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This matter of extradition is getting very complicated, and I am not sure that mixing it up with the rule of law helps.

My last piece on the controversy contained an error. So many of the People’s poodles had said that Lord Patton was being inconsistent by opposing an extradition arrangement with China when the UK already had one, that I assumed this was true. It isn’t, as a kind reader gently pointed out.

The official Foreign Office line is that individual requests for extradition to China are treated on their merits. There is no extradition treaty.

This brings us to another point, which is that whether there is a treaty or not does not by itself decide whether extradition takes place or not. I am indebted on this topic to a light-hearted piece in The Guardian about which country to take refuge in if you are a wanted person in your home country.

Some countries which have extradition treaties with the UK are in practice very reluctant to extradite anyone. Some which do not have a treaty are happy to cooperate. Some have restrictions of their own which take precedence over the extradition treaty.

The best-known example of this, to people of my generation, involved Mr Ronnie Biggs, now deceased. Mr Biggs participated in the Great Train Robbery, was caught, convicted and sentenced to a long prison term.

He escaped from prison, and found his way to Brazil, where he married a local lady. This made him a Brazilian citizen and Brazilian law does not permit the extradition of its own citizens. So he lived free in Brazil for many years until he succumbed to home-sickness and shortage of money in 2001 and went home voluntarily.

The relevance of this is that it shines an unflattering light on the latest offering from Ronnie Tong, which included the complaint that the UK has extradition treaties with “many countries” with worse scores than China on the Rule of Law Index.

This index is produced by a non-government organisation called the World Justice Project, which is like the World Series – more American than you would think. Every year it produces a league table in which countries are ranked according to their adherence to the rule of law.

The immediate objection to Mr Tong’s argument flows from this. The Rule of Law Index is updated every year. Extradition treaties, on the other hand, go on for ever. The proper question is not whether the UK has extradition treaties with countries which score lower than China, but whether it would sign an extradition treaty with a country which, at that time, had a lower score than China, which is quite a different matter.

Still, let us have a look. There are according to the UN 195 countries in the world. The UN does not count the Pope or Palestine, or for that matter Taiwan. Actually it doesn’t count Hong Kong either, but the Rule of Law Index does.

The Rule of Law Index covers 113 countries. Hong Kong comes in at number 16; China at number 82. The index ignores about 80 countries. Some of them are very small (Andorra, San Marino), some may present practical difficulties (Iraq, Libya) and some might be politically tricky (Israel). On behalf of my ancestors I would like to protest at the omission of Ireland. Switzerland seems an odd one to miss, too.

The strangest thing about the Index, though, is that if you look at the map version it is very obvious that in the Caribbean no island is too small, corrupt or rum-sodden to appear in the index, while there is no Pacific island at all between New Zealand and the Americas. Maybe there is an expenses problem.

To get to Mr Tong’s point, according to the British Foreign Office the UK has extradition arrangements with 121 countries. List here. Not all of these involve separate treaties. Importantly for our purposes, former colonies were covered on a blanket basis by the Fugitive Offenders Act 1967.

Of those 121 countries with which the UK has “arrangements”, 19 have lower scores in the Rule of Law Index than China does. Moldova has the same score but comes after China in the alphabet. Tough luck. Of those 19, nine are former colonies whose “arrangement”, dates back to the 1967 Act. There are only 33 countries below China in the index. Whether ten, or 19, qualifies as “many” in this context I leave up to you.

The UK does, though seem to have a preference for countries at the top of the rule of law list. It has arrangements with 27 of the top 30, and number 11 is the UK itself.

Looking at the list of miscreants in the bottom 30, though, inspires some concerns about the index as a whole. I realise that there are serious criticisms to be made of the way government is conducted in places like Mexico, Russia, the Phillipines and Turkey. But are they really more lawless than China?

The standards being applied here, according to the World Justice Project website, go like this:

  1. Accountability: The government as well as private actors are accountable under the law.
  2. Just Laws: The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
  3. Open Government: The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
  4. Accessible & Impartial Dispute Resolution: Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.

Reading this you wonder how on earth China got any points at all. The clue, I think, is in the methodology. The WJP is anxious to propound the view that any country can have the rule of law, no matter how undemocratic its government, or as they put it, “The Index has been designed to be applied in countries with vastly different social, cultural, economic, and political systems.”

In pursuit of this laudable objective the index is compiled by quizzing large numbers of people, and particularly people in the legal system, in the country concerned.

You can see that this might, in places like Mexico or the Phillipines, produce some pretty critical responses. Citizens of such countries have access to international news and media. They can travel. They know what the rule of law looks like. They can discuss it among themselves and read about it in local publications.

In countries where the citizens are denied access to the outside world either by visit or information, the situation is rather different. The rule of law is like a pedestal toilet – it’s very nice but if you’ve never had one you don’t really know what you’re missing. Indeed in a closed society you may be bombarded with the message that you are not missing anything. Squatting is healthier.

