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“Put not your trust in princes,” sang the psalmist. This may come as a surprise. Until I looked it up I thought it came from Macchiavelli.

Well we have no princes to tempt us here. And I imagine few people will be foolish enough to put their trust in officials, still less in the products of our much manipulated electoral processes.

We are, however, repeatedly urged to put our trust in judges. There is an annual festival to this effect, known as the Opening of the Legal Year, in which the judges parade in quaint costumes and are regaled by speeches in their praise from sundry big-wigs – some of whom do actually wear big wigs for the occasion.

The theme of this year’s carnival, sung with different variations by the Secretary for Justice, the Chief Justice, and some lesser vocalists, was that we should not criticise judges. I am reminded of an old saying about Hollywood actors: if you’re not praising them they’re not listening.

This is not quite fair to them, of course. The official line is that polite criticism is all right, but vulgarity and personal abuse are not. It appears though, from the frequency with which this song is sung, that almost any criticism of a judge can be considered either vulgar or personal or both.

I do not defend those people who characterise judges as domestic animals of various hues, depending on the preferred ribbon colour of the accuser. “Personal” is perhaps another matter. Spectators who discover matters in the background of a judge which might have led a less robust individual to withdraw from the case are surely entitled to argue that less robustness would have been in order.

Those of us who discern in the Vice President of the Court of Appeal a tendency to ride personal hobby horses in his judgments are presumably free to point out that this eccentricity has also been noted and condemned by the Court of Final Appeal.

It is argued, on the other hand, that the Rule of Law requires us to believe, or pretend to believe, in judicial infallibility. Or to put it another way, that respect for the law and admiration for judges are the same thing. It is like some versions of Christianity: belief is an obligation, salvation the reward.

This is not very convincing. I have been reading, as I do from time to time, “The Literature of the Law”. This is a collection of pieces, mostly extracts from judges’ announced verdicts, collected and sympathetically edited by a senior barrister, Brian Harris.

Mr Harris seeks to show, with to my taste considerable success, that the best judicial writing is a model of functional prose, especially when suitably pruned.

The interesting thing about this selection of prize judgments is how many of them were not actually the majority opinion of judges at the time.

Indeed Mr Harris, no card-carrying liberal himself, notes as “interesting” the fact that so many of the great historic judgements in defence of human rights were either delivered as a dissenting minority opinion or were subsequently over-ruled by a higher court.

In at least one case the minority opinion was rescued by posterity, and then over-ruled again. Lord Atkin, who opposed the government regulation which allowed suspect aliens to be detained indefinitely during World War II, was out-voted by his fellow Lords at the time but was generally thought thereafter to have had the right of it. Then the War on Terror came along, and the Lords capitulated again to the government’s desire to jail foreigners without trial.

Lawyers in the Common Law tradition are fond of claiming descent from Chief Justice Edward Coke, who rather daringly told King James I (and VI of Scotland – the man of Bible fame) that the King was subject to “God and the Law.”

What happened next is recorded less often, but according to a contemporary went like this: “His Majesty fell into high indignation as the like was never known in him, looking and speaking fiercely with bended fist, offering to strike him etc. which the Lord Coke perceiving fell flat on all fours, humbly beseeching His Majesty to take compassion on him and to pardon him if he thought zeal had gone beyond his duty and allegiance.”

And this, I fear, is the fact of life about judges. On a good day, they speak inconvenient truths to power. On other days they are on all fours, humbly beseeching the approval of the powers that be.

Students of Kahneman (“Thinking fast and slow”) will know that logical thought is a rare and difficult accomplishment, often merely a disguise for less elaborate mental processes of which the thinker is unaware. Some of his most disturbing examples are from studies of judges.

Unfortunately putting a rich elderly person on a dais and subjecting him or her to a daily diet of lawyerly grovelling is unlikely to produce a humble awareness of the limitations of what is going on inside the judicial skull, or indeed on the limits on what the owner of that skull knows about those goings on.

Well, as Fielding put it, we are all no better than God made us and many of us are a good deal worse. Judges are only human. We can hope for heroism but we should not expect it.

