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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.”

The Hong Kong Court of Final Appeal’s thoughts on Jimmy Lai’s bail application are now up on the Judiciary website. Their lordships will have gratified Mr Henry Litton by keeping their comments brief – at least by judicial standards – so readers with a taste for this sort of thing can be recommended to go here.

The newsworthy gist of the CFA’s thoughts was that Mr Lai can stay in jail. However further action is in prospect. The court held that the High Court judge who released Mr Lai approached the matter in the wrong way. But if he had approached it in the right way he might have arrived at the same conclusion. So Mr Lai is free to try again.

Mr Lai has now been jailed by a magistrate, freed by a High Court judge, rejailed by the Court of Appeal, and been told he can return to stage 2 by the Court of Final Appeal. This is a good illustration of the old joke that the law courts are open to all … like the Ritz Hotel. Mr Lai is a millionaire, which is lucky for him, in the circumstances. The rest of us can look forward to being bullied by publicly-funded prosecutors.

Lawyers will note the unsurprising observation that the Hong Kong courts cannot consider whether acts of the Central Government might be incompatible with the Basic Law. If they are, so much the worse for the Basic Law. The CFA also noted that the National Security Law (hereafter the NSL) stated that in the event of a conflict between the NSL and Hong Kong’s existing laws, the NSL would prevail. That is also unsurprising.

The effect of this is that Hong Kong now has two parallel legal systems. If you are an ordinary decent criminal who mugs old ladies or swindles banks, then your prosecution will be conducted under the old system and you will benefit from the rights which that system enshrines.

If you infringe the NSL, on the other hand, you fall down a regulatory rabbit hole into a legal system where some of those rights are no longer available. You do not have the right to bail, you do not have the right to a jury trial, you do not have the right to a judge not drawn from a list compiled, effectively, by the prosecution, and you may, if the prosecution thinks things are not going too well here, find the whole proceedings transferred to the mainland, where you will be deprived of further constitutional embellishments like the right to the lawyer of your choice and the right to a fair trial.

The least one could hope for, under these circumstances, is that the boundary between the two systems would be clear. But the Department of Justice — eyes firmly fixed on its major objective these days, which is to put as many of the government’s critics as possible behind bars — is not helping.

Last Wednesday Mr Edmund Wan Yiu-sing appeared in the West Kowloon Magistracy on a charge of sedition. This is not a charge under the NSL; the prosecution cited the relevant parts of the Crimes Ordinance. These are a venerable colonial-era offering which started life as a piece of model legislation circulated by the then Colonial Office of the British government in the 1930s.

Why this course was adopted is not clear. People have been pointing out the existence of a law against sedition for years without prosecutors using it. Maybe the idea is simply to keep the number of NSL cases in PR-friendly double digits.

However, Prosecutor Ivan Cheung said that although the charges were not covered by the NSL they did involve “behaviour endangering national security” and cited the CFA’s judgement as warranting a “more stringent” approach to the granting of bail in national security cases. The magistrate then remanded Mr Wan in custody. The full trial will not take place until May, so this means that Mr Wan, who is entitled to be presumed innocent, will have been inside for three months before he gets his day in court.

And the question which arises is, of course, is it acceptable – is it legal? – for the procedural parts of the NSL to be applied to cases in which the offence is an ordinary pre-existing one. The CFA did not consider this point because it was not at issue in Mr Lai’s case. So Prosecutor Cheung’s reliance on that decision could be considered a bit premature.

Musing over the documents which the CFA relied on when considering the legislative intent of the NSL one is not much helped. A great deal seems to depend on the rather slender question of whether “the law” is the same thing as “the Law”. Consider, for example the Address to the NPCSC (the legislature for practical purposes) which includes this passage: “… The Law expressly stipulates that human rights shall be respected and protected in safeguarding national security in the HKSAR. The rights and freedoms … which the residents of the HKSAR enjoy shall be protected in accordance with the law. The Law also fully reflects the internationally-practised rule-of-law principles such as conviction and punishment of crimes as prescribed by law, presumption of innocence, protection against double jeopardy, protection of parties’ rights in litigation and to fair trial.”

Clearly here “the law” is the law generally and “the Law” is the NSL. In this light we can perhaps interpret NSL clause 5 “A person is presumed innocent until convicted by a judicial body. The right to defend himself or herself and other rights in judicial proceedings that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be protected.”