For many years I used to teach Hong Kong students about media law. This was easy enough, They already knew what a law was and roughly how the system worked. You just had to teach the specific media stuff.

Teaching the same subject to mainland students involved a depressing discovery. You had to spend weeks explaining what the law was and how it worked, and even then some of them didn’t get it. People were gob-smacked by the discovery that in criminal trials under Common Law systems the accused was sometimes acquitted. The conviction rate in China’s criminal “courts” is something over 99 per cent.

I don’t know what the solution to this problem is for the Rule of Law Index. Perhaps they should keep the index but change its name, or prune countries which really don’t have a rule of law worth speaking of at all, but are good at keeping their citizens on side.

The index itself rather subverts the notion that the rule of law is a national characteristic unconnected to other characteristics like the system of government, presence or absence of civil society, free speech and such like.

The fact is that all the top 30 index countries are ostensibly democracies. There are two disputable entries in this happy band: Singapore and Hong Kong. The United Arab Emirates at 32 is the highest scoring autocracy. I do wonder whether tolerance for “vastly different … systems” is going too far when it results in a good score for a country with Sharia courts and stoning as a punishment.

Still, it appears that if you want to feature in the upper reaches of the index democracy is a necessary condition, if perhaps not a sufficient one.

This leaves me wondering about Hong Kong. We are constantly told that we can still have the rule of law as a core value, even while our government is a marionette whose strings are pulled by people in Beijing who neither know nor like the idea that the law should apply to them.

This may be possible in the short term, perhaps. But for how long?

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Will people please stop wheeling out the argument that Britain, France and sundry other healthy and law-abiding countries have extradition agreements with China, so why shouldn’t we have one?

This was offered in a playful spirit by Nury Vittachi in the Standard, and in full formal legal dress by Greville Cross in the China Daily. No doubt it has surfaced in other places. It is wrong, because it overlooks some vital differences.

If you are the subject of a bid by China to extradite you from the UK, the request goes first to the Home Secretary. This title is a quaint historical survival – in other jurisdictions the corresponding political person will be the Minister for Justice or the Minister for the Interior.

Whatever you call him, the Home Secretary is a political figure who is answerable to Parliament for his actions. Unlike the person in Hong Kong who will do this, if the law passes, the Home Secretary does not make two or three visits to Beijing each year to report on his doings and receive instructions. Nor does he or she have a China Liaison Office whispering in his ear and jogging his elbow.

Similarly, if the matter is passed to a court, the judge is in a rather different position in the UK from that of his Hong Kong counterpart. Judicial independence is not an on-off switch. It exists to varying degrees.

A UK judge, for whom the Chinese government is a distant litigant with no way of making him suffer if he displeases it, will find it easier to be independent than a Hong Kong judge who, no matter how hard he tries, knows that in the view of mainland officials – and presumably of some Hong Kong ones – he is part of the administrative machinery and expected to be a team player.

I expect some Hong Kong judges privately think that this view of their functions is quite wrong. Other, perhaps, take a less robust view and try not to rock the proverbial boat.

Mr Cross points out that in past extradition cases China has always played by the rules. But this does not help us at all. When dealing with independent countries like the UK or France, China has every incentive to play by the rules because any breach of them will result in extradition becoming more difficult, or possibly impossible.

Even if future requests pass the political hurdle, the proposed victim will argue in court that assurances about his treatment cannot be relied on and the extradition request should accordingly be rejected.

I fear that in Hong Kong this important incentive is lacking. Hong Kong officials are extremely reluctant to criticise, or even recognise, abuses of the law on the mainland. No doubt they would happily wink at violations of the conditions attached to extradition orders. Judges might be less tolerant. But then again they might not. People who were not prepared to turn a tactful blind eye would find their careers shorter than they expected.

Also misleading is Mr Cross’s quaint comparison with the United States, where the country’s component states do routinely extradite people to each other. If you are wanted in California and flee to Nevada, the Californian authorities will ask for you to be sent back.

But once again this is not like the situation in Hong Kong at all. The Governor of Nevada is not appointed by the Californian government. Nevadan judges do not have to worry about whether their decisions will be welcome in California.

Also in America the legal systems in different states are quite similar. This is not the case for us. Hong Kong has a legal system which conforms to international standards. China does not.

Similarly Hong Kong does not have a separate political system from the Chinese one. On the contrary it has been made very clear that we are in the last analysis ruled by Beijing. This results in a quite understandable lack of confidence in the judgements made by ostensibly impartial government figures here.

If the mainland police were after you on some totally specious basis and applied for your extradition, would you trust Carrie Lam to say ‘no’?

Of course not. Comparisons with genuinely international transactions of the same kind are misleading and unhelpful.

Many years ago I was intrigued for a while by a French writer, Roger Peyrefitte. Mr Peyrefitte is now remembered mainly for his defiant and indeed celebratory account of his own homosexual tastes, although his preferred partners seem to have been rather young by current standards.

