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Henry Litton’s op-ed piece attacking Hong Kong judges for failing to conform to our new constitutional realities has caused something of a stir in the legal community. So I shall leave the legal points raised to them. A hostile view here.

What surprised me was the paragraph in which Mr Litton considered what he considers “the big picture”. It goes like this “For hundreds of years, the Middle Kingdom was the undisputed economic and cultural centre of the world. It fell into decay during the latter days of the Qing dynasty but is now resurrecting, through much agony and hardship, its central role. It is also re-establishing, through the Belt and Road Initiative, the ancient trade connections between the Middle Kingdom and the other great civilisations, this time on a much wider scale.”

This is a big picture all right, but I am not sure that it is really the sort of thing which ought to be going through judges’ heads while they consider applications for judicial review.

Apart from its other disadvantages it has the serious drawback of not being particularly accurate. I am reminded of Napoleon’s comment that “History is a series of lies about which we agree.”

For most of China’s history there was, after all, not really a world to be the centre of. Great empires rose and fell in Africa and America unnoticed on the Eurasian continent and unconscious of the rest of the world. There was a flourishing trade, at times, along the Silk Road, but China was one end of it, not the centre.

Modern historians assert that China in 1500 was the most prosperous and cultured civilisation in a world which was becoming aware of itself. Europe was divided and quarrelsome in a most undignified way.

But the ensuing two centuries suggest that perhaps a decentralised hubbub was more effective than a monolithic empire. While Europeans took over large swathes of the world the Chinese empire succumbed to a Manchu invasion and became part of someone else’s empire, which it remained for 400 years.

The idea that there is some natural gravitational force which dictates that China’s “natural” position is at the centre of anything is deeply unhistorical.

I have lately been reading Simon Winder’s entertaining history of Lotharingia. This antique state dates back to Charlemagne’s grandchildren, who agreed to divide his empire into three pieces. One piece in the West corresponded roughly to what is now France. A second piece in the east corresponded roughly to what is now Germany.

The third piece was a belt, starting in Holland and sweeping south down both banks of the Rhine to terminate in the northern part of what is now Switzerland. This was an awkward construction and its history consisted largely of attempts to make something of it, hampered by attempts by the two obvious contenders to encroach on it. The region is particularly rich in historic battlefields.

The moral of this story is that no political entity is eternal and no frontier should be regarded as fixed beyond amendment.

One of the benefits of Youtube is that you can find animations which show the changing political landscape over time. European ones (specimen here) are fun if you know your history. And you get the same message. The frontiers in 2020 are only distantly related even to the frontiers in 1914. Whole countries appear and disappear.

Similar efforts are offered for Asia, though as I know much less of the history they are less entertaining. Specimen here. I used to show my masters’ students one of these as an indirect answer to their questions about some contemporary issues.

The area now occupied by China is not the same as the area occupied by any of the previous Chinas. The triumphant China of 1500, for example, did not include Xinjiang, Tibet or Taiwan, which may inspire a certain nostalgia in those places. Dynasties came and went, leaving gaps filled by a patchwork of smaller states. The geographically largest dynasties were not necessarily the longest-lasting ones.

Countries do not, as Mr Litton puts it “fall into decay”. They confront challenges, with varying degrees of success. Some of the challenges are natural – floods, earthquakes – but the most tricky ones involve relations with other people. Luck plays an important role.

Well, no doubt the willingness of at least one senior Hong Kong judge to trot out the Party line on Chinese history will go down well in Beijing. But I fear Mr Litton is chasing a mirage if he thinks Hong Kong judges can be “trusted” in Beijing without ceasing for all practical purposes to be judges.

The central government knows nothing of law, common or otherwise. Its requirement for trustworthy judges is that they should find for the Party, whatever the details of the case.

Hong Kong judges are in the same bind as the Chief Executive. If they are liked and admired in Hong Kong they will for that very reason be distrusted in Beijing. If they are trusted in Beijing they will for that very reason be regarded with scorn and contempt in Hong Kong.

This dilemma is the joke which history has played on them and Mr Litton’s preferred solution is just to impale himself vigorously on one horn of it.  

It is nice to see Hong Kong become a global talking point, but perhaps this could be done in a more flattering way than Sunday’s eye-catching video – broadcast on all international stations, Fox News (not a Hong Kong-obsessed channel usually) version here – of the Hong Kong Police laying down the law on a 12-year-old girl.

One tries not to jump to conclusions from video clips, but this leaves little room for interpretation. If a duck looks like a duck and quacks like a duck, it’s a duck. Here we see several adults bullying a child. If a parent did this to his daughter he would be prosecuted.

Some of the sting might have been drawn from this catastrophe by a tactful apology. Confused situation … people get excited … not necessary to use the full anti-cockroach technique on a minor … sorry.

Instead we got the usual, untouched by human brain – our boys can do no wrong – from the usual spokesman. The victim had run “in a suspicious manner” and had been subjected only to “minimum necessary force”. Self-righteous hogwash.

I fear my education missed out on running in a suspicious manner. In primary school we were encouraged to stand like a tree, waving in the wind, or run like a horse, galloping across the prairie, but somehow running suspiciously never came up. Looking at the video, though, the runner does not look suspicious. She looks terrified.

As for the minimum force, surely the minimum force required to subdue someone so small would involve one person and one person only. Some compromise on the “flat on the pavement” front would also have been appropriate.

