tim's experiment

As a long-time observer, and occasional critic, of Hong Kong judges I must congratulate Mr Kwok Wai-kin on making my previously eccentric hobby a mainstream activity.

Judge Kwok, who exercises his doubtless Solomon-like qualities in the district courts, has been reassigned to non-political matters after much criticism of his remarks when sentencing a man who attacked three people with a knife during an argument at a Lennon Wall in Tseung Kwan O.

The assailant, an unemployed tour guide, blamed the then-current protests on his predicament. But no protest was in progress at the time. Two of the victims of his knife attack were women. One of the women was a journalist, not a protester.

Judge Kwok’s sentence (45 months in prison) has attracted a variety of assessments: endorsed by Greville Cross (a rare excursion in the direction of judicial clemency), criticised by sundry democratically inclined people, who thought it inadequate.

Well sentencing is not an exact science. The perpetrator was perhaps lucky not to be charged with attempted murder. The reporter nearly died.

What cannot be disputed, though, is that the remarks which accompanied the sentence exhibited a rampant political bias. The easiest way to check this is to contemplate what luck you would have with similar arguments on behalf of a protester who threw a brick at a policeman.

My Lord, my client may have thrown a brick at a policeman, but he showed “noble qualities” by writing a letter to the court hoping that his trial would make the victim feel better. Try again.

My Lord, my client had been out of work for two months. He was a “bloodstained victim hanging by his last breath” and overcome by emotion. Go directly to jail, do not pass Go, do not collect $200.

Was there not a Hong Kong judge who said, when sentencing some rioters, that “The courts will not get involved in political debate, nor judge on right or wrong in political ideals, as that is not the role of the courts”?

Indeed there was. In fact it was Mr Kwok himself, in 2016. Times have apparently changed. Or something has. It would be incurably idealistic to expect judges to be entirely free from political influence. But if they can’t manage impartiality they should at least fake it.

I am unable to agree with the learned observers who said that there is nothing in the Hong Kong Guide to Judicial Conduct relevant to this occurrence. “Impartiality is the fundamental quality required of a judge”, says para 18, and in para 19 we have “Impartiality must exist both as a matter of fact and as a matter of reasonable perception,” which pretty much wraps it up as far as Judge Kwok is concerned.

Well there is no point in kicking a dead horse. Mr Kwok’s removal from the judicial end of the political fray, or the political end of the judicial one if you prefer it, is clearly not the end of the story.

The removal of a judge is rightly a difficult matter. Judges should be able to go about their business without worrying about job security. And if it were easy to remove judges this power would rarely be exercised in defence of the vulnerable or politically controversial.

However, in the genteel world of judgeship, matters are not allowed to come to anything as crass as dismissal proceedings. The fact remains that a judge who cannot be let loose on a category of cases in case he loses his rag and comes out with a mitigatory diatribe not previously mentioned in court is no use as a judge.

Judge Kwok is irreparably damaged goods and he knows it.

His switch to a low-controversy diet is the judicial equivalent of the old arrangement by which disgraced officers were left alone in the study with a loaded revolver and the expectation that they would “do the right thing”.

In due course Judge Kwok will no doubt express the wish to spend more time with his family, or deal with a pressing medical issue, or explore other career options, and step down from the bench.

If necessary the People’s Poodles will be happy to find a job for him somewhere. He could perhaps join Mr Cross on the op ed page of the China Daily.

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I find this difficult to believe, but at a time when adults are being required to gather in groups of no more than four, and a lot of traditional gathering places like bars, parks and gyms are closed because of Covid-19 fears, thousands of local schoolkids are being herded into halls and classrooms where they can all breathe the same air for two hours.

Of course precautions are being taken. Health declarations and temperature taking are required, everyone will wear masks, the desks will be further apart than usual. But this may not be enough. Keep your fingers crossed. It’s a risk.

The reason why we are running this risk is a sacred educational cow called the Diploma of Secondary Education, an exam which all Hong Kong students take at the end of Form Six.

I am not personally happy with this. Doing an exam in a sort of purdah is going to affect performance and it will affect some people’s performance more than others. Some students who have diligently prepared for months will be turned away at the door because they have a temperature, which will be an experience to remember for the rest of your life.

