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Dm v Commissioner Of Customs & Excise And Another

Judgment Cited authorities 10 Cited in Precedent Map Related
Vincent
Judgment Date24 November 2022
Neutral Citation[2022] HKCFI 3476
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
Judgement NumberHCAL460/2022
HCAL460/2022 DM v. COMMISSIONER OF CUSTOMS & EXCISE AND ANOTHER

HCAL 460/2022

[2022] HKCFI 3476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 460 OF 2022

________________________

BETWEEN
DM Applicant

and
COMMISSIONER OF CUSTOMS & EXCISE 1st Putative
Respondent
SECRETARY FOR SECURITY 2nd Putative
Respondent

________________________

Before: Hon Coleman J in Court

Date of Hearing: 18 November 2022

Date of Decision: 24 November 2022

_____________

D E C I S I O N

_____________

A. Introduction

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

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

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

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

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

B. Factual Context

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12. Ms Ko sought further information to consider those representations, but having considered the various materials, Ms Ko thought the account given by the Applicant was inherently improbable and...

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