tim's experiment

I was passing the north face of the Central Market in Des Voeux Road the other day when I noticed a new set of signs had appeared on the wall outside the public toilet.

One of these was clearly modelled on a road sign: a red ring with a mysterious black silhouette inside it and a diagonal red line to indicate that something was forbidden. It was difficult to make much of the silhouette, but any mystery in the matter was cleared up by the next sign. This, in a less graphic and witty way, urged passers-by not to feed pigeons and warned of a possible fine if you were caught doing so.

In case the fear of official disapproval was not enough to deter degenerate pigeon-fanciers, the third sign carried a set of warning cartoons about the evil consequences of feeding pigeons, notably a grossly over-weight pigeon and a grossly inflated pigeon population. Presumably these were alternatives.

This came as something of a shock. In my neck of the woods, near a country park, we are used to signs urging us not to feed things. The most general one, just down the road, says “Do not feed wild animals. Nature can meet their needs.” Very trusting.

From time to time we are treated to more specific signs urging us not to feed monkeys. Lately we have also been treated to one urging us to avoid feeding – or indeed any other interaction – with wild pigs.

I understand the rationale for this. Wild animals belong in the wild, and it is better that they should not be encouraged to forsake their traditional hunting and/or gathering lifestyle for an easier life foraging through suburban dustbins.

We have the awful example of the Sacred Ibis, an outstandingly beautiful bird native to Australia which, finding its traditional boggy habitat shrinking under human impact, found a new lifestyle as an urban scavenger. It is now known informally as a “bin chicken”

Still I was a bit shocked by the idea of an official ban on birdfeeding. This is, after all, something of a cultural tradition. It has a song of its own in Mary Poppins, to be found here: https://www.youtube.com/watch?v=XHrRxQVUFN4

A darker variation by Tom Lehrer:  https://www.youtube.com/watch?v=yhuMLpdnOjY

When I was a kid young Londoners were regularly taken to Trafalgar Square, where it was traditional to feed the pigeons, and hawkers offered food for the purpose. This is usually described in reminiscences as “grain” though as far as I remember it was dried peas.

Anyway you bought your little bag of food. Pigeons gathered at a respectful distance. Then if you dropped some on the floor they would gather to pick it up. More daring feeders would hold out a handful and the birds would come and perch on your wrist to eat it. Exhibitionists could put a little heap on their head and “wear pigeons”, though there was a risk of getting an unwanted type of shampoo doing this.

Health watchers regularly warned that the pigeons were carriers of, as one writer put it “every disease from Athlete’s Foot to Zarathustra’s Elbow”. But nobody I knew of ever caught anything. Still the Health and Safety experts won in the end. In 2001 the food hawkers were banned, and pigeons are now deterred from the square by a large tame falcon.

This certainly saved a good deal on the maintenance of Nelson’s column, which stands in the middle of the square. The Admiral regularly had to be rescued from a growing pile of bird poop.

Elsewhere, the feeding of birds is still regarded as a benevolent interaction with nature. People who have gardens erect “bird feeders”, which will attract wild birds and are carefully designed to protect diners from the attentions of predatory cats.

In short, the desire to interact in a mutually satisfying way with wild animals is generally regarded as one of our nicer characteristics. There are, of course, numerous anomalies in human relations with animals – as friends, as food, as spectacles – but throwing the odd crumb to a sparrow has generally been given the green light.

Well, we all understand that in an urban context you can have too much bird life. On the other hand I can think of few less likely venues for a bit of irresponsible bird feeding than Des Voeux Road, which is hideous with traffic and has no seats. As far as I could see it had no pigeons either.

Hong Kong is not a great place for outdoor eating, and there is no tradition of food sharing here. Moreover it is too late to regard the local pigeon as a wild bird to be protected from the temptations of city life. Any pigeon which has found its way to an urban park is probably already past that.

I take particular exception to the suggestion that feeding a pigeon may subject you to a $1,500 fine. There is no mention of pigeons, or bird feeding, in the Laws of Hong Kong (which are, thank goodness, electronically searchable) so I suppose the authors of the poster had in mind the offence of littering.

Well the relevant ordinance defines litter at great length. Take a deep breath:

• (a) any earth, dirt, soil, dust, ashes, paper or refuse;
• (b) any glass, china, earthenware or tin;
• (c) any mud, clay, brick, stone, plaster, sand, cement, concrete, mortar, wood, timber, sawdust, plastic, construction material or excavated material;
• (d) any rubble, rubbish or debris;
• (e) any filth, manure, dung, excretal matter and any other offensive, noxious or obnoxious matter or liquid; and
• (f) any substance likely to constitute a nuisance.