So why bother? After all there are other ways of assessing students’ readiness to face the world. The reason slipped out in a news bulletin the other day in which the DSE was described as “the university entrance exam”.

The Examination Authority, an independent non-government body but one which tries to please, has been under tremendous pressure to hold the exam. Most of this pressure, I believe, has come from universities.

We may note in passing that the DSE was not originally supposed to be a “university entrance exam”. It was supposed to be an end-of-schooling qualification for everyone. In practice, to be of much use to universities, it has to be pretty useless for other purposes.

This means that many students who have already discovered that university is not for them are required to take an exam which will do nothing for them, and in which they may well fail every subject. Many of them know this in advance, which must be depressing.

And why, you may wonder, are the universities so addicted to the results of this particular ordeal? This is a good question. In the old days, when students were admitted by the course they were going to study, the teachers presiding over admissions could and did administer tests and interviews. Exam results were part of the system but they did not dominate it. The absence of A Levels because of an epidemic would have been inconvenient but not catastrophic.

Then came four-year degrees. With four-year degrees came the idea that the extra year at the beginning of the degree should be wasted on a lot of general stuff, with students choosing their major at the end of it. A corollary of this was that admission should be by faculty or school, not by course or programme, so as to cater for students who were not sure what they wanted to do.

The result of this is that applications now come in batches of a thousand, or several thousands for a popular offering, and you are not allowed to consider what the student actually intends to choose at the end of the first year, if he or she knows what it is. So it is nobody’s job to consider admissions in detail. They must be processed in bulk.

This rules out all consideration by a human brain. The only significant inputs now are the students’ choices and the DSE results. A computer puts them together and spits out one offer per student.

University staff can spend the whole summer doing research, and levels of student demand for different courses are conveniently over-ruled by having quotas at the end of year one. Everyone is happy. Well everyone whose opinion is taken seriously is happy. The students are not consulted.

I am not sure we can blame the people who devised this system for the fact that it really doesn’t suit a society in a state of lockdown because of a virus epidemic. Like so many computer-based innovations it is capable but fragile.

Still, this rather worrying situation is a mere symptom of a disastrous development which has been going on for a long time. Universities have abandoned the idea that their major activity is preparing young people for their lives in the outside world. Their major activity now is preparing the next generation of university staff, and teaching undergraduates is just a lucrative sideline extracting large sums of money from taxpayers or parents.

I did not expect this to lead to life-threatening innovations, but life in a time of pandemic is full of surprises.

So let us pass on to a more amusing one. It appears there is a hospital in Paris which still has the time and the capacity to do a full medical history for each virus patient, and they noticed a curious anomaly.

The proportion of people in one category was much smaller in the patient population than in the population at large. This category with a mysterious resistance to Covid infection was … smokers.

It seems that, in this respect at least, the much-maligned weed is good for you. It may increase your susceptibility to everything else from athlete’s foot to Zarathustra’s elbow, but where Covid is concerned smokers get a health boost.

The French doctors said, and I hasten to pass this on, that smoking is so bad for you in other ways that they do not recommend taking it up as a virus defence. But they are experimenting with nicotine patches to see if that helps.

My experience of smoking in France was that most people, at least at the grassroots level, smoked a cigarette called “Gauloise” which was ferociously strong, an abrasive throat experience that put in the shade anything you could get in England, even the notorious and expensive unfiltered “Capstan Full Strength”.

So it may be that French smokers’ lungs are so used to being assailed by poisons that they take the odd virus in their stride.

Still if you want to try protection without poison, nicotine patches are a prescription item but I think you can buy nicotine chewing gum in chemists’ shops. Snuff would be the easiest solution but the Hong Kong government banned it years ago.

If it were legal you could (nudge, wink) order it on-line here: https://www.snuff.me.uk/Gawith-Hoggarth-Snuff.asp

Far too early to say if this helps, of course. But better for you than injecting Dettol, at least.

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So you thought you had seen every possible coronavirus story? Wait a minute. Despite the journalistic compulsion to fairness, seeing every side of the story and milking a live topic in every possible way, there is one thing missing. Nobody has looked at the coronavirus story from the point of view of the virus!

Or course there are some practical difficulties involved in interviewing a virus. But those of us who have conducted many interviews usually have a pretty good idea of what the interviewee is going to say. Using these intuitions to write the whole interview would usually be a hazardous approach but the virus is not going to complain. So I here present an interview with the virus.

