Executive Summary

Since the 2019 Anti-Extradition Bill Movement, more than 7,000 arrested persons in Hong Kong have remained uncharged for nearly seven years. Against this backdrop, the Security Bureau has introduced a so-called “Special Project,” under which participation in Mainland exchange activities, “positive guidance,” attitude assessments, and other attached requirements may form the basis for obtaining non-prosecution or purported “rehabilitative” treatment.

This article argues that the central issue does not lie in the label of “rehabilitation” itself, but in a deeper constitutional and institutional question: whether, within Hong Kong’s criminal-procedure framework and constitutional order, executive authorities may — absent admitted conduct or established facts — use a state of prolonged prosecutorial suspension as the basis for introducing attached conditions unrelated to any alleged-conduct risk, and link those conditions to prosecutorial judgment.

The article first examines the public-interest framework reflected in paragraphs 5.9 and 15.4 of Hong Kong’s Prosecution Code, including the limited role of rehabilitation and alternatives to prosecution within that framework. It shows that traditional diversionary mechanisms grounded in these principles — such as binding-over orders, the Superintendent’s Discretion Scheme, and administrative educational diversion schemes in other common-law jurisdictions — share several defining features: they are premised on admitted conduct or established facts; address identifiable alleged-conduct risks; operate within established criminal-procedure structures; remain subject to procedural supervision; and produce clear and legally defined consequences.

By contrast, the “Special Project” operates outside existing criminal-process structures and introduces cross-border arrangements, attitude- and value-orientation requirements, and other conditions in circumstances of prolonged non-prosecution. Its operational logic is therefore incompatible with the legal and constitutional foundations underlying existing diversionary systems.

The article further demonstrates that once executive-imposed conditions become linked to prosecutorial judgment, the arrangements may begin to implicate multiple constitutional and human-rights protections, including the presumption of innocence, the right to trial without undue delay, procedural fairness, freedoms of thought and opinion under the Hong Kong Bill of Rights, and freedoms of movement and personal choice in activities. More importantly, where executive authorities rely on prolonged prosecutorial suspension to influence an individual’s legal position or freedom of choice in the absence of procedurally established facts, the arrangements may begin to enter the realm of criminal-law evaluation, including potential issues relating to perverting the course of justice, misconduct in public office, criminal intimidation, or coercion.

The article also notes that, under ordinary circumstances, Hong Kong’s existing prosecutorial, judicial-review, and public-law mechanisms are generally capable of addressing disputes involving the exercise of executive power. However, where the exercise of executive power itself may begin to encroach upon the boundary of the criminal law, and where ordinary institutional channels may be affected by structural overlap between administrative and prosecutorial authorities, the issue is no longer confined to procedural fairness or human-rights protection. It raises a further question: whether Hong Kong’s mechanisms of public accountability and judicial oversight continue to function effectively within the constitutional order.

If existing institutional mechanisms fail to operate effectively, prolonged “non-prosecution” may cease to be a temporary procedural state and instead evolve into a structural mode of case handling — enabling executive authorities to exert sustained institutional pressure through attached conditions, while placing continuous strain on the constitutional boundaries separating executive power, criminal prosecution, human-rights protections, and the rule of law. This development ultimately raises a deeper concern: whether the exercise of public power in Hong Kong remains genuinely constrained by the constitutional order and the legal system.

(Full Chinese article available here.)