Transportation back to country of origin 󠆒Visa extension 󠆒Legal assistance 󠆒Other, please specify: _________
Are you currently receiving any assistance from any person/organization?
󠆒Yes, please specify_______________________________ 󠆒No

75.  The victim identification mechanism as outlined in this questionnaire consists of two parts. The first part is an initial screening. The language of the seven questions suggest that the questions are to be answered by the relevant officer rather than the suspected victim. The initial screening may be conducted without interviewing the suspected victim. Only when there is one or more “Yes” answer in the initial screening should the process proceed to the second part: a full debriefing. The language suggests the full debriefing is 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.

76.  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 a person claiming to be both a victim of crime and a victim of TIP/forced labour (as to differing contexts, see further below), I found on the facts of one of the applicants in the case – namely the applicant CB – that a causal connection had been established between the particular failures in the case and the lack of a bespoke criminal offence. That finding was overturned on appeal to the Court of Appeal [2024] HKCA 172, [2024] 2 HKLRD 104, and in the Court of Final Appeal [2025] HKCFA 10. I do not need to re-tread any of that ground because that issue does not arise in the present proceedings.

77.  But, I also thought it right to identify and recognise that the relevant duty of investigation might arise in myriad varying circumstances (although necessarily with a common theme), and each case will require particular and individual consideration. As with most things, context is important. For example, there may be a difference between (1) a case where the potential victim of TIP/forced labour was him or herself the apparent victim of a crime and came to the investigating authorities in that context, and (2) a case where the potential victim of TIP/forced labour was him or herself the apparent perpetrator of a crime and came to the investigating authorities in that context. This case is another example of the latter.

78.  I also referred to modern case law, which highlights a multi-pronged approach to fulfilling BOR4 obligations (as reflected in the TIP Guideline). An example is 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 …

79.  One purpose of screening 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 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.

80.  I also made reference the point 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.

81.  That last point is of relevance in this case, where the requested assessment – made by an firm of solicitors experienced in the relevant field – related to TIP only (and not to an assessment of forced labour under BOR4).

F.  Utility or Futility

82.  I do not think I need spend much time on the question as to whether the Applicant’s application in these proceedings is of any utility, or is futile. I do not think the point is ultimately determinative, and the following brief consideration suffices.

83.  Mr Chan submitted that there would be obvious and great benefit to the Applicant should she be eventually assessed to be a TIP victim by governmental authorities, and either succeed within the framework of extant criminal proceedings to have new evidence submitted / her conviction overturned on appeal or succeed in a reference to the Chief Executive. It was also submitted that, even if the Applicant’s criminal conviction were to remain, it would still be of potential utility and benefit to her to be recognised as a TIP victim, which may strengthen her position to seek specialised rehabilitation services during her incarceration, or assist with matters of early release or ‘parole’ – as well as affording her the dignity to be accorded to a person recognized to be a victim. Beyond the Applicant herself, Mr Chan submitted that there would be the separate utility from these judicial review proceedings to rule on the legality of the Operational Practice, and to ensure TIP screening officers are better informed as to the nature of their role.

84.  Whilst there may be something in the wider point, it is difficult to see how recognition as being a TIP victim could have any real impact on the approach taken on rehabilitation or the question of early release (as will fall to be considered by the Long-Term Prison Sentences Review Board). It might be asked, for example, how the Board would be supposed to reconcile a conviction based on a rejection of an underlying assertion, in circumstances where the same assertion would (on Mr Chan’s argument) have been accepted in the TIP assessment.

85.  Hence, I agree with Mr Ho when he submitted that the only possible practical utility to the Applicant would be to allow her to “revisit” her criminal conviction. Mr Ho submitted that would necessarily amount to a collateral attack on the criminal conviction, which is precisely what amounts to the abuse.

86.  In this case, therefore, it seems to me that the question of utility essentially brings focus back to the question of abuse of process.

G.  Abuse of Process – Principles

87.  Whether or not there has been abuse on the facts of this case is a matter to which I can return later. However, first, it is convenient to address the relevant principles. These were also addressed by me at some length in the DM case at §§71-78.

88.  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.

89.  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.

90.  Mr Ho also again referred to Hunter v Chief of the West Midlands Police [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.

91.  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 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.

92.  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.

93.  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.

94.  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.

95.  I accept, as Mr Ho said, that these reasons apply with equal force in the present challenge. Mr Ho also referenced the case of Allsop v Banner Jones Ltd [2022] Ch 55 at §44, which made the additional statement of principle – which I accept – that 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.

96.  Further on the question of abuse as a matter of principle, I keep well in mind the observations of Lord Bingham in Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 30H-31F, including that dogmatic approaches are not to be assumed in the determination of whether proceedings are necessarily abusive. Instead, there might be a broad, merits-based judgment which takes account of the public and private interests involved, it being preferable (1) to ask whether in all the circumstances a party’s conduct is an abuse than (2) to ask whether the conduct is an abuse, and then, if it is, to ask whether the abuse is excused or justified by special circumstances.