What we can expect, I humbly suggest, is greater speed. It is disturbing to read of cases heard by a judge alone which have been argued and decided, but still await a written judgement six months after the hearing.

Disputes over elections are not meaningfully settled if it takes half a term of the office in dispute for a decision to emerge from the legal machinery.

No doubt judges are busy. But there is the matter of priorities and relative importance. Depriving people of their liberty is a major infringement on their rights, particularly if they turn out to be innocent. It is a reproach to the system that we have people winning appeals when they have already served most or all of the erroneous sentence.

 

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I suppose the Secretary for Justice must be an intelligent lady with a fine knowledge of the law and some common sense. She had a successful career going on before taking up the public post.
Alas, exposure to the upper reaches of public administration has taken its toll. She is now as delusional as the others.
Here we have the way one newspaper reported Ms Cheng Yeuk-wah’s long-awaited Legco performance on the decision not to prosecute C. Y. Leung:
During a Legislative Council meeting on Wednesday, Cheng listed scenarios in which the Department of Justice may seek external legal advice.
One such scenario would be when there is a possible perception of bias or issues of conflict of interest, Cheng said.
“In this case, that does not apply,” she added.
You what? Has she not been reading the newspapers? I do not ask you to believe, gentle reader, that there was or was not bias involved, a question on which, like most of us, I know only what emerges in the news media.
But it is surely plain to the meanest intelligence that the reason why so many people are interested in why Mr Leung was not prosecuted is because of the obvious possibility that the decision was influenced by the fact that he was the Chief Executive at the time of the alleged offence, and is still the holder of a senior state sinecure in Beijing.
This is, in the ordinary and natural meaning of the word, a form of bias.
Let us consider a homely and historic example. Many years ago, when Hong Kong was still a colony, a policeman stopped a foreigner who was driving in Central and asked to see his driving licence, as policemen do.
The foreigner produced a UK driving licence. The policeman asked him how long he had been in Hong Kong. People who moved from the UK to Hong Kong in those days were allowed to use their UK licence for a year, after which they were required to get a local one.
And our foreigner had exceeded the year. So he no longer had a valid licence.
It also turned out that the foreign gentleman was the Attorney General, which was what they called the Secretary for Justice in those days.
I have always wondered what happened to that particular policeman afterwards. Did he become a Legend in his Own Lifetime? Or was he drummed out of the Force for excessive zeal?
But I digress. The important point here is that the offence involved was trivial. Nevertheless anyone in the Legal Department – as it was then called – contemplating the matter would have been considering the merits of prosecuting his own boss. So an outside lawyer was recruited, and duly recommended prosecution. The Attorney General was convicted of driving without a valid licence and paid a small fine.
Now let us come back to more recent times and imagine the situation of a person in what we now hilariously call the Department of Justice contemplating the merits of a case starring Mr C.Y. Leung. This legal eagle would be considering the idea of prosecuting his boss’s boss.
At best, assuming that the investigation had managed to consume the entirety of Mr Leung’s term of office, he would be considering the prosecution of his boss’s ex-boss, now a big if powerless wheel in the nation’s capital.
In other words, this is a textbook case of an occurrence where a “possible perception of bias” arises.
After all it is not disputed that Mr Leung took the money. Nor is it disputed that he did not declare it. It appears that Mr Leung may have been following legal advice, but legal advice is not infallible and ignorance of the law is no excuse.
And if that advice came from the very department which was later landed with the question of whether Mr Leung should be prosecuted… Well, just how trusting does Ms Cheng expect us to be?
I am quite prepared to believe that anyone who assessed the evidence in detail and considered it in the light of the applicable law would decide that there was insufficient evidence to prosecute Mr Leung, or indeed perhaps that Mr Leung was as innocent as a new-born babe.
I find it very surprising, though, that anyone who has followed this sage can stand up in public and say that in this case there is no possible perception of bias.
It appears that the case of Ms Cheng herself (involving possibly illegal structures on her house) was not passed to an outside lawyer either.
Times have changed.

