tim's experiment

We are often told that national security judges are just like the other judges – same oath, same impartiality and all that. In the light of recent performances we must fervently hope that this is not the case.

Consider, for example, the latest outing by Judge Kwok Wai-kin. Judge Kwok is a generous source of material for writers of observations on the local legal scene, for which we are duly grateful.

His latest spot in the limelight involved four kids charged with conspiracy to commit subversion, an offence under the national security law. Their real offence seems to have been to be office-bearers or spokespeople for Student Politicism, a dissident group.

The prosecution complained of street booths in favour of causes like supporting the 12-man speedboat crew who were caught fleeing to Taiwan, and “resisting anti-COVID measures”, but we shall not explore this part of the case further because the four pleaded guilty, as one does these days if one wants to be tried before 2024.

Pleading guilty did not produce a great acceleration in this case, however. They pleaded guilty in July, sentencing in October. So it goes.

Judge Kwok’s first task was to classify the offence. National Security offences come in three sizes, like MacDonalds fried potato portions: small, medium and large, with prescribed sentence ranges accordingly. This case was, the learned judge decided, in the minor category.

So far so good. He then went on to explain why, as seems to be the norm in Nat Sec cases, he was declining to be influenced by the points made in mitigation by the defendants’ lawyers. At this point the case involved “very serious crimes”.

And this, it seems to me, leaves Judge Kwok with a problem. Having used “very serious crimes”, for a minor offence what is he going to use for a major one? This is a mere linguistic difficulty which I shall leave with him but it could be very confusing for defendants. What bothers me is what came next. The defendants, Judge Kwok complained, had been promoting the concept of a “Hong Kong nation”.

“Since ancient times, Hong Kong has been a part of China, and Hongkongers belong to the Chinese nationality. ‘Hong Kong nation’ is only a concept constructed by those promoting Hong Kong independence, it has no historical or legal basis,” Kwok said.

This is a dip into a tricky area which judges do not need to enter and would be well advised to avoid. To start with it is manifest nonsense to say that Hong Kong has been part of China since ancient times, if only because for parts of that long historical period there was no China to be part of. Either there were multiple Chinas in what we now consider China or China itself was part of someone else’s empire, as it was between 1644 and 1911.

There is also more sophistication in the idea of a “Hong Kong nation” than your average judge may be well up with. “Nation” in modern parlance may mean “nation state”, a political entity with a flag, anthem, government, army, UN seat, World Cup team and so on. Without the “state” bit it is commonly used for groups which cherish a distinctive history, language, culture and perhaps religion, but have not acquired the political structure, or in some cases sought it.

Some “nations” have never translated themselves into states, like the Kurds. Some have had a patchy history, like the Armenians, currently a small state. Some are more or less happy parts of a bigger state but still regard themselves as nations, like the Scots.

The idea that a state should also contain a nation, rather than being the personal property of a hereditary monarch, really dates as an idea only to the 18^th century, as a popular aspiration to the 19^th and as a widespread arrangement only to the 20^th.

It is hopelessly anachronistic to transfer the idea of the nation state, or citizens’ nationality, back to ancient times. Judges should beware of sounding like Vladimir Putin’s line on Ukraine.

This brings us to Mr Peter Law, Principal Magistrate, National Security choice, and presiding genius in the trial of members of the organisation which used to run the Tiananmen Massacre commemoration in Victoria Park.

Mr Law had to adjudicate on a little procedural hiccup. Defendant Chow Hang-tung, who is defending herself but is a barrister so that’s OK, was cross-examining a witness from the Nat Sec Police when she used the phrase “Tiananmen Massacre”. Prosecuting counsel objected to the wording and suggested “June 4^th Incident” instead. Mr Law decided that “massacre” was too political for use in court and forbad its use.

He proceeded later to proscribe the use of “killings” as well.

This will be good news for some people. Fans of Herod the Great can rehabilitate the old tyrant as he only perpetrated the “Incident of the Innocents”. Members of the Clan MacDonald need no longer resent or avenge the “Glencoe Incident”. There may even be some hope for Adolf Hitler; shall we say 6 million involuntary suicides?

Observers who suspect that Mr Law’s procedural puritanism has its own political patina will wonder if he would also have objected to “Nanjing Massacre”.

Judges who have succeeded in not sounding like Mr Putin also need to avoid the example of the president of Turkey, Mr Recep (Armenian genocide? Never happened!) Erdogan. Stick to the law and do not dabble in history.

