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Let us contemplate a paradox. As democracy recedes into the far distant future, the most unexpected people suddenly cannot resist talking about it. The very people who are depriving us of the reality cannot resist the word.

The Chief Executive, Carrie Lam, is a good example. Last week she was asked if she had any comment on a remark by Emily Lau – one of the few veteran democrats not in prison – that democrats might be reluctant to participate in the new system for filling Legco seats (there is not much actual election involved).

Ms Lau had said that potential candidates faced the hurdle of finding nominators in each of the new Election Committee’s five sectors, two of which are virtually filled with nominees of the Hong Kong or Beijing governments. Finding someone in those sectors who was willing to nominate a democrat was likely to involve a lot of rejections and candidates might find this humiliating.

Ms Lam might have expressed the hope that ambition and the wish to serve would overcome the prospect of begging for a nomination. Or she might have pointed out that the whole purpose of the new system was to discourage democrats so what did people expect?

Instead, she had a go at Ms Lau, who was “completely mistaken and did not know the spirit of elections and democracy”.

It is difficult to think of anyone less likely to be acceptable as an authority on the spirit of elections and democracy than Carrie Lam, who has never won a real election in her life. Ms Lau, by contrast, has won a number of elections of the old-fashioned kind, now no longer with us, in which anyone could stand and everyone could vote.

Similarly bereft of relevant experience is Mr C. Y. Leung, who opined last week that opposing government measures and filibustering were “not democracy”. Really? Filibustering is, I concede, controversial. Some people see it as a means whereby minorities can obstruct the will of the people, others see it as an important protection against the tyranny of temporary majority governments.

Opposing government measures, on the other hand, is generally considered rather useful.

Then we have another contribution from an election virgin, Mr Henry Litton. Mr Litton, like his fellow retired legal eagle Grenville Cross, has morphed gradually from a specialist commentator on legal matters to a stalwart defender of whatever the government is now doing.

Here is democracy according to Henry: “There are many models of democracy in the world; some are more successful than others. If democracy is to be defined as a community where government exercises power with the consent of the governed, then China is very much a democracy. An overwhelming majority of people in the Mainland today supports the government under the leadership of the Communist Party.”

Two errors here. Democracy is not defined as a place where the government exercises power with the consent of the governed. After all it is alleged on varying amounts of evidence that Adolf Hitler, Benito Mussolini, Josef Stalin and even Francisco Franco enjoyed at some points in their career “the consent of the governed”. This did not make their communities democratic. In a democratic community there is a mechanism for replacing the government when consent is withdrawn.

China, accordingly, would not be a democracy, even if we were prepared to accept that consent enforced by a million policemen and a further uncounted horde of spies and censors should be accepted as valid. How, one wonders, can Mr Litton, or anyone else, know that an overwhelming majority of people in the mainland supports anything? The overwhelming majority are not allowed to express an opinion.

Then we come to a more interesting offering from Ms Regina Ip, addressing the fear that there will be no pro-democracy councillors under the new arrangements: “They have participated in elections and so have I. Do they read more books about democracy than I do? I believe I have read more than a lot of people. How can you say that without them there will not be a pro-democracy camp?”

Ms Ip seems to be preparing to take over the pro-democracy banner, which should be an interesting spectacle. Actually nobody has suggested yet that the system is so completely rigged that no pro-democrat can be elected. It would be more accurate to say that the system is rigged so that no more than ten pro-democrats can be elected.

The question is whether being a permanent minority of ten in a 90-member council will appeal to any plausible pro-democrat, especially with the added hazard of campaigning in the shade of the national security law. 

Now let us turn to Mr Chris Lonsdale, a “consultant” with a flourishing China practice and, we need not doubt, a welcome visitor north of the boundary. Mr Lonsdale likes to condescend: ”For those with short memories, and those born after 1997, let us not forget that for the entire history of Hong Kong under British rule (except for the last few years leading up to 1997) there was NO direct democracy.”

Mr Lonsdale, alas, either has a short memory or was born after 1997. 

The Urban Council was founded in 1883 and had its first elected members in 1888. in 1956 changes included having half the members elected and in 1973 it became autonomous and entirely elected, electing a chairman and vice chairman from among its own members. There were a number of ways of becoming an elector and by 1981 it is estimated that 800,000 people were entitled to vote.

A condition of the council’s autonomy was that it stick to its official remit, which was to deal with a variety of domestic matters like sanitation, licensing, sport, culture, parks and such like. But once a year there was a general debate in which members could and did opine on any matter of public interest.

In 1986 a Regional Council was set up on the same basis to preside over services in the New Territories.

In 1997 the China-appointed Provisional Legislative Council passed an ordinance changing the constitution of both councils to include appointed members. In 1999 they were both abolished.

In 1982 partly elected District Boards appeared and in the 1985 DB elections more than half of their members were elected. By 1994 appointed members had disappeared but they were restored after the handover.

Over the ensuing years the appointees gradually disappeared again, as it appeared that the District Councils, as they were now called, were secure strongholds of the pro-government DAB. Now that is no longer the case they are likely to go the way of the two municipal councils.

Of course it is true, as Mr Lonsdale says, that the Governor was not chosen by Hong Kong people. Does he, I wonder, think the next Chief Executive will be?

Let us now consider an interesting mystery. What are the powers and functions of the newly minted official post, the Chief Convener of the Election Committee?