Then we got the prosecution. It is sadly a recurring feature of police excess that the victim must be charged with something, in order to discredit the expected complaint. So our 12-year-old victim, who apparently answers to Pamela, was treated to an on-spot fine for a social distancing violation.

Just a cotton-picking minute. Leaving aside the question whether Pamela, who lives in the area and was just shopping with an elder brother, actually violated the rules, there is a little legal hitch involved here.

I quote from the Law Reform Commission report on the age of criminal liability: “The law … presumes that a child between the ages of seven and 14 is incapable of committing a crime, unless the prosecution proves beyond reasonable doubt that, at the time of the offence, the child was well aware that his or her act was seriously wrong, and not merely naughty or mischievous.” 

So there is a legal presumption that Pamela cannot break the law. This can only be overthrown by proof of knowledge and motives. So the issuing of the on-the-spot fine was unjustified and unlawful.

This little detail had passed unnoticed by the Hong Kong government, which cheerfully announced on Sunday night that “Police discharged their rightful duties today and took prompt and decisive actions to apprehend the offenders.”

We were also treated to this: “In a later statement police said: ‘Police attach great importance to integrity. If any person considers he or she is affected by police misconduct, he or she may lodge a complaint to the Complaints Against Police Office. It will be handled in a fair and impartial manner according to established procedures.’” It would be subversive to giggle at this point.

Oh, how fair and impartial the established procedures can be! Oddly enough this phrase cropped up later in the week when the Complaints Against Police Office starred in a rare court case. The complainant (arrested in a theft case: nothing political) pleaded guilty to making a false complaint and was jailed for four months.

Apart from the usual bit about CAPO handling cases in a “fair and impartial manner” the triumphant CAPO spokesman, Chief Inspector Chau Kwok-Kuen, also said that the prosecution had been approved by the Secretary for Justice.

Quite why the Secretary had been involved in such a trivial matter we were not told. Can it be that someone thought that prosecuting a complainant, after so many complaints had fallen on stony ground, might be considered ironic, even satirical?

But satire wilts before the reality of justice Hong Kong style these days. On Monday, according to Wednesday’s Standard, the Department of Justice asked a court to order one Billy Chiu Hin-chang to pay a total of $171,000 to four police officers who were allegedly injured by him during a protest.

The protest took place on October 17, 2014. How can any court be expected to determine liability for events so long ago? Does Mr Chiu have $170,000? Did the relevant file get lost for six years?

One wonders if Mr Chiu, a former member of a subversive minigroup called Hongkong Priority, is just the latest victim of a drive to dump on dissidents of any kind with whatever legal implement comes to hand.

This brings us to Mr Tam Tak-chi, also known as “Fast Beat” (whatever that means) who appeared in court on Tuesday charged with uttering seditious words under the old Crimes Ordinance definition. In other words after years of complaining that Hong Kong had no sedition law the forces of order have now discovered that it was there all the time.

The prosecution line is that Mr Tam, a leading figure in People Power – an organisation we can I think assume the Liaison Office is not fond of — incited hatred of the government by uttering the slogan “Liberate Hong Kong, revolution of our times”.

This is a stunning revelation. Numerous people have been shouting this slogan for more than a year without being prosecuted. Now we are expected to believe that it was illegal all the time? Was the Secretary for Justice asleep then? Or is justice asleep now?  

The degradation of the rule of law goes on. Also on Sunday a bus driver was arrested for dangerous driving. After reviewing his dash cam the man’s employers seem fairly confident that that charge is not going to stick.

The assembled Sherlocks also charged him with having an offensive weapon, because they found a spanner in his bag. Now apparently bus drivers often carry a spanner. It is used to adjust the rear-view mirrors. But this gentleman has no need to explain his possession of a spanner.

The law is quite clear. A blunderbuss or a bazooka are offensive weapons in themselves. When it comes to ordinary civilian objects they will only be offensive if the context suggests that they were going to be used offensively. If you are driving a bus there is no such context so this charge was a simple abuse of process.

The bus driver spent 24 hours in custody. It seems his real offence was to suppose that policemen scattered over the road would welcome warning of his approach. Our force is a sensitive force. Hoot at your peril. 

 

So Jimmy Lai has been acquitted on the charge of criminally intimidating a reporter. This is good news in at least one respect. The case has been beyond comment while awaiting trial.

This means everyone concerned has been waiting for three years. This comparatively simple matter should not have taken so long, but this is the level of efficiency we find these days in the Department of so-called Justice.

I draw attention again to the passage in the department’s guidelines for prosecutors which points out that defendants are entitled to be tried within a reasonable time. In some American states a summary offence like this one would have been time-barred after three years.

An interesting anomaly is that the complainant, a reporter from the Oriental Daily, was allowed to remain anonymous. As the magistrate seems to have found his evidence very unreliable this seems a bit generous.

It seems that Mr Lai threatened to “mess with” the reporter concerned. The suggestion that he would find someone else to do this was not supported by the video. There is often a video these days. Why do prosecutors not look at it?

Anyway now that the matter is no longer sub judice I have a few words for the anonymous and unreliable witness.

If you are going to call yourself a reporter this involves rather more than chasing elderly businessmen with a camera and a notebook. You are expected to accept some of the hazards which go with the territory.

Reporting worthy of the name is not always welcome. When I was teaching journalism I used to show my students a video of the sort of situations which might arise. Some interviewees attacked the reporter; some of them attacked the cameraman.