No doubt the official hope is that (f) can be extended to a substance which is likely to encourage or enlarge the bird population. This is a long shot. The usual rule of statutory interpretation is that where a general term follows the specific ones it is held to refer only to the specifics already mentioned. As there is no mention of bread, birdseed etc. this should be a serious obstacle.

Well we must not underestimate the willingness of local magistrates to connive at prosecutorial abuses of the law. But there is another problem. It is surely in the nature of litter that it stays in the place where it is dropped, thus frustrating the purpose of the law, which is to provide cleaner pavements.

But, My Lord, I only dropped the piece of bread in the confident and justified expectation that a bird would immediately pick it up and eat it. So it was not litter. Case dismissed?

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Risking serious brain damage, I endeavoured to read the Court of Appeal’s findings in the case of Leung Kwok-Hung, alias “Long Hair” and the Secretary for Justice, alias one of the PRC’s local poodles.

Frankly I do not recommend this, unless you are having serious difficulty in getting to sleep. Most of it is dauntingly technical. One finds one’s attention wandering.

Mr Leung was one of the six legislators disqualified for irregularities in their taking of the oath of office required of legislators in our system, following an “interpretation” by the National People’s Congress Standing Committee which added detailed requirements to the procedure stipulated in the Oaths and Declarations Ordinance.

Most of the judgement is devoted, if I have understood it correctly, to the question whether the “interpretation” added to the law or merely clarified it, and whether in any case this made any difference.

These points are discussed at great length with detailed reference to past decisions of various courts. This I fear leaves the lay reader with the impression that Hong Kong judges could have saved us all a lot of trouble if they had wheeled out some years ago something along the lines of James I’s observation that “Kings are not only God’s lieutenants upon earth, and sit upon God’s throne, but even by God himself they are called gods.”

With, of course, the NPSC inserted in the place of the King.

It is a characteristic of legal arguments that people are allowed to try different approaches, not necessarily compatible with each other, in the hope that one of them will be acceptable to the court. There is a danger that in rejecting a variety of different arguments the court will appear to be guided more by the desire to achieve a particular result than the merits of the points put forward.

No doubt the appearance is misleading. I was dismayed to discover, however, that in the closing — less technical – stages the court seemed to have flatly contradicted itself

Consider this paragraph: “Neither the Clerk nor the President of the Legco has any discretionary power to determine whether a legislator-elect has declined or neglected to take the Legco Oath under section 21 of ODO … they are oath administrators.  And it is for the courts, and the courts alone, to determine if the constitutional requirements under BL104 and the legal requirements under the ODO have been satisfied.”

Now this is a puzzle. The clerk or the president has in the past refused to accept particular oaths as valid. Under the old dispensation this led to the legislator concerned being required to take the oath again. And later on in the judgement the clerk’s discretion has magically reappeared:

“As pointed out by Mr Yu, the Clerk did not provide any reasons why he considered the appellant’s Oath taking was valid.  It is thus not clear why he so decided.  In the circumstances, his decision is of little weight to the Judge.  Since the whole episode of how the appellant purported to take the Legco Oath was recorded by transcript and videotape, the Judge was in as good a position as the Clerk to view and assess the appellant’s conduct.”

This paragraph is meaningless unless the Clerk had some right to reject oaths he was not happy with. If he made a “decision” then there must have been the possibility of rejection. I do not blame the clerk for not giving a reason and it seem odd to expect it. A reason must be given for rejecting the oath. Accepting it is the default option. Nobody complained at the time.

I am concerned by the appearance of what might be considered by an uncharitable observer a measure of judicial arrogance. Leaving aside the centuries-old tradition that the courts do not intervene in the internal affairs of the legislature, there are practical problems with judges setting themselves up as a sort of video assistant referee for legislative oath-taking.

The first one is rather specific: they are political eunuchs, and expected to be such. This leads to potential misunderstandings. The Court of Appeal seems, for example, to have been quite upset that Mr Leung took his oath (or as we must now say “purported to take the oath”) holding a yellow umbrella.  But of course beholders of the proceedings would have been perfectly well aware that this was simply a symbol of his political views, just as other legislators might wear blue ribbons or Mao badges. Solemnity is in the eye of the politically literate beholder.

A more serious objection is to the time involved. VAR in football matches has been greeted with mixed feelings because the teams have to stand around for a few minutes waiting for the assistant referee’s verdict. It spoils the flow of the game.

But the few minutes spent by football assistant referees are a mere millisecond compared with the time it takes to get a definitive view out of the legal system.

