tim's experiment

The political impasse in Hong Kong is beginning to resemble the Palestinian problem: everyone can see what needs to be done except the only people who can do it.

The solution has to come from the Government. This is after all what we grossly over-pay them for. The people in the street are amateurs.

The solution must start from a recognition of the problem, which is that people will not longer follow a leadership which they despise. This requires an acceptance from our leaders that, as the old Prayer Book put it, “we have done things which we ought not to have done, and we have not done things which we ought to have done. And there is no health in us.” It is no good hoping that when the protesters give up and go home we can all go back to where we were. It will “never be glad morning again.” Nor is there any point in reflexive attempts to score political points by investigating the financing of Occupy, or compiling flagrantly biassed videos, or pushing out half-forgotten old men to urge surrender. It is a characteristic of protests that the protesters have little time for advice from those who do not share their objectives and their hardships. So if you are a billionaire, or the former Chief Executive who abolished the wholly elected municipal councils, you can save your breath. Anyone else who hasn’t risked the pepper-spray facial is not going to get much of a hearing either.

It is good that the government talks to the students, but this is not going to lead to an exit because many of the protesters are not students and do not accept student leadership. What is necessary is for the government to work out what needs to be done and do it, without supposing that it can negotiate a prior quid pro quo, and without listening to those people who will decry any change as giving in to illegality. When it appears that people have a government which is sensitive to their needs and desires, then people will go home.

The steps that might work, which vary in difficulty, may be listed roughly as follows:

1. Mr Leung has to go. He is quite right in saying that this will not solve the political problem. But that is not why people want it. They want it because they are fed up with him, his weasel words, his sleazy friends, his undisguised contempt for the political views of the majority of the population and his inability to appreciate, let alone articulate, the desires of Hong Kong people.

2. An easy one: the fence round the “Civic Square” should go. If the government is worried about the vulnerability of its front door, reinforce the front door.

3. There should be an inquiry into the handling and regulation of protests. This is not intended to pillory the police, but it has become clear that there is a very large gulf between what the police regard as a routine way of controlling crowds, and what many of us find acceptable. This has to be bridged somehow. People need to be able to demonstrate without, as a matter of course, wearing goggles.

4. We should humbly ask the NPC Standing Committee to reconsider its decision on political development, in the light of the undisputable fact that the information on which that decision was based — supplied in good faith if you will — has turned out to be hopelessly wrong. The committee may refuse, or may having reconsidered reaffirm its original decision. That is its right. Hong Kong people may have to put up with the arrangements currently on offer. They do not have to put up with being told that those are the arrangements they asked for.

5. There should be an end to the politicisation of appointments to advisory and other posts in the government’s gift. The Chief Executive has the right to appoint people he likes and who support him to the political sinecures created by the “responsibility system”. There is no justification for allowing political history to influence appointments to tribunals, advisory councils or public bodies like the MTR board or the Airport Authority, and it is fatal for suspicions to arise about appointments to the leadership of the police and the ICAC. What is required is an independent body like the one which appoints judges.

6. Another easy one: Mr Robert Chow should be quietly told to fold up his tent and go home. No petition or demonstration organised under his auspices can be taken seriously, and continuing attempts to conjure up a spurious “silent majority” are a symptom of an establishment which “doesn’t get it”.

7. The continuing erosion of freedom of the press needs to be addressed. The easiest way of ensuring that all voices can be heard might be to allow community radio.

8. Instead of displacing some hapless rural villagers the government could meet at least some of its land requirements by curtailing the huge acreage devoted to rich people’s hobbies. We do not need so many golf – or horse-racing – courses. Of course it would take years for anything along these lines to bear fruit, but it would be a move in the right direction.

9. The MPF needs reform to make it less friendly to financial landsharks. And a serious intention to introduce a small but universal pension would go down well.

10. Some serious undertaking about the arrangements for the Nominating Committee – which may after all be unavoidable – would show good faith. Let us have no nonsense about Legco having the last word. The Government’s tame majority will give it whatever it wants. An end to corporate votes would be a good start.

I do not suggest that the Government has to do all of these things. But it has to do enough to suggest that it has got the message. Hong Kong people do not want a government which listens only to the Liaison Office and the Real Estate Developers’ Association. Is that so hard?

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I see that a gentleman has been charged with accessing a computer with dishonest intent because he posted messages urging people to resist police attempts to clear Mong Kok. There is no suggestion that he was not entitled to access the computer, which was his own. And so a legal abuse continues.

