Whenever feasible, people believed to have committed criminal offenses are timeously charged and taken to court. However, nobody can be prosecuted on the basis of mere suspicion. As the Hong Kong Department of Justice’s Prosecution Code (2013) explains, a suspect can only be prosecuted if prosecutors consider there is a reasonable prospect of conviction on the available evidence, and it is also in the public interest.

It may, for example, not be in the public interest to prosecute a suspect if the offense is minor, was committed by a youth, and occurred long ago.

However, the ancient common law doctrine holds that “Time does not run against the Crown.” Although some minor (summary) offenses triable in the magistrates’ courts must be prosecuted within specific time frames, this is inapplicable to the more serious crimes. Even if an offense occurred years before, the culprit must still expect to face prosecution, particularly if the allegations are grave. If the suspect has evaded justice in the intervening years, or if it has taken investigators time to assemble a case that will stand up in court, the culprit cannot legitimately complain when charges are finally brought.

However, in an extreme case, if a suspect has had the possibility of criminal charges hanging over his or her head for ages for no good reason, a remedy may lie. A stay of proceedings can be sought on the basis that the court’s process has been abused because of the delay in prosecuting. After all, a long delay can sometimes have serious implications, which may affect the trial’s fairness. For example, the memories of witnesses may have faded, other witnesses may no longer be available, and crime scenes may have changed.   

However, a stay of proceedings is very rare, and a suspect will normally need to show not only that the delay was unjustifiable but also that it has affected the fairness of the trial. As a rule of thumb, the more serious the offense, the less likely it is that a judge will stay the proceedings because of undue delay. 

Other things being equal, the community has a vested interest in the prosecution of those who have violated its laws.

On Oct 25, the police commissioner, Raymond Siu Chak-yee, told the media that 10,279 individuals, aged 11 to 87, had been arrested during the violent protests in 2019. Of these, 2,974 had undergone, or were undergoing, legal proceedings as of September (of the former group, 2,403 had faced punishment after pleading guilty or being convicted). Of the remainder, numbering approximately 7,000, the police were still pursuing their investigations, and the course of justice would take its course. It is certainly possible that some of the suspects will not be prosecuted, in light of the evidence.

However, some people have suggested it is time to call it a day on the outstanding cases, and that a line should be drawn under the whole episode. They claim that this would facilitate the healing process, and enable society to move on. However, this disregards the gravity of many of the offenses under investigation, which reportedly include arson, bodily injury, criminal damage and riot. 

In any event, it is invariably in the interests of justice that those who commit offenses should face justice, even if it takes time. 

Although Siu said the police had some evidence against those whose cases were outstanding, it did not meet the threshold test for prosecution, and inquiries were continuing. He pointed out that the rioters had deliberately damaged the surveillance cameras, and this, as they intended, had hampered the gathering of evidence. He added that public protest cases were the same as any other cases, and there was “no time limit to deal with the cases”. 

All the indications are that the Police Force has acted throughout in complete good faith in its handling of the outstanding cases from 2019. ... They, no less than the arrestees, want the remaining cases wrapped up as soon as possible, and they are pulling out all the stops in their quest not only for finality but also for justice.

On Oct 28, Secretary for Security Chris Tang Ping-keung dismissed concerns that the delay in processing the cases was unfair to the arrestees. He explained that those who committed serious offenses could not evade justice because the police had yet to conclude their investigations. He said, “We need time to gather evidence; this is reasonable.” There was a mass of evidence to evaluate, and the role of each suspect had to be clinically ascertained, which was incontrovertible.  

There can be no question of initiating prosecutions if, although there is some evidence, it is insufficient. If this happened, the case would likely collapse in court, once tested in cross-examination. To prosecute a suspect when the evidence is inadequate could be worse than any delay, given the trauma, and must be avoided. In the past, prosecutors have occasionally authorized weak prosecutions by arguing, “Let the court decide”, but this contravenes prosecutorial ethics. When the liberty of the individual is at stake, prosecutors must be absolutely sure of their ground, and half-baked prosecutions should be avoided at all costs. 

Although suspects may find it stressful to have the possibility of criminal proceedings hanging over them for a long period, this is sometimes unavoidable. In the meantime, they must get on with their lives and hope for the best, pursuing constructive endeavors. As the secretary for justice, Paul Lam Ting-kwok, has pointed out, people who have been arrested but not charged enjoy the same freedoms as ordinary residents, particularly regarding study and work. 

As the Hong Kong courts have recognized, there is a delay in every case before trial. However, “the real question is whether there has been an unreasonable delay, through no fault of a defendant, which has contributed to the punishment” (CAAR 12/2006). In deciding if the delay was unreasonable, the courts must consider “the size of the investigation” (CACC 369/2003). If the delay was unreasonable and caused the defendant to be “under the strain of legal proceedings for a very long period” (CACC 705/1996), this is a mitigating factor that, in the event of conviction, can result in a discounted sentence.   

All the indications are that the Police Force has acted throughout in complete good faith in its handling of the outstanding cases from 2019. There is nothing to suggest foot-dragging, and diligent investigators are investing hundreds of man-hours in their search for the truth, often involving the painstaking analysis of video-recorded evidence. They, no less than the arrestees, want the remaining cases wrapped up as soon as possible, and they are pulling out all the stops in their quest not only for finality but also for justice.

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.