This is an interesting question, firstly because the old election committee seems to have managed without a convener, so it seems some new service will be provided, if we can find out what it is. Secondly the clarifications provided by different people have been flatly contradictory.

Here is what the new law says:

There shall be a system of conveners for the Election Committee. The conveners shall be responsible for convening meetings of the Election Committee as necessary and handle relevant matters. A chief convener shall be an Election Committee member who holds an office of state leadership. The chief convener shall designate a number of conveners for each sector of the Election Committee.

Got that? The Chief Convenor seems to have two functions: to convene meetings of the Electoral Committee and to choose sub-convenors for each sector. That’s straightforward enough, if it leaves the conveners without much to do. Presumably the actual dispatch of summonses to action will be done by civil servants, as it is now. What would be the “relevant matters” to be handled?

Well here is Carrie Lam, answering a question on the topic in her press conference to launch the new system:

“The convener has been specified in Annex 1 …I want to assure you that this is a clause for use under very, very exceptional and rare situations, and this convener system will only kick in during elections. During normal periods of governance, this convener system or the chief convener has absolutely no role in the governance of the Hong Kong SAR. It certainly will not have any influence over the Chief Executive or the Principal Officials. 

It is really under very exceptional circumstances during the course of an election that something that is totally unforeseeable has happened, that it needs a plan to tackle, then the Central Government may trigger this convener system.”

So, the convener has no role in the government of Hong Kong, but the system may be “triggered” by the Central Government if something unforeseeable happens in an election. 

Now here is an interview with Tam Yiu-chung published in the Standard:

“The new role of chief convener of the Election Committee will be in a superior position to the city’s chief executive and will represent Beijing, says Hong Kong’s sole delegate to the National People’s Congress Standing Committee, Tam Yiu-chung.

Speaking on a radio programme yesterday, Tam said the chief convener can call a meeting when there are election-related issues that cannot be resolved by law so it does not need the NPCSC to weigh in.

‘This is a gate-keeping mechanism so the chief convener should be superior than the chief executive,’ he said. ‘It means the person represents the central government at a certain level.’

So according to Mr Tam, the Chief Convener outranks the Chief Executive (who thinks he will “certainly have no influence over the Chief Executive and senior officials”) and represents Beijing. This is not what it says in Annex 1.

And what’s with the Chief Convener “calling a meeting” when there are election-related issues which cannot be resolved by law, so it does not need the NPCSC to step in?”

The NPCSC is China’s legislature. In “unforeseen circumstances” it can change the law. The Election Committee is not a legislature and if a problem cannot be resolved by law there is surely nothing the Election Committee can do to change it.

Does Mr Tam think that the Chief Convener’s handling of relevant matters could include changing the law on elections? 

It would also be nice to know how this “triggering” by the Central Government will take place. Presumably the Chief Convener will get the wheels turning off his own bat when he sees an election approaching. He doesn’t need to be triggered for such routine purposes. 

Maybe I’m missing something here, but I do not see how this is going to work at all.

Is the idea that the Chief Convener, horrified by – say – a campaign to boycott an election, might by himself define such activity as criminal? Under the Basic Law that is a job for Legco. Or is the idea that if the Police vetting and the two committees which will assess the eligibility of candidates let someone through who is not acceptable to the imperial capital, the Chief Convener can intervene and ban the candidate himself? That would, I suppose, count as gate-keeping, but would be a bit controversial.

This is a worry because apparently the only relevant “office of state leadership” is vice chairman of the CPPCC. That narrows the field down to two candidates, one of whom – Tung Chee-hwa – is getting a bit old for this shit. So this exciting new job could easily go to Leung Chun-ying. Isn’t that a soothing thought!

The return to Hong Kong of ten of the 12 people who were caught apparently trying to flee to Taiwan brought us more than a few wanted targets. Some mainland legal habits appear to have been in the luggage.

It is a characteristic of mainland justice that defendants often disappear from view, their whereabouts a complete mystery to friends and family. Legal representation is sporadic and defence lawyers often appear to have been selected by the prosecution rather than the defendant.

Trials are short and may feature no legal argument worth speaking of. Important decisions are often taken in the absence of the defendant.

It seems that staying in a mainland prison has interesting effects. Some of the 12 are reported to have developed a mysterious aversion to lawyers and a desire to unburden themselves to police interrogators without the presence of such people.

Andy Li, one of the suspects, managed to disappear completely. After a remand hearing, at which he was not present, his family faced a wall of silence from government departments. The Correctional Services Department denied any knowledge of Mr Li’s whereabouts. So did the police.

Mr Li’s latest non-appearance before a magistrate did produce one interesting change, a lawyer appeared claiming to be working on his behalf. This was news to Mr Li’s family. The lawyer concerned kept up the wall of silence, refusing to tell anyone where Mr Li might be.

The CSD apparently now admits that Mr Li is in its custody. It refuses to discuss the case but cites a policy under which prisoners who wish to have their location kept secret are allowed to do this by the department. I can see some prisoners might need this service, but providing it under present circumstances to this group of defendants produces a disturbing scene. One wonders if Mr Li is working on a video.

Part of the problem here is the COVID situation. Apparently all the prisoners are required, like everyone else arriving in Hong Kong, to serve a period of quarantine. This is difficult to arrange if they are to appear in court so they do not.