There was once a mini-scandal in the rock music world over the unreasonable demands that some bands were making of promoters. A shining example, it was believed, was provided by the band Van Halen, who stipulated that there should be a bowl of M & Ms (Smarties in the UK) in the dressing room, with all the chocolate ones removed.

The lead singer eventually explained that this was not a case of people making unreasonable demands because they could get away with it. The band was neither addicted to M & Ms nor allergic to chocolate. The stipulation had a practical purpose.

The band’s requirements for concerts ran to many pages, mostly concerning technical matters involved in the provision of sound and lighting. These were at the outer edge of what most venues could provide in those days.

The purpose of the bowl of Smarties was to provide a signal. If the bowl was on the table, and on examination contained no chocolate, then the band’s requirements had been read and attended to in detail. If there was chocolate, or worse no bowl at all, then a complete technical check was called for.

I was reminded of this by our current mini-scandal over the government’s decision to change the age at which social welfare recipients qualify for the old people’s scale – which is worth another $1,000 or so a month – from 60 to 65.

The government’s justification for this did not seem terribly impressive. No doubt the population is increasing in its average age, but that does not make life any easier for poor people in their 60s.

The fact that some 40-odd per cent of the people in this age group are still working is hardly to the government’s credit. I imagine a rather similar percentage of the 65-70 group are working too. Indeed, so inadequate is provision for the elderly poor that many go on after that.

What reminded me of the old M & Ms story was the embarrassing discovery that the legislature had overwhelmingly approved of this new measure, because it was in the last budget.

The chief executive, Carrie Lam, said she was surprised that members had apparently voted for the budget without noticing this item. Unaccustomed as I am to agreeing with Ms Lam about anything, I also think this is surprising.

Clearly most of the legislators who voted for the budget had not troubled to read it first. There are no M & Ms. Check the power points.

The democrats, in this case, are off the hook. Most of them voted against the budget. If you are so opposed to one part of it that you are going to vote against the whole thing then there is perhaps no point in reading the rest.

There can be no such excuse for the pro-government group, who all voted for the budget and might reasonably be expected to have familiarised themselves with its contents.

One of the DAB crew, united yes-men on the budget as on many other issues, complained that the budget was 600 pages long. Members could not be expected to find items “buried” in it.

Well, one wonders, what do they think they are paid for. Being a legislator is not just a matter of improving your c.v., decorating your business card, getting free parking in Central and being able to put “the honourable” in front of your name.

There is actually supposed to be some work involved. Legislators are supposed to scrutinise the work of the government, with particular reference to spending and new legislation. Members of the pro-government camp may feel that this should be done in a supportive way, with constructive suggestions in public and criticisms, if any, in private. No doubt this is also the wish of the Liaison Office, to which they report, and possibly also of their electors.

But monitoring in a supportive way is no justification for not monitoring at all. Legislators are lavishly paid. They are provided with offices, assistants, clerical staff and copious supplies of free coffee. This should enable them to make sense of the acres of official prose which come their way.

It is not, actually, necessary for them all to read every word of the verbal tsunami with which they are soaked.

In the first place, some of the stuff can be ignored. There are two choke points where all the government’s plans and projects, dreams and fantasies, emerge into the light of day. These are the policy speech and the budget. In both cases legislators have weeks to study the admittedly large volume of information supplied before they vote on it. This time should be used.

Groups of like-minded individuals like the DAB squad can also economise by dividing the work among themselves. Let the social welfare specialist study the social welfare bit, the transport specialist study the transport part, and so on. Unlike your essentially solitary functional constituency member a party can organise, divide the work, and delegate the routine stuff to political assistants.

The government has an obligation to tell legislators what it is doing. It does not have an obligation to flag for their benefit items to which they may have an objection.

Still, the fact that our pro-government legislators are either idle or stupid is bad for the territory’s reputation and I think the government should wake them up a bit.

For next year’s budget, I suggest a hint that somewhere in the document will be a proposal to cut legislators’ salaries by half. I expect this to ensure that they will at least read the whole thing. Whether they can pick out the chocolates is up to them.