97.  I also keep in mind Mr Chan’s submission that the Court’s role in assessing a breach of public law duties should not be limited or barred merely on the apprehension of abuse of criminal proceedings. However, it must be noted that these judicial review proceedings have not been limited or barred, and were fully argued. Rather, the point of suggested abuse relates to the TIP assessment, where it was thought by the assessor that there was an abuse – and these proceedings are seeking the review of that assessment and its process. As Mr Chan himself recognised, the Court is not being asked to deal with a matter of criminal law as such, but to exercise its supervisory jurisdiction in respect of a decision made by a public authority.

98.  I also accept that 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 victim of TIP: see for example R v AAD [2022] 1 WLR 4042 at §§110ff. But that case, and the various authorities referred to in it, seem to me to emphasise that these questions can be raised, and indeed should be raised, and fall to be determined, within the criminal and criminal appeal processes (and, at least implicitly, not by way of collateral attack).

99.  I also acknowledge Mr Chan’s submissions that the fact of a conviction does not necessarily make the conviction sacrosanct, and some convictions should not stand but should be set aside, and ultimately the question is what justice requires in the circumstances. However, whilst I acknowledge those points, none of them seem to me to identify that seeking to challenge the conviction should take place or be permitted outside the criminal appellate process. The appeal process exists precisely to permit and to facilitate a challenge to a criminal conviction.

100.  Therefore, it is of no assistance to the Applicant in this case for Mr Chan to make the submission that it cannot be an abuse of process to seek or pursue an avenue open as a matter of law, when the relevant avenue open is or was an appeal.

H.  Ground 3

101.  As already indicated above, the key focus of review at the hearing was the Operational Practice, and so it is convenient to deal with Ground 3 first. The Operational Practice was said by Mr Chan to have been disclosed only on 21 April 2023, despite the Applicant’s having sought proper reasons for the TIP Decision from the date was made.

102.  Mr Chan submitted that the Operational Practice should be seen against the proper context identified in the authorities and in the Action Plan Guideline HQO No. 11/2020, which identify that (1) prosecuting a TIP victim may be a breach of the Government’s protective duty, and the corresponding need to seek advice from the DOJ as to possible immunities, and (2) the screening process must be sensitive (rather than blind) to a potential injustice arising in the context of criminal proceedings, subject only to the limit that arises where a challenge to a victim assessment would amount to a genuine abuse of process.

103.  I have set out above the features of the Operational Practice which Mr Chan sought to identify. In shorter summary, those suggested features might be described as (1) it is a policy which relies 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 (2) depends on a positive claim to victimhood to result in a dismissal of that claim, so that (3) the design of the policy is to negate the need for an investigation even if the claim is true. There should also be reference to the potential public interest beyond the interests of an individual applicant, and there may be room for other investigation.

104.  As a result of those claimed features, Mr Chan submitted that the Operational Practice is highly exclusionary, and in effect brings to an end any screening before it begins. That, he submitted, is antithetical to the purpose of the screening process and an unlawful and unconstitutional fetter on the Government’s duties under BOR4. Because the TIP Decision was made pursuant to the Operational Practice, that meant it was in turn unfair and unlawful.

105.  However, I do not think the features are quite as Mr Chan sought to describe them. First, it may be right that the officers making the assessment are not trained lawyers, but they are hardly strangers to the criminal prosecution process, where it is not difficult to see if a factual assertion put forward as a defence to a criminal charge is the same as or contradicts a factual assertion put forward in the context of the TIP assessment. I also do not think that puts them in an adversarial situation (a point I shall return to below). Secondly, I do not think it is correct that the policy depends on a positive claim to result in a dismissal. Rather, what is looked at is 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). Thirdly, I do not think the design is to negate the need for an investigation even if the claim is true. Rather, it means that there may come a point in the investigation when it can be seen that there is or would be an abuse.

106.  As to that last point, I think it fair to say that a point-blank refusal to conduct any TIP assessment of a person following a criminal conviction against that person would usually not be correct. If that is what the Government’s evidence says, that seems to me to go too far. After all, and though there may be exceptions, it would ordinarily only be as a result of beginning the assessment that the matters giving rise to a potential abuse would be discovered. Further, there is in effect a duty to perform a screening when there is or ought to be an awareness of credible suspicion. But it may be that the assessment could be brought to a relatively early conclusion if a clear abuse is identified at an early stage. I think that is what the Government evidence filed in this case shows. For example, in this case, what was likely to be said on the assessment of the Applicant was trailed in the detailed request for that assessment, and the point at issue was readily apparent.