But I was too young and innocent for this so it rather passed me by. The thing which interested me in his biographical work was the exploration of a topic rarely explored, the feelings and motivations of those who worked for the Vichy regime which ran France on the Germans’ behalf from 1940 to 1945.

There was a personal explanation for his interest in this. Mr Peyrefitte joined the French diplomatic service after leaving the relevant Ecole as the top scorer of his year, and spent a happy eight years in the Athens Embassy.

This happiness was enhanced by the fact that the Greeks were very relaxed about homosexuality, which was then still illegal in France. Unfortunately Mr Peyrefitte got into habits which were regarded as scandalous when he returned to work in the HQ in Paris. So he was persuaded to resign from the service in 1940.

In 1943 the Vichy regime invited him back, an invitation which he accepted. As a result in 1945 when that regime was overthrown and replaced he was drummed out again. This did him no serious harm; he devoted the rest of his life to literary pursuits with some success. The French are broad-minded about their literary lions.

Still, he was well placed to attempt an answer to the question: why were people willing to work for a regime which had been imposed by an invading army, was handing dissident fellow-citizens over to the Gestapo, and was sending large numbers of other fellow-citizens on train journeys to Poland from which they did not return.

He wheeled out the usual suspects. Some people wanted to continue their careers. Some had diplomatic or legal skills for which one’s own country’s government is the only plausible customer. Some, perhaps, genuinely wanted to serve the people, and believed that engagement rather than confrontation would get a better deal from the German occupiers.

After all services had to be kept up. Nobody blamed train drivers or postmen for continuing with their usual duties.

On the other hand being a government minister in an unsavoury regime still offered the same rewards in prestige and money which had attended pre-war ministers. Power can be addictive and, as Henry Kissinger observed, aphrodisiac.

This was a live issue when I first encountered Mr Peyrefitte. The Germans had invaded a wide variety of countries and rarely had any difficulty (if they tried) in finding locals who would fill government posts and do their bidding. It was suspected that this would have been true of England too if it had come to it.

After the war the individuals who had “collaborated” were disgraced and, often, shot. The plea that somebody had to keep the machinery working was rarely accepted. They should have known better.

No doubt there were arguments on both sides, and those of us who have never faced a dilemma of this kind should be wary of jumping to the conclusion that we would have identified what now seems with hindsight the right thing to do. But this issue, long forgotten in Europe, has now become an interesting question in Hong Kong, where some people now do face a choice of this kind.

In the 90s and noughties it was customary for people to explain their willingness to participate in joint activities with the Chinese government as a contribution to progress and an encouragement to the gradual transformation of a one-party dictatorship into something more tolerant and pluralistic.

Under ‘one country two systems’ Hong Kong was not required to import the well-known toxic features of public administration on the mainland, and its leaders were not to blame for abuses of power committed north of the boundary.

Unfortunately this will no longer wash. It is quite clear that the current regime in Beijing has no interest in progressing in the direction of tolerance and pluralism, still less freedom and democracy. And ‘one country two systems’ has proven a poor protection for local traditions.

So what do these people who cooperate on our behalf with the local representatives of despotism tell themselves about what they are doing? Is it possible to disregard the disappearances, the kidnappings, the shootings, the concentration camps, the censorship, the personality cult?

I understand the argument that patriotism requires citizens to support the government, whatever form that government takes, but this is a serious error. “My country right or wrong”, as G.K. Chesterton pointed out, is no better than “my mother, drunk or sober”.

No doubt many of the People’s puppets in Hong Kong are too stupid or ambitious to worry about this, and many of the others prefer not to think about it. Certainly it is not much discussed.

Enter, the other week, Mr Bernard Chan. Mr Chan is the convenor of the Executive Council, a senior post once held by C.Y. Leung. He is, though, rather a contrast with his predecessor.

Mr Chan was born with a gold chopstick in his mouth (granddad founded the Bangkok Bank) and got a real degree from an expensive but otherwise splendid liberal arts college in California. He majored in Studio Arts, an interesting choice for someone who must already have suspected that he would be expected to inherit the family insurance business.

As he did, becoming in due course the insurance industry’s Legco representative and graduating from there to the National People’s Congress and more government advisory bodies than you can shake a stick at.

Mr Chan is clearly regarded by our colonial masters as a dependable cog in the imperial machinery. Yet he shares none of the objectionable features so common among his fellow-travellers. His public utterances are rare, but neither stupid nor venomous. He has a column in The Standard, an admirable hobby, but it is not devoted to political matters. It is mostly concerned with cultural activities and things you can do with your family at weekends.

Mr Chan appears to share the view expressed by Nigel Lawson in his monumental (or if you prefer grossly over-long) memoir of his time as Chancellor of the Exchequer: a man who writes about politics is missing out all the important things in life.

So it was nice of him to agree to a TV interview which, according to The Standard’s reporter, strayed into political territory. “Defending criticism that President Xi Jinping has concentrated power in his hands, Chan said it is not easy for a Beijing leader to manage a country of 1.3 billion people.”