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Well, President Xi Jinping’s report to the National People’s Congress clearly ticks one important box: it has given pleasure to a lot of people.

Some of the responses in Hong Kong bordered on ecstatic: Secretary for Culture, Sports and Tourism Kevin Yeung was “thrilled” that the speech had pointed out the need for the country to “adhere to the development path of socialist culture with Chinese characteristics.” DAB chair Starry Lee saw the Congress as a “historic milestone”. Chief Executive John Lee thought “We should learn from the spirit of the 20th National Congress. We should unite in our fights and struggles to better integrate into the country’s development and contribute to the great rejuvenation of the Chinese nation!”

Reports of the actual speech suggest that there was nothing new. Xi’s reference to Hong Kong was in Partyspeak, a language which wraps reality in illusion: “In the face of turbulent developments in Hong Kong, the central government exercised overall jurisdiction over the special administrative region as prescribed by China’s constitution and the Basic Law of the Hong Kong Special Administrative Region, and ensured Hong Kong is administered by patriots,” he said, adding that Hong Kong had gone from “chaos to governance.”

We know what the “turbulent developments” were. The next bit is a long-winded but polite way of saying “you thought you were getting a high degree of autonomy? Welcome to reality, suckers.” Ensuring Hong Kong is administered by patriots means replacing more or less genuine elections with more or less fixed ones.

The official narrative, which Mr Lee also trotted out, is that Hong Kong was rescued from perdition by the benevolent intervention of Mother, and the imposition of the National Security Law took us from, as Mr Xi put it, “chaos to governance”.

This is an abuse of history. “Chaos” was ended partly by frustration and exhaustion, but mainly by the arrival of the COVID virus, which enabled the government to ban, on public health grounds, any public gathering of more than four people.

The vast majority of those arrested during the “chaos” were charged under existing laws with existing offences and dealt with in the regular courts. The contribution of the National Security Law to the proceedings was to destroy Hong Kong’s flourishing civil society, before the ensuing changes to the election system destroyed its political life.

Mother’s contribution to “governance” was to put Hong Kong affairs into the hands of two seasoned apparatchiks who were experienced and comfortable with the idea of suppressing inconvenient opinions by imprisoning anyone expressing them, preferably without the prior formality of a trial.

Mr Xi hailed the “strong vitality” of the One Country Two Systems concept – “a great innovation of socialism with Chinese characteristics”. But it is still not entirely clear whether this great innovation means anything more than Deng Xiaoping’s reassuring observation that we could “still have dancing and horseracing.”

It is difficult to reconcile with the way the Hong Kong government is behaving, which seems to involve reducing any differences between the SAR and the mainland as quickly as possible. If that is what they want it seems to be working, in a way. International comparisons of human rights and press freedom have Hong Kong converging rapidly with China, down at the bottom of the table with paradises like Belarus and Cuba.

Consider, for example, recent changes to the junior secondary school curriculum. Out go such trivia as “the values and attitudes that underpin the local society, including rights and responsibilities, freedom, rule of law, social justice, democracy.” In comes “China’s constitution, the meaning of national security and the importance of the national security law, as well as developing a sense of national identity.”

What is going on here? The highest objective of education used to be to help students to identify and pursue goodness, truth and beauty. This is replaced by the objective of spreading lies about an ugly and brutal system. Many local teachers have already had second thoughts about their career choices. They will not be the last.

If political integration is a questionable pleasure, what of the economic kind, or, as Mr Lee puts it, better integrating with the country’s development? The potential problem with this is that, as with the new political arrangements, it makes Hong Kong’s future entirely dependent on decisions made in Beijing.

And the decision made in Beijing these days seems to be that the Party knows best about everything and will accordingly run the economy by issuing instructions on whatever takes its fancy. But we have seen this movie before.

If the history of the 20^th century teaches us anything it is that unbridled capitalism produces great wealth and great inequality, and unbridled economic dictatorship by party or person produces great equality … and poverty, usually with a side dish of stagnation and corruption.

There is a danger that we shall be dragged into a doomed replication of an experiment which has already been tried elsewhere with catastrophic results. The message of the 20^th congress seems to be that “we have done wealth; now we can do socialism.” That is not, I fear, the way these things work.

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Some time ago a Hong Kong judge threatened to install closed circuit TV cameras in his courtroom, so that he could keep an eye on what happened in his absence.