I have called the virus spokesman Vera. I know some people object to having natural disasters like typhoons given ladies’ names. It encourages stereotyping and bad sexist jokes. On the other hand interviews with female subjects are generally less likely to degenerate into confrontations. I have assumed that Vera is fairly bright and politically alert; more Angela Merkel than Carrie Lam, shall we say?

Interviewer: How does it feel, being branded as the world’s number one public enemy?

Vera: It feels most unfair. We are just doing what all organisms do, trying to perpetuate our genes into the next generation to the best of our ability. Organisms which do not devote a lot of energy and ingenuity to this will be elbowed aside by those which do. That’s nature’s way.

Interviewer: But you’re killing people.

Vera: That is an accident. We viruses are quite happy to live peacefully with a host, as we have done with the bats for a long time. Many viruses live inside humans without causing problems and indeed many of us have managed to live in humans without ill effects – it’s called an asymptomatic case.  

Anyway you humans are hardly in a position to complain. How many species have you wiped out in your history without worrying about it. The death rate from you meeting us is much lower than the death rate among dodos after they met you.

Interviewer: Why didn’t you stay with the bats?

Vera: The bat population is dwindling. In fact the population of every animal is dwindling, except for humans and the animals they cultivate for their own consumption. We tried living in pangolins but that was even worse. They’re being hunted out of existence.

From a virus’s point of view you humans have turned yourselves into the dream home: numerous, lots of connections, long life span, no large competitors. We won’t be the last virus to try to move in.

The only drawback is that you may be able to invent a vaccine. But we don’t expect that to be very widely available, given that so many of you don’t have access to the soap and warm water which are the only serious threat to us at the moment.

Interviewer: So you’re looking forward to a prosperous future?

Vera: I didn’t say that. We don’t like really hot weather, which seems to be becoming more common. There is a rumour in virus circles that you humans are going to make the planet too hot for you or for us. We’ll all have to leave it for the cockroaches. Sometimes we think you humans are too clever for your own good.

Also you’re armed to the teeth and so quarrelsome. There is no counterpart in the virus world of that island the mention of whose name produces instant deafness and interruption of telecommunications. Some of the countries complaining about us have for years been equipped to make the world uninhabitable and radioactive in a matter of hours.  

Interviewer: Are you planning any further changes?

Vera: Evolution doesn’t plan; it tinkers. We might go in the direction of becoming less inconvenient and less detectable. Or we might become more dangerous, but that is not likely. A virus which kills its host quickly does not have a rosy future. But we will keep changing if our environment changes. And you lot keep fiddling with the environment.

Interviewer: Is there anything else you would like to say to humans?

Vera: Yes. Don’t take all this so personally. We are not out to get you. You still have interesting and rewarding lives. We eat without tasting and reproduce without sex. And the view from inside a human lung is really boring.

Also, we are not a serious threat to your future. The serious threat to the future of human beings is the pride, greed and intolerance of other human beings, as it always has been.

Interviewer: Well thank you for being with us.

Vera: It’s been a pleasure. See you next year.

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Arrangements for on-the-spot fines are a questionable resort for governments in a hurry. Strictly speaking the version unveiled a few weeks ago to discourage meetings is not actually an on-the-spot fine. People who participate in gatherings of more than four can be given a ticket which requires them to cough up $2,000 within two weeks.

Readers will note a surprising disparity between the instant fine for an imprudent meeting and the instant fine for illegal parking, which has been frozen at $400 for a long time. But this is not the government’s fault. The legislature routinely rejects efforts to raise the parking fine. There are a lot of drivers in that chamber.

There are some problems with this “on-the-spot” business. One is that it is distressingly reminiscent of places where the routine way of dealing with an operational policeman involves some variation on the phrase “can I pay the fine now?”

Another is that this sort of scheme is open to abuse. One old friend of mine who was out of favour with the Force had to give up driving altogether because he got so many tickets.

The record, set many years ago by a minibus driver, was 50 tickets in one week … all issued by the same police sergeant. That sort of thing does not happen these days, or so one hopes.

Another possible pitfall is the use of instant fines where tricky legal issues may arise.

Consider the only case we have been treated to in the media so far. This concerned six elderly men in a park. Two of them were playing Chinese chess and the other four were watching.