The relevant departments do not seem to have considered the implications of the resulting spectacle: absent defendants unrepresented in court are remanded in custody after a brief formal hearing in which nobody present is looking out for their interests. This is not satisfactory. Decisions about people’s liberty should not be made on this basis: justice should be seen to be done.

I suggest that magistrates should insist on such occasions that an absent defendant is represented by someone, preferably a lawyer of his choice. If such a defendant adamantly refuses legal help he should be present via Zoom or some such gadget, so that he can at least see what is done to or for him, and any relatives or friends who turn up can see that he is still in one piece.

The two juveniles who were also on the ill-fated voyage raise a different issue. The mainland authorities took the humane and sensible decision that there was no point in lobbing them into the jaws of the local legal machinery, and sent them back to Hong Kong, where they arrived in December. Police said they might be charged with further offences and we have heard nothing since.

Hong Kong, like China, is a signatory of the relevant international treaty, the UN Convention on the Rights of the Child, which provides that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” The two kids on the boat are clearly covered by this treaty: “the child” in this context means up to 18 years old.

Consequently it is not acceptable for them to be treated to the usual approach to the persecution — I beg your pardon prosecution — of other political targets, in which the defendant languishes in custody for months while the Department of Justice (sic) gets its ducks in a row. 

This does not by any stretch of the imagination serve the “best interests” of the children concerned. If they are to be tried they should be tried without delay in a proper Juvenile Court.

The law is sometimes accused of lagging behind the progress of modern technology, but nobody can now level that accusation at our courts. Two cases illustrate rather contradictory approaches to digitalism, reported by a convenient coincidence on the same day.

In the first we had the Department of Justice complaining to the Court of Appeal that three defendants had been erroneously acquitted of rioting on the grounds – prepare to be shocked – that they were not present when the riot took place.

The Department argued that people could still be participants in a crime if not present, as long as they had “a common purpose”. This is a legal doctrine of great antiquity, whose history is littered with miscarriages of justice. A notable example was the case of Derek Bentley, who was actually in police custody when his accomplice in a burglary shot a policeman. Bentley was hanged. His accomplice, the actual killer, was only 16 and so not eligible for the rope. This case is not now regarded as a great success.

Anyway, as our local “riot” defendants had been acquitted by a District Court judge there was no question of overthrowing the judge’s verdict. So there was apparently nobody present to dispute the Department’s view of the law. Proceedings in our courts are usually said to be “adversarial”, meaning that the result emerges from the judge or judges listening to presentations and evidence from both sides of the argument.

When the only argument presented is from the Department of Justice we can, I fear, expect fairly terrifying results, and that is what we got.

The judges decided, and we need not be surprised at this, that there were a variety of roles in public disturbances, and some of them – funding, providing of “back-up”, or acting as look-outs – might not involve actual presence. So far this is as expected.

Then we get this: “Given the prevalent use of social media applications such as WhatsApp, Instagram, Telegram and Facebook, people nowadays can easily find themselves placed in situations where they can be accused of encouraging people to participate in unlawful assemblies or riots by posting comments or sending messages or even simply sending a ‘like’”. 

Then we get the usual platitude about freedom of expression having limits and “”if there is sufficient evidence to establish their liability under the accessorial rules or the doctrine of joint enterprise they are no longer people exercising their freedom of expression. They have crossed the permissible line and become a perpetrator to an unlawful assembly or riot and should be held liable as such.” 

Got that? A misplaced ‘like’ and you’re a rioter. As nobody is actually going to prison at the end of this case we can assume there will be no appeal, so this will be the law until someone else goes to the enormous trouble and expense of taking the matter to the Court of Final Appeal.

Now let’s move to the High Court, where District Council election loser Jimmy Lam succeeded in an election petition which sought to overturn the result because the victor, Timothy Lee, had falsely claimed the support of sundry pro-democracy stars.

This was a perfectly logical decision. Candidates in elections are apparently required to submit a “consent to support” form indicating that anyone they claim support from is happy with the arrangement. Mr Lee claimed the support of seven people – including serial disqualification star Lau Siu-lai – in his election advertisements.

There was no evidence that Mr Lee had actually done this without the consent of the people concerned. As he was a pro-democracy candidate and his adversary was a member who had been sitting in the establishment interest (albeit under the banner of Kowloon West New Dynamic, whatever that means) it would be surprising if they were unwilling.

Lurking in the Standard’s report of this matter (solid job by Carine Chow) was one interesting phrase: “Lam said Lee had only contacted the supporters through WhatsApp and Telegram …” In other words Mr Lam is not disputing that they consented. This was not enough. Mr Lee was unseated for deficient paperwork.

Each of the two decisions above appears perfectly rational and lawful. Taken together, though, they produce a rather unpleasant smell.

If you are an opponent of the government the mere pressing of an ill-chosen ‘like’ button can turn you into a rioter. If you elect instead to run for election to your local district council, on the other hand, a mere ‘like’,or even an Instagram message, is not enough to validate your claims of support. The putative supporter must fill in a paper form, preferably with a quill pen, to satisfy legal requirements.

More learned pens than mine claim we still have an independent judiciary. What difference would it make if they were dependent?

The pro-government press has been fawning over an unlikely hero – retired judge Lord Sumption. His Lordship pleased the poodles by writing a letter to The Times of London, defending his decision to carry on with his appointment as one of the overseas judges invited – one at a time – to sit on our Court of Final Appeal.