A reporter who asked a professional wrestler whether wrestling was faked was treated to a demonstration: an “open-handed slap” which floored him. Serve him right for asking a stupid question. Everyone has known that professional wrestling was fake since the publication of Mick Foley’s “Have a nice day”, which I warmly recommend.

The point is that none of these episodes was followed by a complaint to the police and court proceedings. Sensible reporters accept that their attentions are sometimes extremely unwelcome. People whose private sins are about to become public will get excited.

Attempts at intimidation are commonplace. We accept it as something which goes with the job.

This is not a matter of physical courage, unless you want to be a front-line war reporter. The conclusion that I drew for my students was that when setting off for work you should always wear shoes you can run in. But we don’t complain.

Personally I was generally lucky in this matter. I was in the press box at Millwall FC, a club notorious for supporter violence, when an irate elderly gentleman staggered in with a view to rearranging the local reporter with his walking stick. While the local reporter tried to calm his antagonist down the rest of us laughed hysterically.

I cannot recall being threatened with violence personally. When I was running an investigative team we were occasionally threatened with writs. I discovered a curious paradox. Innocent people were happy with a discussion, explanation, and occasionally a clarification putting their side of the story. Crooks on the other hand wanted to sue you.

I cherish the memory of the company spokesman who was trying to put me off a modest microscoop with the warning that some of his company directors were Jockey Club stewards. It is not done to wisecrack on these occasions but I had great difficulty in resisting the temptation to reply “I am not a horse”.

So, back to Mr X. If you are going to continue in our disreputable profession you must get used to the idea that you will on occasion be threatened, warned off, sworn at or told to do unspeakable things to your mother.

If you have really spent the last three years in a state of psychological disarray because of Mr Lai’s threatening words, then you are too fragile for reporting, and I can only suggest that you switch to a less abrasive way of earning a living.

If you have not, and were persuaded to participate in the left-wing campaign to hang something – anything — on Mr Lai, then you lack another basic qualification for journalism, an attachment to the truth.

 

Our glorious leader seems to have inherited from her predecessor the knack of coming up with a response to a question which is not only unsatisfactory but almost completely irrelevant and deeply offensive.

Consider her response last week when asked to respond to the refusal of some medical experts to take the “universal but voluntary” (?) Covid test, which the government is offering in September.

Note that none of them actually said that people should not take the test. They said, for a variety of reasons, that they were not themselves going to volunteer. The reasons were technical and medical. No political overtones intruded.

But for Mrs Lam, these days, if the political overtones are not inserted by someone else then they will be inferred by her. Mrs Lam said she could not figure out why some experts were not keen on the test. They were politically motivated, she said.

There followed this: “The so-called experts, doctors or members of the public kept finding excuses to stop citizens from participating in the test… There is only one intention behind this: political calculation. They are smearing the central [Beijing] government and it’s an effort to sever Hong Kong’s relations with the central government.”

“So-called experts” is an ill-chosen phrase in this context. The people concerned are all doctors and many of them are indisputably experts in relevant areas. None of them is, as far as we know, part of any political movement and this is not, actually, a political matter.

In fact if anyone in this controversy is politically motivated it appears to be Mrs Lam herself. The idea that a mass testing programme cannot be organised in Hong Kong without the central government’s help is not very convincing. Is the purpose of bringing Beijing into it to improve the service, or to make a political point: that our motherland loves us even if it has vandalised our constitution and perverted our police force?

Let us see if we can “figure out” what the problems might be in rolling out a mass testing programme for a condition which is, in all likelihood, still quite rare. They are not political; they are statistical.

We start with the assumption that the test is 99 per cent accurate in detecting the disease in people who have it. This is an ambitious target but maybe the mainland genius team can manage it.

To get a high detection rate, though, you have to accept that there will be some “false positives“ – people who fail the test but who do not, actually, have the disease. The only way to reduce the number of false positives is to make the test less sensitive and reduce the detection rate. So let’s not go there. Say the false positive rate is three percent, which is a really good figure for a mass testing programme.

The other interesting variable is how many people in the population we are testing actually have the disease. So far Hong Kong has seen less than 5,000 cases in a population of seven million, which suggests a possible infection rate of 0.02 per cent. But let us suppose there are a lot of undetected cases out there and put the infection rate at one percent.

Now we test 1,000 people and consider the outcome. In that group, assuming it is typical, there will be ten people with the disease, and the test will detect nine or ten of  them. The undetected person, if there is one, will go home reassured and breathe the virus all over his friends and family members.

There will also be the unavoidable 30 false positives: people who are told they have the disease but actually do not. This is a distressing moment for them, and a dangerous moment for us. It is easy to suppose that someone who tests positive in a 99 per cent accurate test has a 99 per cent chance of having the virus.

But this is an elementary error. We have 39 or 40 people who tested positive, only nine or ten of whom have the virus, and we still do not know which nine, or ten, are the genuine cases. The chance of you having the virus if you are one of this unfortunate group are actually only one in four.

But there will be a temptation to put them all on a bus together and send them off to a quarantine centre.  And if you have not been exposed to the virus when you get on the bus you may well have been exposed to it by the time you get off.

This is the sort of calculation which makes doctors wary of testing whole populations for diseases which very few people have. A positive test is distressing and disturbing. It may lead to mental health problems, disruption to work or recriminations in the family.  It is also quite likely to lead to unnecessary medical procedures.

