tim's experiment

Every year I take a group of students on a tour through the parts of the Hong Kong legal machinery which concern the media. This week, as luck would have it, we have reached the matter of contempt of court. The purpose of this part of the law is to ensure that an accused person has a fair trial. The method used to obtain this objective is a prohibition on the media publishing material which suggests that any person who has been caught up in the legal mincing machine is guilty – or for that matter innocent. This is a question to be decided by the courts without any help from the media.

The law on contempt is only one of the provisions designed to do this. I have complained before that many of the others have suffered from gross neglect lately. The Department of Justice does not monitor newspapers, as it used to do when it was called the Legal Department. Consequently infringements are not noticed or punished. Media outlets which restrain themselves as the law requires find that they look stupid. Lessons are learned.

As a result standards decline. Consider the case of Mr Ray Wong Toy-yeung, who was arrested on Sunday and charged with rioting. Any reporting of this matter is governed by the law on what is called “strict liability contempt”, which means that the newspaper is liable whether it intended the offence or not. The law states that from the time when legal proceedings are “imminent” we must not publish anything which produces a “real risk of substantial prejudice” to the proceedings.

Now let us see how this rule is observed in the SCMPost these days. On Tuesday Mr Alex Lo decided to write about the Hong Kong independence movement. Nothing wrong with that. In fact on this topic I suspect Mr Lo and I are in entire agreement. But Mr Lo’s forays into discussion of public issues are often spiced with a little personal venom. The HKU Staff Association, for example, were characterised in his column on the university’s autonomy and related matters as junior lecturers motivated by envy of their elders and betters. The group of academics who urged an independent inquiry into the fishball riots were not just misguided. They were mostly “assistant professors or associate professors without PhDs.” So it does not come as a complete surprise that Mr Lo’s “take” on seeking independence included a good deal of personal denigration of Mr Wong, who on the previous page could be seen flanked by two policemen and wearing a bag over his head.

Mr Wong, said Mr Lo, was “mesmerised by the sound of his own voice.” After a list of items found in the flat where Mr Wong was arrested we conclude that his “inclinations towards violence and sex are rather pronounced”. And “Those who have tried to justify and explain away the delinquent nature of this movement have helped create this monster.” I suppose it will be argued on behalf of Mr Lo that the “monster” is the movement, not the man. But as his piece starts with the announcement that Mr Wong is a “key figure” in the group I am not sure that this is much help.

The following day there is more interesting reading for legally inclined readers. On the front page we have Mr Wong’s first appearance in court. This comes in the category of “committal proceedings” and reporting is restricted to a list of items which the Post’s reporters scrupulously observe. There is nothing, for instance, about the circumstances of his arrest or possibly incriminating items found at the place where it took place. For these, however, readers only have to turn the page to Michael Chugani’s column, where “I point out that Ray Wong Toi-yeung, convenor of localist group Hong Kong Indigenous, was in a flat with bomb-making chemicals, weapons, drugs and over half a million dollars in cash when police arrested him in connection with the riots.”

This is precisely the sort of writing which the law is supposed to prevent. Actually, if Mr Wong had been arrested in my house the police could, had they wished, have found bomb-making chemicals, weapons and drugs. I do not keep that much cash around the place. Many household chemicals can be used to make bombs. I have two swords, one used for Scottish dancing and one souvenir of a visit to the Shaolin Temple. And at my age, taking pills is a way of life. But in any case the house is mine, not Mr Wong’s. What Mr Chugani is pointing out is that he believes Mr Chow to be guilty, precisely the matter which is supposed to be left up to judges.

It may be, I suppose, that even as I write these words the Department of Justice is swinging into action to protect Mr Wong from the stream of rampantly prejudicial coverage which is being squirted in his direction. If so I apologize. But years of inaction have lowered expectations. Can Mr Wong be assured of a fair trial, unsullied by prior publicity which assumes his guilt? Readers may feel that Mr Wong deserves little sympathy. But if he is not protected by the presumption of innocence, then neither are the rest of us. Anything to say, Rimsky?