Apart from a detour into Hong Kong history, which is both inaccurate and irrelevant – we became an ex-colony 25 years ago – his basic idea is that you can have an independent judiciary and the rule of law without democracy, and this is still something valuable.

In short, he’s doing it for us. It is rather touching, really, that this elderly gent is prepared to suffer the rigours of first-class travel, and endure the privations of several weeks in a five-star hotel, for us. How sweet. No doubt there will be some parsimonious lai see thrown in, on which he will not have to pay tax because it’s earned outside the UK, but I’m sure he doesn’t need the money.

His Lordship seems to have rather poor sources of information in Hong Kong. The nomination of judges to hear national security law cases has, he says, been uncontentious. Well there hasn’t been much contention because the whole process has been entirely secret. You only find out who’s on the list when he appears at the trial.

This part of the national security law has one happy consequence for his Lordship, though. The overseas judges on the Court of Final Appeal are not on the list and are not on the bench for national security cases. So Lord Sumption can, as it were, get his snout in the trough without getting his trotters dirty.

But I cannot, alas, agree with his idea about the separate value of an independent judiciary if you are ruled, as we are, by a distant dictator. Independent judges are a useful protection against illegal action by overbearing officials. They are no protection at all against bad laws.

If the law is arbitrary, brutal and oppressive the judges will loyally enforce it, because that is what judges do. When ruining people’s lives is part of your job description you need to think that you have no choice. It helps with sleep. So arbitrariness, brutality and oppression will occur.

His Lordship does not seem to have got his head round what we are encountering here. Perhaps if some of his friends had been jailed he would share my misgivings about foreign lawyers fostering the pretence that we still enjoy the rule of law.

He has, after all, written perceptively about the way these things change: “We will not recognise the end of democracy if it comes. Advanced democracies are not overthrown. There are no tanks on the streets, no sudden catastrophes, no brash dictators or braying mobs. Instead, their institutions are imperceptibly drained of everything that once made them democratic. The rhetoric of democracy will be unchanged, but it will be meaningless.”

And this is the way it goes with the legal stuff as well. We still have the courts, the robes, the wigs, the rhetoric. All that is missing is trivial things like the right to bail, the right to a fair trial, the right to trial by jury … Hong Kong judges have to navigate through this as well as they can. Visitors can stay home.

And you pro-government people need to be careful what you wish for. Lord Sumption has made an interesting post-retirement career as an advocate of civil disobedience.

Here is His Lordship on the subject: “I feel sad that we have the kind of laws which public-spirited people may need to break. I have always taken a line on this, which is probably different from that of most of my former colleagues. I do not believe that there is a moral obligation to obey the law… You have to have a high degree of respect, both for the object that the law is trying to achieve, and for the way that it’s been achieved. Some laws invite breach.”

This is what Benny Tai has been saying for years. And look, your Lordship, where it has got him.

The trouble with having 47 defendants in one case is not just that the proceedings become so long as to be a health hazard. People get tired and excited. Mistakes are made.

While this was understandably not featured in reports of the case of the 47 co-accused, there was a little problem with the matter of reporting. I am told that at the beginning of the hearing the prosecution complained that some media had not been observing the statutory restrictions on reporting of committal proceedings.

This was interesting, at least, to those of us who have been complaining for some two decades that the Department of Justice has effectively repealed all the statutory restrictions on court reporting by failure to enforce them. Indeed usually the only media who take any notice of these restrictions are those news organisations who believe that the government would leap happily on any legal excuse to give them a hard time.

Well, the assembled media in the courtroom asked the magistrate if he would remove the restrictions, in view of the enormous public interest in the case. The magistrate, quite rightly (we will get to the legislation involved in a minute) refused. Some of the defendants then said that they would not mind the restrictions being removed. The magistrate erroneously supposed this to make no difference.

The law on this subject is contained in Section 87A of the Magistrates Ordinance. This is modelled on a similar English law, although that ancestor is no longer with us because committal proceedings have been abolished in England and Wales.

A word on vocabulary. If you are arrested and charged with a serious offence the police will bring you before a magistrate. He will not decide your guilt or innocence. He will initially make sure you are available for future proceedings by putting you on bail or in custody. Eventually there will be a hearing at which he is invited to “commit you for trial”, meaning to pass the case to a higher court.

The reason for restricting reporting on these things is that the way the legal tactics go can work unfairly for the accused person. The prosecution has to convince the magistrate that it has a case. So it will wheel out all the evidence it is going to deploy at the eventual trial. The defence, on the other hand, has a good reason for keeping its assets to itself, because if the magistrate refuses to commit the accused for trial this does not amount to an acquittal. The prosecutors can brush up their evidence, pick holes in yours and try again. If you are tried and acquitted the verdict is final. You can – and this has happened – confess your guilt on the courtroom steps after the trial. There is nothing anyone can do about it.

The result of this situation in the days when witnesses all appeared in person was that the newspapers (this is an old story) would be full of the prosecution’s case, possibly for days. As the jury had not been chosen yet the people who were going to decide on the guilt or innocence of the accused person might be immersed in this deluge.

So to the restriction, which says that reporters may only report items on a list: the name of the court and magistrate, identity of the defendants and witnesses (if any), names of the performing lawyers, the magistrate’s decision and (a mysterious inclusion) whether the accused got legal aid.

