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