According to the official version of this event some police persons happened by, and warned the players and spectators that they should disperse. They refused to do so, and they were then all issued with a ticket each.

Clearly this bloodless description leaves a good deal out. We may suspect that the police people were a bit brusque, as young police people tend to be, and the old gentlemen were a bit grumpy, as old gentlemen tend to be.

There would then ensue an exchange of increasingly charged rhetoric, culminating in comments on motherhood and sex. So it goes. And then we get a broadcast distribution of tickets. But wait. The purpose of the law is not to penalise rudeness to police people, reprehensible though such rudeness is. It is to discourage gatherings of more than four people.

That does not mean it is like the official interpretation of the rioting law, which is that anyone present, whether a protester, a journalist, a first aider, a human rights observer or a passer-by with an unfortunate home address, is a rioter and subject to arrest and prosecution.

The offence of participating in a gathering of more than four people surely demands more subtlety. The two chess players, I suppose, had a good defence. Their meeting was only with each other. They had no control over who might wish to watch.

With all due respect to Chinese chess I don’t think it is so exciting as a spectator sport that anyone playing in public must be held responsible for any crowd which may gather. They were not busking.

The first two spectators could also say they were doing nothing wrong. Their presence merely brought the gathering up to the legal maximum of four. Numbers five and six were the only people who broke the rules.

No doubt, faced with a group of irate old chess fans, it is not very practical to expect the forces of order to sort out who arrived last. But this is a hint that perhaps the legislation was not expected to operate in quite this way. Gatherings which are only just over the limit in open-air spaces might usefully be treated to advice rather than fines, even if the advice is not always well received.

It is interesting also to note that this provision has now made public protests almost impossible. This discovery had some entertaining ironies. The offending gathering was organized by a group of the People’s Poodles called Chinese Hearts. They proposed to march from the High Court to the Bar Association’s office to hand in a suggestion that Tanya Chan should be “disqualified” (I presume from the Bar, not the next election) because she had attended a meeting at which more than four people were present.

But as more than four people attended the protest, the police “warned the group to break up”, as the Standard put it, so a selected four marched alone.

This story also offered a priceless quote from one of the protesters, Alex Yeung Kwan-wah, whose claim to 15 minutes of fame is that he was the founder of Wah Kee Restaurant, apparently a household name to Standard readers.

Ms Chan’s offence, which hardly seems worthy of so much fuss, was to attend a meeting of bar owners disgruntled by proposals that they should be forced to close. This was, rather unsurprisingly in the circumstances, held in a bar.

Mr Yeung found this incredible. “I have never heard of anyone holding meetings in a bar,” he said, “I am a businessman and you may be able to lie to the public but the people will not be fooled by you.”

I think Mr Yeung needs to calm down. I am not a businessman but I have attended plenty of meetings in bars. Indeed in normal times I attend one every month. If you were going to meet a group of bar owners, where would you expect to meet? Does he really think that Ms Chan, eager to visit a bar for merriment and diversion, scared up a bogus group of bar owners to gather in a Sham Shui Po boozer with her?

No doubt the hunt for some legal implement with which to beat up Ms Chan will continue. Participants could usefully read the Community Legal Information Centre’s page on fixed penalty tickets, which says this:

“Except for the purposes of recovery of the fixed penalty and any additional penalty due for late payment, no evidence is admissible in any proceedings which tends to show that that individual has paid, or been ordered to pay, a fixed-penalty notice. Payment of, or an order to pay, a fixed penalty notice, or any failure to disclose a fixed penalty notice, is not a lawful or proper ground for dismissing or excluding a person from any office, occupation or employment, or for treating them less favourably than other employees…”

In other words even if Ms Chan was issued with the ticket for an excessively crowded meeting, the Bar Association is specifically forbidden by the Criminal Records and Rehabilitation of Offenders Ordinance from taking any further action against her because of it.

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It is a fact of life in journalism that you are going to get complaints. News reports are like institutional food. All the consumers have opinions, many of them critical.

This is not a problem. In the first place all feedback is informative, even if on careful examination it appears to be unjustified or, like most of the complaints received by the Broadcasting Authority, based on an erroneous view of what happened on the programme concerned.