Oddly enough, unlike its English predecessor, the ordinance does not explicitly allow reporting of whether bail was allowed and what conditions were attached to it. But this may be subsumed under “any decision of the magistrate to commit the accused for trial”.

There is no provision for the restriction to be lifted in cases which attract great public interest. There is, though, one way in which it can be removed: the magistrate must (the word “shall” is used, not “may”) waive the rule if any one of the defendants asks him to.

The reasons for this are also lost in the mists of time: public trials are supposed to be the default option, and it was believed that the defendant might feel publicity would help him in, for example, bringing new witnesses to light. So he (or she) should have an absolute right to opt for publicity if it seemed to be helpful.

But note that the defendant does not have to have a good reason and does not have to give one. Indeed in one famous case it was widely known that a defendant asked for the restrictions to be lifted because he had been paid a large sum by a newspaper which was eager to report the hearings. The hearings continued, with reporting.

The ordinance also requires the magistrate, if a defendant is not legally represented (i.e. does not have a lawyer to tell him about all this) to advise the defendant of his right to lift the restrictions and ask him if he wishes to do so. Local magistrates do not appear to be doing this, but as in most cases there will be no reporter present perhaps they have got out of the habit.

Anyway the moral of all this for reporters covering trials is very simple. If you want the restrictions to be lifted ask one of the defendants to exercise his right to have them removed. The magistrate has no discretion to refuse and it does not matter what the other defendants think of the idea.

Best do it surreptitiously, though. Exposing the government’s legal machinations could get you kicked off the Liaison Office Christmas card list for life.

Not for the first time, we find ourselves wondering if the Rule of Law is being abused by our rulers, much though they claim to cherish it

Consider the case of the 47 suspects charged last week with offences against the national security legislation. I have nothing to say about the merits of the charges against them. Such chat would be unlawful, though that has not stopped sundry Mainland officials, academics and journalists from wading in.

One of my colleagues tried asking the Department of Justice to comment on this orgy of prejudicial comment. I have tried this before and expected an evasive non-answer, which is what she got.

But what of the actual procedure? The usual arrangement, if you are a respectable member of society accused of a criminal offence, is that you are told the trial date and you turn up. If your lawyer thinks you might be remanded in custody you bring a toothbrush.

The 47 were all arrested on the Sunday and held in custody pending an appearance before a magistrate on Monday. They were then all piled into the same court, with predictable results. The proceedings were interminable. Four of the defendants had to be taken to hospital. At the end of the second day the magistrate adjourned the proceedings at 10.30 pm saying that some of the defendants looked “tired”.

As the previous day’s hearing had lasted into the small hours of the morning this was not surprising. By the time the defendants had been booked back into the Lai Chi Kok Reception Centre some of them only had two hours to sleep.

By the third day some of the defendants had not had a bath or a change of clothes since Sunday.

Personally I found it difficult to believe that this was the normal arrangement. I do not remember anything like this happening before. But of course I am not a lawyer. What do I know about such things?

However I do, for some mysterious reason, feature on the mailing list of one of Hong Kong’s better known law firms and a senior partner therein occasionally writes a sort of blog there. Some of the content is personal, some of it comments in a fairly neutral way on current events, some of it is about legal matters. 

Now I do not know why I get this. I do not know if the author knows who I am or what I do, and I do not know if he intends it for further publication by anyone who finds his opinions interesting. So I shall not name the firm or the writer, except to say that as he is a (or should that be the?) senior partner, he is presumably not some young radical fresh from the teargas-sodden barricades.

His view of the events outlined above goes like this: “I cannot recall a situation such as this in my four decades as a legal professional in Hong Kong. We have long-established protocols and processes in place. In cases involving scores of defendants, it is usual for bail hearings and the like to be done in batches to avoid drawn-out proceedings. It is reasonable to expect charges to be laid once investigations are almost complete, not at an immature stage. Defendants are entitled to presumption of innocence and should be treated thus. I confess to having serious concerns about what is happening in this case.”

I infer that the arrangement is unusual. This leaves us with three possibilities, all equally unpalatable. The first is that the person in charge of prosecution arrangements in the Department of Justice (sic) is dumb and did not realise what would happen as a result of his actions.

The second is that the person concerned, thinking that the magistrate would spread the proceedings over a week or two, thought this would be a good way of gratifying his puppet-masters by demonstrating the Hong Kong government’s ability and willingness to contrive stays in jail for purportedly innocent purveyors of inconvenient opinions.

The third is that said person knew exactly what he was doing and eagerly seized the chance to arrange some cruel and unusual punishment for opponents of the official line.

The upshot of the proceedings was that 15 of those accused were granted bail, to which the Department of Justice immediately objected. The remaining 32 were not. Those who were supposed to get bail were remanded in custody with everyone else. The DoJ later withdrew its objection to bail for four defendants, who are now free.

There is an interesting question of interpretation here. The National Security Law says (in the now notorious Article 42) that “No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.”

Much amusement was occasioned in legal circles by the CFA’s strenuous efforts to pretend that this did not mean the defendant was presumed to be guilty.

But still. It presumably means the defendant will not continue to commit the acts of which he is accused. It would be intolerably broad and flagrantly contrary to any concept of justice if the magistrate was required to decide if the person in the dock was the sort of person who might in some circumstances infringe the NSL in some unspecified way.