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Throwing bricks at people is dangerous, illegal and wrong. This is a proper first reaction to the Fishball Riot. The scenes on television were disturbing and distressing. Strong feelings are understandable.
In due course, however, we need to move on from strong feelings to rational consideration of why these terrible things happen. A lot of people seem to be in no hurry to get on to this. There has been much creative use of language to describe the rioters: animals, louts, savages, barbarians, “lumpenproletariat” in an up-market variation supplied to readers of the Business Post, “separatists” for fellow-travellers, and in what the SCM Post hilariously described as a “searing indictment”, terrorists — according to the Chinese Foreign Ministry.
Looking for causes is not the same thing as exonerating the rioters. But if we want to avoid recurrence of such things in future we need to do better than the George W Bush level of analysis, which stops with a sigh of satisfaction at something along the lines of “they hate us because we’re good and they do it because they are evil.” We also need to do better than planning to ratchet up the level of force: more pepper spray, more tear gas, water cannons, rubber bullets, bean bags, live ammunition … I do not want to put ideas into people’s heads but there are more extreme things rioters can do than throwing bricks, and more violent responses will trigger mutual escalation.
We may well suspect – though as a number of cases are now going through the courts it would be a nice concession to the rule of law if we refrained from saying so too often – that some people in Hong Kong would like a riot, or at least are happy to behave in a way which risks starting one. That may be a necessary condition for having a riot, but it cannot be a sufficient one. Most of the time Mong Kok is as tranquil as the rest of Hong Kong. If your previously tranquil family pet bites someone you will want to know why, not because you wish to exonerate it or suggest that biting people is OK, but because you want to avoid it happening again and understanding must precede prevention.
Any large event involving lots of people must have multiple causes. Identifying the spark is important, but we also need to know why the situation was explosive. I here explore, in no particular order, features of the situation which helped to make it inflammable.
Mong Kok is an interesting and colourful part of Hong Kong with more of a distinctive identity than many others. It’s young people, in particular, are referred to as “MK” boys and girls. No doubt much of the difference is illusory. Mong Kok also has another oddity: it has no district board. There used to be a Mong Kok District Board. The government did not like the people who were elected to it. So the Mong Kok DB was merged with two others to form a constitutional monstrosity called Yau Tsim Mong. I do not suggest that the population of Mong Kok has been seething with suppressed fury over this ever since. But spending of public money tends to follow boundaries. We may be skeptical about the effects of “community-building” efforts in grubby suburbs like Wong Tai Sin or Sham Shui Po, but at least they are attempted. In Mong Kok they are not.
The Food and Environmental Hygiene Department is a recurring problem. Public hygiene used to be a matter for the Urban and Regional Councils so the department was supplied with a reasonably coherent account of what the public wanted and expected from it. Although – or rather because – they were elected democratically both the councils were abolished soon after the handover. Departments were then left to get their feedback from the District Councils, which are of course numerous, cover very different areas, and in any case these days spend most of their time funneling public money to Left-wing organisations. This means the FEHD is left without much guidance. The Leisure and Cultural Services lot have a similar problem, but people don’t in general feel strongly about culture. They do feel strongly about the FEHD because one of the roles which it has selected for itself is to suppress any attempt to sell or serve food in the street. As a result the department’s minions are widely hated, even by respectable members of the middle classes. A lot of people who are not interested in politics in general or localism in particular would have no hesitation in joining a defence of fishball hawkers against the FEHD.
The New Year “amnesty”. A variety of laws have traditionally been, in effect, suspended over the Chinese New Year period. The most obvious example is parking. People are not ticketed if they park in normally illegal places outside estates while doing their regulation visits. It’s a sensible concession.
The decision to disturb an arrangement of this kind should not be taken lightly. It may be resented. In the 80s there were annual stories at this time of the year of police raids on illegal seasonal gambling events in New Territories villages. The villagers often responded violently and sometimes the raiding party had to be rescued by the Riot Squad. In the 90s there was much bitterness when traffic wardens decided that the usual amnesty did not apply to roads in the vicinity of the Che Kung Temple, which is much visited at New Year. This presented a particular problem for drivers because the temple’s own large car park was commandeered by the police for their own exclusive use. Later there was controversy when the then police chief in Fanling announced that the traditional blind eye to seasonal fireworks would no longer be turned on his patch.
No doubt some changes in these matters are necessary and desirable, but apparently street fishballs were offered this year without problems in other districts. Some sleeping dogs are better undisturbed.
Occupy in Mong Kok. Characterising the Fishball Riot as Occupy 2.0 was a piece of mischievous deception. But it draws attention to an important piece of history. Mong Kok was never part of the plans for Occupy Central. No preparations were made and nobody was trained. The occupation of Mong Kok was a spontaneous reaction to the Teargas Festival. It was not particularly based on non-violence as a matter of principle, and the opposition to it was not non-violent either. In Mong Kok occupiers were often abused and beaten by civilian vigilantes who, although they looked like the sort of people the government did not want on the District Board, seemed to be on surprisingly good terms with the police. When the occupiers of Central politely folded up their tents and returned to their studies, the occupiers of Mong Kok instead switched tactics. There were regular “shopping” events in which protesters temporarily occupied some spaces. Counter-demonstrators appeared and there were regular scuffles. Some of the people who had been politicized by their experience in Mong Kok went on to other protests.