And so “If you let all Chinese people behave the way they want to behave, I think China would be a very different place today. So I do think you need some sort of top-down approach. For now, it’s probably the best way for China, to assert their control or a certain direction from the top.”

Happily Mr Chan did not wish to see this extended to Hong Kong. But this, of course, raises the question: if allowing Chinese people in other places “to behave the way they want to behave” does not lead to dire consequences, why should it be a bad thing in China?

Mr Chan seems to have been lucky that his explanation did not attract as much attention as a rather similar remark from Jacky Chan a few years ago. It is not for me to protest on Chinese people’s behalf, but quite a lot of them were offended by the implication that they suffered from some genetic quirk which made them unfit for self-rule.

Clearly apologists for the Xi regime need a high degree of proficiency in the art of euphemism. There are a variety of ways of describing the brutal and authoritarian way in which China is governed, and “a certain direction from the top” doesn’t really capture the flavour fully.

But you have to wonder whether this really works inside the head of the person concerned. Are there moments of doubt at night, as in this song?

This is not an issue for the civil service in general. It really concerns those at some high level, though the responsibility Plimsoll Line comes, I fear, well below the Exco level.

Civil servants further down the pyramid of power can confort themselves with the thought that after all the trains still have to be driven, the post has to be delivered, and those who fulfil such practical needs are genuinely serving the people. Which some of them do very well.

My last official encounter with the civil service followed a minor accident on a hiking trail last year. I was passed with much kindness and efficiency from the Agriculture and Fisheries Department (country park rangers) to the Fire Services (ambulance) who delivered me to the Medical and Health people (Nethersole Hospital).

I know some people have had bad experiences in our over-burdened public hospitals but mine was entirely comparable with the highest international standards. See doctor, have  X-ray, see doctor with specialist, painful but quick procedure (I had dislocated a finger), X-ray to see if procedure had worked and final discussion of same with doctor took about two hours and cost nothing.

There is usually a small charge for Accident and Emergency visits in Hong Kong but the hospital’s alert computer spotted that as the spouse of a retired civil servant I was entitled to a freebie, which surprised both of us.

So I think those who heal the sick, teach the young, sweep the streets and do other useful things have no need to be ashamed of the fact that somewhere up in the administrative stratosphere their bosses are taking orders from the Liaison Office.

What, on the other hand, are we to make of, for example, Carrie Lam’s insistence that Hong Kong’s lack of an extradition agreement with China has nothing to do with the fact that confidence in the mainland’s legal system (if you believe it has anything worth calling a legal system) is not high?

Is there an alternative explanation? Was it down to a moment of absent-mindedness, a translation glitch in the Joint Liaison Committee, a misprint? “I said China, not Ghana, you fool. Oh, never mind, It’s too late to change it now…”

Why do they keep telling us that ‘one country, two systems’ has been implemented “flawlessly”? After all even people who think that on the whole things have not gone badly would hardly put it so strongly.

It may be that this is trotted out simply on the parrot basis that it is the Beijing Foreign Office spokesman’s “line to take”.

But I suspect there is a deeper motive. If Hong Kong is still separate then those who roost in the legislative loft can still claim that what happens here has nothing to do with what happens there, and vice versa. Concentration camps? Nothing to do with us.

Which for the time being is probably OK. One must hope, though, that these people are giving some thought to where their limits are. The future is, to misquote Shakespeare, an “undiscovered country from which no traveller returns”. We do not know what is in store for us.

So it is a good idea to work out where your limits are, before you find you have been dragged over them without noticing it.

If you are still in the government’s team we must suppose you are OK with tear gas. What about live rounds? Dissidents jailed on antique legal charges? Well they’re criminals. Similar people spirited across the border to star on Confessiontube? What are you going to do if there’s blood on the street? Keep calm and Carrie on?

I felt a frisson of unease at a report in the Hong Kong Standard the other day about an accident in which a box of teargas fell out of the back of a Police Emergency Unit van. The newspaper reported that the van also contained sundry crowd control implements in case of need, including submachine guns. Machine guns?

 

 

 

 

 

 

 

 

Sad really. After getting unscathed through months of legal manoeuvring on the basis that the trial of the Occupy nine was an entirely legal matter, District Judge Johnny Chan found a political puddle in the sentencing process and jumped in it with both feet.

I refer to the intriguing passage in which the learned judge lamented that the defendants had shown no regret, had not apologised to the people of Hong Kong for the inconvenience and suffering caused by their actions, and consequently deserved immediate custodial sentences.

He preceded these remarks with the comment that he was not asking the defendants to change their political views, but that is exactly what he was doing.

As Philip Bowring has pointed out here the idea that Occupy caused a great deal of inconvenience, let alone suffering, is grossly exaggerated. It has, however, become a partisan political point among the pro-Beijing press of late.

Actually at the time I recall frantic, and vain, efforts being made to drum up some signs of people being seriously inconvenienced. Those efforts gradually subsided as they were hardly consistent with the government’s actions: weeks, and then months, went by without any attempt either to clear the protesters off the streets, or to address the grievances which had put them there.