Mr Leung was elected in September 2016. He swore, or did not swear, the Oath on October 12. On November 7 the NPCSC issued its interpretation. The government’s lawyers then sprang into action and Mr Leung was disqualified on July 14 2017. He appealed in September last year. The judgement of the Court of Appeal has just emerged.

Mr Leung proposes to try a further appeal to the Court of Final Appeal, as he is entitled to do. Even if permission for this is refused it will take another two or three months. These days it takes the government at least six months to hold a by-election, sometimes longer.

The overall effect of this is that the electors in Mr Leung’s constituency, who happen to include me, have been under-represented in Legco for nearly three years and may well stay that way until the end of this year or the beginning of the next one.  By which time, alas, the newly elected replacement legislator will barely have time to get his feet under the desk before another election looms.

Indeed, if the Court of Final Appeal does decide to consider the matter, the vacancy may arrive so late that our leaders, whose adherence to democracy is increasingly questionable, may simply decide to leave the seat empty until the next territory-wide poll.

And this slow-motion procedure at enormous expense to the member concerned presents, to put it mildly, something of a temptation to people who would like a legislature purged of inconvenient members, although the preventive disqualification system seems to be achieving that already.

I wonder how many people will wish to continue to vote when the results of their efforts are treated with such contempt.

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Interesting press conference the other day from the Correctional Services Department.

The proceedings, presided over by the Commissioner of CS, Mr Woo Ying-ming, featured a predictable feast of statistics, a spirited defence of the department’s complaints system, which seems to share many features of the police one, and a “smart prison” plan.

This last was an attention grabber. Is Information Technology to be put at the service of correctional efficiency, and if so how?

Well they are going to have a “video analytic monitoring system”, which will keep a permanent electronic eye on prisoners, and alert the guards if something untoward is going on.  This sounds a bit ambitious for a computer program, but they are going to trial it soon.

They also propose to fit prisoners with wristbands which will monitor their health and whereabouts. My wife has one of those already. It’s called an Apple Watch. Don’t spend more than $2,000 a piece on building your own version, please.

The third item coming soon to a pilot programme in a local correctional dormitory was described as “a robot arm that searches for drugs hidden in faeces”. You what? I was momentarily non-plussed. Why would anyone hide drugs in their shit?

After some discussion in the office we concluded that the drugs were not exactly hidden. They were smuggled in a way which resulted in the drugs landing in it, as it were.

The ins and outs of smuggling things into prison in this way are an obscure topic, but one which attracts a whole chapter in Mary Roach’s book on the human digestive system, “Gulp”.

Ms Roach is the queen of science journalism, She writes books which are both informative and intensely amusing, usually with monosyllabic titles. Also recommended, “Bonk”, “Stiff” and “Grunt”, respectively on sex, death and the military.

Smuggling things into prison, where inmates are usually stripped on arrival, requires the use of the body’s internal accommodation. Things can be swallowed, but this is difficult, time-consuming and dangerous. For more ease and capacity an item can simply be pushed up a passage which usually passes traffic only in the other direction.

This is known in American prisons as “hooping” and is used to smuggle, it is estimated, more than 1,000 pounds of tobacco and hundreds of mobile phones into the California state prison system every year. Also often found: chargers, batteries, Sim cards and those little earphones which go inside your ears. And, of course, recreational drugs.

It seems our local CSD’s solution to this problem is to wait until the newly-admitted prisoner empties his bowels, and then go over the resulting output in search of contraband.

At the moment this is done in a rather low-tech way, by a correctional officer with a stick. We may be missing some important detail here, but it is difficult to work out what dramatic improvement might justify the invention of a robotic arm.

There are existing alternatives. According to Ms Roach there is a gadget called a Body Orifice Security Scanner, a high-tech chair, which saves waiting for a performance. Sit the prisoner in the chair and you get a picture of his internal cargo, if any, straight away. This may be expensive. It is too expensive for California anyway.

A rather different solution found in German prisons is a toilet attached to a glass tank instead of the usual hole in the floor. The prisoner performs in the usual way and the results can be examined from a safe distance without the use of a stick.

Or you could ask the Japanese people who make versatile toilets with a variety of extra functions if they could put together something with a sieve in it.

I apologise for an unsavoury topic. But there is a serious point here. There are technological innovations which look like a labour-saving breakthrough. And there are those which look like an elaborate way of wasting money. The “robotic arm” for stirring prisoner poop smells like one in the latter category.

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The case of Chan Tong-kai, which has slumbered in obscurity since last February, has ignited a small political and legal explosion.