The rarer the disease, the worse the problem. If the figure for Covid cases so far is typical, and the actual incidence is 0.02 per cent, then our 1,000 tests will produce only one or two positives. And the 30 falsies will still be there to muddy the waters.

Mrs Lam’s hysterical resort to political explanations for criticism is disappointing, if only because we have all become used to the daily performances of Dr Chuang Shuk-wan, the head of the Communicable Diseases Branch of the Centre for Health Protection.

Dr Chuang deploys a soft melodious voice and a reassuring bedside manner which makes even the worst news sound like a manageable ailment. Her response to a similar question about mass testing was that it would be useful to find the “silent carriers” who were still among us, because some of the cases being detected were not traceable to known clusters.

Clearly there is an interesting technical issue here on which well-intentioned experts could disagree with each other: Is it better to try to test everyone, or does it make more sense to concentrate on the most likely groups? Mrs Lam needs to dial down the political paranoia and listen more carefully to people who know what they are talking about. We do not need a Hong Kong Mrs Trump.

 

For weeks we have been told that some rich Hong Kong businessmen are colluding with overseas organisations to perpetrate the manifest untruth that our city should not be regarded as part of China.

Names and details were not forthcoming… until last week, when the Standard named names. The two gentlemen involved in this nefarious plot were Mr George Leung Siu-kay and Mr Mohamed Butt. They are respectively the Chief Executive of the Hong Kong Chamber of Commerce and the Executive Director of the Hong Kong Productivity Council.

They have urged the Hong Kong government to appeal to the World Trade Organisation, clearly an external body within the meaning of the National Security law, against the notion that Hong Kong is part of China.

It is also suggested that the International Organisation for Standardisation should be involved in the dispute, which revolves round the question whether goods manufactured in Hong Kong should be described as “Made in Hong Kong”, or “Made in China”. The “Made in Hong Kong” label was traditional, but some people overseas now wish to see it replaced by “Made in China”.

The two plotters concerned wish to continue with the “Made in Hong Kong” label. No doubt some confusion has arisen as to what the patriotic line on this topic should be, because the new requirement that Hong Kong manufactures should be described as “Made in China” comes not from the People’s Pooh, but from the US government.

Still, have these two gentlemen not been reading the newspapers? Surely it is time for Hong Kong manufacturers to step up to the standards of patriotic enthusiasm now expected of all of us, and wear the “Made in China” label with pride.

I am sure no prudent Hong Kong person would argue that China manufacturers have a reputation for copying, low quality and using slave labour. These slurs are unjustified and unsubstantiated, of course.

Some readers may be surprised to hear that Hong Kong still has any manufacturing industry worth complaining about. It seems that our manufactured exports amount to “only” $3.7 billion worth a year, which seems quite a lot to a lay person but is apparently regarded as trivial in business circles.

However, more than half of those exports consist of jewellery, so there is an industry complaining vocally that this is a matter of life and death.

We must in fairness to Mr Leung and Mr Butt note that there are some inconveniences attached to the introduction of the new arrangements. It seems that, according to the US Customs, our Hong Kong exporters will still be expected to report for some purposes that their wares were made in Hong Kong, which sounds potentially confusing.

Also exporters were given only 45 days notice of the new arrangements. Because of the delays to shipping caused by the Covid virus there is some danger of consignments sent before the change was announced arriving after it has come into effect. You would think there would be enough flexibility in the Customs procedure to avoid actually having to send these goods back. But we should not under-estimate the rigidity of which bureaucrats are capable.

Well I understand and share the suspicion that the new rules have less to do with the search for accuracy and more to do with one of Mr Trump’s nocturnal Twitter brainwaves. Mr Trump does not seem to have a passionate attachment to truthfulness.

Still this complaint is hardly going to fly in international circles, I fear. China is not really in a position to urge zealous compliance with World Trade Organisation rules.

And after all, have we not been told on numerous occasions that Hong Kong is part of China? So the new labelling will merely reflect the facts: that the Beijing government enjoys comprehensive sovereignty over Hong Kong, legislates for it when moved to do so, deploys its army and police here, and appoints our senior officials.

Hong Kong now enjoys less autonomy than Texas or Saxony. Regions generally do not have their own “made in …” label anyway. Can we retaliate by insisting that American microchips should have “Made in California” on their labels?

It is true that people are not always rational about these things. But if it is a criminal offence to wave a banner saying “Hong Kong is not China”, as I suppose it is, then surely we can hardly complain if people overseas take us at our word and insist that Hong Kong is part of China, and its exports should be labelled accordingly.

 No doubt there is something in the Joint Declaration on Hong Kong’s Future about the territory being allowed to be separate for customs and labelling purposes. But the Joint Declaration, as we have so often been reminded, is a historical document of no practical significance for present purposes.

 

Amid all the fuss rightly made about the police raid on Apple Daily one interesting innovation was, quite understandably, overlooked. Hong Kong now has “gangs”.

This is new. For many years, Chicago has had gangs, New York had gangs, even London and Paris had gangs, but in Hong Kong organised crime took other forms.

For the “satisfied customer” stuff – vice, gambling, protection – there were triads, who engaged in occasional street fights with each other but otherwise kept a low profile: no drive-by shootings, no kidnappings of the rich and famous, no horses’ heads in the beds of innocent citizens.