In other words what we must now call the old system prevails unless the NSL applies because the offence is an NSL offence. This seems to be the view of the CFA in paragraph 42, which says that the NSL’s restrictive bail rules apply in “NSL cases” – so, presumably, in other cases they do not.

Similarly in para 53 there is a distinction between “offences either under the NSL or under HKSAR law.” A footnote offers “Such as the offences of treason, incitement to disaffection or sedition under Parts I and II of the Crimes Ordinance (Cap 200).”

That “such as” is ominous, since it implies that even the CFA is not sure which existing laws could be regarded as “laws of the SAR safeguarding national security.” Is it to be left up to the prosecutor in each case?

I expect in the long run the practical importance of a clear dividing line will become apparent and judges will insist that if the prosecution wishes to benefit from the considerable help provided by the NSL then it must charge an NSL offence. After all under the existing Hong Kong legal system, if the prosecutor can establish that the defendant is likely to offend while on bail then bail will be refused. The NSL’s “more stringent” requirement is that bail should be refused unless the magistrate is satisfied that the defendant will not reoffend. This is a higher bar, but not an insuperable one. It does not mean the refusal of bail should be automatic.

The Department of Justice needs, perhaps, to look at itself in a mirror. Leaving aside the legal intricacies there is something indecent about taking months or years to charge a person, and then insisting that national security will be endangered if he or she is not immediately incarcerated pending trial. We all have the right to be free unless convicted. This should not be trampled on without good reason. 

The new-look Legco, without opposition, without pan-Democrats and without the limited democratic legitimacy which surrounded its predecessor, is now with us, and will remain with us until next September at the earliest.

Further postponements of the elections cannot be ruled out. Our Imperial Big Brother does not love elections.

The Chief Executive. Carrie Lam, timed her expression of joy that the council had returned to “normal” nicely. It arrived just before the Economist Intelligence Unit decided that we should be moved from the Flawed Democracy category to the Hybrid one, which I think is the EIU’s euphemism for “the locals have no rights but foreigners can still do business”.

Actually the council has not returned to normal, because the normal arrangement in elected legislatures is that there is an Opposition. The usefulness of this is recognised in the British parliament by the fact that the Leader of the Opposition gets a publicly funded salary for doing the job.

The opposition provides two services. It exposes the government to criticism and scrutiny, and it provides the electors with an alternative to the party in power. Since our current leaders do not cherish criticism and regard the electors with a mixture of pity and contempt, they see no useful role for an opposition. And the Party is, of course, in power for ever and ever amen.

This is a pity. I have been reading a book about the relationship between Winston Churchill and Clement Attlee, who at various times were Prime Minister and Leader of the Opposition facing each other, and could hardly have been more different in their political ideology. They managed to remain remarkably good friends. Neither was ever arrested.

They did have the advantage, it is true, of having been colleagues in the Coalition government during the Second World War, in which Churchill was PM and Attlee his deputy who filled in when he was away. I cannot resist quoting this description of their contrasting presiding styles:

“When the Prime Minister is away, Mr Attlee presides. We meet at the appointed time and go through the whole agenda and make all the necessary decisions. We go home at night knowing we have done a good day’s work. When Winston is in charge we have no agenda, make no decisions at all and go home at midnight conscious that we have been present at a historic occasion.”

Don’t suppose our own dear Exco resembles either much. But I digress.

What is Ms Lam going to do with her new-look Legco which, she noted, would no doubt be willing to approve things which the old one would have choked over. A law against doxing will please the Police Force, the nearest thing Ms Lam has to a base, in the political sense.

Less comment was attracted by the other half of her new legislative programme – a law against “false news”.

But this is ominous. We did in the days of the previous colonial landlord have a law against false news, as I recall. It had not been used for many years and was a clear violation of freedom of expression. As a result it was frequently criticised as a relic of an earlier, more primitive form of colonial government and, with some reluctance, it was eventually abolished.

One of the problems such laws present is the question what is false. I notice in the Education Bureau’s latest guidelines on national security education that students will be told that the new national security law did not diminish Hong Kong people’s rights and freedoms.

This is nonsense. A law which makes new criminal offences certainly diminishes people’s freedoms. It would be a complete waste of time if it did not.

Last year we were free to collude with foreign political organisations. This year we are not. This may be justified, trivial, a huge improvement on the old situation or all three. But it is clearly a reduced freedom. A government which is going to compel teachers to lie to their students is not an acceptable arbiter of what is false news.