Now the case against the 47 defendants is that they participated in the “primary election” exercise which was supposed to choose pro-democratic candidates for the 2020 Legco election.

The election has now been postponed for a year. Plausible rumours suggest that it will be postponed for a further year while measures are wheeled into place to ensure that there is a secure majority for the Xi fan club. Clearly there is no question of the defendants organising another primary in the near future, if ever. 

So however subversive their conduct may have been it appears that there is no likelihood, and indeed no opportunity, for them to repeat it before their trials. So why keep them in custody? All the possible answers to this are probably a violation of the NSL.

Be that as it may, the unintended consequence of all this is to remove the stigma which used to attach to being in custody. Henry Thoreau said “In an unjust society the only place for a just man is in prison.”

We’re getting there.

It is a curious feature of current events in Hong Kong that the easiest way to understand what is going on is to read the works of George Orwell.

Accordingly we can venture a prediction that, now that the government has declared its intention to outlaw “fake news” we shall shortly be treated to the creation of a Ministry of Truth to decide what is true and what is false.

This is a political question, not a philosophical one, as the hero of 1984 discovers:

“You are a slow learner, Winston.”

“How can I help it? How can I help but see what is in front of my eyes? Two and two are four.”

“Sometimes, Winston. Sometimes they are five. Sometimes they are three. Sometimes they are all of them at once. You must try harder.”

The staffing of the new ministry will not be a problem. The question which interests me is who will head it. The duties of the Minister of Truth require a certain mental flexibility, embodied in slogans like: “War is peace. Freedom is slavery. Ignorance is strength.”

Basically the person appointed must be able to assert that two and two make five confidently, sincerely, without blushing or giggling. We can all think of local public figures who have the necessary ability, but punters looking to pick the winner will have to exclude those for whom the Ministry of Truth would be a demotion.

Eligible, perhaps, for a move sideways is Mainland and Constitutional Affairs Secretary Erick Tsang, who hit global front pages with his variation on patriotism: “You cannot say you are patriotic but you do not love the leadership of the Chinese Communist Party or you do not respect it – this does not make sense. Patriotism is holistic love.”

This will come as a surprise to many people in free countries, who suppose that patriotism is perfectly compatible with an awareness of the deficiencies of their leaders. Patriotic Ugandans did not generally love Idi Amin, patriotic Cambodians had a distinctly Platonic relationship with Pol Pot, and patriotic Americans – even those who voted for him – did not all feel that they had an obligation to love Donald Trump.

The notion of compulsory love is intrinsically problematic. We may feel we have an obligation to respect the government because it is the government, but that has very little to do with love of one’s country, which is a complex emotion not susceptible to persuasion.

Indeed there are often complaints that the notion of their country which people love is not very realistic. “La France profonde” is actually inhabited by very few modern Frenchmen and the idea of Britain which comes up in patriotic contexts – as here – is anachronistically pre-industrial.

Another strong candidate to head the Ministry of Truth is Mr Junius Ho, who has already demonstrated a formidable way with words by providing interesting explanations for such phrases as “kill them all” and “you are my heroes.”

Mr Ho has joined the chorus of abuse rising from pro-Beijing circles aimed at Mr Paul Harris. Mr Harris’s crime was to suggest that the powers that be might like to reconsider some parts of the National Security Law. Suggesting that anything done in Beijing is less than perfect demonstrates a lack of holistic love.

The part of Mr Ho’s piece – a joint effort with another lawyer – which suggested a promising future in the truth business, came when discussing the Court of Final Appeal’s decision in Jimmy Lai’s bail case.

Mr Ho correctly stated the legal position: “the legislative acts of the National People’s Congress and its Standing Committee  leading to the promulgation of the NSL as a law of the HKSAR… are not subject to review on the basis of any alleged incompatibility as between the NSL and the Basic Law, or the International Covenant on Civil and Political Rights.” In other words the CFA does not have the jurisdiction to decide on such incompatibility or to resolve it – if found –  by ruling parts of the NSL unconstitutional, as some people would wish.

Mr Ho’s interpretation of this is ”In essence, the judgment dismisses the allegation by Harris that some provisions of the NSL are incompatible with the Basic Law.” But that is not what the court said at all, in essence or in fact. If the court decides that an act is not subject to review then it does not review it. No review took place and Mr Harris’s theory remains a possibility. Indeed Mr Harris bowed to the official constitutional line by acknowledging that any such deficiency could only be remedied in Beijing.

Mr Ho is clearly well qualified to lead us towards the future foretold in 1984, in which “Every record has been destroyed or falsified, every book rewritten, every picture has been repainted, every statue and street building has been renamed, every date has been altered. And the process is continuing day by day and minute by minute. History has stopped. Nothing exists except an endless present in which the Party is always right.”

Another strong candidate is the nameless author of the Education Bureau’s recent defence of its guidelines for “national security education”. This starts with “The [bureau] disagrees categorically with the malicious labelling of national security education as ‘brainwashing or spoon-feeding young children’.” A news report continued “The bureau added it believed critical thinking skills would also be part of national security education, claiming media literacy should be strengthened among pupils as “fake news, hearsay, or unproven allegations could be hazardous to national security”.

So there will be critical thinking? Not exactly. National security “should not be taught as if it is a controversial topic. Instead, it should be clearly pointed out that safeguarding national security is the responsibility of all nationals and that there is no room for debate or compromise.”

