The two bodyguards were found to be working on tourist visas after they allegedly roughed up two photographers in June outside Bona Mugabe’s Hong Kong home.
They were spared prosecution because the Department of Justice ruled that they were acting out of concern for the safety of Bona Mugabe, who studies in Hong Kong.
However, after an investigation into their visa status, the Department of Justice confirmed on Monday that there is a case for the two bodyguards to answer. Working illegally in Hong Kong carries a jail term of up to two years.
Police have been advised to formally interview Mapfumo Marks and his female colleague Manyaira Reliance.
However, the pair are unlikely to face prosecution as they returned to Zimbabwe and have since been replaced by other bodyguards.
The Department of Justice declined to comment on Monday on whether any action was being contemplated against the Mugabe family.
Marks and Pepukai were reported to police on February 13 after allegedly roughing up two photographers, Timothy O’Rourke and Colin Galloway, outside the Mugabe’s luxury house.
The fracas came just a month after another photographer, Richard Jones, was allegedly beaten up by Grace Mugabe, wife of Robert Mugabe, when he took pictures of her shopping in Tsim Sha Tsui at a time when Zimbabwe was mired in political and social chaos.
Grace Mugabe claimed diplomatic immunity over the incident and has since returned to visit her daughter.
Critics have accused the Hong Kong government of failing to apply the law fairly in the case of the Mugabes for fear of upsetting Beijing, which has a warm relationship with Zimbabwe.
No action was taken over the visa status of the two bodyguards at the time of the incident, even though investigating officers took copies of their passports which contained three-month visitor visas.
A Department of Justice spokeswoman said of the investigation into the bodyguards’ visa status: "Advice has been given to the police. Their investigation cannot be completed as the Zimbabweans have left Hong Kong.
"In the event that they return to Hong Kong, the police will seek to interview them and to complete their investigation."
Human rights lawyer Michael Vidler, who represents all three photographers, said the decisions taken over the two Mugabe cases sent out "a very negative message about Hong Kong to the rest of the world."
"It is adversely affecting our reputation as a place that is safe to live and where the law is applied equally, irrespective of who you are or how powerful your connections are," he argued. – Sapa-dpa