Other crimes, like sex slavery and smuggling, were committed by “syndicates”.  These were a recurring feature of police press releases. Every week or so a “syndicate” was “smashed”. No doubt some future linguist will boost his academic status by tracking the origins of the syndicate smashing syndrome, which I believe is found nowhere else.

Syndicates were evidently either very robust or they bred like rabbits, because there seemed to be an endless supply.

Triads on the other hand went on for ever. The same names cropped up time after time. As long ago as the 70s the official police line was that triads had been exterminated, or at least were “under control”. Yet it seems that in parts of Hong Kong like Wanchai, Mong Kok and Yuen Long they were not so much under control as in control. As indeed perhaps they still are.

But now, gangs! We owe this new departure to Senior Superintendent Li Kwai-wah, of the Force’s new National Security Department. Talking about the Apple swoop, he told reporters that police had been investigating a gang which “promoted and actively called on foreign countries or international organisations to sanction or blockade Hong Kong.”

“We found that two men and one woman are running this gang in Hong Kong,” he continued. And so on for several paragraphs.

So there you have it. If you shake down local shopkeepers or run a brothel you are a triad. If you smuggle prostitutes or drugs into Hong Kong you are a syndicate. If you breach the National Security Legislation by telling people overseas what is happening in Hong Kong, on the other hand, you are a gangster.

It could perhaps be argued that this choice of terminology was inappropriate, given that a number of people had been arrested, so the use of language which presumed their guilt was objectionable as contempt of court.

But the arrests of Jimmy Lai and his mates was accompanied by a veritable barrage of prejudicial comment, with the professional police propagandists swiftly joined by amateurs like Lau Siu-kai. I am going to stop complaining about this. We should all simply be aware that if you are on the government’s list of candidates for persecution then your right to a fair trial has effectively already been abolished.

The government, its press poodles and the police will say what they like, however prejudicial it may be.

Actually the police doing whatever they like seems to be a permanent feature of the new post-autonomy landscape. We can dismiss as mere tactlessness the twin spectacles of 200 policemen packing a staircase at the Apple Daily office while some of their colleagues were fining domestic helpers for being too close to each other on their day off. Actually the helpers had been copped the day before. Learn your news cycles, people.

More serious is the matter of press accreditation. Some months ago Carrie Lam said quite unequivocally that the government had no plans and no intention of introducing any kind of accreditation or licensing system for the press. Press freedom was a fundamental  value, she said, with the usual platitudes.

This has not stopped the police force from introducing their own register of news media they will cooperate with. Police Commissioner Chris Tang Ping-keong revealed the existence of a list of “trusted” media, who are provided with improved access while the untrusted wait outside. This cleared up one mystery, which was why some reporters were excluded from a police press conference the week before. The “trusted” list was already in operation.

Explanation for how you get on or off the list came from Police Commissioner Chris Tang: “It depends on the past performance of those media — whether they behaved in a way that the police deemed unprofessional… Criteria include whether their reporting is objective, whether they have participated in actions other than reporting, whether they would obstruct officers from performing their duty or if they would pose danger to officers.”

But this list is something the Chief Executive, no less, clearly said would not happen. What is going on here?

It used to be said that 18th century Prussia was not a state with an army, it was an army with a state. It appears that Hong Kong no longer has a government with a police force; it has a police force with a government.

Then there is the matter of searching journalists’ desks. There was nothing in the matters leading to the raid on Apple Daily to justify police intrusion into how the newspaper produces the news. Looking at the contents of reporters’ desks was, it was conceded, not justified.

Police Public Relations Branch Chief Superintendent Kenneth Kwok offered a curious explanation: “At 11 o’clock I asked them all to stop… That… can show our determination to protect journalistic material.” It shows nothing of the sort. How long had officers been rummaging in reporters’ desks by the time Supt Kwok’s orders reached them. An hour? Two hours?

Police raids are preceded by planning and briefings. If there was a genuine determination to protect journalistic material it would have been expressed at that stage and the officers conducting the raid would have known what they were supposed to do, and not to do.

Are we to imagine a dialogue at 10.55 am along the lines of:

“Ah Sir, some of our team members are turning over the material on reporters’ desks.”

“There are reporters’ desks in a newspaper office? Who would have thought? Tell them to stop immediately.”

 

 

 

 

 

It seems that our colonial masters attach great importance to public opinion, even while they are avoiding giving the public what it clearly wants.

The People’s running dogs, and the running dogs’ running dogs, are all being mobilised to assure us all that keeping the existing Legislative Council for an unconstitutional extra year is essential for public safety and perfectly legal, even though it is clearly neither.

We are also offered the enticing prospect of four existing legislators, who were proposing to run again but were disqualified by government officials, having their disqualification backdated to the last election and being hoofed from their seats.

What seems to be overlooked here is the question of by-elections. The law on this matter surfaced last January when the Electoral Affairs Commission decided that it was too late in the current Legco’s term to hold two by-elections, even though these were required by the Basic Law.

The commission’s excuse was that it would be so difficult to hold two by-elections that by the time they were held there would be less than four months of the legislature’s term left. The Basic Law says that a by-election must be held whenever there is a vacancy, but it will not be needed if Legco has only four months left in its term of office. The commission came to this conclusion in January, when there were nine months to go, leaving five months unaccounted for.

The idea that it takes six months to prepare a by-election is nonsense. For many years the average was three months, though it has slipped of late.