107.  In so far as Mr Chan submitted that, because the Applicant had been prosecuted and was in prison, the TIP assessor should have been more sensitive as to whether a potential injustice had taken place and not dismissive of it, I reject that submission. It is no part of the assessor’s task to consider the correctness or otherwise of a criminal conviction. Whether there is or has been a potential injustice is something which is able to be, and should be, properly explored within the criminal process, potentially both at first instance and on appeal.

108.  I see nothing wrong with the Government’s stance which looks at the fact of the conviction, which has not been overturned, and where there has even been the refusal of an application for leave to appeal. It seems to me that the Government is entitled to take the view that, whatever may or may not happen thereafter, that conviction for the moment stands, and that it would be an abuse to permit an attack except through the appellate process (which would not amount to a collateral attack). In this particular case, that appellate process was ongoing, so that it would have been open to the Applicant to have sought to raise this point. It seems she did not, even on the renewed application for leave to appeal.

109.  One example of this approach is in a case cited by Mr Chan, namely R v L(C) [2013] 2 Cr App R 23. In that case (and the connected cases dealt with in the same report), the decisions were reached in appeals which were fact-specific, where the Court of Appeal in England admitted as fresh evidence a considerable body of evidence which, for different reasons, was not available to the trial court, but which the Court of Appeal considered would be unjust for it to ignore. The case was, on the other hand, recognised as one which might provide some broad guidance about the kind of case in which, following a proper investigation of the facts, the prosecution would have been unlikely, and if undertaken, would have culminated in a successful abuse of process argument: see §34.

110.  Therefore, I also reject Mr Chan’s consequential submission that the Operational Practice creates an unfair “damned if you do, damned if you don’t” situation. He submitted that: (1) a claim which is perceived to be new and inconsistent with the criminal proceedings can immediately be struck out for undermining the criminal proceedings, or at the very least disbelieved for inconsistency, but (2) a claim which is wholly aligned with the criminal proceedings will also not be entertained, because to believe it in the assessment when it was not believed in the criminal proceedings could also be said to undermine the criminal proceedings. However, first, I have already rejected the idea that an assessment would ordinarily simply not be entertained at all. Secondly, I see no difficulties with (1) taking into account inconsistencies between what was said in the criminal proceedings and what was said upon TIP assessment, and (2) taking into account that what was said upon TIP assessment went to an issue materially the same as was raised in the criminal proceedings and already necessarily rejected in those proceedings.

111.  As the point was developed, the tenor of the submissions made for the Applicant was that TIP victims in her position will be faced with an impossible situation. For victims deceived into being drug mules, arrested, prosecuted and eventually convicted of drug trafficking in the criminal process – like herself, she said – they will meet an insurmountable hurdle in establishing their victimhood. The Applicant outlined four scenarios, in which she said the victim would either be barred from claiming victimhood under the wider abuse of process doctrine or that her TIP claim would simply be dismissed as incredible.

112.  But if the four scenarios and the consequences which the Applicant said to be logically derived from the Government’s position are examined, it will be apparent that those scenarios are far too general for it to be said with certainty that they will lead to the suggested consequence.

113.  First, the Applicant said that if the criminal proceedings determined the issue of credible suspicion of a risk of TIP, a separate screening is unnecessary, and so an application for judicial review would be regarded as an abuse.

114.  DM fell into that scenario. There, the applicant DM raised the allegation of her being a TIP/BOR4 victim as a defence which was rejected by the criminal courts, and she subsequently sought to be screened as a TIP victim based on the exact same facts. I explained in the Judgment why what DM sought to achieve through the victim screening and the judicial review proceedings was an abuse of process there.

115.  But DM is not the only situation which would fall within the first scenario. In both the criminal proceedings and the subsequent victim screening request, DM claimed to be a TIP victim based on the exact same facts. However, there might be situations where a person, after being convicted and her TIP claim raised in the context of the criminal proceedings rejected, might subsequently ask to be screened for TIP victimhood but based on a completely or partially and materially new set of facts. Obviously, there could be myriad variations even within this situation and whether that claim for TIP victimhood or in administrative or judicial review proceedings would be barred for abuse of process could only be decided if and when the Court is called upon to adjudicate on it.

116.  Secondly, the Applicant said that if the criminal proceedings did not at any stage become ‘alive’ to the issue of credible suspicion of TIP victimhood (as in her case), an application for judicial review would still be regarded as an abuse.

117.  However, the reason why the Applicant’s current TIP claim is said to be an abuse is because the crucial plank to make her a victim is the existence of deception as a means to bring her into Hong Kong, thus meeting the “means” element of the TIP definition. She asserts she was deceived because she did not know that what she was to carry into Hong Kong were dangerous drugs. Whilst she did not claim TIP in the criminal proceedings, the crucial plank to make good her TIP claim is exactly a factual point which she had already raised in defending her criminal charge, and which was rejected, i.e. the Finding on Knowledge. Her knowledge about the dangerous drugs is a fact featuring in both the criminal charge and her TIP claim. Accepting her TIP story would thus necessarily conflict with the factual findings made by the criminal courts.

