[New Judgment] DM v COMMISSIONER OF CUSTOMS & EXCISE and SECRETARY FOR SECURITY [2022] HKCFI 3476
Link to Judgment (Dated 24 November 2022)
Court affirms importance of law enforcement agencies to ascertain within all stages of the criminal process whether crimes committed are a result of forced labour – drug mules may be victims too!
Many vulnerable individuals fall victim to elaborate human trafficking schemes through which they are deceived and abused, trafficked across borders, and forced to commit crimes. When these victims are then arrested for crimes that they committed as a direct result of being trafficked, justice requires that authorities thoroughly investigate how these victims were trafficked and how they came to commit the crime in question, before deciding whether to prosecute them. In such cases, whether the individual is viewed by the authorities as a suspected criminal to be put behind bars, or as a victim of trafficking to be protected, is of paramount importance.
In a decision handed down on 24 November 2022 concerning a woman known as “DM”, Honourable Justice Coleman affirmed that the constitutional duty under Article 4 of the Bill of Rights Ordinance (Cap. 383) to protect against forced labour applies to the entirety of any potential assessment of victimhood including initial assessments in a criminal process. While the Court did not find in favour for DM, mainly due to issues of delay and prohibitions against collateral attacks, the judgment reasserts the overarching importance to protect against forced labour and affirms the duty of law enforcement agencies to conduct assessments into whether or not the person investigated and/or charged for criminal offences such as drug trafficking is in fact a victim of forced labour.
The case of “DM”
The Applicant in these judicial review proceedings, known as “DM”, is a national of a South American country. The Applicant’s case was that she received a job offer from a company who required her to travel cross border to attend their offices. She was then abducted and forcibly detained by what she believes to be a criminal gang. Her claim is that during the long harrowing period of time she was detained, she was repeatedly beaten and raped, culminating in a threat that unless she transports certain unidentified substances to Hong Kong, her family members would be killed. Terrified for the safety of her family and her unborn child, DM boarded the plane to Hong Kong with the packets strapped to her body and was later arrested for drug trafficking. While DM had tried in ways available to her to make clear her victimhood, authorities did not conduct a TIP assessment to verify her claim on the basis that they found DM not to be “a credible victim”. She was eventually convicted of drug trafficking and sentenced to over 20 years’ imprisonment.
The importance of seeing drug mules as victims, not necessarily criminals
Our laws take seriously the crime of drug trafficking, but while we agree to the need for vigilance in law enforcement, we also find it important for law enforcement agencies not to adopt a blinkered vision to pinning down a ‘criminal’ for the mere sake of prosecuting a crime. There is a constitutional duty on the part of law enforcement agencies to understand and appreciate how the modus operandi of drug trafficking operations and to ensure that those who are essentially victims of forced labour and/or trafficking are to be protected, not prosecuted.
In other jurisdictions such as England and Wales, there are clear mechanisms which mandate law enforcement agencies to refer potential trafficking victims to an independent authority, which would then conduct an assessment and make a decision on whether the individual is a victim of human trafficking. Hong Kong lacks similar mechanism, and although the Prosecution Code recommends that Hong Kong prosecutors pay regard to whether a defendant (or intended defendant) may be a victim of trafficking, prosecutors have no legal obligation to do so – something that should arguably change given the latest judgment by Justice Coleman in DM.
It is high time for the Hong Kong authorities to reflect on pursuing real perpetrators of crime higher up the chain, including those running sophisticated trafficking rings who force vulnerable individuals such as DM to commit crimes. When acting for victims of trafficking, we will continue to push for their better protection as they often struggle to advocate for themselves. The legal profession should work to ensure that abuses suffered by these victims will be addressed by the criminal justice system in a way that protects their fundamental rights.