The relevant part of the Crimes Ordinance goes like this:

“(1) Any person who obtains access to a computer-

(a) with intent to commit an offence;
(b) with a dishonest intent to deceive;
(c) with a view to dishonest gain for himself or another; or
(d) with a dishonest intent to cause loss to another,whether on the same occasion as he obtains such access or on any future occasion, commits an offence and is liable on conviction upon indictment to imprisonment for 5 years.
(2) For the purposes of subsection (1) “gain” (獲益) and “loss” (損失) are to be construed as extending not only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent; and-

(a) “gain” (獲益) includes a gain by keeping what one has, as well as a gain by getting what one has not; and
(b) “loss” (損失) includes a loss by not getting what one might get, as well as a loss by parting with what one has.”

Now the clear intent of this amendment, which was drafted carelessly and apparently not perused by any awake legislator) was to criminalise gaining access to a computer which you were not entitled to access. And for some years after it was passed (in 1993) it was interpreted in this way. The change came when someone in the Department of Justice (as it had become) was looking round for some way of getting at a hospital employee who had revealed that the department’s bulletins on the health of the then Secretary were lies. Generally it is not a criminal offence to reveal to the public that officials are deceiving them, so some legal creativity was called for.

The offence of dishonest access was wheeled out for the purpose, and there was perhaps some faint justification for this. After all the hospital employee concerned, though he had legitimate access to the computer for his work, was arguably acting outside his duties when he used his access to expose official mendacity. Since then, though, the offence has suffered from galloping mission creep, and is now routinely charged if anyone has done anything illegal involving a computer. A judge recently ruled that a mobile phone had enough microchips in it to qualify as a computer, thereby adding the possibility that this charge can be used for any offence involving use of your phone.

I maintain, and will continue to do so until contradicted by the Court of Final Appeal, which will no doubt have to settle the matter eventually, that this interpretation is absurd. After all there are many offences for which the maximum penalty is much less than imprisonment for five years. Are we to suppose that the legislature intended, and the ordinance means, that such an offence is trivial if committed with your pen, but a serious matter deserving of extended incarceration if you use your computer? It’s crazy. Why were the couple who recently lost a spectacular libel case involving emails not charged with this offence? It doesn’t require criminality – only a dishonest intent to deceive.

Logically the results of this could be scary. Your car has more microchips in it than your mobile phone. So when you switched it on you “accessed a computer”. So the policeman who catches you speeding has two choices. He can give you the usual ticket or he can charge you with accessing a computer with intent to commit an offence, to wit, speeding. There is no requirement that the offence should be serious. Go directly to jail, do not pass Go, do not collect 200… What of a man who texts a message to his wife saying he is in the office when he is actually in his mistress’s flat. Clearly a dishonest deception. Is this now criminal?

Let me in closing answer before it is made the point that I should ask the Department’s prosecutors to comment before criticising them like this. I have tried asking them what they were up to about other matters and was told in reply that the Department of Justice does not give free legal advice.  Why any sane person would want legal advice from that source was not explained.

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ATV, for overseas readers, is one of Hong Kong’s two terrestrial television stations. It is the second station. Long ago it was a cable station. Then the other lot, TVB, started a free-to-air service. By the time ATV realised that people were not going to pay for something which someone else was offering free it was too late. TVB was the station most people watched and so it has remained ever since. One of the theories advanced to explain this that the shops used to sell TVs pre-tuned to TVB’s Chinese channel and most consumers never learned how to change it. This is difficult to believe. I am more inclined to the theory that the design of public housing flats made it necessary for everyone to watch the same channel. Most estates had, and have, communal corridors with everyone’s front doors opening on to them. The only way to get any natural ventilation is to leave the front door open, and most flats are fitted with metal grills so this can be done without inviting passers-by in. But this arrangement means that in any flat you can hear at least six televisions, and if they were tuned to different programmes it would spoil it for everyone.

Anyway there we have it. TVB has historically made money and ATV has historically lost it. One of the results of this has been a constant succession of owners, not all of whom were the sort of people you would want as a son-in-law. Another consequence is that the English channel (both stations are required by their franchises to offer an English channel) is the television equivalent of Walmart. Everything it shows is either dirt cheap or paid for by someone else. The station has a nice line in American evangelicals of the sort who occasionally delight non-believers by being caught with their fingers in the till or their private parts in places they are not married to. Of course they pay the station to show their stuff. This looks awfully similar to advertising but it would be churlish to complain in the financial circumstances.