 

 

Continuing our study of the growth of Newspeak in government circles, we come this week to Mr Edward Yau Ting-wah, who is the Secretary for Commerce and Economic Development.

Mr Yau was answering questions in Legco about the Kai Tak Cruise Terminal.

This should not be a difficult task. Although many Hong Kongers are sceptical about the terminal and few of us have actually visited the thing, it is shaping up to be a bit of a success story.

Planned targets in number of ships visiting and number of passengers disembarking to sample local attractions, such as they are, have been exceeded long before expected dates. The terminal is apparently busier than comparable facilities in China or Singapore.

It is incontestably in an awkward place. The government pays for free buses to nearby shopping malls, following the established principle that the purpose of tourism is to enrich local landlords by filling shops with eager customers, thereby doing little for most of us but justifying higher commercial rents.

Local visitors, however, have to pay to get there, and the new Kai Tak MTR station is neither close by, nor open yet. In the distant future the terminal will be one end of a monorail, if this dubious project ever sees shovel put to dirt. In the meantime there is a minibus from the Kowloon Bay MTR. The public park on the roof of the terminal is well spoken of.

Mr Yau’s performance was prompted by questions from two Liberal Party councillors, who complained that the terminal was bereft of moored ships much of the time, shops there were in consequence not making as much money as they would no doubt wish, and suggested government action to remedy these deficiencies.

Most of Mr Yau’s reply was routine stuff: number of visits, number of passengers, number of events held, government promotes such events and will continue to do so, etc.

But he couldn’t resist a comeback at the claim that the terminal is shipless for half of the time.

The terminal had ships there “virtually every alternative day,” he said, “Therefore it is not factual to say that the Kai Tak Cruise Terminal is vacant most of the time.”

An unfortunate choice of words, I fear. If the terminal is occupied “virtually” every alternative day on average, what does this mean? “Virtually” in contexts of this kind does not mean “exactly”, or “more than”. It means “a bit short of”, If we say the theatre is “virtually” full we mean there are only a few seats left. If we say a glass is “virtually” full we mean there is only room for a little more beer.

So I take it that when he says the terminal has an occupant “virtually” every alternative day he means it has hit 49 per cent of days, which by a happy coincidence was the prediction given in a Legco answer early last year.

This means, unfortunately, that it is factual – though certainly unkind – to say that the Terminal is empty most of the time. Mr Yau might have complained with some justice that “most of the time” was not the most illuminating way of describing emptiness on 51 per cent of days, but it was not factually inaccurate.

No doubt staff of the terminal would say that 49 per cent occupancy was a good figure, and days on which there are no boats are offset by days on which there are two of them. The merits of the terminal are not at issue here, only Mr Yau’s way of seeing off its critics.

Mr Yau might be more successful at disarming critics generally if he was less prone to lecturing them on the obvious. According to the Standard, the only English medium to report on this little exchange, Mr au also explained that “the cruise terminal was built mainly for cruise ships to berth.” Who would have guessed?

It is all too easy for people who work for a Party poodle paper to believe that independent, truth-seeking journalism is rare and over-rated, if not impossible.

So we have Mr Alex Lo, writing in the paper formerly dubbed, if only by itself, “one of the world’s great newspapers” (times have changed) announcing that the local media are split into two hostile camps, with the implication that they are both as incurably biassed as each other.

Mr Lo’s ire was aroused by the Hong Kong Journalists’ Association. But given his incurable preference for tackling the man rather than the ball, we had to wait to hear what the association had done while we were told that it was “closely aligned with the anti-mainland and anti-communist ideologies of the yellow-ribbon localist movement and some anti-China publications”. So it had lost all authority.

Then we get to the beef, which concerns a story in HK01. This consisted of an interview with a Taiwanese heavy metal musician and politician, Freddy Lim, who had been barred from Hong Kong.

HK01 put at the end of this a little note stating that HK01’s editorial stance was against independence for Taiwan.

The HKJA comment on this was, apparently, “We hold the view that it is unnecessary for HK01 to state their position in their news report. Doing so will give rise to worries that the media might have something to fear when they report sensitive issues.”