118.  But such conflict is not inevitable in every case. There could well be situations where a person’s TIP story could be believed without casting doubt on the factual finding of the criminal courts. Hypothetically, the Applicant might claim TIP not based on her being deceived into what she had to carry into Hong Kong, but that she was coerced into knowingly carrying drugs into Hong Kong, due to either physical or mental pressure exerted on her or on those she held dear. Again, whether this would be barred by abuse of process could only be decided if and when such a case arises.

119.  Thirdly, the Applicant said that if during a victim screening, the Applicant outlines the same case as her VRIs or defence in the criminal proceedings, an application for judicial review which might result in a decision inconsistent with the “result” of the criminal proceedings, would also be regarded as an abuse. By result, I think the Applicant meant conviction.

120.  That the acceptance of a subsequent TIP claim would cast doubt on the criminal convictions made by the courts is the very rationale why the TIP claim should be barred as an abuse of process. That was also why DM’s subsequent TIP claim was found to be an abuse of process. In essence, the present case is not vastly different from DM from the abuse of process perspective. Whilst TIP was not raised as an issue by the Applicant in her criminal defence, the lack of knowledge (which is framed as deception in the current TIP claim) was raised to deny the very element of the offence which must be proved to convict her. Accepting the existence of deception would cast doubt on the finding of knowledge.

121.  But, as already explained above, a convicted person’s subsequent TIP claim does not necessarily have to be in conflict with what had been found by the criminal courts in reaching the convictions. This is connected with the next scenario.

122.  Fourthly, the Applicant said that, if during a separate victim screening, the Applicant outlines a different case to that which was stated in the VRIs or defence in the criminal proceedings, she will necessarily be discredited and her case rejected.

123.  Of course those charging with assessing credibility of the Applicant’s TIP claim would be entitled to take into account what she said in the previous criminal proceedings, and inconsistency between the two versions might lead the assessor to accept the version said in the criminal proceedings and reject the version said in the victim screening. There is nothing inherently wrong about that.

124.  But it is also possible for the assessor to prefer the version proffered in the victim screening process over what was said in the criminal proceedings, as long as this would not cast doubt on the criminal conviction such that the abuse of process doctrine is engaged.

125.  In the present case, the facts said to underpin the Applicant’s TIP claim are partially similar to her defence in the criminal proceedings. The similarity lies in the denial of knowledge (or in the existence of deception). The dissimilarity lies in other aspects of the factual background surrounding her coming to Hong Kong. Accepting the lack of knowledge would cast doubt on the criminal conviction (as contradicting the Finding on Knowledge) whilst accepting the other factual background might not (unless it contradicts the Finding on Purpose). It may be possible for the assessor to accept the asserted factual background without engaging the abuse of process doctrine. It is just that in the present case accepting those surrounding factual background matters would take the Applicant’s TIP claim nowhere, because what is crucial to make good her claim had already been rejected by the criminal proceedings.

126.  I also do not think it is really paradoxical to ask when a person raises something, particularly if it has some potential merit, why it was not raised earlier if indeed it has that merit. This seems to me to be the answer to the submission made by Mr Chan that the stronger the argument, the more it shuts off the screening process. Surely it must be open to the assessor to take into account that there is something possibly odd about not having raised a newly asserted ‘strong’ point at the time when it would be expected to have been raised, and to bring that factor into the assessment of victimhood or not. Indeed, though it is not necessary to say this is what occurred on the particular facts of this case, it is easy to see the incentive to a person who has been convicted to seek to identify some new basis of claim as might, if pursued successfully, undermine the basis of the conviction. I see nothing wrong with treating such a case with some healthy dose of realism and suspicion. That is not to say that simply because a point was not made earlier it cannot have merit, but it is to say that it is entirely logical and reasonable to take into account the absence of the point having been raised at the obviously relevant time it might have been raised.

127.  Further, Mr Chan submitted, when a person is seeking to adduce further evidence, there is no limit to the form of the evidence which he may seek to adduce, and it is a matter for the appellate court to decide whether to permit it and, if so, what to do with it. But, the submission continued, it is not inherently abusive or inconsistent to the criminal appeal process to seek and then seek to deploy the screening results after they have been properly reached; the relevance to the criminal process is in a way which is consistent with that process and its aims (and not any form of abuse of that process).