However lately a strange twist has appeared in this story. The people who run Hong Kong football (a bunch of quarrelsome millionaires) have persuaded the government that the absence of decent football in our city is a serious deficiency worthy of repair with public money. Hong Kong has a flourishing amateur soccer scene but the standard of the professional league is low and attendances are accordingly small. One of the things the football people decided to do with this avalanche of other people’s gold was to pay a television station to cover football. They asked both stations how much they would charge to do this job and took the cheapest offer, which was from ATV. This is a puzzling decision on several levels. One is of course that as few people watch ATV the soccer supremos are not going to get much for their money. Apparently TVB asked for a million or so more, and well they might. Another question is whether this will work. After all it is not what happens in other places. Elsewhere the television people pay for the right to televise sport. Evidently people who are keen on a sport develop a taste for watching it on television. Whether seeing it on television will produce a taste for live attendance is another matter.

The problem is that it will not, of course, be the only football that people can see on television. There is a familiar story that modern technology produces winner-takes-all situations where previously prosperity was spread around. Live musicians used to be able to ply their trade knowing that their internationally famous rivals could only be in one place at once and that was unlikely to be just down the road. Nowadays live music has to compete with recordings made miles away by people in other countries, and indeed people who are now dead. So it is harder to make a living than it used to be. Watching football live provides some special attractions in terms of atmosphere and fresh air. Watching it on television, on the other hand, invites comparisons with other games you can watch on television. This will bring the local rubbish into competition with leagues in places like Europe and South America where the football is much more skilful and exciting. So I am not optimistic. ATV does not seem to have much idea about football, actually. On the English channel they are currently touting a new acquisition: games from Scotland! Apparently nobody has told them that there are only two big clubs in Scotland: the Glasgow ones – with occasional competition from Aberdeen if that club is having a good year. So most of the matches are either one-sided or not very good.

It is tempting to see some nefarious political factors at work here. The way in which the Chinese authorities have stifled press freedom in Hong Kong is to get cooperative rich people to buy up media organisations, and make the journalists follow the party line. Often the resulting decline in quality and trustworthiness results in the newspaper or magazine losing money, in which case the owner can close it. He has done his duty. An independent voice has been silenced. The problem with ATV is that if its luckless but politically well-connected owners let the thing go bankrupt then the franchise will be offered to someone else. So they have to keep it going somehow. The government gives money to the football people. The footballers give it to ATV. How nice for everyone concerned. Except us viewers.

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In my experience of protests, which is 40 years out of date, the trickiest bit is the ending. Someone or some people have to craft an arrangement which leaves the protesters feeling that their actions and feelings have had some useful effect, without asking the authorities for things which are not in their gift. There has been a good deal of speculation lately about some sort of agreement, most of it by people who have spent the last year pelting Occupy Central with abuse, so their suggestions are perhaps unlikely to be taken very seriously.

Of course nothing I write here is likely to be taken seriously either, but as a purely theoretical exercise here is a sketch of what I think a sensible agreement to end hostilities might look like.

1. Lufsig must go. I realise this is going to be difficult but from a purely practical point of view it is essential. The problem is not that he is disliked by many and distrusted by even more. That is sad, but has been true since before he was elected. Nor is it an insuperable problem that in moments of crisis he turns into the People’s Parrot, reading a script prepared in the Liaison Office. Crises don’t come up that often. But the Chief Executive is not just an office worker; he is the symbolic head of Hong Kong, the person who opens bridges and bestows decorations. He also presides over all the UGC-funded universities. Since the events of the last week he is regarded by most people under 30 and a good many of the rest as the Man of Blood, who unleashed chemical weapons on unarmed demonstrators. Even Confucius would agree that if a father gasses his children you can kick him out of the house. Having an unpopular leader can happen to anyone. Having one who is loathed by all your best and brightest young people is unacceptable. People who think this is unfair to Mr Leung can console themselves with the thought that if he had kept his foot off the gas pedal Occupy Central would have been a harmless token two-day affair on a public holiday.

I realise there are a lot of faces at risk here and it may be necessary to approach this desirable end by a circular route. Mr Leung might have an unfortunate slip in the bathtub, or contract some obscure ailment requiring six months attendance at a specialist Swiss clinic. Or our colonial masters could demonstrate their often-voiced confidence in his administrative talents by giving him a job at national level, requiring residence in the nation’s capital.