At the time I wrote that this was an unnecessary and legally unjustified proposition, and had the reprehensible feature that it might discourage members of the public from attending court cases, which they are perfectly entitled to do.

However it seems that this judge’s remark was merely the tip of an iceberg of judicial paranoia, which has now blossomed (if an iceberg can blossom) in plans for whole court buildings to be subject to electronic surveillance, a pre-trial recording warning court-goers of the powers which judges can wield over them, and screening for court visitors.

This is all rather implausibly justified as necessary for “security”, although there has been no sign that security as such might be a problem.

Judges are strange creatures. Some of them are sweet and nice people. But the job can go to their heads. Judges bullying the inhabitants of their courtrooms have now become such a problem in England and Wales that a hotline has been set up on which people can report abuse anonymously.

Some of our new measures will no doubt be justified on the basis of experience elsewhere. I understand that people arriving at UK courts these days are routinely asked to open their bags. This did not happen when I was a reporter and it did not happen in colonial Hong Kong either. Times have, no doubt, changed.

It is reported, on the other hand, that people will no longer be allowed to carry water. Why on earth not? The Wanchai District Court is not an aeroplane which can be destroyed by a cunning mixture of liquids detonated in a toilet. Water is harmless.

There appears to be a general failure to appreciate the danger of appearing like one of those paranoid despotic regimes which sees a subversive behind every bush. Every citizen is a suspect and every bag a potential bomb.

Video cameras in courtrooms bring other perils. To start with there is the danger that judges will inflate their powers to an unjustified and indeed unlawful degree. The powers they exercise over events in their own courtrooms extend as far as is necessary to permit the orderly conduct of court proceedings. And no further.

If the judge is not in the room then no proceedings are in progress and the judge has no more powers over the waiting audience than any other citizen. Similarly once the case is over the law reverts to its everyday form, as a judge in Liverpool discovered when, after discharging a prisoner who had been acquitted, he told the miscreant he had been lucky in his jury. This was not part of the proceedings, the defendant threatened to sue, and the judge was constrained to make a grovelling apology in open court.

The purpose of the cameras is apparently to curb disorderly behaviour in the public gallery. This is an extremely expensive solution to a minor problem. Most cases attract no public interest at all. During the three years when I was a regular court reporter I do not remember the number of people in the gallery ever exceeding five. Usually there was nobody.

A tiny number of recent cases in Hong Kong have attracted much larger numbers. People whose friends are enduring long periods of imprisonment without trial for nakedly political offences do tend to turn up and offer moral support.

Occasionally this take the form of waving, or even talking, during pauses in the progress of the legal juggernaut. On other occasions speeches of explanation or mitigation have been greeted with applause, which is improper but hardly a major disruption of the proceedings.

Most of the interaction between public and prisoner takes place during the interval – commonly quite long – between the time when everyone is ready for the kick-off and the time when the judge arrives and takes the field. There is another obvious opportunity at the end when his or her lordship disappears and there is a pause while the correctional van is lined up.

So when Big Brother is watching he is, I fear, going to see a lot of conduct of which he disapproves but to which there is strictly speaking no legal objection. Why then, are we pursuing a “deterrent effect”? Well of course it depends what you wish to deter.

It is painfully offensive to some people in the national security industry that people charged with national security offences do, during their long periods of imprisonment without trial, receive the moral support of their friends and sympathisers. One of the ways in which this support is provided is by turning up for court appearances.

We cannot ban this, alas. Court hearings are supposed to be public. We can however discourage it by assuring said supporters that their attendance and activity are being recorded and the resulting evidence may be used against them in another court later.

An interesting legal milestone was passed recently when two people were charged with “sedition” on the basis of their behaviour in a courtroom public gallery. Be careful what you clap for.

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We do not enjoy the rule of law; we enjoy the rule of selected laws. Consider the District Councils Ordinance. This is an admirably clear effort. The relevant parts go like this:

If a vacancy arises in the office of an elected member, the Designated Officer must, by notice published in the Gazette, declare the existence of the vacancy within 21 days after becoming aware of the vacancy. S32 (1)

District Councils Ordinance S32 (1)

Following this:

The Electoral Affairs Commission must, in accordance with regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541), arrange for a by-election to be held in the following circumstances… (a) on the making of a declaration as to the existence of a vacancy in the membership of a District Council under section 32.