Anyway this excuse will clearly now not wash. If the existing Legco is to be prolonged for another year then the two by-elections become a legal requirement. Similarly, it must follow, if four other legislators are purged for some reason the resulting vacancies will have to be filled by further by-elections.

We can all see what the excuses will be. First of all there is the virus. Other places have managed to hold mass elections without causing a fresh outbreak. Also the idea that cases will still be running at the current level for a year is alarming and necessarily unsubstantiated.

A second complaint is that holding elections under present circumstances would be unfair because Hongkongers caught in Shenzhen or overseas could not come back to vote. It is difficult to believe that there are thousands of people who would take the trouble and incur the expense of coming back specially for the election, but there is an answer to this problem which other countries and territories manage quite easily: postal voting.

We have to thank the Electoral Affairs Commission for putting its shoulder to the wheel and coming up with another reason for delaying the polls. The commission, it says, will have to train thousands of people for their roles in the election and does not know how to do this without exposing them to the hazards of infection in the classroom.

This is so feeble that one wonders at the ability of officials to wheel it out with a straight face. Firstly the claim that thousands of people have to be trained is clearly bogus. Hong Kong has been holding elections for years. Doing so is not so complicated that people have to learn it from scratch each time. There must be thousands of civil servants who know the routine backwards.

And if training must be provided, what of that? Schools all over Hong Kong are exercising their ingenuity and persistence to find ways of teaching people without packing them into a classroom. If you can teach everything from the alphabet to zoology over the internet why not election procedures?

With all respect to the people who do it, it’s not rocket science. No doubt the government has other reasons for postponing the election, like the prospect of taking another pasting from the voters. But the Electoral Affairs Commission shouldn’t be one of them.

They can hold an election if they really want to. The qualities required are determination, flexibility and ingenuity. Unfortunately it has been evident for a long time that these are not in the commission’s armoury.

We have democracy designed by people who don’t like democracy, featuring elections run by people who don’t like elections, presided over by lawmakers in Beijing who don’t like laws.

Maybe we should go back to a Legco chosen and appointed by the government. Then at least we shall all know where we are. The pretence that the government regards elections as anything other than a few bits of grit in the smooth working of imperial administration is looking a bit threadbare.

This is a tale of two cities, and two dates. Fred Frankfurter lives in New York, where he works as a stock picker, or securities analyst as they call it in the industry.

Being an outspoken person with strong views he is often invited to appear on the sort of television programme in which the punters are encouraged and advised about their efforts to gamble, or invest as they call it in the casino business, in the stock market.

On one of these occasions he is asked to comment on prospects for investment in Asia and he says, among other things, that Taiwan looks a promising bet and will continue to be one as long as it remains independent of China.

This would normally be lost in the cacophony of multi-channel mass media but as luck would have it the snippet is picked up by an enthusiastic supporter of the current Taiwan government, translated into Chinese, and turned into a tweet.

This is retweeted by other fans of Taiwan, which of course brings it to the attention of people who are not fans of Taiwan, who also retweet it, with derogatory comments attached. A small Twitter storm ensues.

This attracts the attention of a few of the real newspapers, (sorry – I’m a pre-digital) so Mr Frankfurter, who is blissfully ignorant of these goings on, has 15 minutes of fame in Taipei, where he is praised as a perceptive reader of the international tealeaves, and in Beijing, where he is lambasted as part of the American plot to dismember China.

Our hero is then invited to address a business conference in Hong Kong. At this point he becomes aware of his modestly controversial status in the China-watching world, and consults his company’s legal advisor, Hiram Hamburger, about the possible hazards of visiting Hong Kong. The year now becomes critical.

If this story was happening in 2019 Mr Hamburger’s advice would be clear and simple. The Hong Kong legal system is like the American one. You cannot be prosecuted for expressing a political opinion. Also you cannot be prosecuted for anything you said or did in New York. Any Hong Kong magistrate will throw the charge out in the first hearing because his courts do not have jurisdiction over things that happen in New York.

Go ahead, Mr Hamburger will say. Nothing bad can happen.

Now let us suppose the story is happening now. Mr Frankfurter’s invitation is to come as soon as virus travel restrictions are lifted.

This time Mr Hamburger’s reply goes something like this. “We have heard a lot about recent legal changes in Hong Kong and I have not yet had time to study all of them. But look, here is a letter in The Economist from Matthew Cheung, who describes himself as the Chief Secretary for Administration of the Hong Kong Government.

“Mr Cheung says that the new national security law is not sweeping. It focuses on four clearly defined activities, and there is nothing to fear. He says that Hong Kong’s fundamental freedoms remain intact under the Basic Law and the international covenant on human rights. So it seems nothing has changed. You go ahead. What could go wrong?”

Well quite a lot, actually. Mr Frankfurter steps off the plane and is promptly arrested by the part of the Hong Kong police force which seems to spend most of its time chasing subversive kids.

He is charged with secession. As with all national security cases, the presumption is that bail will be refused. Just a minute, he tells the magistrate, surely I cannot be prosecuted for things said in New York. The magistrate gently points out that the new national security legislation applies everywhere to all people, whether Hong Kong residents or Chinese citizens or neither.

At this point the US government complains that one of its citizens is being prosecuted for something which was not an offence where it took place and a diplomatic tussle begins.

