Executive Summary

Since the 2019 Anti-Extradition Movement, more than 7,000 arrested persons have remained in a state of non-prosecution for nearly seven years. Against this backdrop, Hong Kong’s Security Bureau has introduced a so-called “Special Project,” under which participation in Mainland exchange activities, “positive guidance,” and other attached conditions are treated as prerequisites for obtaining so-called rehabilitation opportunities or non-prosecution.

Public discourse has understandably focused first and foremost on a basic question: why should individuals who have neither been charged, tried, nor admitted wrongdoing require “rehabilitation”? More fundamentally, this article argues that the key issue is whether executive authorities are constitutionally permitted, in circumstances of prolonged non-prosecution, to introduce attached conditions unrelated to any alleged offence-related risk — including cross-border travel requirements, attitude assessments, and value-orientation requirements — so as to intervene in prosecutorial decision-making that ought to be governed by evidence, law, and the public interest, and thereby materially influence prosecutorial judgment.

The article examines the “public interest” and “rehabilitation” principles reflected in paragraphs 5.9 and 15.4 of Hong Kong’s Prosecution Code. It argues that traditional diversionary mechanisms operating on the basis of these principles — including binding-over orders, the Superintendent’s Discretion Scheme, and administrative educational diversion schemes in other common-law jurisdictions — share several defining features: they operate on the basis of admitted conduct or established facts; address identifiable alleged offence-related risks; function within established criminal-process frameworks; and bring proceedings to an end within a period proportionate to the nature of the case. Crucially, such mechanisms do not intrude upon personal thought, value orientation, freedom of movement, freedom of entry and exit, or freedom of personal activities unrelated to the alleged conduct.

By contrast, the “Special Project” does not operate within any existing criminal-process framework. Instead, it introduces attached “rehabilitative” conditions — including cross-border travel, “positive guidance,” attitude assessments, and value-orientation requirements — in circumstances of prolonged non-prosecution. Such arrangements arguably depart from the legal foundations and procedural logic of traditional diversionary systems, and may interfere with multiple constitutional and human-rights protections by linking prosecutorial outcomes to attached conditions, including prosecutorial independence, the presumption of innocence, the right to trial without undue delay, procedural fairness, forum internum (freedom of inner thought and opinion), freedom of movement, freedom of entry and exit, and freedom of personal activities.

Once such executive conditions become linked to prosecutorial judgment, the arrangements cease to be matters of mere policy or administrative discretion. They may instead begin to implicate criminal-law liability boundaries governing the exercise of public power, including potential issues relating to perverting the course of justice, misconduct in public office, criminal intimidation, coercion, improper pressure, or other forms of criminal liability arising from the exercise of public power.

If normalized, such arrangements risk transforming “non-prosecution” from a temporary procedural status into a structural mechanism through which executive authorities exert substantial pressure on arrested persons by means of attached conditions. Institutionally, this may blur the constitutional boundaries intended to prevent executive encroachment upon criminal prosecution, human-rights protections, and freedom of thought.

More fundamentally, it may call into question whether the exercise of public power remains effectively constrained by Hong Kong’s rule of law and constitutional order, and whether such exercises of power may already be approaching or touching the boundaries of criminal-law liability. The resulting implications raise profound institutional and public-accountability concerns for Hong Kong’s rule of law and constitutional order.

(Full Chinese article available here.)