128.  He referred to the position in the UK. But the position in the UK is very different, because there is a line of cases which says that the views of the competent authority might not only be relevant and persuasive, but might be determinative in the absence of other evidence as to whether or not there is victimhood. But the position in Hong Kong, rightly or wrongly, is that the screening process is usually conducted within the criminal investigative or prosecuting process, so that the views of the person making the assessment will unlikely be treated as having the same weight, and may even be treated in the criminal and criminal appellate processes as trespassing on the decisions which should be made by the Courts – on points which can be raised and argued before them.

129.  It might be remembered that the threshold question was raised in the criminal proceedings underlying the DM case, and decided against DM in a way which made it abusive when she sought to re-raise that threshold question in the context of TIP assessment. Obviously, the Court considered it perfectly possible itself to consider and determine the threshold question.

130.  Mr Chan emphasised that because (at the time of argument) the appeal process was still ongoing, the Court was still seized with the matter and no “finality threshold” had been crossed. This is why, he said, seeking the TIP victimhood assessment was complementary to the still ongoing criminal appeal process. However, I think the principles enunciated in previous decisions make clear that criminal convictions should be challenged only by way of appeal, and not otherwise be called into question, and I see no reason why the argument that the Applicant was a TIP victim could not have been raised in the appellate process, and given such weight as the appeal courts thought fit. A focus on a criminal appeal will include focus on the safety of the conviction (and perhaps even on the propriety of the prosecution). I am also concerned with some further aspects of finality, where Mr Chan’s submission was based upon the arguments that there might be extensions of time granted for appeal, or there might be time taken for a petition to the Chief Executive – which seems to foresee a potentially never-ending process.

131.  I also reject Mr Chan’s submission that it is at least reasonably arguable that a fresh assessment, with Government resources and training brought to bear, would be arguably relevant to the Court of Appeal’s own assessment of TIP. It is certainly not necessary. As said, it seems to me that it was perfectly open to the Applicant to argue on any application before the Court of Appeal that there were facts which sufficiently identified her to be a victim of TIP – and then to argue what the consequences of that might be. It also seems to me that it would not be of any particular weight in the assessment by the Court of Appeal that, upon another review, the Applicant might have been screened in as being a TIP victim, or screened out. But this is perhaps somewhat beside the point on the facts of this case, where necessarily the argument of victimhood was based on the same main underlying facts put forward as a defence to the criminal prosecution.

132.  Further, it has been made express in this case that, whatever principled stance might have been taken not even to entertain the TIP claim or any review, it was in fact entertained and in fact reviewed, including by reference to assessing whether there were any new materials which might be relevant to that assessment and review. This was proper.

133.  Mr Chan raised the suggestion that, if the argument of abuse is pursued, it would mean that the Government must accept that the screening interviews conducted with the Applicant were a sham, as the screening could never have resulted in a determination that would appear to contradict the criminal determination. The screening process could never have come to anything other than this current conclusion, because to do otherwise would have been a collateral attack. I see some force in that suggestion if the Government stands on the extreme end of what it said it would do. This is because it is not until the screening process could start that it would really be identified what is being put forward in support of – or as might identify credible suspicion of – the TIP claim, and whether that material is of the sort which does or will likely constitute the abuse of being in effect a collateral attack on the conviction and its basis. But, the position would be different if the screening at least begins and continues up to a point where the view is formed that the materials being advanced will likely and/or necessarily constitute the relevant form of abuse.

134.  It is not a sham to go through a screening process which reveals the materials which identify the abuse. In any event, on the particular facts of this case, what was going to be asserted by the Applicant at the TIP assessment was heralded in the request for that assessment, and it was pretty clear that the Applicant intended to put forward something necessarily inconsistent with the fundamental basis of her conviction. When the TIP Interviews were conducted, that is what she did.

135.  Lastly, Mr Chan made the at first blush attractive forensic point that if the screening assessment could have no impact whatsoever on the criminal appeal process, then what is the point of any Operational Practice which in effect precludes the assessment precisely on the basis that it might give rise to a collateral attack. To put it another way, why is it necessary to have an Operational Practice to stop people from doing something which would have no effect? However, I think that submission actually confuses or conflates two matters, one being whether the assessment is a collateral attack, and the other being whether a Court of Appeal might be materially assisted by any TIP assessment (which is said to be the collateral attack). The first point simply turned upon whether, on the application of settled principles (see above), there is thought to be the collateral attack. The second point is only connected to the first point in the sense that it is in the criminal appellate process that any attack on the conviction could and should be raised.

136.  As to whether there is an abuse, I agree with Mr Ho’s submission that it is necessary to consider the question of abuse on the precise underlying facts. As he submitted, the input for the TIP assessment would be on materials provided by the Applicant herself, and the output would be the assessing officer’s opinion.