But the judge really went off the rails with this idea of a missing apology. This is an entirely appropriate requirement in your ordinary everyday crime involving things of value being stolen or damaged.

If you steal a million dollars from me I am left poorer. I get nothing from the arrangement except the dubious pleasure of reporting my loss to the police. If, by the time they have caught up with you, the money has been expended on fast women and slow horses, I do not get it back.

Under these circumstances an apology is entirely appropriate, and may be accepted by the court as indicating that you accept that what you did was wrong. A somewhat shorter sentence may ensue.

Political offences are rather different. All political activity involves some inconvenience to the non-political parts of society. Battle buses take up road space, booths block pavements, loudspeakers inflict your oratory on reluctant passers-by, marching crowds slow the buses and my local minibuses are visually polluted by advertisements for the DAB.

The political activist, whatever his colour, supposes that these small sacrifices which he imposes in strangers are justified because his actions are for their benefit.

Consider the case of Dr John Snow, who during a cholera epidemic in London in 1854 had the then revolutionary idea of drawing a map with the locations of the cases on it, to see if that told him anything about the origins of the disease, then a mystery.

The centre of the epidemic, it appeared, was a public well in Soho. Dr Snow then persuaded the local council to remove the handle from the pump on that particular well, and the epidemic subsided.

This did actually inconvenience the residents of Soho, who had to go further to get their water. But they did not, I suppose, complain about this because it was nice not to get cholera. A public facility was disabled, but it was worth it.

The leaders of Occupy, so far as it had leaders, were not motivated by personal gain or the desire to cause inconvenience for its own sake. They supposed that it was for the greater good of all that Hong Kong should be encouraged to migrate from the foggy bottom of colonialism with Chinese characteristics to the sunny uplands of democracy and genuine autonomy.

I am sure they still believe this. And until they change that belief asking them to apologise does not really make sense.

You may of course say that suffering a cholera epidemic is much worse than having your Chief Executive chosen by Beijing, although looking at what recent choices have done to our health service that could be disputed.

You may on the other hand say that judicial enthusiasm for apologies to the general public is misplaced, because judges are not great apologisers themselves. People appear in court, get jailed, appeal and appeal again, and sometimes establish that the original judge, or the Court of Appeal, has made a mistake.

By this time the hapless defendant has spent many months in prison to which, we now learn, he should not have been sentenced. Does he get an apology?

 

 

 

Leo Goodstadt’s latest book, “A City Mismanaged” makes few concessions to those of us who read for entertainment. But it is worth a visit if you really want to know what went wrong with post-Handover Hong Kong.

Future historians will find some of this story difficult to believe. In the 80s there was a great fashion under the Reagan and Thatcher governments for the idea that almost all state activity was inefficient, and society could only benefit from providing the maximum of freedom for market forces.

Over the years the flaws in this line of thinking became obvious. In the countries where it originated Ayn Rand is now regarded as a daft old bat and the Chicago School of economics as a shared delusion with few points of contact with reality. Privatisation is not the answer to all questions and the fad for market forces easily degenerates into government in the interests of the rich.

These lessons, however, somehow failed to find their way to Hong Kong, where a succession of Chief Executives succumbed to free market fundamentalism, and in the process dismantled much of Hong Kong’s already far from generous welfare state.

Mr Goodstadt blames some of this on the ministerial system. Those who reach the top of the Hong Kong civil service are generally both intelligent and competent. Those who catch the eye of the Chief Executive (and pass the surreptitious vetting by the Liaison Office) generally are neither.

Mr Goodstadt also notes that tinkering with the boundaries between bureaux has left some of the new bureaucratic empires unmanageably big, while still managing to leave important issues straddling two or more secretaries.

But the basic problem, he argues, comes down to a misreading of the Basic Law, which actually gives Hong Kong people the right to the same services and rights as they had before, a point overlooked in favour of the clause about balanced budgets.

He points out that the central government seems a bit puzzled by the ministerial masochism it encounters in Hong Kong, and occasionally urges our local leaders to focus on local social problems.

He tracks the consequences of neglect and parsimony in four areas: health, social welfare, education and housing. In this last he adopts an interesting perspective and I found myself thinking heretical thoughts.

It was an axiom of the Thatcher years in Britain that people should be encouraged to own their own homes. And to this end a lot of public housing was sold to its occupants at knock-down prices.

This idea was imported uncritically to Hong Kong, and the provision of public housing was curtailed in the hope that private production of flats would take up the resulting slack. It did not, of course, and public housing is now back on the to-do list.

But it still seems taken for granted that the desirable housing solution for those who can afford it is an owned flat in a large tower block.

Mr Goodstadt points out that this approach leads to long-term problems. The owners are jointly responsible for the shared parts of the building, including the outside walls. Sooner or later expensive maintenance bills will come rolling in.

In some cases, unhindered by the ICAC (which does not find this area very interesting, apparently) the price of the work is artfully inflated to enrich the contractors. But even if it isn’t, a bill in the region of $200,000 is not uncommon, and this is a very large lump to extract from an ordinary middle-class family.