Consider another bulletin from the education front: the slogan Liberate Hong Kong, Revolution of our Times, is to be banned because the government has “deemed” it to imply separatism, according to the relevant Secretary.

There are three objections to this. The first is that it is a clear usurpation of the powers and functions of the people who put the Oxford Dictionary together, and spend a great deal of time and effort on chasing an accurate definition of word meanings by looking at how they are actually used. I am proposing for next year’s update a new word – dictatwit – which I have just made up. It means an official who supposes it is his job to decide what words mean and believes anyone will take any notice.

The second objection is that the interpretation defies common sense. This can be easily demonstrated by inserting instead of Hong Kong a political entity to which separatism cannot possible be applied. Liberate China, Revolution of our Times. still makes sense (in the purely linguistic sense, of course), whereas – say – Home Rule for China, Revolution of our Times, would not.

The third objection to this sort of thing is that separatism is now an offence, and it appears that some people have been charged with it. Accordingly it should be up to the courts to decide whether in any particular circumstances a particular set of words bears the meaning complained of, and in the meantime the matter is, as the Secretary for Justice put it in a slightly different context, sub judice and not a proper subject for comment.

But would it, under Ms Lam’s new legislation, be false news to write that you did not believe the official “deeming” justified?

This is only one of the many problems attached to this sort of legislation, and there is no point in going through them all until some kind of draft appears. Let me just say that it is difficult to see our government coming up with something that will not result in a further slither down the EIU’s democracy rankings.

And I do not expect to be protected from ill-judged innovations by the surviving Legco. It seems the only media issue which arouses any passion in the remaining seat warmers is an intemperate desire to see RTHK gelded.

You would think in the light of recent events that local politicians would realise that after you lose an election trying to reverse the results by legal manipulations later is a bad look. This point seems lost on the Democratic Alliance for the Betterment of Hong Kong, alas.

Last week the party unveiled their plan to get their snouts back into the district funding trough: wholesale disqualifications. You may think it’s a bit late for this. The district councillors elected last year, when the DAB as massacred in every district except Islands, have duly taken their seats.

Never mind. The suggestion launched by the surviving DAB members goes like this. Firstly all district board members will be required to take The Oath. This of course could have the disappointing effect that all the existing councillors do take the oath, and the DAB stays in the wilderness.

So this gets us to stage two, outlined in an open letter to the Constitutional and Mainland Affairs Secretary last week, which involves setting up some mechanism to disqualify councillors who “breach their oath”. This was justified, said the councillors, because so many councillors were “blatantly opposing the central and SAR governments… made the district councils a critical platform to advocate anti-Chinese ideas and cause chaos in Hong Kong.”

These Trumplets evidently have a vivid imagination. I believe many of us would have noticed if District Councils were causing anything worth calling “chaos”. I cannot speak for the prevalence of criticism or opposition of the central or local governments because the fact is that District Council meetings are rarely reported so opportunities to subversive oratory are rather thin on the ground.

I have noticed, though, that in my immediate vicinity – I realise this is just the well in which I am the seated frog – the standard of municipal services has shown a considerable improvement since the change of regime. This rather confirms the experience of other places, which indicates that where the same party is in control for long periods this leads to cronyism, complacency and corruption.

It would be nice to see the DAB engage into some soul-searching, with a view to discovering why the party is so unpopular. After all the prestige and perks attached to being a district councillor depend to some extent on the democratic legitimacy of the members. A display of bad losership is not going to endear.

Instead, though, the whole pro-Beijing camp seems to be besotted with disqualification. They want close-circuit TV in local classrooms, so that teachers who fail to push the pro-Pooh line can be expelled from the profession. They want a committee to consider complaints about judges, with no doubt the long-term objective of debenching those who display unseemly attachment to the rule of law.

The Op Ed page of the China Daily had an interesting piece last week suggesting that the Bar Association was unfit for purpose and should be replaced by a committee “appointed by the chief Executive” (!?) which would approve qualifications and, in due course, disqualifications.

We seem to be progressing surprisingly quickly towards what we might call the Stalinist model for controlling the population through a stranglehold on its ability to earn a living. In due course there will be a Wheel-tappers and Shunters Association of which all wheel-tappers and shunters must be members. Dissident shunters will be expelled from the association and will no longer be able to work in that capacity.