Anxious to save the Hong Kong government from being involved in this rumble the mainland authorities decide that it would be more expedient if Mr Frankfurter’s offence was dealt with in a mainland court. He is handed over to mainland security agents in Hong Kong who take him over the border.

Here he is introduced to an extremely uncomfortable chair and invited to sign a confession. He is tried and convicted. The conviction rate in mainland criminal trials is well over 99 per cent. Mr Frankfurter serves his term in a Chinese jail and is deported as an undesirable.

Returning to New York he has a poignant meeting with his colleague Mr Hamburger.

Hard words are exchanged. Hamburger says he relied on the best information available at the time. Frankfurter says that many of the people he met in his Hong Kong prison thought it was hilarious that he had apparently decided to risk the trip on the basis of assurances from the Hong Kong government that nothing had changed.

Their boss, Ben Burrito, says they have both been foolish and gullible. You cannot rely on statements by officials. You cannot rely on what you read in the newspapers. Statements by officials for newspapers are good for only one thing, and not much good for that. Real toilet paper is softer.

 

 

It is an axiom of the news business that there is often a shortage of good stories on a Monday. This is because courts, councils and other reliable arenas take the weekend off, and in the old days sport was confined to Saturdays.
Over the years this led to some curiosities, like the inordinate attention paid to RTHK’s weekly live discussions in Victoria Park, more or les regardless of whether anything interesting was said.
So I sympathise when desperate editors make what might otherwise seem questionable choices. But there are limits.
They were in my view exceeded when the lead local story inside last Monday’s Standard was an effort headlined “HKU pushed to sack Tai”. The Tai involved is Benny, a consistently non-violent political herbivore, much disliked in pro-government circles.
This was hardly news. HKU has been pushed to sack Prof Tai for months, notably by pro-government newspapers, like the Standard. When you read the story under the headline there was a feeling that “Staff Reporter” had been tasked with making bricks without straw, and indeed without clay.
The only thing which had actually happened was that a former member of the University Council, Chan Che-wai, had sent a letter – an open letter, so we could be treated to extensive excerpts – to the current chairman of the council, Arthur Li, urging at some length that Prof Tai should be sacked.
There are, it is true, some surprising things about this, not least that there should be anyone versed in the affairs of Hong Kong U who thinks that Arthur Li cannot be trusted to do the wrong thing without prompting.
Another surprising thing is that Mr Chan thinks it is appropriate and permissible for him to send open letters to the chairman of the university council about personnel matters involving individual members of the university staff.
I am also a former member of a university council (Lancaster) and I have to say that it would never have occurred to me to do such a thing. A former member is not a member. Mr Chan has no standing in the matter whatsoever.
If I were to write such a letter, moreover, it would not be an open one. The question of how to deal with individual members of the university staff is a private one, and if Mr Chan cannot resist the temptation to bend Mr Li’s ear on the matter he could at least do so in confidence.
Mr Chan’s complaint is that he does not agree with the University Senate’s view of the matter, which is that Prof Tai should remain in the employ of the university. This is cheeky of him. The question whether a person is qualified to teach is an academic question and is a matter properly to be decided by the Senate, which is the supreme governing body of the university in academic matters.
It is nothing to do with members of the Council, still less with former members of that worthy body.
Not content with this, Mr Chan proceeded to trample on another fundamental rule. The offending passage attacks the Senate’s conclusion that Prof Tai’s political views had not polluted his teaching, and goes like this:
“Whether he introduced his political beliefs in class is something that the senate could not verify, as hardly any of its members had attended his classes. This is just hearsay, and therefore is not admissible as evidence to support the contention he had not done so.”
Just a moment, Mr Chan. If we are going to go all barrack-room lawyer here then Prof Tai is entitled to the presumption of innocence. It is not up to him to prove that he has not erred in his teaching; it is up to those who wish to see him fired to prove that there was something wrong. On this point Mr Chan has no evidence to offer at all.
Some people have been reading attacks on Prof Tai for so long that they start from the point that he is guilty and expect anyone who disagrees with them to disprove it. This is not how things are supposed to work.
It may be, of course, the way things work now. Less publicly I heard last week that an old friend had been hoofed from a part-time gig teaching journalism, because of excessive enthusiasm for press freedom. It seems that approval of press freedom is now interpreted as disapproval of our government, which is revealing.
I fear Prof Tai is now on a list of the people our glorious leaderette dubs “enemies of the people”. When she first came out with this phrase I thought I could spend a pleasant hour or two tracing its deplorable history.
Alas, someone has already done this. “Enemies of the people” has its own Wikipedia page. In brief, skipping the Romans, it goes back to Maximilien Robespierre, who sent hundreds of people to the guillotine until his fellow-revolutionaries decided they would be safer if Maximilien himself was also required to “cracher dans le panier”, as the French put it.
After that we have a Royal Flush of 20th century mass murderers: Lenin, Stalin, Hitler, Mao, and Pol Pot. Then, rather an anti-climax, the Daily Mail and Donald Trump. I think Ms Lam needs her vocabulary sanitised.


Well I think we were conned. We all thought we were watching a play called “One Country Two Systems”, but this now turns out to have been a mere Prologue, like the bit at the beginning of “Romeo and Juliet” where an actor orates before a closed curtain.

Now the curtain has opened and it is immediately apparent that there has been a change. Tonight’s entertainment will be “Welcome to Xinjiang-on-sea”.