2. Politics. Clearly it is no use asking the Hong Kong government to agree to any changes in the electoral arrangements approved by the NPC Standing Committee. But there would be no constitutional impropriety in the our government asking the committee to reconsider the matter.  And there is a good reason for doing so, because the request for this reconsideration could be accompanied by an admission that the assessment of Hong Kong opinion submitted before the committee’s previous discussions was a pack of lies, or whatever the diplomatic euphemism for such things is. As part of the agreement the Government would agree to commission an independent and reliable assessment of Hong Kong people’s opinions on political reform which could be submitted to the committee with the request for reconsideration. It is of course still possible that the request would be refused, or that after reconsideration the committee would reaffirm its original decision. At least it would do so knowing what Hong Kong people really want.

3. Reform. Recent events have revealed a huge gulf between the government and the governed, which is nothing short of scandalous in such a small place. Clearly one reason for this is the galloping politicisation of the advisory and consultative machinery, and the activities of the political appointee whose shameless task is to stuff every body to which the government makes appointments with Leung loyalists. This is not a good idea. Great organisations (the MTR springs to mind for some reason) are not helped if their boards are stuffed with Left-wing has-beens and never-wozzers selected for their political propensities.  The government’s network of advisory bodies was not set up to provide the Chief Executive with a cornucopia of lucrative part-time jobs for distribution among his friends. And the results are parlous: the government cannot hear the people sing because it is deafened by the chorus of adulation from its fans, who crowd every publicly available rostrum. The solution, I suggest, would be to set up an independent body to oversee all appointments in the government’s gift except those (the “accountability” crowd) which are explicitly designed to be political.

4. Policing. Here we have a tricky matter. Many protesters have no quarrel with the police, and those who have will generally concede that the police person on the street was just following orders from higher up. Cosmopolitan columnists have pointed out correctly that police handling of demonstrations in other places has on occasion been much worse. Most Hong Kong people still feel that we are lucky in our police force. On the other hand it cannot be disputed that since the present Commissioner took over there has been a consistent and considerable increase in the amount of force, and particularly the amount of chemicals, observed at protests. The Commissioner, Mr Andy Tsang, does not look like a square peg in a square hole. I realise that intellectual firepower is rather a low priority for street police people and a robust common sense is more valuable. Still, high command requires some sensitivity to the political and philosophical nuances of police work, and Mr Tsang brings to the post only an obdurate refusal to consider that his people can do any wrong. One gets the impression that if a squad of plods in full riot gear were filmed raping a nun in the middle of a protest Mr Tsang would defend this as a necessary part of the restoration of social discipline.  Still, if Mr Tsang gets the hoof it will be interpreted in police circles as an implied criticism, and this would not be helpful. So while one may hope that he will be encouraged to consider the delights of retirement (for which he is old enough) we should not, I think push for it.

Nevertheless the events of the last week do suggest that in some areas our police force has lost the plot. A person who is protesting may be a bloody nuisance, he may be committing a crime (though obstructing the streets of Central does not seem to be taken very seriously when done with a double-parked Alphard) and he may be disobeying orders. He or she is still a citizen who has the right to be treated as such. Pepper spray is not issued, or at least it shouldn’t be, so that individual police people can administer summary punishment to those they disapprove of by giving them a squirt in the face. The Force also seems to have overlooked the fact that the promiscous use of pepper spray in industrial quantities has made their warnings totally ineffective. Anyone near enough to the police lines to read the sign waved in the air has either hidden behind an umbrella or been sprayed. The sign is displayed to a sea of umbrellas, while policemen walk up and down behind the line directing a squirt at anyone who is not protecting his eyes. So the sign is clear enough on television but invisible to those at whom it is directed.

Clearly there is a need to reconsider the police approach to these matters, and we may legitimately insist that there is an inquiry, conducted by the police themselves, into whether it is still necessary and appropriate for the whole Force to be rotated through PTU training, whether the approach embodied in that training is appropriate to a society in which the right of assembly is constitutionally protected, and whether there should be some further restriction on the use of chemical weapons in situations where life and property are not in danger.

Well there it is – a dream – for there are no signs that the government is prepared to make any real concessions at all. It still seems to think the people are on its side, even though Mr Robert Chow’s phantom army of petition-signers and hunger marchers has dwindled to a few hundred rather suspicious-looking old men. A free and complex society needs to be governed with the consent of the governed. No victory will last if it is won at the cost of that consent.

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