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Published: 01:03, June 13, 2023 | Updated: 10:36, June 13, 2023
Delayed prosecutions: Bringing offenders to justice is in public interest
By Grenville Cross
Published:01:03, June 13, 2023 Updated:10:36, June 13, 2023 By Grenville Cross

In the places over which King Charles III reigns, there is a common law doctrine which holds that time does not run against the Crown (Nullum tempus occurrit regi). It means that the monarch, in whose name all prosecutions are brought, is not subject to time limits in criminal cases. Even, therefore, after many years, during which time they may have been lying low, suspects can still be prosecuted, evidence permitting. Although some offenses only come to light many years after the crime was committed, as, for example, with historical child-abuse cases or elaborate frauds, it is invariably in the public interest that offenders be brought to justice, no matter how long it takes.

This common law doctrine is also part of Hong Kongs legal system, with the Crown being replaced as the prosecutor by the Hong Kong Special Administrative Region in 1997. Indeed, the Basic Law stipulates that, after the reunification, the common law shall be maintained (Article 8). Although the Magistrates Ordinance (Cap.227) provides that minor offenses should be prosecuted within six months of when they arise, this has no relevance when serious criminality is involved. It may, after all, take the police a considerable amount of time to track down suspects and complete their investigations. There is often a mass of evidence to be assessed and numerous leads to be pursued, and it would not be right to allow suspects to avoid justice simply because it has taken a while for investigators to crack their cases.

On May 23, it was reported that, whereas the police have arrested 10,279 people in relation to the insurrection in 2019-20, only 2,910 have been charged. The other cases are still outstanding, and suggestions have surfaced that it is time, in the interests of reconciliation, to draw a line under the whole matter. If, however, this involves taking no further action against suspected arsonists, bomb-makers and rioters, such suggestions cannot be taken seriously, even if it means that particular individuals are left facing an uncertain future.

Even though the legislator Tik Chi-yuen has said that delays are not just hurting the young people, but also their parents, given that they cant plan their future and career at all, things are not as straightforward as that. He argued that if cases are not serious, then why not close them quickly, which sounds fair enough. However, his suggestion can only be realistically considered if the issues are minor or trivial, which, alas, most of those associated with the black violence of 2019 are not.

It is, therefore, only right that time does not run against the HKSAR. The people who wrought havoc and tried to provoke Beijing into launching a military crackdown must not be allowed, under one guise or another, to escape their just deserts. After all, in any jurisdiction that values the common law and cherishes criminal justice, the rule of law must always have the last laugh

As the insurrection continued for many months, there is a huge amount of evidence, often involving video recordings, to be evaluated, and hard-pressed prosecutors only have so many hours in their day. They may sometimes need to advise the police to follow up on particular inquiries, often involving identification evidence, and the process cannot be rushed. They can only prosecute a suspect once there is a reasonable prospect of conviction (the traditional common law test), and if they were to hurry things along, innocent people might be charged. If this happened, the cases would, once subjected to forensic scrutiny, collapse at court, which must be avoided.

In deciding whether to prosecute, the Department of Justices Prosecution Code (2013) allows prosecutors to have regard to the public interest. They may consider any delay in proceeding with a prosecution and its causes, although the more serious the offense, the more likely the suspect will be prosecuted in the public interest.

On May 23, when the chief executive, John Lee Ka-chiu, was quizzed over the delays in prosecuting suspects, he declined to set a time frame for wrapping things up, and he was right not to have done so.

He said it was unrealistic to set a so-called timetable that is not based on any evidence, and it may also not conform to our spirit of the rule of law, which will have struck a chord with prosecutors. He was clearly drawing on his own experience as the Police Forces director of crime and security, and he knows better than most that justice cannot be rushed.

At least some of the suspects whose cases are still outstanding will likely be prosecuted, and if convicted, they may be able, in exceptional circumstances, to rely on delay as a mitigating factor in sentencing. If this happens, the Court of Appeal, which has noted that there is a delay in every case before trial, has emphasized that the real question is whether there has been an unreasonable delay, through no fault of a defendant, which has contributed to his punishment (CAAR 12/2006). The court, moreover, will also need to be satisfied that the defendant has not himself contributed to the delay by, for example, obstructive tactics or telling lies, and that any delay has actually resulted in unfairness to him.

If an offender whose case has taken time to crack was very young when the offense arose, this might be taken into account by way of a lesser sentence. He may, for example, be sentenced to a training center rather than imprisonment. What, however, he cannot legitimately expect is to get away scot-free.

Although there is another legal maxim, that justice delayed is justice denied, this was never intended to allow people suspected of serious offenses to avoid accountability. By working together in pursuit of shared objectives, prosecutors and police will hopefully be able to wrap up the outstanding cases from 2019 before too long, but their decisions must be soundly based. Anybody who committed crimes intended to wreck Hong Kong and overthrow its one country, two systems governing policy must expect to face justice, however long it takes.

It is, therefore, only right that time does not run against the HKSAR. The people who wrought havoc and tried to provoke Beijing into launching a military crackdown must not be allowed, under one guise or another, to escape their just deserts. After all, in any jurisdiction that values the common law and cherishes criminal justice, the rule of law must always have the last laugh. 

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.

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