Mr Lo says that if HK01 wants to put little notes at the end of its stories this is none of the HKJA’s business, with which I agree. People who are easily worried shouldn’t be in the news business.

He then goes on to say that it is not unusual for “responsible news groups or any public institutions to clarify their stances while dealing with controversial issues.” Not relevant.

Leave the public institutions out of it. Public institutions only come across controversial issues in their work, so clarification is an obligation.

The situation of the news media is rather different. Readers are entitled to expect that the news will not be bent to suit the “stance” of the publication on controversial issues. In order to make this graphically clear it is usual to separate the opinion pieces from the news pieces. The newspeper’s own opinion is expressed in editorials, not in the news coverage.

If the opinion is from an outsider he may ask for a small note saying that the opinion expressed is his, and not that of his employer or an organisation he belongs to. But we do not put a little note at the end of each news story saying that the views expressed by interviewees may not coincide with our editorial stance. The readers expect that anyway.

When Mr Lo’s newspaper reported Junius Ho’s notorious dialogue – “kill them all … no mercy” there was no little note at the end informing readers that the newspaper’s editorial policy did not support mass murder of political opponents.

Trailing in at the end of this little scandal we come to the conclusion that, in Mr Lo’s words, “the local news industry has been bifurcated into opposing camps.” This is interesting. One camp, presumably, is the “yellow-ribbon localist movement and some anti-China publications.” And what shall we call the other camp? The “blue-ribbon anti-localist movement and some pro-China publications”?

And to which camp would we allocate Mr Lo?

I believe that Hong Kong still accommodates publications and people in a third camp: those who believe in the possibility and value of independent, truthful journalism. And those who were in it, and now find themselves not in it, should take their 40 pieces of silver and shut up.

It is said that people who hear that a loved one has a terminal illness go through five stages of grief, starting with denial – the assertion that this is not happening.

Something similar seems to be going on in the heads of those people who are inflicting terminal injuries on Hong Kong’s reputation as a haven of human rights in an otherwise dictatorial China.

Consider the government representative – as usual A. Spokesman – who put out a long comment on the disqualification of Mr Eddie Chu from a village representative election.

Much of this was technical stuff about the justification provided by the Returning Officer who did the deed. This was of no interest and nobody believes it anyway.

At the end, though, we lurched into Wonderland, with this sentence: “There is no question of any political censorship, restriction of the freedom of speech or deprivation of the right to stand for elections as alleged by some members of the community.”

The reference to political censorship is a red herring. No member of the community has claimed political censorship was involved, and any who did so would be wrong. Political censorship is the prevention of the publication of disapproved views, and we are not there yet.

To claim there is “no restriction on free speech” involved, on the other hand, is to perpetrate a manifest untruth.

In the light of Mr Chu’s case it is clear that if you express a certain opinion – in favour of independence – then you will suffer certain disadvantages: disqualification from running in any election, even a pipsqueak one for a rural minicommittee.

Indeed it appears that in his case disqualification followed not from advocating independence (which he had prudently avoided) but from expressing the belief that people who wished to advocate independence should be allowed to do so.

This is clearly a restriction on free speech. The expression of a particular view is discouraged by imposing unwelcome consequences on those who express it. There is no room for argument here. If “restriction on free speech” means what it says then it is present here.

A. Spokesman could have argued, if he or she wished, that the restriction is a trivial one. Independence is not a practical prospect for Hong Kong so preventing people from advocating it constitutes a minor contraction in the sphere of what can be discussed in public.

Or he might have argued that the restriction is a justified one, on the grounds that the advocacy of independence is inconsistent with the Basic Law. This would not cut much ice with constitutional lawyers but it would at least be coherent.

Instead we get flat denial. The fact is that freedom of speech in Hong Kong is now curtailed. You can call for the confiscation of wealth, capital punishment for homosexuals, the expulsion of Jews, the legalisation of paedophilia or the installation of pictures of CY Leung in the lower parts of all public urinals to aid accuracy. But you are not free to advocate independence because such advocacy earns a life ban from politics. Free speech is to that extent restricted.