Have you got that, children? The Education Bureau wants you to be critical, but only critical in the right places. You should, for example, switch on your critical faculties when dealing with things like this (also from Orwell): 

“The Party seeks power entirely for its own sake. We are not interested in the good of others; we are interested solely in power, pure power… We are different from the oligarchies of the past in that we know what we are doing. All the others, even those who resembled ourselves, were cowards and hypocrites. The German Nazis and the Russian Communists came very close to us in their methods, but they never had the courage to recognise their own motives. They pretended, perhaps they even believed, that they had seized power unwillingly and for a limited time, and that just around the corner there lay a paradise where human beings would be free and equal. We are not like that. We know that no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power.”

Obviously that’s rubbish. When Mr Tsang tells you to love the Party, on the other hand, you’d better believe it.

The Kennedy Town seafront is a nice place for a virus-free outdoor picnic lunch. There are  benches, and a harbour view full of floating and boating. It’s like the old Blake’s Pier. You can also contemplate a continuing controversy about the relationship between Man and Nature.

As soon as you unwrap your sandwich a small audience of pigeons will appear, watching attentively for any dropped crumbs and hoping that generous diners will be willing to share. The pigeons are a sleek and prosperous looking lot, which suggests that these hopes are often fulfilled.

This is officially not recommended. Some months ago I recorded with some puzzlement that signs had appeared in Central urging people not to feed birds, warning that this would lead to pigeon over-population, and possible obesity in lucky individual birds. The sign also said it “might” be a criminal offence. This is unlikely. Perhaps this is the sort of charge that you only have to worry about if your name is Jimmy Lai.

Anyway I imagine this is not a big problem in Central. Where I live, on the fringes of the Shing Mun Country Park, the matter of relations with wild biology is more pressing. As well as the usual birds in our neighbourhood we have frogs, monkeys, rats, snakes, feral dogs, wild pigs and  – a rare nocturnal treat – at least one large porcupine.

This has attracted the regulatory instincts of the relevant government departments, so we are also treated to a steady flow of advice, usually on large plastic banners. We are urged not to feed the monkeys, as “nature can meet their needs”, and how to keep safe if you meet a wild pig: “hide behind a tree”. Apparently wild pigs are fairly stupid.

Some surreptitious feeding does go on, though not by me. I understand the dilemma, though. The hungry animal before you wants food. Supplying it is clearly in the individual interest of that animal, though it may be problematic in the larger scheme of things. There is a story about a man who threw a stranded starfish back into the sea. His companion said this was a meaningless gesture, because there were hundreds of stranded starfish on the same beach. The rescuer pointed in the direction where the starfish was now, presumably, swimming away and said “it was meaningful to him.”

I understand that wild animals are not helped if feeding them encourages them to hang about areas populated by people. On the other hand natural food supplies are precarious and seasonal. Feeding the birds is a long tradition and is endorsed by Mary Poppins. The argument continues.

Indeed it is now reproducing itself on an epic scale in the New Territories, which for many years has been home to large numbers of semi-domesticated, or if you prefer semi-feral, cows and buffalos, now surplus to agricultural requirements.

A concerned citizen, seeing the cows looked emaciated, gathered some friends to organise food. The cows have been rounded up by the Ag and Fish people and are now found only in Sai Kung Country Park and Tap Mun (Grass Island). The volunteers crop grass in a distant village where it is a nuisance, and transport it to where the cows are evidently hungry. The grass gets a warm reception.

Occasionally the volunteer feeders have a whip-round and buy grass from the company which supplies the Jockey Club.

This is a controversial activity. Some cow fanciers disapprove. Feeders have been fined. An AFCD Spokesman said: “Feeding by the public will make them reliant on humans and lose their ability to find food sources in the wild. So when they are not fed, they will become habituated to seek food from tourists or from trash bins.”

He also said that the cattle could roam over 7,000 hectares of Sai Kung Country Park, which contained “sufficient natural resources to sustain the herd’s lives”. And though the flat top of Grass Island has, he conceded, been trampled flat by hordes of visitors there was still grass on other parts of the island.

This is a complicated scene and we must accept that everyone concerned is propelled by the highest motives, including concern for the health and happiness of the cows. However there seem to be a few landmarks worth noting.

Firstly, for whatever reason, the cows are clearly not getting enough to eat. Observers have seen them eating things like pebbles and plastic bags. One buffalo which died had two baskets full of plastic bags in its stomach.

Secondly there seems to be some official lack of information about the fact that grass is a seasonal crop. Round our way the grass stops growing about the end of October. Grassland then gradually turns brown, which is the way it stays until the summer rains start around the beginning of April. Last week’s unseasonal rain powdered our brown fields with green, but these are little shoots of no interest to a hungry cow.

This is so serious a matter for domestic cows that for centuries most cows were slaughtered in the autumn because they could not be fed over the winter. This practice continued until a gentleman called “Turnip” Townshend pointed out that his favourite vegetable would keep in a cool dry place and could be used to feed cows over the winter.  When I was a kid kale – now a trendy salad item – was grown only as a winter feed for cows and did not appear on human menus at all.

So the important question is not whether the cows have access to grass, but what they are supposed to eat when the grass dries up.