It seems that thousands of people are planning to take advantage of the opportunity to move to the wet, cold, COVID-raddled island where I was born. This regrettable hemorrhage is not caused by a fear of criticism or chaos. Freedom is like indoor plumbing. You can do without, but once you have had it you won’t want to.

The prosecution of Jimmy Lai, Martin Lee and sundry other conspicuous democrats staggers from pothole to pothole. British QC David Perry decided not to accept the prosecution brief after getting a good deal of stick in the UK over the ethics of the gig. The Department of Justice now proposes, it is reported, to brief local star Benjamin Yu SC.

The problem with this is that Jimmy Lai is being defended by Audrey Eu, who despite the different spellings in English translation happens to be Benjamin’s elder sister.

Apparently the Department of Justice supposes this to be no more than an entertaining coincidence. Not so, alas.

The Code of Conduct for Barristers promulgated by the Hong Kong Bar Association states (at 6.2 (f)) that a barrister must refuse a brief if “by reason of any connection with the Court or a member thereof, the impartial administration of justice might be or might appear to be prejudiced.” 

Some further illustration is provided in an annex. The examples given concern cases where the barrister is related to the judge. The question of a relationship with an adversary’s advocate is not considered. Perhaps it has never come up. But there is also paragraph 6.2 (i) which says a brief must be refused “if, for any other reasons, there is or appears to be a risk that he will be hampered in his ability to discharge, or be embarrassed in the discharge of, his professional duties.”

Consideration of this matter usually starts with a quote from Lord Brougham, who pioneered the genre of messy Royal divorces by appearing for Queen Caroline, as she then was, against George IV in the House of Lords (which was where you had to go for a divorce in 1820). Brougham’s remarks go like this: “[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.”

The point here is that the danger is rather different from that posed by appearing before a related judge: it is not a question of bias – your lawyer is expected to be biased, in your favour – it is a question whether your legal gladiator will exert him or herself to the full if the adversary is a spouse or family member, or whether he will be seen to have done so by spectators, particularly those dissatisfied with the outcome.

Writers on this topic rarely resist the temptation to mention a movie – Adam’s Rib, made in 1949 – about a husband and wife who find themselves on opposite sides of a trial for attempted murder. The husband prosecutes and the wife defends. The movie is praised for its early recognition of the possibility that women will become lawyers. But the plot is criticised on the grounds that having two spouses on opposite sides of a serious criminal case would not have been allowed then and would not be allowed now.

After much foraging on Google I have to say that this rule, if it is a rule, is rarely enunciated explicitly. It may perhaps be inferred from the Hong Kong prosecution code, which says: “A prosecutor must not be influenced by: (a) any investigatory, political, media, community or individual interest or representation; (b) the personal feelings or beliefs of the prosecutor concerning the offence, the suspect, the accused or a victim of crime; (c) the possible effect of the decision on the personal or professional circumstances of those who have the conduct of the case.”

This is put more briefly in the UK’s Code of Conduct for barristers, which states (at paragraph 302 – it’s a long code) that a barrister must “prosecute and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person.”

The Uniform Bar rules of NSW say “a barrister may refuse a brief if there is a personal or business relationship between the barrister and the client or another party, a witness, or another legal practitioner representing a party.”

The matter gets more coverage in North America, mainly because so many more women now become lawyers that the question of spouses on opposite sides could crop up quite often — although according to one writer it doesn’t; apparently spouses generally manage to avoid each other. It is estimated that half of all the lawyers in the USA are women, and half of those women are married to other lawyers. If my statistical extrapolation from this statistic is correct it means that if you pick a lawyer at random there is a 50:50 chance that he or she will be married to another lawyer.

An additional problem there is that generally in the US prosecutors are full-time prosecutors, so if you are a criminal specialist who is not employed as a full-time prosecutor you will have to be a full-time defender. And you may be employed as such. I found three instances where couples had asked their local ethics authority if it was acceptable for one of them to work in the District Attorney’s office and the other as a Public Defender. A typical answer (from New York): “the spouse of an assistant district attorney can work in the same county as an assistant public defender, though husband and wife should not appear on opposite sides of the same matter.”

This may be distinguished from civil matters where, as the  North Carolina State Bar succinctly puts it: “a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent.” In other words it’s OK in civil cases if you tell both the clients and they don’t mind.