Clearly we are in the same delusionary territory when we consider the spokesman’s claim that “there is no question of deprivation of the right to stand for election.”

Of course there is. How dumb can you get? Mr Chu wished to run for election. He is not allowed to do so.

Once again we might have been offered the argument that some restriction of the right to run for election was justified, or even legally compulsory. This is a matter about which people could argue endlessly, particularly if they were paid by the hour, as senior lawyers often are.

But telling us that the right to run for election is not affected at all is a simple refusal to face reality. It is like saying black is white, up is down, death is life. The temptation to quote Orwell on “Newspeak” is almost irresistible. In fact it is totally irresistible.

According to the Ministry of Truth in “1984” Freedom is Slavery, Ignorance is Strength, and the aim of newspeak is to “make thoughtcrime literally impossible, because there will be no words in which to express it”.

Coming soon to a government press release near you: “A. Spokesman said that the recent Black Thunderstorm Warning from the Observatory had nothing to do with water falling from the sky, or loud noises and flashes of light being encountered, as alleged by some members of the community. The government remained committed to providing bright sunny weather at all times. And especially at night.”

 

 

 

 

It would be funny if it wasn’t so tragic. Last week a Chinese citizen was suddenly arrested. Spokespeople for her company complained that her human rights had been infringed, she had been handcuffed, and was not getting the medical treatment she needed.

Well, you might think, this happens to Chinese people all the time: human rights lawyers, Uighurs, Tibetans, protestant pastors, labour agitators, young women who splash paint on pictures of President Xi…

But this case was different. Because it happened in Canada, and the complaining spokespeople were in fact speaking for the Chinese government.

We must applaud the self-control of the Canadian diplomats who refrained from the obvious retort that if China wished other countries to protect the human rights of its citizens it should respect those rights itself.

The lady concerned, Meng Wanzhou, is variously described as the daughter of the founder of Chinese tech company Huawei, and the company’s Chief Financial Officer. Neither of these are government posts, Huawei is a private company. So quite how this qualifies an an international incident is a bit of a puzzle.

It seems that nothing will dissuade the People’s Daily from the view that no Canadian or American court does anything without the knowledge, approval and indeed instructions of their respective governments.

Chinese officials not only disapprove of autonomous legal systems, they cannot recognise one when they see one. Curiously they seem to share this affliction with President Trump.

Well Ms Meng is now confined to a luxurious Vancouver property, while legal proceedings continue and China arrests a few Canadian citizens with a view, perhaps, to a future exchange.

The only part of this schemozzle which really concerns Hong Kong was the discovery that Ms Meng was the proud owner of no less than three SAR passports. The later two are described as “replacements” for the first one. It seems the Hong Kong government does not require “replaced” passports to be returned, or to be mutilated in a way which would preserve visas but make it clear that the passport is not current.

Well we can leave that to the usual people. I note only that the reproductions of the passports for public view had some numbers blacked out but left the lady’s date of birth visible, which seems ungalant.

The other local offering came from legislator Regina Ip, who expressed dismay at the turn of events and said that in protest at the victimisation of the lady she was going to switch her phone purchases to Huawei.

This is the same Regina Ip who assured us recently that an appeal panel consisting of three Exco members would give a “faIr and impartial” hearing to the Hong Kong National Party’s attempt to remain a registered society. Does she think Ms Meng will not get a “fair and impartial hearing” in a Canadian court?

Then came the sequel, in which Ms Meng soon featured in a procedure unknown to Chinese jurisprudence: she appeared before an impartial judge, in a courtroom open to the press and public, with the lawyer of her choice to speak on her behalf.

If I was a Canadian I would be rather offended by the assumption that the whole incident was engineered in Canada for political purposes. Countries have extradition treaties and these impose obligations.

It would be nice if Chinese officials could get their heads round the idea that other countries’ legal systems differ from theirs. And the “we have been offended; arrest a Canadian or two to teach them a lesson” move is a bad look.

Also, complaints about human rights violations elsewhere from a regime which tramples them daily will not be taken very seriously. Except perhaps by Beijing’s supporters in Hong Kong.