tim's experiment

The “co-location” debate, a euphemism for public disquiet at the mainland secret police having an office in the Express Rail Link station in Tsimshatui, took an interesting turn last week. One of the questionable features of the proposed arrangement, though not perhaps the most important one, is that it is a violation of the Basic Law, which stipulates that mainland law shall not be enforced in the Hong Kong SAR.

Mr Alan Hoo, who is a lawyer but perhaps more relevantly a warm supporter of the government, explained that the stationing of mainland officers, and the enforcement of mainland law, in the station basement would not be a violation of the Basic Law, because the basement was not in Hong Kong. You what? According to Mr Hoo the official map of the SAR, published in 1997, states that the SAR consists of its land and sea surfaces.

“Who does the underground belong to?” wondered Mr Hoo on an RTHK programme, “That’s a very complicated legal question. The earth is round. Why does the underground belong to [Hong Kong]? If we find oil beneath Hong Kong, [China] does not have to ask your permission before drilling it.”

Hoo employed a metaphor of a doctor inserting a tube into a patient: “The tube is inserted into your body, but it is the property of the Hospital Authority – not you – and it has administrative rights [over the tube].”

Now let us dispose of the medical metaphor first. The Express Rail Link is not the property of the mainland government. We are paying for it and it belongs to a company set up for the purpose. Property rights in the tube are not relevant here. If a mainland bus crosses the boundary into Hong Kong then it becomes subject to Hong Kong law, regardless of who owns it. Trains the same.

I also find the oil well comment rather unhelpful. Actually in most common law countries the ownership of land includes the ownership of any valuable deposits underneath it. The national government has no special status in the matter.  Nor is the roundness of the Earth an objection to this arrangement. Quite how this affects railway tunnels varies because the construction of a new line is usually preceded by a law specifically authorising the work and stating the conditions under which it must be carried out. In the early days of the London tube the companies were required to obtain permission from the owner of any property they tunneled under. To avoid the resulting endless paperwork the early tube lines were all built under existing streets, with occasionally odd results. In Hong Kong the situation is unusual: everyone who “owns” land actually holds it on a lease from the government — except, for historical reasons, the site of St Johns Cathedral. So if we strike oil the owner would presumably be the Hong Kong SAR government, not the unfortunate landowner who was going to get a drilling rig in his back garden. I see no reason to suppose that the mainland government would have a pre-emptive right to preside over the resulting well.

That leaves us with the most entertaining part of Mr Hoo’s argument, the idea that the SAR consists only of the land and sea surfaces, and consequently anything underground is still part of the mainland. The implications of this are quite mind-bending. If you are driving your pregnant wife to hospital and she delivers early in the Lion Rock tunnel, is your offspring entitled to a Chinese passport? If you are charged with a crime committed on the platform of the (very deep) Homantin MTR station can you avoid being charged by pointing out that the Hong Kong courts do not have jurisdiction because the underground is not part of the SAR? Travelling on the MTR, indeed, now acquires a whole new international dimension. The East Rail line is mostly in Hong Kong, but visits China when it goes under Lion Rock. The Kwun Tong line is mostly in China but visits Hong Kong when it surfaces between Diamond Hill and Choi Hung. Prepare to be asked for your passport.

The other direction also presents problems. If the SAR only comprises the surface, at what point in IFC2 do you leave the SAR and where are you then? Is someone who is required to leave the SAR before his visa can be renewed meeting the requirement if he travels on the Ocean Park cable car?

The most economical solution to these problems is to conclude that Mr Hoo was talking through his hat. Human beings are not lichens which can exist in a thin sheet on a “surface”. The SAR must be three-dimensional and we must suppose that the drafters of the official map intended this to be the case.

Whatever you think of this matter, though, you have to be a very legal person to suppose that finessing the Basic Law objection would produce general happiness with the proposed “co-location.” The objection to having the mainland Gestapo lurking in the bowels of West Kowloon are not just legal. You have to be very naive to believe that officials stationed there will be exclusively drawn from the mainland government departments dealing with customs and immigration. And you have to be very optimistic to suppose that the others, who are not primarily concerned with customs and immigration, will never emerge from their subterranean home and interfere with matters which should be no concern of theirs.

There is also the question of what happens if the mainland officials find someone on the train who in their view should not be in Hong Kong. Will this person be manacled, drugged, bagged and put in the luggage van? How long will it be before we see United Airlines-type scenes of reluctant and bleeding passengers being dragged on or off trains by thugs in uniform?

All this fuss is quite unnecessary. It is well established that all the trains are going to stop in Shenzhen anyway. Mainland officials can do their thing there. Some ingenuity may be required to find a way of doing this which avoids long delays. Solving this problem would be a more constructive contribution than developing new legal fantasies, however entertaining.