Note that in England the housing stock eagerly distributed to its occupiers consisted largely of two-storey houses. Maintenance is a continuing activity, what needs doing is visible, and many occupiers can undertake some of the work themselves.

Mr Goodstadt notes that the owners of flats in Hong Kong blocks tend to put off maintenance, a false economy. But this is probably inevitable. The owners’ joint committee will be composed of volunteers, and one of their main motivations for serving will be to keep costs down.

Even if this is not the case, however diligent the owners and conscientious the government’s supervision, a high-rise block is going to be prone to occasional mammoth bills rather than the steady drip produced by a suburban semi.

So I wonder if this preoccupation with ownership is really as good an idea as it is cracked up to be. A survey of 12 developed countries conducted by a team at Harvard University found a wide variation in attitudes to renting and owning.

The proportion of the population living in rented homes in 2016 varied from a low of 25 percent (in Spain) to highs of 50, 55 and 60 per cent (in Austria, Germany and Switzerland respectively).

The report noted a tendency for owner-occupiers to prefer single-family dwellings, while a large supply of flats in blocks was reflected in a large population of renters.

I infer from this that there is nothing wrong with renting, and no particular merit in owning, especially if you are in a large multi-storey block with the prospect, sooner or later, of a large bill to, say, replace the lifts.

I realise that encouraging renting would require some dramatic changes in the way the government supplies and taxes land, and would eventually – and rightly – lead to legislation to curtail excessive exploitation by greedy landlords.

It would also disturb the cosy arrangement by which a small coterie of developers enrich themselves fabulously by paying huge land prices and building flats for sale at commensurately high mark-ups. Well wouldn’t that be sad!

 

 

 

 

 

 

 

Well, the Occupy legal saga grinds on. Latest update on the trial of nine defendants here: https://www.hongkongfp.com/2019/04/10/just-sentencing-delayed-9-convicted-umbrella-movement-activists-court-seeks-report-tommy-cheung/

Basically these are the people who in disciplinary circles would be labelled “ringleaders”. The charges were some interesting legal antiques involving “inciting to commit a public nuisance”, and even “inciting to incite a public nuisance”.

All this has been much commented on. Having been convicted, the defendants made extensive mitigation speeches, readable here: https://www.hongkongfp.com/?s=in+full. The judge deferred sentencing pending reports.

Lurking in reports of the proceedings was an interesting legal issue. All or most of the defence lawyers commented, it appears, on the length of time taken by the prosecution to charge and try the defendants, as a factor which should mitigate the resulting sentences.

The delay was as follows: the offences took place in September 2014. Some of the defendants were not arrested until January 2017, and charged a further two months later. There followed a further two-year delay before the trial.

This produced a response from prosecuting counsel David Leung Cheuk-yin. Why he was allowed to offer this is a bit of a puzzle. Defence mitigation usually comes last, just before sentencing. The prosecution has had plenty of opportunities to express its bloodlust. Judge Johnny Chan would have given his reputation for fearless independence a timely boost if he had told Mr Leung to shut up.

However this did not happen. Mr Leung proceeded to say that the delay in prosecution should not be considered a factor in sentencing and “the defendants should not benefit from it”.

Mr Leung explained this long delay as being because “the police arrested 1,003 people in relation to the movement and had to go over 335 research reports, 300 witness statements and 1,133 videos”.

This is a little strange. Since “incitement” is a matter of public speech it is difficult to believe that 335 “research reports” were really necessary. Surely a few selected videos would have sufficed? As a taxpayer one must wonder if this huge investigative effort was worth it, when most of the defendants had effectively volunteered to plead guilty to unlawful assembly in 2014, while Occupy was still in progress.

Leaving aside the merits of Mr Leung’s claims to Stakhanovite levels of investigative enthusiasm, though, I would like to point out that legally it is not up to the defence to prove that it has been disadvantaged by a delay in bringing criminal proceedings. The delay is in and of itself a violation of their human rights.

As one of the standard textbooks puts it: “According to article 14 (3)(c) of the International Covenant and articles20 (4)(c) and 21 (4)(c) of the respective Statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia, every person facing a criminal charge shall have the right “to be tried without undue delay”. In the words of article7 (1)(d) of the African Charter, article 8(1) of the American Convention and article 6(1) of the European Convention, everyone has the right to be heard “within a reasonable time”.

This point is also recognised in the Department of Justice’s own Code for Prosecutors, which says that “The prosecutor must be alert to the rights of an accused which are relevant to the prosecution process, including equality before the law, the rights to have confidential legal advice, to be presumed innocent, and to have a fair trial without undue delay.” These rights are attributed to Basic Law Articles 25, 35 and 87, and  Bill of Rights Articles 10 and 11.

Of course this is because a delay is intrinsically hard on the defendant. His or her chances of mounting a successful defence are likely to diminish as memories fade and witnesses die or disappear. The prospect of an upcoming trial is itself stressful and disruptive of one’s normal enjoyment of life. So how long is a “reasonable time”?