What happens at demonstrations. I do not think anyone who follows this topic objectively would dispute that the police approach to protests became a good deal more brusque during the period when the management’s response to any incident, no matter how untoward, was that “our boys can do no wrong”. The use of chemicals became less nuanced and more common, followed by the incidence of other forms of violence. Someone complained last week that the people who turned up in Mong Kok were “prepared to riot” because they had masks, goggles, helmets and body armour. This is a totally unwarranted inference. People who go to protests these days expect that they will sooner or later, however pacific their intentions, be pepper-sprayed or beaten or both. They dress accordingly.
I fear that far more people are being radicalized by experiences of this kind than by localist or other controversial propaganda. Their personal experience of the law enforcement machinery is not pretty, and the aftermath is not pretty either. No doubt most public order offences are dealt with by the courts in an entirely impartial and non-political way. But it is the outlying cases, the extreme ones, which people remember. The outlying cases comprise, say, the lady who was jailed (jailed!) for assaulting a cop with her bosom, and the Superintendent whose flailing at passers-by with his official tickling stick produced no criminal proceedings at all. It is perhaps a pity, under the circumstances, that a spokesman for the policemen’s union publicly advanced the view last week that for police to throw bricks at rioters was a legitimate form of self-defence.
The legitimacy of the regime. In the immediate aftermath of the handover in 1997 it appeared that the Hong Kong Government, though it was not chosen by Hong Kong people, was nevertheless at least a genuine government, not a mere conduit for instructions from elsewhere. This illusion (or if you prefer this reality) has become increasingly hard to sustain over the years.
In concentration camps they economise on guard manpower by having people who are known in German as kapos. They are prisoners, but in return for extra food and other benefits they perform all the internal management of the camp. All the real guards have to do is police the boundary and count the inmates occasionally. If you are an inmate your kapo is a person of enormous consequence. He can make your life easy or intolerable. The real guards will not intervene if he kills you. At the same time he is not a person you respect. He has made a corrupt and selfish bargain with the authorities, who concede no important powers in return. He cannot change the rules, the policies or the circumstances. He is himself, in the end, still a prisoner.
I am afraid that repeated demonstrations of the impotence of our leaders, culminating in the kidnapping of the booksellers and the spineless response to it, have eroded the public view of the people in power in a way which they do not yet realize. We see the suits, the thrones, the chauffeur-driven cars and the bauhinias in various colours. We hear the speeches, the promises, the declarations of important principles and essential values. We should be seeing pillars of the community. But in the end we behold a bunch of kapos.
Of course in a Mong Kok context this is rather cosmopolitan stuff. The moment when Lufsig finally lost it was probably when he refused to support the Hong Kong football team if it was playing China.
Events on the night. An “incident” which lasts for 10 hours cannot just be regarded as the inevitable consequence of one event or one person. It is a dialogue or a contest between the forces of disorder and the forces of order. Rioters are responsible for riots. But policemen are responsible for suppressing riots and if the riot lasts well into the next morning we are entitled to wonder if some better move might have concluded the matter earlier.
This is a tricky area. We do not know exactly what happened and we probably are not going to be told either. The inquiry, if any, will be internal. It is dangerous to jump to any conclusions from watching video clips, though that doesn’t seem to have stopped a good many people. The clips come in three categories.
The ones which I presume are earliest show a small group of traffic cops, clearly neither dressed nor trained for riot control, surrounded by a hostile crowd. The effect is rather like those colonial military catastrophes in which a British battalion finds itself suddenly surrounded by a horde of angry locals. The traditional remedy is to form a square, but you can’t really do that if there are only a few of you. The forces of order conduct a dignified retreat until one of them appears to trip over a piece of debris and fall. He then becomes the main target. Ambrose Lee thought this was particularly deplorable but it is what usually happens. Winston Churchill noticed the same thing at the Battle of Omdurman. One of the traffic people then fires two shots into the air. Well what goes up must come down, but in the circumstances this seemed a reasonable thing to do. It was more disturbing to see the same gentleman pointing his gun at the crowd afterwards. One of the few items of gun lore I managed to extract from my father (ex-SAS but shy about it) is that you should not point a firearm at anyone unless you want to kill them. I am a bit surprised that this rather basic point is apparently not mentioned in the police manual on the subject. Still in a hairy moment we all get excited. The only thing you have to ask about this part of the proceedings is why a small group of traffic policemen were there in the first place. Given the history of public order in Mong Kok this would hardly be a sensible response to a report of brawls over fishball stalls.
The second set of videos has a larger body of policeman retreating under a hail of missiles. This seems an unfortunate compromise, because it means the people throwing missiles are constantly advancing onto territory strewn with the stuff they have already thrown once, which they can now throw again. No doubt there are reasons, doctrinal or practical, why neither a static defence nor a rapid retreat was acceptable.
Later, I presume, we get the full gear riot squad in action. Apparently this came rather late in the proceedings. According to one report when they were finally called in there was a long delay while they went to Fanling to collect their kit. I suspect someone will eventually conclude, with impeccable hindsight, that there was a failure somewhere to comprehend the seriousness of what was going on. Perhaps in the longer run someone may also conclude that the idea of having crowd control based in Fanling is obsolete. Given the technology available to the man in the street these days it means the crowd can gather a lot quicker than the controllers.

And so… What can we conclude from all this? On the night, we were unlucky. Some small differences in the geography or the timing and the evening might have passed peacefully. On the other hand those people who claim to be completely surprised have not been paying attention. People have warned regularly of rising levels of frustration, alienation and violence in public places ever since Occupy ground to its fruitless conclusion.
Public figures and commentators who have got their horror and disapproval off their chests need to turn to some more constructive cogitation. Riots do not come out of nowhere and ordinary citizens do not turn into rioters out of some spontaneous degeneration of the conscience. Something is wrong with the relationship between government and people. Fix it.

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