Same Ordinance S33 (2)

Notice that, unlike regular District Council elections, there is no role for the Chief Executive in the timing of this process, which is entirely automatic. However since July 2021 there have been some 200 vacancies on District Councils, none of which have been filled.

The government, dissatisfied with the results of the elections the previous year, persuaded most of the winners to resign by circulating baseless threats that anyone who was disqualified for a dearth of patriotic enthusiasm would be presented with a bill for $1million.

At that time we were provided with an entirely unsatisfactory and unlawful explanation for the absence of by-elections by the then Chief Executive, Carrie Lam: the government was too busy. She cited the then upcoming elections to the election committee, the Legislative Council and for her replacement.

These turned out to be less strenuous than expected. Most of the electorate did not bother with the Legco election and there was only one candidate for Chief Executive. This did not, however, produce a return to the paths of by-election righteousness. We were left only with Ms Lam’s last word on the subject, which was that “We do not feel there is sufficient room and time for another set of by-elections, especially of this magnitude, because of the number of seats involved. So I could say that it will be almost impossible for us to mount a by-election of any district council vacancies between now and the end of this term – that is the Government’s term between now and June.”

That was, of course, the following June, which was June 2022. Which was three months ago. The new regime has not had to run any election of any kind. Yet still, no sign of by-elections.

What has the Electoral Affairs Commission to say about all this? Nothing. It is apparently happy to follow orders. It is frustrating to find an organisation headed by a retired judge which is happy to ignore the laws which are supposed to govern its activities, which ironically include:

The Commission shall not be regarded as a servant or agent of the Government.

Electoral Affairs Ordinance S 15

All this is not just a matter of legal pedantry, although it must surely take a certain gall for a government to preach about the rule of law while ignoring its own constitution. District Councils have functions and those functions are not being performed. They used to advise District administrators and government departments about what people wanted and did not want.

Government departments are now free to improvise and I do not doubt that in many places they are doing this is ways which do not go down well with the people they are supposed to serve.

We have a very fine example just down the road from my home.

A bit of background: Sui Wo Road is a long snake-like affair which climbs up the hills north of Shatin in a series of long bends. The Home Ownership estate of the same name is near the bottom and has a bus station. The rest of us – six housing estates, two schools (Caritas for special needs, ESF for prosperous parents) a few very expensive solo houses and the HKBU staff quarters – depend on green minibuses.

It is a curious feature of the arrangements for bus stops that as you get towards the top of the road there are no bus shelters for people queueing to go down, but shelters are provided for people waiting to go up, of whom there will in the normal way of things be very few.

This tide in the affairs of bus stops recently arrived at Greenwood Terrace, the last of the large estates and very near the end of the road. There is one more estate, the very small one (40 odd terraced houses) where I live. We have neither a bus stop nor a shelter but the minibuses stop outside the gate anyway.

Arrangements at Greenwood Terrace have been roughly the same for 30 years. The minibuses going up stop across the road from the entrance to the estate. Those going down stop at the entrance, or just before it so as not to obstruct the drive.

However there is no end to traffic titivation in Sui Wo Road. A few weeks ago work finished on a bus shelter opposite the drive entrance. This is the stop for minibuses going up and it is safe to say that nobody will ever wait for a minibus there, because it is only about 200 metres from the end of the road, and there is nowhere to go except chez moi.

After some cogitation a popular theory is that this shelter is provided for Greenwood residents who find it raining unexpectedly. They can shelter from the rain while they summon a servant with an umbrella to take them home.

The opposite side of the road has an informal rain shelter provided not by the government but by the estate management, which a few years ago hit on the idea of planting one of those big garden umbrellas just inside the entrance to the estate, so that it shelters the bus stop queue.

This arrangement has now been sabotaged by the people who decide where bus stops should be put. They have moved the Greenwood Terrace downhill stop 30 yards up the road so there is no longer any shelter next to it.

This is very inconvenient. Regular users are up in arms. A petition has been raised. Protests will be voiced. This is the sort of thing which was avoided when we had functional district councils. People were asked if they wanted something and if you said “no” loud enough you didn’t get it.

The District Councils now have no role in the election of the Chief Executive or anyone else. But that was not their main purpose anyway. They were there to give people a voice in the local matters which affected them. We are now back to the old colonial system as practised in 1980. You get what you are given.

Do not expect gratitude.

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