137.  Mr Ho referred to the request for screening contained in PHA’s letter dated 5 March 2020, which he said simply removed the factual foundation of Mr Chan’s submissions. Mr Ho pointed to the various factual matters asserted in that letter, and drew particular attention to paragraph 13.10, which I have quoted above, and by which it was asserted that the Applicant did not find the packages of soap and cream given to her by Mercy to be suspicious. As Mr Ho put it, that must be inconsistent with the conviction, and it was also inconsistent with the Applicant’s earlier acceptance that she had been suspicious. It is clear that the request for screening was not on the basis of seeking further investigation, but instead was challenging the factual basis of the conviction by asserting an argument contrary to what must have been found against for her to have been convicted.

138.  As the Court of Appeal said in refusing the Applicant’s renewed application for leave to appeal, at §30 (quoted above), the issue at the criminal trial was a narrow one: whether the Applicant had knowledge that she was bringing dangerous drugs into Hong Kong or whether she was duped by Mercy. That was the same issue she sought to address in the TIP assessment, and avowedly to seek a different answer so as to challenge the conviction based upon that finding of knowledge.

139.  As in the DM case, what matters is whether the essential elements of the matter which the Applicant now seeks to pursue were adjudicated upon. They were. Also as in the DM case, it can 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 before the jury, and that the jury must clearly have been satisfied beyond reasonable doubt that her account was not to be believed.

140.  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. In seeking the TIP screening after her conviction in the criminal proceedings, and on the basis of the averments made in the context of that screening, it is clear that the Applicant was trying to raise the threshold question of whether there is credible suspicion of her being a TIP/forced labour victim based on the same set of facts upon which she was convicted. That is an abuse of court process, now further pursued even in these proceedings.

141.  As Mr Ho submitted, in my view correctly, this is not just a case of the present judicial review challenge being potentially capable of undermining the Applicant’s criminal conviction. Rather, it is a case where the Applicant openly admits using these proceedings to make a collateral challenge to the criminal conviction. She originally did so at a time when the criminal appeal remained unresolved, and that criminal appeal has since been resolved by the determination of the Court of Appeal. As said, the Applicant could have raised the issue in the criminal appeal process, though apparently chose not to in the end.

I.  Ground 1

142.  By the time of the argument, Mr Chan accepted that the sufficiency of disclosure of the reasons for the TIP Decision was no longer a central question.

143.  However, Mr Chan said the point on this ground is not academic, where there has been a failure as a matter of law. It is appropriate that there should be a ruling to that effect, not just as matter of principle, but as a matter of guidance available to future officers conducting and making decisions on TIP screening/assessments.

144.  Mr Chan submitted that not only was the TIP Decision deficient in reasoning, initial information given to the Applicant was misleading in suggesting that the Applicant was actively substantively “assessed” to be “not a victim of TIP”, when in fact she was first and foremost dismissed according to the Operational Practice. Hence, he submitted, the Applicant was plainly right to insist that fuller (and true) reasons be given.

145.  It is correct that the TIP Decision letter did say simply that the Commissioner had conducted a holistic review on the available information and it was assessed that the Applicant is not a victim of TIP. But I am not sure it is fair to suggest that was misleading, because there was in fact an assessment made; the conclusion was reached that the necessary “means” had not been established, because it could only have been established by finding which would amount to or permit a collateral attack on the conviction. On the other hand, I think it must be accepted that the TIP Decision letter did not make that clear, and did not identify why the assessment result had been reached. In other words, there was really only the statement of the conclusion, rather than any (even brief) reasoning for that conclusion.

146.  I do not go so far as to say that any form of reasoning need be provided for every TIP/forced labour assessment. Indeed, where the person who is assessed may have no knowledge of the assessment having occurred – for example, where there is no request but where a LEA officer thinks that he or she should ask him or herself the questions in the first stage, but no indicators are then found to lead to a second full debriefing stage – no decision will be notified, and obviously no reasons will be required.

147.  However, in the particular circumstances, not least where a reasoned request for TIP assessment had been made, I think that 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. But I do not think that any reasoning would need to have been of any great length or detail. For example, it being well known that there are two stages to the assessment, I think the Applicant was entitled to know what indicators (if any) were found to be in existence at the first stage, and upon any second stage which of the three requirements of “act”, “means” and “purpose” (if any) were regarded as having been met, and hence which had not. In essence, appropriate reasoning would include a summary of the Full Debriefing Form.

148.  I do not think this is simply a matter of good practice. Without being told at least those things, the Applicant could not realistically understand – and, if desired and appropriate, take advice on – the decision which was the result of the assessment. I do not think that would have imposed any significant burden on the decision-maker simply to identify these factors. They can all be readily seen on the screening form.

149.  Further, irrespective of whether the Operational Practice operated in the way that Mr Chan submitted, or in the way that Mr Ho submitted, it was clearly part of the thrust of the decision-making in this 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. This could also have been readily stated.

