Although the “one country, two systems” policy faced serious threats during the insurrection of 2019-20, it survived. This was despite anti-China forces and their foreign backers doing everything possible to destroy the Hong Kong Special Administrative Region. They understood its importance to China, which would suffer immeasurably from its ruin.

However, actions have consequences, and many of the culprits were arrested. Others fled abroad, where their controllers have found new roles for them, whether as agents, conspirators, or propagandists. Beijing-hostile entities like Hong Kong Watch, the Committee for Freedom in Hong Kong Foundation and the Hong Kong Democracy Council are now stuffed with such people.

Sadly, many of the young miscreants who were apprehended were naive and feckless. They were ruthlessly exploited by malign forces who cared nothing for their welfare, and lost interest in them once the insurrection collapsed. Whereas some committed grave crimes, ranging from arson and criminal damage to riot, not all have been prosecuted.  

According to the latest police statistics, 10,286 people aged between 11 and 87 were arrested in connection with the insurrection, of whom 2,978 were charged. Thus far, no criminal proceedings have been initiated against the others, numbering over 7,000, and the possibility of prosecutions necessarily diminishes over time.

One reason prosecutions are brought as soon as possible is that witnesses can still recall who did what and what was said, when their memories are more reliable. Over time, recollections fade, evidence becomes stale, and witnesses (for both sides) may no longer be available to testify. Such factors can imperil the fairness of the trial.

However, if the evidence affords a reasonable prospect of conviction, it will normally be appropriate to prosecute the suspect — unless, perhaps, further lines of inquiry are being pursued to strengthen the case.  

Anybody who commits a crime is always aware that the long arm of the law may catch up with them one day. This is as true of the thief or the rapist as it is of the insurrectionist. They must live with the suspense, and there is nothing unfair about it. It is part of the price they must pay for their criminality

If, conversely, the evidence does not suffice, a prosecution cannot properly be brought. This does not indicate that the case is closed, but means that if new evidence to implicate a suspect comes to light in due course a prosecution may become viable. Some, at least, of those arrestees who have escaped prosecution thus far will fall into this category, particularly if their alleged offenses were serious. If an offense is minor, there will come a point when a line can be drawn under the matter, most obviously if the suspect was youthful at the time.

Although some arrestees have reportedly been on police bail for long periods while investigations are outstanding, there is no unfairness. After all, they can decline extensions they consider unreasonable. If they did so, the police would need to decide whether there was a basis for charging them. If so, they could be detained for up to 48 hours, after which they would have to be taken to court, where bail would need to be determined again.

If, however, a suspect were to force the hand of the police in that way, it could backfire. It would be open to the magistrate to deny the suspect bail altogether, or else to impose bail terms considerably more stringent than those previously imposed by the police.

It must not be thought that those arrested for activities related to the insurrection are being treated differently from other criminal suspects. There is an ancient English common law maxim, nullum tempus occurrit regi (“time does not run against the king”), and the same principle applies in Hong Kong, with its common law roots. Anyone suspected of a criminal offense can be prosecuted long after the event if the necessary evidence only becomes available at a later stage.

Even then, as the Department of Justice’s Prosecution Code (2013) explains, a prosecution may not be necessary if it is not in the public interest. If, therefore, the offense is not serious, there has been a delay in proceeding with the case, the suspect is young, remorseful, or cooperative, or the likely penalty will not be great, prosecutors may decide not to prosecute.

In any event, if a suspect has genuinely turned over a new leaf and the alleged offense is not only minor but stale, it is hard to see what possible benefits would accrue from bringing criminal proceedings against them.

Although there have been suggestions that the police have been keeping insurrection suspects in check by threatening prosecution, Secretary for Security Chris Tang Ping-keung has stressed that prosecutions will proceed if there is “sufficient evidence” (June 26). The corollary to that must be that half-baked prosecutions cannot proceed, as this would not only be unfair to the suspects but would also reflect badly on the criminal justice system itself. If, moreover, the police ever abused their powers by unnecessarily delaying prosecutions, only acting against suspects for illegitimate reasons, the courts could remedy the situation. They enjoy inherent powers to stay unfair proceedings, which they would not hesitate to exercise to prevent injustice.  

Anybody who commits a crime is always aware that the long arm of the law may catch up with them one day. This is as true of the thief or the rapist as it is of the insurrectionist. They must live with the suspense, and there is nothing unfair about it. It is part of the price they must pay for their criminality.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The views do not necessarily reflect those of China Daily.