Open Letter to the Secretary for Security (26 May 2026)

To: Mr. Tang Ping-keung, Secretary for Security
Cc: The Chief Executive; The Secretary for Justice

Ref. No.: HKROLIN-2026-SBSP-01

Re: Potential Constitutional and Criminal Public-Accountability Issues Arising from the Security Bureau’s “Special Project”

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• 🔗 Open Letter to the Secretary for Security: 中文 / English

Dear Secretary Tang,

The Hong Kong Rule of Law Initiative (HKROLIN) recently published a legal research article entitled “Criminal Public Accountability Issues Arising from the Security Bureau’s “Special Project”: Judicial Scrutiny of Executive Conduct under Basic Law Article 35(2)” (link). We formally draw your attention to the significant constitutional and criminal public-accountability concerns identified therein.

I. Institutional Background and Core Issues

According to publicly available information, the “Special Project” operates in circumstances where cases have remained in a prolonged non-prosecution state and no court has made any criminal determination. At the same time, the authorities appear to link so-called “rehabilitation,” non-prosecution, or other potentially favourable ultimate prosecutorial outcomes to ancillary requirements such as Mainland exchange activities, “positive guidance,” and attitude assessments. In other words, rather than merely addressing the present state of prosecutorial suspension, the administrative arrangement may directly or indirectly make the ultimate prosecutorial decision itself contingent upon these ancillary conditions. If so, the core issue would not lie in the purported objective of “rehabilitation,” but rather in whether, absent facts established through due process or otherwise not subject to substantial dispute, administrative authorities possess a lawful basis for imposing ancillary conditions that directly or indirectly link prosecutorial judgment to non-offence-related factors such as personal activity arrangements, cross-border choices, and attitudes or value orientations.

Under Hong Kong legislation, the common law, and the Prosecution Code, existing criminal diversionary frameworks — including court-supervised bind-over orders, police cautions for juveniles, and educational diversion schemes in other common-law jurisdictions — exhibit several common institutional characteristics:

(1) such arrangements must be embedded within an existing criminal-procedure or prosecutorial-discretion framework;
(2) they must rest upon a sufficiently established factual basis or circumstances not subject to substantial dispute;
(3) any ancillary conditions must bear a direct relationship to the risk arising from the alleged conduct; and
(4) the operation of such arrangements remains subject to judicial supervision, proportionality, and clearly defined legal procedures and consequences.

By contrast, the “Special Project” does not appear to be grounded within any recognised criminal-procedure framework as a legitimate diversionary mechanism. Rather, during prolonged prosecutorial suspension, administrative authorities appear to have introduced ancillary conditions that may not bear any direct relationship to the risk arising from the alleged conduct, while extending into matters concerning personal attitudes, value orientations, activity arrangements, and cross-border choices. Such institutional arrangements appear to represent a serious structural deviation from the procedural embeddedness, factual foundation, and proportionality principles reflected in existing diversionary frameworks under Hong Kong legislation and the common law.

Where ancillary conditions are substantively linked to prosecutorial judgment, yet the relevant arrangements lack established legal-procedural safeguards, facts established through due process or otherwise not subject to substantial dispute, and the necessary degree of judicial supervision, the exercise of such public power may begin to give rise to significant constitutional and criminal public-accountability concerns extending beyond the ordinary scope of administrative discretion.

II. Constitutional Concerns

Within Hong Kong’s existing constitutional framework, the conduct of criminal proceedings, the prosecutorial system, and the exercise of administrative power are governed by several core principles, including:

(1) the presumption of innocence;
(2) procedural fairness and the guarantees of timely criminal process reflected in Articles 5(3) and 11(2) of the Hong Kong Bill of Rights;
(3) the proportionality principle and the requirement that administrative power be exercised for a proper purpose;
(4) prosecutorial independence under Article 63 of the Basic Law;
(5) certainty in criminal procedure and the foreseeability of legal consequences; and
(6) the right to judicial remedies and judicial scrutiny, including the right to “institute legal proceedings in the courts against the acts of the executive authorities and their personnel” (Article 35 of the Basic Law).