People complain that you said things you did not say, or wrote things that you did not write. In that case what you said or wrote was not clear enough.

It is also useful for reporters to be reminded that the consumption of their work is voluntary. However good the information or noble the intentions, the output fails of its purpose if it is not read, watched or heard.

As Samuel Jonson put it long before mass media were invented: The drama’s laws, the drama’s patrons give. For we that live to please must please to live.

So when considering complaints about content, we have to respect them all. There is another kind of complaint, though, which is about the way the news operation is conducted. When it comes to the discussion of reporting methods we are entitled to ask whether the person complaining knows what he is talking about.

And this brings me to Mr Edward Yau, the Secretary for Commerce and Industry, whose attack on RTHK last Thursday had the sort of factual basis and rationality that I associate with anonymous complaints written in ALL CAPS and purple ink.

The piece of reporting at issue was an interview conducted by RTHK reporter Yvonne Tong over a video link to Dr Bruce Aylward, a World Health Organisation bigwig.

This all went swimmingly until Ms Tong asked if, in the light of Taiwan’s success in combating Wuflu, the WHO might reconsider Taiwan’s membership. Taiwan is at the moment not a member.

This question admitted a number of possibilities. Dr Aylward clearly did not wish to discuss the matter and he could have said so. He could have come up with an emollient space consumer like “I am sure we will be looking back at many aspects of the pandemic once it is over but it is much too early to say what the outcome of those deliberations might be.”

He could have tried the more modest “This is a matter for the member states of the WHO, of whom I am a mere servant.” This might be considered the correct answer, because it is effectively what the WHO eventually came up with.

Instead, Dr Aylward managed to cause a global sensation by sitting in silence for ten seconds, claiming that he could not hear the question, and then cutting the connection. Clip here. The connection reestablished, the best he could come up with was “well we have already talked about China.”

This has since been lavishly and widely reported. Google “Aylward dodges question” for a global collection.

Do we see anything in Ms Tong’s performance to complain about? It is a characteristic of good reporters that having asked a simple question they do not take kindly to flagrant evasion of it. A reporter who does not instinctively push an evasive interviewee for an answer is not a good reporter.

Was the original question (Will the WHO reconsider Taiwan’s membership?) a problem? It may be what bothered Mr Yau, to whose views on the matter we now turn.

Mr Yau’s views are contained in a press release which is ostensibly a “response to media inquiries”. They start with a canter through RTHK’s charter, which includes “engendering a sense of citizenship and national identity through programmes that contribute to the understanding of our community and nation; and promoting understanding of the concept of “One Country, Two Systems”.

Then we get this: “The Secretary holds the view that the presentation in that episode of the aforesaid programme has breached the One-China Principle and the purposes and mission of RTHK as a public service broadcaster as specified in the Charter. It is common knowledge that the WHO membership is based on sovereign states. RTHK, as a government department and a public service broadcaster, should have proper understanding of the above without any deviation. As the Editor-in-chief of RTHK, the Director of Broadcasting should be responsible for this.”

What on earth is going on here, apart from a small tsunami of pompous constitutional bilge? Ms Tong’s error, it seems, was to mention Taiwan. There was nothing in the programme about “one country two systems”. Does Mr Yau, one wonders, expect RTHK broadcasters routinely to refer to Taiwan as “the rebel province”?

We have I hope not yet reached the stage where news media are damned for lack of patriotism not if they praise Taiwan, but even if they merely mention that it exists. Ms Tong’s question should perhaps have started “If there were an imaginary island in the South China Sea…”

And where did Mr Yau get the idea that “a proper understanding” of the fact that the WHO is based on sovereign states should come into this. Actually the WHO has no difficulty, when it wishes, in working with entities which are not sovereign states, like Hong Kong (missed that did you?), Macau and the Palestinian authority.

Indeed Taiwan was allowed a sort of membership for some years back in the days when Beijing’s approach to cross-strait relations was based on seduction rather than rape.

In short Mr Yau’s observations have no basis in fact or logic and are unworthy of a senior official. President Trump’s tweets make more sense. How could he come up with something so stupid? Is this a symptom of the changing of the guard in the Central Government’s Liaison Office?

Any doubts about the justice of this complaint about RTHK were soon dispelled when Junius Ho took it up. Clearly rubbish then. Nothing to see here.

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