tim's experiment

Mr Jimmy Lai seems to have suddenly become a major focus for the law and order industry. Far be it from me to offer any opinion on the merits of any or all of the charges he faces, but there do seem to be a surprising number of them for someone who has reached the age of 70 without clocking any previous convictions.

For starters there is a case of intimidating a reporter three years ago. I am sure all journalists will be delighted by the discovery that this is an offence and that the Department of Justice is taking it with becoming seriousness. Those of my colleagues who do street reporting will look forward to similar efforts in defence of journalists who have been obstructed, abused, pepper-sprayed, shot, gassed or beaten up in the last year or so.  

Then there are three variations on unlawful assembly, with another one to follow when the cops have finished the paperwork. There was also a story last week about some legal problem involving a factory being used as an office.

I live in Fotan, where there are many factory buildings. As there is very little demand for factories these days many of the units in them are used for other purposes: shops, restaurants, art studios, and even, surreptitiously, residences.

It appears that Mr Lai, who by sheer coincidence owns a newspaper which is often critical of the government, may be outstandingly unlucky.

His run of bad luck continued last week in the High Court, where Mr Lai applied unsuccessfully for the lifting of a condition of his bail, that he not leave Hong Kong, so that he could visit his daughter and do some business in the US.

In the saddle on this occasion was Mr Justice Alex Lee. You might have supposed that the learned judge would have been particularly careful, in view of the legal avalanche dropping on Mr Lai’s head, to avoid any appearance that some sort of campaign was in progress. Alas, not careful enough.

Lee J correctly stated the applicable principle, which is that the defendant has a right to bail pending trial, so it is not up to the defendant to prove that his trip, if as in this case he asks for permission to make a specific trip rather than a general freedom from restrictions, is necessary.

Two paragraphs later Lee J gets down to his reasons for refusing the application and kicks off with “I am unable to be satisfied that the applicant’s proposed trip to US is really necessary.” This point is expatiated on at some length.

It appears that the judge has managed to forget his own advice. It is not for a defendant to prove that the exercise of his freedom is necessary; it is up to the prosecution to prove that a restriction is necessary. We are all innocent until proven guilty. Mr Lai is entitled to leave Hong Kong if he wishes to, whether his purposes impress a judge or not, unless the prosecution can demonstrate a serious risk that he will not return to face trial.

The judgement goes on to some rather inconclusive muttering about the temptations for defendants outside the jurisdiction of the court to refrain from returning, and then comes catastrophe.

I quote the offending passage in full: “I agree with Mr Bruce’s submission that account should also be taken of the attendant risks of the applicant contracting CONVID-19 while he was travelling.  The United States is now the country with the highest number of confirmed cases of the pandemic and that the applicant’s proposed itinerary would require him to travel extensively in those parts of that country which are worst hit by it.  There is yet to be any vaccine available for the disease and the remedies for which are still being tested. For all we know, the virus is highly infectious.  Thus, the risk of inflection whilst in the United States or on plane journey cannot be ignored.  This is especially so when the applicant happens to fall within the age group of people who are most vulnerable.  Moreover, if and when the applicant returns as proposed, he will be subject to a 14-day quarantine, the end of which is just about two weeks before the trial.  In the unfortunate event that the applicant is confirmed to have caught the disease whilst he is still in the United States, then the likelihood is that he would ‘fail to surrender to custody as the court may appoint’, albeit unintentionally.  Furthermore, should he be confirmed to have the virus after return, the trial would almost definitely have to be derailed. The said attendant risks, which in my assessment is real rather than fanciful, would have an adverse effect on the due administration of justice.”

Mr Bruce was the brief for the Department of Justice and he is, of course, entitled to advance whatever arguments he think will help his case. On the other hand the finer points of epidemic statistics are not a matter on which three expensive lawyers deploying the knowledge they have gleaned from the newspapers are likely to come to a very satisfactory conclusion.

Alternatively they may come up with a load of garbage. Lee J would have done a service to the cause of justice and his own reputation if he had told Mr Bruce that if counsel wished the court to consider the chances of Mr Lai catching an infectious disease he should call an expert witness on the subject.

Let us look at Mr Lai’s chances of catching COVID-19 if he had been allowed to travel to the US for two weeks. For the sake of simplicity let us assume that he will spend the whole time in New York State, though actually the second week was to be in Virginia, which is less dangerous.

The latest figures for the incidence of COVID-19 in New York State give us just under 2,000 cases per 100,000 people in the population. This means that if you had been in New York since January your chances of catching the virus would be two per cent. Of course if you are only staying two weeks it drops considerably lower, to something like 0.2 per cent.

But even this is unfair to New York State, which has made considerable progress since the days when it was “the part of the country worst hit” by the virus. Currently, according to CNN Health, New York State is discovering just over 600 cases every two weeks.

The population of New York State is in round numbers 20 million. This allows us to say with some confidence that the chances of Mr Lai catching the virus in two weeks are 0.003 per cent, or three for, 100,000 against. This is probably an over-estimate because the virus disproportionately affects the poor and non-Caucasian, who generally live in parts of the state which are unlikely to feature on the itinerary of visiting millionaires.

Lee J also perpetrates an elementary layman’s error by adopting the idea that “the applicant happens to fall within the age group of people who are most vulnerable.” The official position according to the WHO is that: “People of all ages can be infected by the new coronavirus. Older people, and people with pre-existing medical conditions (such as asthma, diabetes, heart disease) appear to be more vulnerable to becoming severely ill with the virus.”

In other words your age has nothing to do with your chances of catching the virus. We older folk are more likely, if we catch it, to get very ill, though whether that is due to age or because we are more likely to have asthma etc. remains to be seen.

So “The said attendant risks, which in my assessment is real rather than fanciful” is wrong on two counts. It is unjustified, because the risks are in fact fanciful. And it is ungrammatical, because the risks are plural so ‘is’ is an error.

Do I need to remind Your Lordships generally that people are watching? Or, in what is perhaps the preferred legal terminology, people is watching.