This brings us to the third point which seems to have got lost somewhere, which is that these are not wild cows. They are feral cows, which is a completely different thing. Your NT cow may have been turfed out to forage for itself by its owner, but it is still the product of centuries of breeding designed to produce a fat, immobile, unenterprising animal with no inclination to do anything but eat, breed and stand around looking picturesque.

No doubt millennia ago there was a primitive ancestral cow which roamed the Serengeti Plains and would instinctively set off for pastures new if food in its locality ran short. That was long ago. And the Sai Kung Country Park is mountainous. That is why is it a country park. These are cows, not mountain goats. Did they ever have “their ability to find food sources in the wild”?

Real wild cow – a species not found in the New Territories

I conclude that it is perhaps not entirely fair to expect surplus cows simply to fend for themselves. Nor is it conducive to happiness in the cow population. These are bred to be domesticated animals and would probably be happiest in a symbiotic relationship with humans.

So some help is needed. I cannot resist noting that the instinctive reaction of a Hong Kong civil servant to a group in need, whether animals or people, is to explain why help is not needed, and indeed will be bad for them.  Pensions discourage savings, unemployment pay encourages idleness, sickness pay fosters malingering and free health care encourages bad habits. We have no cake and cake is bad for you. Let them all eat plastic bags.

Let me introduce you to Mr Richard O’Halloran. Mr O worked for a company called China Aviation Leasing Service (CALS). This company was based in Dublin but owned by a mainland businessman called Min Jiedong.

Mr Min got into trouble in his home country over suggestions that he had collected money from China investors and exported it through the usual murky channels to buy an aircraft in Dublin which, it appears, is the only asset of CALS. The plane has been rented out on a long lease to a Finnish airline.

Mr Min was eventually prosecuted and jailed. Some influential investors, it seems, wanted their money back. Mr O’Halloran, who was not working for the company when the dubious deals – if they were dubious – were done, was sent to Shanghai in February 2019 to try to resolve the situation.

After two weeks of negotiation he headed to the airport to return home to his wife and four children, and was there told that he was not allowed to leave. And so, for the ensuing two years, he has been an involuntary resident of Shanghai – at first in a hotel and later, for economic reasons, in a flat.

From time to time Mr O’Halloran has responded to hints that some action from him would result in his being freed. In response to one such suggestion he resigned from his job. Another was that a look at his personal bank details would be interesting. In January he was told he could leave, turned up at the airport and was refused again.

The current directors of CALS then tried sending $200,000 to the Chinese court which is now in charge of Mr Min’s case. This provoked a fierce police interrogation of Mr O’Halloran, apparently aimed at finding out how much his colleagues might be good for. He was then told that the price of freedom was $36 million.

The judge in the case, in which Mr O’Halloran is at least in theory a witness, told him at the last hearing that there was no exit ban (?) but he should expect to stay in China “for a long time”. It appears that someone in Shanghai is very determined to get the aeroplane, even if they have to wait for the lease to run out. Meanwhile Mr O’Halloran is a hostage.

Unsurprisingly his health has suffered and his family have become increasingly distressed by his absence. Last December they decided to ignore the official advice – diplomats usually argue that the smooth flow of international relations is too important for it to be disrupted by noisy complaints about abuse of individuals, however heinous the abuse may be – and raised a public stink in Ireland.

The case has now become a small noisy part of the argument over whether the EU’s recent trade deal with China should be ratified by the EU Parliament. Whether that will help remains to be seen.

I am told that Mr O’Halloran’s case is not unusual. Generally the official advice is not to make too much noise. Victims may well suppose – at least for the first year or two – that complaining publicly will only make matters worse. So ransoms of one kind or another are quietly paid, and the victims quietly return home.

This could not happen in Hong Kong. At least not yet. But this sort of story is why there are serious drawbacks to the government’s proposed new legislation, which will give the Director of Immigration power to prevent people from leaving Hong Kong.

We are still missing a lot of details. One of the details missing is a convincing reason for the new law. An earlier suggestion that it was intended to improve the handling of asylum claimants and refugees was obviously a work of the imagination. Our government’s dearest wish for refugees is that they should depart at the earliest opportunity to anywhere, or better still not come in the first place.

The freedom to travel where and when you wish is an important freedom, and it was entirely proper for the Bar Association to point out the impropriety of subjecting it to the whim of a civil servant. Unfortunately the Bar Association seems to have shot to the top of the DAB’s “reform” agenda lately, so advice from it may not be well received.

One does not, of course, attribute improper motives to the Director of Immigration. But he is a civil servant who has taken the oath of loyalty to the Liaison Office. If he or she is told that somebody should be prevented from leaving our shores it will take a brave – or suicidal – individual to say ’no’ … or even ‘why?’

So it appears the new law would place us in the same perilous legal category for visitors as Shanghai: you may transition at any time from visitor to hostage. This could be discouraging.

No doubt we will be told, as we were about the national security legislation, that only a tiny minority of people will be affected. I don’t think you can expect people to buy that pie twice. Our real rulers, these days, are seasoned mainland apparatchiks who have demonstrated their loyalty to Pooh by trampling on the few remaining civil liberties of their fellow citizens.

To their local sycophants and supporters who have ascended the social pyramid by facilitating the demise of Hong Kong’s autonomy I can only recommend a quotation from Bear Gryls in yesterday’s Guardian: “There’s no point getting to the summit if you’re an arsehole.”