Mr Chan was arrested after his girlfriend died in what we used to call “suspicious circumstances” while the couple were on holiday in Taiwan. He hastened back to Hong Kong before this was discovered and the Taiwan police would now like him, as we also used to say, “to help with their inquiries”.

To this end they have asked for him to be sent back to Taiwan. Mr Chan was promptly arrested and charged with some rather technical offences which can be seen as having taken place in Hong Kong. He cannot be tried in Hong Kong for murder, or indeed for any other crime he may be suspected of committing in Taiwan, because the Hong Kong courts have no jurisdiction outside the territory.

Normally you would expect Mr Chan to be extradited to the place where his alleged crime was committed. But this is tricky. Hong Kong has extradition agreements with 20 countries, including Australia, the US and UK. China is not one of them. Taiwan is, of course, not mentioned at all.

The Fugitive Offenders Ordinance, which governs such matters, specifically excludes any such arrangement with the People’s Republic of China. I don’t know why the Mutual Legal Assistance on Criminal Matters Ordinance comes up in this context, because it does not cover the surrender of suspects, but it excludes China also.

Why these exceptions were made is not clear, but both ordinances were extensively amended in 1999 so we must suppose that this problem is not just an overlooked colonial relic.

Anyway it appears to be generally agreed that there is no present routine legal arrangement under which Mr Chan can be sent to Taiwan against his wishes. It seems that there is no limit either to the time he can be kept tangled up in Hong Kong’s legal machinery while the Security Branch ponders the problem.

It appears from reports of the matter that the Branch does have a recourse in cases like this: it can make a one-off request, which has to be scrutinised by the Legislative Council. I can find no trace of this procedure in either of the ordinances. Perhaps it is somewhere else.

The Branch says, though, that this is “operationally impracticable” because the council’s proceedings are public. So the proposed deportee would hear of the matter and flee before his deportation was authorised.

This may be a problem in some cases, but certainly not in that of Mr Chan, who is safely ensconced in the bosom of the Correctional Services Department and is not going to flee anywhere.

So what is going on here? Well, suspiciously, the Branch now wishes to extend the procedure in the Fugitive Offenders Ordinance to Taiwan. Since we must not mistake Taiwan for a separate country however much it looks like one that will involve extending it to Macau and the People’s Paradise as well.

Cue political row. Clearly this could lead to people being sent to the mainland against their wishes. Hong Kong people, as Claudia Mo put it delicately, “lack confidence in the mainland judicial system.”

James To observed that having the Chief Executive as the person who triggered requests for surrender would result in pressure on that official to send people to China for trial for things done in Hong Kong and not crimes here. Everyone mentioned booksellers.

For the Government we have FTU chairman Stanley Ng, a deputy to the National People’s Congress, complaining that critics were seeing “reds under the bed”, an interesting thing to say in this context where the reds are not so much under the bed as all over the room. More coherently he complained that people were “politicising the amendment with conspiracy theories.”

Holden Chow, for the DAB, said that human rights would be preserved because the extradition request would have to be accepted by a court, and the proposed deportee would have the right to appeal. This is not entirely true.

The application to the Chief Executive and the imprisonment of the deportee are done “ex parte”, meaning the victim of the proceedings is not heard until later. In the meantime he or she is in custody, and stays that way during the appeals, if any. If the last appeal succeeds, which could take years, the right to personal freedom has been infringed in a major way.

If the famous Ms Meng spends the next three years under house arrest in Canada and is eventually allowed to go home I imagine Mr Chow will get this point.

Alas, the Standard did not tell us which of the pro-establishment legislators perpetrated the hilarious idea that “the mainland legal system is not worse than that of the SAR”. It did, however, offer a creative approach from columnist Mary Ma.

Ms Ma said that there was no need to worry about China abusing the proposed extradition procedure because if China wanted to put someone who was in Hong Kong on trial, it could just kidnap them as it had done with Xiao Junhua, who has not been heard from since he was grabbed from a Hong Kong hotel in 1917.

This seems rather like saying that you should not lock your car because if anyone really wants to steal your radio he will break the window.

Are we witnessing a politically tone-deaf government treading in a nest of worms by accident? Or is it all a cunning plot to subvert Hong Kong’s legal autonomy and allow the Panda People to posture about Taiwan?

Suspicions are bound to arise because — as Ms Ma, sundry democrats and the Civic Party spokesman all agreed — there is an obvious solution to the immediate problem, which is to have an extradition agreement specifically with Taiwan alone.

Did nobody think of that, or was it too easy?

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