The American Bar Association is refreshingly explicit on the position in criminal matters: “The prosecutor whose current relationship to another lawyer is parent, child, sibling, spouse or sexual partner should not participate in the prosecution of a person who the prosecutor knows is represented by the other lawyer.”

So there you have it. We may add that because the right to a fair trial is generally held to include the right to the lawyer of your choice (one of the many reasons why you don’t get a fair trial in China) the task of avoiding this type of conflict of interest falls on the prosecution.

I do not doubt for a moment that the Yus, or Eus, are experienced and competent professionals who are confident that they can represent their respective clients with appropriate levels of enthusiasm even if they are on opposite sides.

Whether the Department of Justice should have arranged this in-the-family fight by picking Mr Yu is another matter. This does not accord with the highest international standards and will reinforce Hong Kong’s reputation as a place where the Rule of Law is falling into disrepair.

What has got into Mr Lam Chi-wai? Mr Lam is the chairperson of the Junior Police Officers’ Association, to which most policemen belong. He had his allotted 15 minutes of fame last September when he suggested that his members should feel free to shoot protesters who threw petrol bombs.

He is, I suppose, subject to the general policy of the Force that members should not engage in political issues generally. Mr Lam enjoys an exemption from that as far as his union work is concerned, but why is he suddenly participating in matters which have nothing to do with his members?

Earlier this week Mr Ng Chau-pei, who is an NPC delegate and chairman of the pro-Beijing Federation of Trades Unions, attacked RTHK for running a story about the recent local lockdown in Mong Kok.

The reporter had, as any enterprising reporter might well do, booked into a guest house in the cordoned-off area and reported, among other things, that the food parcel supplied by the government included tins which required an opener, which he or she did not have to hand.

Mr Ng said this was “intentionally misleading” and an “abuse of power”. Well we expect this sort of thing from NPC delegates. Mr Ng in rabid form here. Anyway the point, such as it is, had been made. Enter Mr Lam to make it again. Mr Lam said RTHK had “hurt Hong Kong” by making disparaging comments on the food parcels issued to residents.

In a statement on Tuesday Mr Lam denounced as “political smearing” the publication by RTHK of a picture in which the tins did not appear to have ring pulls and said the reporter had deliberately distorted the picture. Other residents, he said, had found ring pulls on their tins.

Now we can deal with the substance of this complaint quite quickly. The government’s official description of its distributed items includes the information that 80 per cent of the tins had ring pulls and 20 per cent did not. Another media organisation found in a shop a can of luncheon meat identical to the one issued to the RTHK reporter. No ring-pull.

So it appears that this complaint is entirely without merit, as well as having the serious drawback of being pathetically trivial. The reporter was unlucky enough to get cans without ring-pulls. No dishonesty, political manipulation or abuse of power was involved.

RTHK is a target for government supporters these days but this is a pretty desperate effort to attack it. Perhaps it shows that, if I may borrow a quote from Mr Ng’s Facebook comments on the matter, “He who has a mind to beat his dog will easily find a stick.”

Well no doubt Mr Ng is being encouraged by his imperial superiors to join the campaign against RTHK. But what about Mr Lam? This is not by any stretch of the imagination a police matter. If Mr Lam wishes to improve the work of Hong Kong media he could look nearer home and try to dissuade his members from shooting reporters in the face with rubber bullets.

It is difficult to believe that RTHK has “hurt Hong Kong” by revealing that some of the tins distributed to confined citizens did not have ring pulls. There is a serious danger of further harm to relations between the police and the media, though, if Mr Lam is going to set himself up as a one-man press council issuing judgements on the merits and accuracy of stories which have nothing to do with his duties, whether as a policeman or as a union leader.

Ironically it appears in fact that the RTHK reporter got the story right, and his critics discovered the hard way that factual reporting is not as easy as it looks. Some tins had ring-pulls; some did not. Some people were happy with their food, and some were not. This is ever the way with food. Everyone has an opinion. There is nothing surprising in this and nothing which will damage Hong Kong in any way.

Mr Lam’s reputation, on the other hand, now looks rather tatty. And that, in some people’s eyes, will rub off onto the police force, which has enough credibility problems already.

When it comes to public relations, it’s often the little things that let you down. Consider the unfortunate way in which the case of Mr Sunny Chiu and six other people concluded itself last week.

Mr Chiu, a Shatin District Councillor, and two other council colleagues, together with four of their office assistants, were caught up in a mass arrest by the police, during a protest on July 1 last year. The protest was against the new national security law, the day after it came into force.