The transition has been quite breathtaking. The bit which I overlooked in the initial announcement was the role of the National Security Committee (officially the Committee for Safeguarding National Security). This, it was said, would lay down the “rules” for the enforcement of the national security law.

You might think that this would involve policing the limits of that law, to ensure that the specialists, in their zeal for national security, did not stray into other areas. But that is not how the Chinese system works.

The National People’s Congress is often described as “China’s rubber-stamp parliament.” This is inaccurate. It has none of the attributes of a parliament and does none of the things which parliaments do. It does not debate, it does not scrutinise, it does not supervise the executive, it does not control public expenditure. Its meetings resemble the traditional annual ceremony in which Ming emperors used to placate the Gods to ensure a bountiful harvest, and have about as much practical significance.

Laws, instead, are made by government departments, leading Western translators who are used to a different system to call them “regulations”. There is no obligation on departments to limit themselves, or conform to, the occasional resounding declarations of principle which emerge from the NPC.

Our local national security committee is in the same happy position. It is answerable to nobody. It is not subject to judicial review, legislative scrutiny, or even the friendly attentions of the press. Its meetings are private, its deliberations secret.

The rules it issues – which the Standard is still hilariously calling “guidelines” – make new offences and ordain punishments for those committing them. In other words the committee is free to make whatever laws it likes, provided only that some verbal trickery can get them under the “national security” umbrella. As the committee has only to satisfy itself on this point this is not a very exacting standard.

If you were consciously setting up a committee to replace Legco and Exco I am not sure that this one would have passed muster. It is grossly overweight in the order industry, underweight in legal advice, and lighter than air in most of the matters which properly concern governments.

It is nominally presided over by our unloved Chief Executive (was there not a British politician known as Attila the Hen?) and in practice led by a mainland “adviser”, a bureaucrat who probably thinks a human right is a sort of organic neon tube.

Naked and vulnerable at the feet of this grim gathering lie all those rights which we were supposed to be guaranteed for 50 years. The committee is not bound by the Bill of Rights Ordinance, now yet by the Basic Law. All the safeguards you thought you had, even fundamental things dating back to 1688, are now levelled.

We shall I expect see two tendencies. One is to downplay the role of Legco, which our leaders fear they will shortly lose control of. Mrs Attila, I beg your pardon Mrs Lam, commented the other day when defending a minor evasion of legislative scrutiny that you “can’t do anything with Legco” these days.

Well of course what you can do with an elected assembly depends on particular skills, like consultation, persuasion and compromise, which allow you to bring together people with different viewpoints. If your approach to opposition is to crush it then consensus will be elusive.

The other thing we can expect to happen is the extension of national security to areas with which it has nothing to do.

First specimen: the primary election. Holding a primary election is not mentioned in Hong Kong’s election law, and in fact it is rarely mentioned in election law elsewhere. How parties or groups choose their candidates for election is up to them. They may in different places consult rich donors, party members, likely voters or the entire population.

Holding a primary in which anyone can vote is unusual but not unprecedented. Some US states have what they call “open primaries” which work this way. Nobody’s rights are infringed, nothing about the fairness or openness of the election is affected in any way. Losers, if they insist, can run for election without the endorsement of the party which ran the primary.

To drag this issue into the national security area you have to say first that the objective of the primary is to secure a majority of the seats in Legco. This can hardly be illegal in itself because the Liaison Office has been doing the same thing in the Government interest for years.

But wait, having achieved a majority the winning party will then seek to force the government to give way on some, at least, of the “five demands” by refusing to cooperate on other matters. This, in the Hongkong and Macau Affairs Office view, would amount to a “colour revolution”.

You would think the members of a party which shot its way to power would be more careful in using the word “revolution”. Actually what the primary people are proposing is the use of a procedure provided in the Basic Law.

Oddly enough I suspect I had something to do with this. My career briefly intersected with the drafting of the Basic Law when I was asked to edit one of the early proposals. I sent it back with a polite memo pointing out what I thought was a flaw.

The idea then was that if Legco members were dissatisfied with the Chief Executive (a long shot but in those days something they thought should be catered for) then they could pass a motion of no confidence and the CE would have to resign. In order to make this difficult it was suggested that the motion should require a super majority, I think of two thirds.

My criticism was that a motion of no confidence was not a test of the legislature’s love for the government, it was a test of whether the government could still pass the bills it needed to keep going. New laws could be dispensed with but a constant stream of legislative approval was required for the raising and spending of money.

If a CE was saved by the super majority he or she might finish up with 60 per cent  of members still opposed to the government and they would not vote to fund it.

I heard nothing in reply to my memo but when the Basic Law emerged the vote of confidence had been replaced by the present arrangement, under which if Legco refuses to pass a funding bill the CE has to call a fresh election. If the new Legco is similarly recalcitrant then the CE must resign and be replaced.

This is a constitutional procedure, not a revolution, and indeed it appears that if a candidate believes he or she will wish to use it then honesty requires that the electorate should be informed of this before the election.

However what I think of this and what you think of this are beside the point. What matters is what the National Security Committee thinks of it. Maybe they will decide to disqualify everyone who participated in the primary. There is nothing to stop them.

Do not, at least, look for help from the Electoral Affairs people, who woke from hibernation this week to point out that it was a criminal offence to discourage someone from running for election. Considering their inglorious role in the DQ festival it is difficult to think of a response to this which could be printed in a family newspaper.