Within this constitutional framework, any administrative arrangement that links prosecutorial treatment to factors such as personal activity arrangements, cross‑border choices, or attitudes and value orientations may cut across these principles and undermine the institutional protections they are intended to secure. This is particularly so where prosecutions have remained suspended for an extended period and no court has made any criminal determination. If administrative authorities impose ancillary conditions that exert continuing influence over an individual’s legal position or freedom of choice, the compatibility of such arrangements with the presumption of innocence, proportionality, procedural fairness, and the requisite certainty of criminal procedure becomes a matter of constitutional concern.

Moreover, both the Hong Kong Bill of Rights and common-law principles emphasise the avoidance of unreasonable delay in criminal proceedings. Where large numbers of cases remain in a prolonged non-prosecution state, while ancillary requirements and institutional pressures continue to operate, it becomes necessary to reassess whether such administrative arrangements continue to possess a sufficient constitutional and legal basis, or whether they have begun to give rise to criminal public-accountability concerns.

III. Criminal Public-Accountability Concerns

Within the common-law and Hong Kong criminal-law framework, where administrative arrangements or measures (1) bear a substantive connection to prosecutorial outcomes; (2) lack an established legal procedure, factual foundation, or judicial supervision; and (3) may, through prolonged prosecutorial suspension, exert institutional pressure on an individual or otherwise influence their freedom of choice, such arrangements may begin to fall within the scope of criminal-law evaluation and call for legal and institutional scrutiny.

In this context, the legal concerns that may arise include, but are not limited to:

(1) perverting the course of justice;
(2) misconduct in public office; and
(3) issues relating to coercion or criminal intimidation under section 24 of the Crimes Ordinance (Cap. 200).

This letter does not assert that any of the above offences have been established; the ultimate legal assessment must depend on the specific facts of each case. The purpose of this letter is to highlight that, where the existing arrangements lack a clear legal basis, procedural safeguards, or support from established criminal‑procedure frameworks, such arrangements may already give rise to significant criminal public-accountability concerns and call for independent institutional legal scrutiny.

As these constitutional and criminal public-accountability concerns have now been specifically raised and formally notified through this letter and the accompanying research, the continued implementation of the relevant arrangements—absent adequate clarification of legal foundations, institutional review, and independent legal assessment—may further deepen the resulting institutional public-accountability concerns and carry significant implications for future legal and institutional scrutiny.

IV. Article 35(2) of the Basic Law: A Potential Constitutional Pathway for Criminal Public Accountability

Under ordinary circumstances, Hong Kong’s existing prosecutorial system, judicial-review mechanisms, and the common-law framework of public law are generally capable of addressing legal disputes involving the exercise of executive power. However, within the constitutional structure of “One Country, Two Systems,” the relationship between executive authority, prosecutorial discretion, and mechanisms of public accountability possesses a distinctive institutional configuration. Where administrative measures may begin to encroach upon the boundary of the criminal law, and where existing prosecutorial or administrative-oversight mechanisms may, due to structural constraints, be unable to address such issues effectively, it becomes necessary to reconsider a provision of the Basic Law that possesses a unique constitutional function yet has long received insufficient attention — Article 35(2).

Article 35(2) expressly guarantees that residents may “institute legal proceedings in the courts against the acts of the executive authorities and their personnel.” Its constitutional significance lies not merely in reaffirming a general right of court access, but in its role as a deeper constitutional safeguard of public accountability within Hong Kong’s constitutional order. It ensures that, where the exercise of executive power may give rise to structural institutional imbalance, residents retain a judicial pathway through which independent scrutiny may be sought.

This institutional design reflects a fundamental principle of the common law and the rule of law: no exercise of public power — including executive power itself — may stand beyond legal oversight and judicial scrutiny. Where structural tensions may prevent existing mechanisms from effectively addressing questions concerning the criminal-law implications of executive conduct, Article 35(2) may serve as an important constitutional pathway for ensuring that executive power remains subject to independent judicial examination.

