tim's experiment

It is nice to see columnists earning an honest crust without working too hard. But there are limits. The standard comment on the question whether mainland customs and immigration people should be stationed in the Kowloon terminus of the white elephant is a splendid exercise in missing the point.
We usually start in a tone of bemused irony, wondering why people are making such a fuss. We state that there should be no problem in out-going passengers doing their immigration thing for the mainland in Kowloon. We visit London, where passengers travelling to Paris can go through French immigration in St Pancras station before boarding the Eurostar. We visit various international airports where passengers travelling to the US can go through “pre-clearance” before boarding the flight. What could be simpler, we ask rhetorically. Then if we are of a pro-establishment disposition we complain that the pan-democrats are just trying to sabotage the railway because they don’t like C. Y. Leung. And all of this, except the last bit, is demonstrably true. And all of it misses the point.

Of course there is no problem is a mainland official stationed in Kowloon telling people that they may board the train if they have the necessary documents to visit the mainland, and that they may not do so if they lack the paperwork. The mainland official has two options – to allow boarding or not to allow boarding. This is not a great exercise of state power. Airline staff routinely check that their passengers have at least got a passport before boarding the plane, and refuse to carry those who have not. The worst thing which can happen to intending visitors to the People’s Paradise is that they have to cancel their trip. This would happen anyway if the immigration post was somewhere else. Nobody has lost anything. If there is a mainland customs officer functioning at the station he can confiscate minor items like copies of Apple Daily, and refer serious attempts at smuggling to his Hong Kong counterparts. Again, nothing new, nothing controversial.

We cannot, however, say the same about passengers travelling in the other direction. A passenger on the flying white elephant is in Hong Kong territory as soon as he crosses the border. In the territory of the SAR mainland security people have no official status, no right to carry guns, no right to make arrests. Moreover a person on the surface over the white elephant – which is one long tunnel, that is why it is so expensive – enjoys all the rights accorded to Hong Kong residents by the Basic Law, the Common Law, the various relevant ordinances and so on. He has the right to a lawyer if arrested, to habeas corpus if arrested for something which is not an offence against Hong Kong law, and even (sorry Henry) to judicial review if disadvantaged by an administrative decision he disagrees with. If mainland customs and immigration officials are working in Kowloon, though, we have a curious inconsistency. In the shopping mall over the station you are in Hong Kong, subject to Hong Kong law, and fortified by Hong Kong rights. Are we to say that two floors down on the arrivals platform you are not in Hong Kong, not subject to Hong Kong law, and not protected by Hong Kong rights?

The arriving passenger is, by definition, coming from the mainland. The mainland does not enjoy the rule of law and its residents do not enjoy the rights and privileges to which Hongkongers are accustomed. Mainland officials functioning in the station are not going to apply Hong Kong law. The whole point of their presence is to apply mainland law, such as it is. Suppose we have an arriving passenger who is, in the view of some mainland official, not allowed to leave the country. The immigration officer will presumably tell him that he cannot leave … well, the part of the station where the mainland immigration people do their stuff. Is he under arrest, in our usual sense? Is he, as he would be if arrested in Nathan Road, entitled to a lawyer and a date with a magistrate? Probably not. He will be invited to take a train back to the mainland. Or perhaps he will be bundled onto the next train back whether he wishes to do so or not. Perhaps trains travelling in a northerly direction will have a special custodial carriage for people who got to Kowloon but discovered that they were still in China and not allowed to leave. Sooner or later one of these people will, on his return to the People’s Paradise, be subjected to the usual show trial and shot. Are we, at that point, going to be happy?

Some of us will no doubt find this scenario uncontroversial, because they will assume that the person forced back over the boundary will probably be a mainlander anyway. No doubt that will usually be the case. But it doesn’t have to be. Are we going to tell Hong Kong residents that they are not actually in Hong Kong, legally speaking, until they have cleared the mainland Immigration people in a Kowloon basement? An even more interesting case will come up when a real foreigner is captured. It will then be pointed out that in the sundry examples of immigration people working extra-territorially they do not, in other places, screen in-coming passengers. Better for all concerned, I submit, if the outgoing passengers go through the formalities in Kowloon and the incoming ones in Shenzhen, where the train is going to stop anyway. The same people will be arrested, but not on our patch.