The event took place in Times Square and was, by the standards to which we became accustomed last year, a pretty tame affair. Some people chanted … um … Foxes Don’t Nest On Limetrees, or the even more objectionable FRUIT, or as it is spelled in progressive circles FHROOT. 

No doubt there was also some singing of The Song, which is deemed subversive because it includes references to foxes and fruit.

If I may digress for a moment as The Song is now banned protesters could consider that my Irish ancestors wrote a lot of songs about freedom which are no longer needed in Ireland, like this one, which, My Lord, cannot be considered subversive because it is clearly not about Hong Kong. We don’t have rivers.

To return to Mr Chiu, he and his companions were taken to a police station, charged with offences under the Public Order Ordinance, and released on police bail. Seven months go by. Last week he was contacted by the police and told that the charges would be dropped “for lack of evidence”.This is the police person’s tactful way of saying that you are guilty but we can’t prove it.

However we should be clear that this has no legal status at all. As far as the law is concerned Mr Chiu, like the rest of us, is innocent until proven guilty in a court of law. In other words in this case an innocent citizen has been plucked from his lawful occasions, hustled off to a police station, and subjected to seven months of anxiety and inconvenience, in error.

Mr Chiu was understandably a little sceptical about whether it was an entirely innocent error, and indeed claimed in his Facebook report of the latest developments that police were using arrests and charges which had no prospect of being proven as a tool to persecute people they disapproved of. This would, if true, be entirely unacceptable.

Let us suppose for the moment that it was just an understandable mistake. Large numbers of people are milling around Times Square; it is difficult to distinguish who is protesting, who is spectating, who is shopping, who has turned up to monitor police tactics and who is a reporter. So slip-ups will happen.

Knowing our police force as we do we will not expect anything faintly resembling an apology. As someone who would like to see the force respected and liked, though, I cringed at what came next: “Chiu has been instructed to go to the police station on Monday to pick up his clothing, a work mobile phone and a backpack, which were seized on the day of his arrest.”

Has he indeed? `Let us leave aside the interesting and unanswered question why Mr Chiu’s clothing was seized, what, if anything, he was given to wear instead, and what the police thought they could do with said clothing … scan it for traces of subversion?

Still, having erroneously confiscated several items of an innocent person’s property, you would think it might have crossed someone’s mind that perhaps some more emollient approach was called for than “come on Monday and collect your stuff.”

Maybe it would be a waste of police time for the force to return the items, by – say –  delivering them to someone’s office. Perhaps it would be a waste of public funds to get Gogo Van to deliver it on their behalf. But for pity’s sake could Mr Chiu not at least have been asked to drop by at a time of his own choosing and convenience?

Surely we can avoid the appearance that police now work on the theory that anyone not wearing a blue ribbon is guilty; it just haven’t been decided what of … yet. In the meantime we will treat you as a criminal.

Goodness, the power of the pen! Last week’s offering is already out of date. David Perry QC decided this week that he would not after all be coming to Hong Kong to lead the prosecution of nine pro-democracy figures for their part in a peaceful protest last year.


Actually the decision is of course nothing to do with me. Mr Perry gave two reasons for his decision: pressures in the UK and “the extension of quarantine”. Curiously, although the reaction from local pro-government figures to the comments in the UK were extensive, detailed and passionate – “ferocious attacks”, “despicable”, “very shocking” etc – nobody thought fit to explore the extension of quarantine.


So we still do not know who was plotting to arrange Mr Perry’s quarantine requirements or what they were up to. The fact is that it takes six weeks for us ordinary peasants to qualify to fly from the UK to Hong Kong these days and there is also a quarantine requirement going in the other direction. We cannot even say whether Mr Perry’s problem was that the rules were not being waived as much as he hoped, or whether he feared that having the rules waived at all would bring further complaints.


Still, it is interesting that half of Mr Perry’s reasons produced such detailed comments while the other half were left an unexplained mystery.


Some of the resulting complaints from the government’s legal supporters were entertaining. Mr Grenville Cross thought the cancellation very regrettable because having such a knowledgable figure prosecuting would ensure the defendants’ rights were protected. Far be it from me to dispute this prediction.


It is indeed a feature of the British legal system that lawyers are officers of the court, expected to put the interests of justice before the interests of their client, if the two conflict. This may be compared with the American system where prosecutors keep careful track of their “conviction rates”, at the cost of a tendency to try to win at all costs.


