DM v. COMMISSIONER OF CUSTOMS & EXCISE AND ANOTHER

DM v. COMMISSIONER OF CUSTOMS & EXCISE AND ANOTHER

The judicial review was dismissed as an abuse of process and for delay: the threshold issue of whether there was a credible suspicion that the applicant was a victim of trafficking/forced labour had been fully considered and rejected by the trial judge and the Court of Appeal; permitting a fresh VIS now would amount to a collateral attack on those final decisions, would risk undermining the safety of the conviction, and no special circumstances existed to disapply abuse of process; the application was also not promptly brought and no adequate explanation justified extension of time.

Citation
[2022] HKCFI 3476
Parties
Applicant: DM; 1st Putative Respondent: Commissioner of Customs & Excise; 2nd Putative Respondent: Secretary for Security
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 November 2022
Case Number
HCAL460/2022
Procedural Posture
Constitutional and Administrative Law Judicial Review / Decision on Leave and Substantive Dismissal by Court of First Instance
Outcome
Applicant's application for leave to apply for judicial review dismissed; substantive application would also be dismissed if leave had been granted
Legal Topics
Victim Identification Screening (vis), Positive Obligations Under BOR4, Abuse of Process and Issue Estoppel, Res Judicata, Delay and Limitation, Duress Defence, Judicial Review Leave and Discretion
Source Language
EN
Constitutional Law Administrative Law Criminal Law Human Trafficking Forced Labour Procedural Fairness Public Law Remedies Victim Identification Screening (vis) +6 more

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Parties

DM

Applicant

Commissioner of Customs & Excise

1st Putative Respondent

Secretary for Security

2nd Putative Respondent

Procedural Posture

Constitutional and Administrative Law Judicial Review / Decision on Leave and Substantive Dismissal by Court of First Instance

Legal Issues

  1. 1 Whether the Secretary for Security unlawfully refused to conduct a Victim Identification Screening (VIS) for suspected trafficking/forced labour
  2. 2 Whether the criminal process (trial, jury verdict and appellate process) can substitute for an independent VIS and satisfy BOR4 procedural obligations
  3. 3 Whether the applicant's judicial review is an abuse of process or collateral attack on earlier criminal findings and thus barred by issue estoppel/res judicata

Ratio Decidendi

The judicial review was dismissed as an abuse of process and for delay: the threshold issue of whether there was a credible suspicion that the applicant was a victim of trafficking/forced labour had been fully considered and rejected by the trial judge and the Court of Appeal; permitting a fresh VIS now would amount to a collateral attack on those final decisions, would risk undermining the safety of the conviction, and no special circumstances existed to disapply abuse of process; the application was also not promptly brought and no adequate explanation justified extension of time.

Court Disposition

Applicant's application for leave to apply for judicial review dismissed; substantive application would also be dismissed if leave had been granted

Orders

  • Leave refused and substantive judicial review dismissed
  • Costs awarded to the respondents to be paid by the applicant, to be taxed if not agreed