Over to the UN Committee on Human Rights, of which it is reported: “The Human Rights Committee has examined numerous … cases involving alleged violations of this right … In one case, the Committee concluded that a delay of 29 months from arrest to trial was contrary to article 14… A delay of two years between arrest and trial was also considered to violate article 14. The judicial authorities were … responsible for the unreasonable delay of the proceedings contrary to article 6 in the case of Yagci and Sargin … In all, the proceedings lasted a little less than four years and eight months.”

The European Court of Human Rights has spent an astonishing 30 per cent of its caseload dealing with violations of the right to a speedy hearing. “it is for the Contracting States to organise their legal systems in such a way that their courts can guarantee to everyone the right to a final decision within a reasonable time in the determination of his civil rights and obligations”.

After so many cases of this kind the Court has developed the idea that states must also provide effective remedies for litigants or defendants subjected to unreasonable delays. These may include an arrangement in which  “the length of proceedings had been taken into account when reducing the sentence in an express and measurable manner.”

The European Court examines each case on its merits, and does not have a stated time limit. The Supreme Court of Canada is less timid. It “rejected the framework traditionally used to determine whether an accused was tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms and replaced it with a presumptive ceiling of 18 months between the charges and the trial in a provincial court without preliminary inquiry, or 30 months in other cases.”

Similar limits are operated in many American states, They require, for all but the most serious felonies, prosecutions to begin within three years of the offence.

In the UK the National Audit Office expressed concern in 2016 that the average waiting time between first appearance before magistrates and the actual trial had increased by 23 per cent since 2010, and was now 132 days, or about four and a half months. This is an average and no doubt is sometimes greatly exceeded. I doubt, though, if these legal marathons commonly end with a plea from prosecuting counsel for inordinate length to be disregarded in sentencing.

Let us return to the Occupy nine and put their ordeal in an international perspective. Since the overall period between September 2014 (start of Occupy) and March 2019 (start of trial) was just short of five years it seems unavoidable that some of the defendants either were not charged until three years after the offence (which would let them off the hook in Oregon, etc) or were charged but not tried for 30 months (which would mean an automatic acquittal in Canada). We may also note that in countries signed up the European Convention on Human Rights a reduction of sentence to compensate for prosecutorial  ponderousness is not only allowed but expected.

I suppose Mr Leung would say in his defence that the delay was unavoidable because of the complexity of the case and the number of defendants. The easy answer to that is that these features were both chosen by him. There was nothing inevitable about the decision to drag a legal blunderbuss out of its grave, or to point it at nine defendants simultaneously.

We must also note that the length of a case is not only a matter of legal complexity, the need to gather large quantities of evidence, or the number of defendants. It is also controlled by the amount of resources and manpower devoted to the matter, and the degree of haste.

Consider a historic case from 1945: a new law, 24 defendants on war crimes charges. Evidence gathering could not really start until the war in Europe ended in May because before that the prosecutors had no access to Germany. Proceedings began in Nuremberg on November 20 and concluded in October of the following year. Speed can be achieved if it is wanted badly enough.

I suppose with so many offensive smells coming from this case the fact that it was pursued at a pace which was itself a violation of the defendants’ rights is rather a side issue. It does, though, suggest that the Department of Justice’s standards in these matters, as in others, are rather out of line with those in the rest of the world.

 

I keep putting off writing about Global Warming. It’s too big a topic for a journalist. One feels like a pavement artist suddenly recruited to redecorate the ceiling of the Sistine Chapel.

My professional education included the notion that any story worth telling could be told in ten paragraphs. We might run to 12 for the Second Coming, but only if this happy event occurred in our circulation area.

Any young cub who ignored this rule through ignorance or over-indulgence would swiftly discover that his art had been severely pruned before printing by the sub editors, who had a lot more hours in their logbooks than he did and consequently were not receptive to complaints about their work.

A journalist who reflects on his output soon realises that this insistence on brevity is both a blessing – it makes you concentrate – and a curse – some topics just do not lend themselves to the “news treatment”.

Now that our words are no longer committed to paper there is, in theory, no objection to extra length. On the internet you can rabbit for ever. Unfortunately the desire to reduce the damage inflicted on Scandinavian fir forests by the demand for newsprint has been replaced by apprehension about on-line readers’ ability to concentrate on any topic for more than five minutes.

As this piece contains no pictures of cats, or naked ladies, it is doomed to the sort of minority status enjoyed by chamber music or the more exotic East European liqueurs. But duty calls.

It called, in fact, in the shape of a demonstration by Hong Kong school kids, coinciding with similar manifestations around the world, protesting that global warming was a threat to their future and adults were not doing enough about it.

I was, I must admit, glad to see that strikes in schools had been reinvented, having long ago participated in one myself (see cutting). There were only 40 of us, apparently. I remember we excluded Forms Five and Seven on the grounds that they were preparing for exams and left the Form Fours out as too young.