150.  But, the full reasoning having now been provided, there is no need further to consider this Ground in so far as it might lead to the grant of any relief.

J.  Ground 2

151.  Ground 2 asserts alleged procedural unfairness and breach of BOR4.

152.  The essence of Mr Chan’s submission was that the manner in which the TIP claim was compared and contrasted with what had previously been said in the criminal process was inevitably coloured by the Operational Practice, and was fundamentally unfair. In essence, the interviewer in a criminal process approaches that interview in a different mindset to that of an assessor in the TIP screening process, which by its nature deals with vulnerable persons. In the DM case, at §63, I recognised that there may 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 that is not to the point in the circumstances of the present case.

153.  What was being considered was the material contained in the VRIs, in comparison with the factual matters later asserted by the Applicant in the TIP interviews. It is worth keeping in mind that the Applicant chose not to give viva voce evidence at her criminal trial, but instead relied on the (exculpatory) content of the VRIs, which were admissible as evidence. I have already indicated (see above) why I do not think there was any impropriety in the TIP assessor taking these materials into account in the weighing process of the assessment. Indeed, Mr Chan was constrained to accept that it could not be suggested that the materials from the criminal process are not relevant at all. They are relevant and can be weighed.

154.  Mr Chan’s further complaint was that the content of the VRIs were used in effect as “cross-examination” – not as such, but in a way which went to the fairness of the overall process. The complaint was really about the lack of opportunity to explain inconsistencies which are perceived by the decision-maker to be instructive and possibly determinative. Mr Chan submitted that there was a particular aggravation by the fact that, unbeknownst to the Applicant, written documentation had in fact been prepared detailing the alleged discrepancies in the materials. That, he said, was a fundamental breach of fairness, because a party is entitled to the disclosure of all materials which may be taken into account when reaching a decision adverse to that party.

155.  However, I do not think it right to view the TIP screening or assessment process as being adversarial in that sense. Further, the Applicant must have had full knowledge of the things which the Police might take into account on the assessment – not least as she had specialist legal advice. She knew what she had said in the VRIs, and she knew what she was asserting in the TIP Interviews. In the context of the TIP assessment process, I do not think there was any requirement of fairness for the Applicant to have had “put to her” what was ultimately part of the thought process of the assessor, in weighing the various materials to which the assessor had reference. There was no requirement of fairness for the assessor to stop at individual points of the thought process and ask the Applicant if she had a comment on it, or wanted to offer an answer to it or a clarification of it.

156.  Again, as I have indicated above, I see nothing improper in the assessment of credibility including looking at discrepancies which might have existed between various versions of the material events. Further, it is clear on the facts of this particular case that the discrepancies alone were not ultimately the determinative point. Rather they were looked at in the context of seeing whether there were other materials which might identify points in favour of the Applicant which might change the assessment, perhaps by removing the perceived barrier created by the abusive collateral attack on the conviction.

157.  I do not think the alleged procedural unfairness is reasonably arguable.

158.  I also take Mr Ho’s submission into account, that it should be impermissible for the Applicant to rely on BOR4 when all along the impugned decision related only to a TIP screening, as requested by the Applicant through her legal representatives.

K.  Result

159.  In many cases, after a fully argued hearing, there is probably little benefit in identifying whether any of the asserted grounds would have led at a separate hearing to the grant of leave to apply for judicial review, if after the rolled-up hearing the conclusion is reached that none of them can ultimately be sustained. Nevertheless, I think in this case my conclusions are a little more nuanced.

160.  Indeed, as regards Ground 1 (reasons), I have accepted that the ground was not only reasonably arguable, but that there was an initial failure to have given proper reasons for the TIP Decision in the particular circumstances, even though the point was essentially rendered academic over time. I have explained what I think would have been sufficient reasons, which should have been provided.

161.  As to Ground 2, I do not think it was reasonably arguable.

162.  As to Ground 3, the degree of consideration given probably signifies that it was reasonably arguable, though it fails on substantive review.

163.  The Applicant’s application in these proceedings must, therefore, be dismissed.

L.  Duty of Candour

164.  Albeit arising out of the circumstances dealt with above, an almost separate point was taken by Mr Chan relating to the duty of candour. Most of the principles which I will canvass were not substantially doubted by Mr Ho, albeit that he said that the question did not arise on the particular facts of this case.

165.  In any event, the reference to duty of candour is, of course, a reference to the duty of candour owed by public authorities in the context of public law / judicial review proceedings.

166.  The law on the duty of candour is well-established. I can adopt the summary I set out in Fortune Chance Ltd v Appeal Board (section 27 of URAO) [2025] HKCFI 1874 at §59 (see also reference to the authorities there cited) as follows:

(1)  Where a decision is challenged in judicial review proceedings, it is in some cases unnecessary to go into any or any great detail as to the reasons underlying the decision.