It is important to note that the constitutional pathway reflected in Article 35(2) is not equivalent to private prosecution under the common law. Private prosecutions remain subject to the Secretary for Justice’s statutory and common-law powers of intervention and termination under section 14 of the Criminal Procedure Ordinance (Cap 221). By contrast, Article 35(2) emphasizes a constitutional guarantee enabling residents to seek judicial scrutiny of the acts of executive authorities and personnel. Its institutional purpose is to preserve the possibility of independent judicial examination where structural constraints may prevent existing prosecutorial or administrative-oversight mechanisms from effectively addressing issues concerning the criminal-law implications of executive conduct. The two mechanisms differ fundamentally in purpose, constitutional foundation, and operational logic.

Article 35(2) has historically received limited attention in Hong Kong, in part because existing prosecutorial and public-law mechanisms have, in most circumstances, been adequate to address legal disputes involving executive power. As a result, its distinctive constitutional role has not been developed as an independent pathway of public accountability. However, the institutional concerns raised by the “Special Project” now make it necessary to revisit the latent constitutional function of Article 35(2).

In the context of the “Special Project,” where ancillary administrative requirements bear a substantive connection to prosecutorial outcomes, and where the arrangements lack established procedural safeguards, a sufficient factual foundation, and necessary judicial supervision, the question of whether such conduct has begun to encroach upon the boundary of the criminal law becomes a matter of criminal public accountability properly subject to judicial scrutiny under Article 35(2). This has significant implications for maintaining Hong Kong’s constitutional order and the institutional checks on public power.

Although Hong Kong has not previously seen public-accountability litigation brought directly under Article 35(2) concerning the acts of executive authorities or personnel, the institutional arrangements associated with the “Special Project” raise issues of a character materially different from those ordinarily addressed through existing prosecutorial or public-law mechanisms. One purpose of this letter is therefore to identify the relevant constitutional boundary at an early stage so as to avoid the continued implementation of the arrangements giving rise to further serious and potentially irreversible legal and institutional consequences.

V. Formal Requests

In light of the constitutional and criminal public-accountability concerns outlined above, HKROLIN formally makes the following requests:

(1) that the implementation of the “Special Project” be suspended immediately, pending full clarification of its legal basis and an institutional review;

(2) that the legal basis, policy rationale, and any relevant guidelines of the “Special Project” be publicly disclosed for purposes of public scrutiny;

(3) that all relevant records, documents, agreements, and communications be properly preserved to ensure the integrity of any future institutional review or legal proceedings;

(4) that independent legal experts or institutions be commissioned to conduct an assessment of the compatibility of the “Special Project” with existing criminal procedure, common-law diversionary frameworks, and constitutional principles; and

(5) that long-pending non-prosecution cases be reassessed to determine whether they continue to possess a sufficient public-interest, proportionality, and procedural-fairness basis, particularly where the individuals concerned have not engaged in any further criminal conduct for an extended period. Clear procedural decisions — whether to proceed with charges or to conclude the cases — should be made without further delay to avoid indefinite prosecutorial suspension.

Existing diversionary frameworks already reflect that public interest, rehabilitation considerations, and procedural handling must remain proportionate to time and risk, and consistent with the proportionality principle. Where individuals have not engaged in any further criminal conduct over a prolonged period, the continued maintenance of non-prosecution status and the imposition of ancillary institutional arrangements raise serious legal questions that administrative and prosecutorial authorities must address.

These requests are made to preserve the integrity of Hong Kong’s criminal-justice system, the lawful exercise of public power by administrative authorities, and the constitutional order. In this respect, the continued implementation of the administrative arrangements identified herein may place those arrangements on a course that crosses the constitutional line separating the lawful exercise of administrative power from criminal public accountability, with the attendant risk of serious constitutional and legal consequences.

Yours faithfully,

Hong Kong Rule of Law Initiative (HKROLIN)

Chi-Sang Poon
Founder & Editor-in-Chief

Dated: 26 May 2026