Despite the tiny numbers involved the event attracted a surprising amount of media attention. As a result everyone who was not incurably shy got a media organisation to him or herself. Robin Marriner got the Daily Mirror; I got the BBC.

This leaves no particular problem for me in contemplating the idea that perhaps the protesting youngsters were right.

It has surely become impossible to doubt that global warming is taking place. We may feel that committees of scientists on fat UN salaries have a long history of wolf-crying. Can you name a food between Apple Pie and Zebra steaks which the WHO has not at some time condemned as hazardous to health?

Still, sometimes there is a real wolf. And the evidence has piled up. How many retreating glaciers, melting ice caps, dying coral reefs and record-breaking heat waves do we need before we concede that something is up. Like the global temperature.

And in view of our status as the biggest and busiest species on the planet it is very difficult to avoid the blame. Anyone who still disputes that global warming is taking place and that our activities have a great deal to do with it is either very stupid or in the pay of the coal industry.

What that means for the future is of course a matter for speculation, as the future always is. A variety of predictions are offered.

Many of us, perhaps lulled by a succession of Hollywood movies in which threats ranging from wandering asteroids to The Beast From 20,000 Fathoms are seen off in two hours by a handsome young American scientist and his generously-bosomed girlfriend, may still nurture the hope that “something will turn up”.

The scientists who say that things have already passed some mysterious tipping point which will in due course see most of the world become uninhabitable may be pessimists. But sometimes the pessimists are right.

Also, if there is such a mysterious tipping point and we have not yet reached it, we are certainly still ploughing towards it. Biologists now doubt the legend that lemmings occasionally, in moments of mass hysteria, fling themselves off Norwegian cliffs. But human beings have a long record of self-destructive behaviour.

The most drastic predictions are not necessarily the most likely. But when the possible outcomes include an uninhabitable planet it behoves us to take the matter seriously. As Yuval Harari said in a rather different context, those who are not spooked by this question probably haven’t given it enough thought.

This brings us to the second matter, which is, given that global warming is taking place and represents a serious threat to future generations, are our leaders doing enough about it?

I say this is a matter for our leaders because this seems so clearly to be an issue which demands collective action.

The students’ protest unleashed a flood of helpful suggestions from various quarters of ‘things you can do to help instead of protesting’. We are all urged to stop using straws, recycle bottles, eat less meat, take the stairs instead of the lift, take our own cutlery to school and so on and on.

Many of these things are good things to do. But as a way of dealing with global warming this sort of advice looks like the captain of the Titanic giving all the passengers a cup each and telling them to start baling if the ship hits anything.

Those who hog the steering wheel have the responsibility to avoid collisions. So how are our leaders doing? Well never mind the global circus. How are our local leaders doing?

Not so good. Taxed with neglecting environmental matters, that speaker for all seasons A. Spokesman said that the last budget included subsidies for the provision of electric charging points, which would encourage people to switch to electric cars.

This does not look like an environmental measure at all. It looks like another example of our government suffering from the delusion that it is up to them to foster the up-take of the latest gadget, however irrelevant and unwanted it may be. Remember digital radio?

The fact is that an electric car is not a solution to pollution. It merely transfers the pollution from on the street to the nearest power station. If most of your power comes from dams or windmills then electric cars do not pollute. If most of it comes from coal-fired power stations, as ours does, then I have some bad news for you.

Scientists at the University of Michigan’s Transportation Research Institute calculated the CO2 emissions from plug-in electrics, depending on the energy sources used to generate electricity in various countries, and then translated that into miles per gallon.

They found that an electric car recharged by a coal-fired plant produces as much CO2 as a gasoline-powered car that gets 29 miles per gallon.

And that, as a contribution to reducing pollution, is pathetic. Any prudent Prius driver can get 50 miles from a gallon and the tuning of an engine to charge a battery rather than push a car allows a considerable reduction in the other pollutants emitted.

Actually most of us will never buy an electric car because it would be foolish to do this if you depended on finding a public charging point when it wants to be fed. You want to be able to charge it at home. So you will only buy one if you own, or at least have the exclusive use of, a parking space. Government money spent on this is a subsidy for millionaires.

The government will no doubt say that the removal of some pollutants from the immediate environment is an improvement. You can walk down the street without being gassed even if our power stations are still poisoning the planet.

Not so. The smallest pollution particles are the most dangerous. They do not come from the exhaust pipe. They come from the brake pads and tyres, which are the same on electric cars as on petrol ones.

Actually from both a global and local perspective the responsible thing to do would be to discourage car use altogether, as some European cities are now doing. But our legislators, supine sycophants when invited to trash some cherished civil right which offends Beijing, find a streak of stubborn resistance when it comes to any official proposal which might make motoring more expensive.

So we cannot expect anything from there.

I conclude that the students are quite right. Rome is burning and the emperor is fiddling. They will pay the price. But our leaders, it has become obvious over recent years, do not care what young Hong Kongers think.