However it is difficult to believe that the Department of Justice decided to import Mr Berry from an excess of enthusiasm for the human rights of the defendants; I think they wanted him because they thought he would win.


Indeed Mr Cross’s interesting point does not appear in the Secretary for Justice’s comments on the situation, which appeared in the China Daily’s English version on Thursday. Unfortunately Ms Teresa Cheng’s version of the complaints has some serious deficiencies.


The case, she said, “has nothing to do with the National Security Law or any offences relating to it. The nine defendants were charged with two offences under the Public Order Ordinance (legislated before 1997) for organising and … taking part…etc.”


The bit in the brackets is the problem. The Public Order Ordinance was certainly originally passed long before 1997, in fact in 1967. On the other hand in 1991 the Hong Kong Bill of Rights Ordinance was passed and it then became apparent that the POO in its then current form was incompatible with the rights enunciated in the Bill of Rights. A revised version of the POO to meet this objection was passed in 1996.

The new version was condemned by the NPC Standing Committee as a violation of the recently drafted Basic Law, and after much dispute another revised version was passed by the Provisional Legislative Council and came into force on July 1 1997. So the suggestion that this ordinance is a colonial bequest is seriously misleading. One expects better from senior officials. Or at least one hopes for it.


Ms Cheng complains that a UK politician thought the prosecution was “ under the really questionable law that was produced at the behest of China,” and takes this to be an erroneous reference to the National Security Law. Perhaps it was, but it may be a correct reference to the Public Order Ordinance, which is both questionable and produced at the behest of China.


Ms Cheng stresses the “determination of the Department of Justice to fairly and objectively deal (what is it about lawyers and the split infinitive?) with each case based only on the evidence and applicable law without fear or favour,” which is nice.


Mandy Rice Davis achieved undying fame, at least for people in my generation, when asked to comment in the witness box at the Old Bailey on the fact that another witness had denied having an affair with her. She said “He would, wouldn’t he.” But I digress.


The part of Ms Cheng’s article which really annoyed me was the last paragraph, which goes like this: “As legal proceedings are on-going it is inappropriate for anyone to comment further on the case as it is a matter of ’sub judice’. Comments that create a public discussion which may lead to a trial by the public as opposed to an established judicial system are to be avoided.”


My first reaction to this was unprintable and frightened the dog. I have been complaining for something like 20 years about the fact that there is actually a law against media comments on on-going legal proceedings, but the Department of so-called Justice, which Ms Cheng heads, makes no effort to enforce it.


I have tried complaining in print. I have tried sending the department copies of egregious violations. I have tried asking them what the hell I am supposed to teach aspiring journalists: that the law says this but because it is unenforced nobody follows it?


In the end I gave up teaching media law. I also tried to give up complaining about it, but if Ms Cheng is going to raise the matter the question of her role in the problem arises.


In fairness this problem did not start with Ms Cheng’s regime. It has been going on much longer than that. Also it doesn’t only concern the “sub judice” situation. Other similarly neglected rules cover the reporting of cases involving juveniles, cases involving sex and cases involving divorce.


If you complain the Department of Justice says it only considers prosecutions if they are referred to it by the police. The police are neither qualified for nor interested in monitoring the media for infringements, a task which used to be done by the Legal Department, as it modestly called itself in colonial days. Many of the infringements actually come from the police themselves, as anonymous leaks or, sometimes, official announcements.


The result is that prejudicial comments and reporting are rife. If Ms Cheng reads the China Daily as well as writing it she will have seen, for example, some ripely prejudicial offerings on Jimmy Lai. Ta Kung Pao is worse. The Beijing press is not published here, but it is read here, at least by a few people. That used to be enough to attract at least a warning. I remember talking the then Legal Department out of prosecuting one lady who had sent a story clearly labelled “not for use in Hong Kong” to her employer in Oz, only for three copies of the offending item to crop up in the Mandarin Hotel newsagent shop.


Since the turn of the century there has been one newspaper prosecuted for contempt of court. Do you need three guesses? Of course you don’t; it was Apple Daily.


It seems to me that Ms Cheng either needs to muzzle the pro-government attack poodles, or resist the temptation to preach about the potential evils of public discussion. The remedy is in her hands, not ours. The rule of law is not supposed to mean the rule of selected laws.