(2)  However, sometimes it is necessary for the court to examine the reasons for the decision in order to test the legality of it (subject to the limitations that exist in judicial review proceedings).

(3)  But, even in such cases the need to have regard to the duty of candour is rare. This is because the reasons for most decisions are readily apparent or readily made available by the decision-maker. The court need only look at the reasons to see whether or not the decision has been lawfully made.

(4)  The duty of candour is an aspect of good government, and proper and transparent administration.

(5)  From a practical point of view, the duty of candour is primarily relevant from an evidential point of view. The duty is placed on the decision-maker, as respondent to the judicial review challenge, to be full and frank to both the court and the applicant in disclosing all relevant facts and documents.

(6)  The facts and documents may relate to the actual reasons for a decision or to any other aspect that is relevant in the judicial review proceedings.

(7)  Nevertheless, the factual issues in a given judicial review case are often limited. Facts are often irrelevant because the focus of the proceedings is on the legality of the decision, or on questions of law.

(8)  Ordinarily, the duty arises after leave has been obtained by the applicant to commence judicial review proceedings. The duty of candour is not a basis for ‘fishing’ for a case.

(9)  The obligation to be full and frank in discharge of the duty of candour is not an open-ended or imprecise concept. What in any given case may constitute the fulfilment of that duty is entirely dependent on the issue or issues that are before the court.

(10)  Whilst the court will be astute not to permit so-called ‘fishing’ expeditions, once the critical issue is identified and resolution of that issue requires the court to be provided with adequate material, the court will in principle be more, not less, inclined to make necessary orders for disclosure.

167.  The duty is an important public dimension of the judicial review jurisdiction, which may affect not only the immediate parties but many in the wider society, and which jurisdiction serves to protect individuals against the abuse or misuse of public power, and to further the promotion of sound public administration.

168.  The duty of candour arises in the context that there is no automatic discovery in judicial review, unlike most normal private law litigation, and even when granted discovery is in general more limited in judicial review proceedings. In part, discovery is more limited precisely because (1) applications for leave to apply for judicial review are made ex parte, triggering the obligation on the applicant to give full and frank disclosure, and (2) once leave has been granted and the putative respondent becomes the respondent to the substantive judicial review application, that respondent is expected to, and of course usually does, discharge its duty of candour.

169.  Hence, the scope of the duty of candour is reflective of the public nature and public interest elements inherent in judicial review proceedings. It requires the decision-maker to assist the Court with full and accurate explanations of all facts relevant to the issues which the Court must decide. In doing so, the decision-maker must identify (as it is sometimes put) ‘the good, the bad and the ugly’. It is a very high duty, and the disclosure must be candid. Often the materials to be disclosed will relate to the actual impugned decision, and the real reasoning leading to it. But the facts and documents to be disclosed may relate to any other aspect which is relevant in the judicial review proceedings.

170.  It has previously been said that the duty of candour arises upon the granting of leave to apply for judicial review, at least implicitly suggesting that it does not arise unless leave has already been granted. However, other cases have left open the question of whether the duty of candour may arise before the grant of leave.

171.  Mr Chan submitted that it should now be made clear that the duty of candour may arise prior to the grant of leave to apply for judicial review. He suggested that in circumstances where the Court has directed and obtained a putative respondent’s input for the purposes of deciding leave – as in this case by the direction for a rolled-up hearing – then the duty of candour is triggered.

172.  I agree that where the Court has directed a rolled-up hearing, the duty of candour must have come into play. Otherwise, if the Court decides at the rolled-up hearing that leave should be granted on any ground, absent the duty of candour there would be risk that the Court would not have all the information it would expect to have before deciding the substantive application.

173.  Indeed, in such a situation of a rolled-up hearing, it is in all practicality the full hearing of the case – incidentally, a point relied upon by public authorities when seeking costs against an applicant who fails to obtain the grant of leave to apply for judicial review at the end of a rolled-up hearing.

174.  But I am not persuaded that the duty of candour would in general arise in other cases prior to the grant of leave. The grant of leave is merely the threshold point, and looks merely at whether the intended grounds of review are reasonably arguable with a realistic prospect of success.

175.  I do not accept that merely because the Court might permit or direct a putative respondent to provide an initial response to the application for the grant of leave to apply for judicial review, that would trigger the duty of candour. In many cases, the permission or direction to provide an initial response is simply to obtain more information which can be brought into the consideration of leave than is available from the disclosure made by the applicant (many of whom act in person). Of course, that is not to suggest that the public authority who provides an initial response can knowingly mislead, by hiding or keeping cards ‘close to the chest’. But it is to recognise that what has been permitted or directed is just the initial response – which is to be recognised as different from the full response that would be required upon a directed rolled-up hearing, or after the grant of leave.