tim's experiment

Something strange happened the other week. Our government, which has spent the last couple of years telling us what to think about life, love, the nation, the president, the rule of law and above all national security, has noticed that the public, also, has opinions.

You are invited to participate in the “public consultation on regulation of crowdfunding activities”. Lengthy document from the Financial Services and Treasury Bureau here.

This procedure was a habit of the old colonial government, and indeed of its post-colonial successors. What usually happened was that the government perpetrated a “consultation paper” on which people were invited to comment. Once the ensuing cacophony of conflicting voices had subsided the government would announce that public opinion was “divided” and go ahead with whatever it originally intended.

This was not by any means an ideal arrangement, but it gave people an opportunity to make their voices heard, even if they suspected that the eventual decision was not much affected by anything they might have said.

It provided also a sort of consent, in the sense that participating in the process implied willingness to accept the outcome, even if it was not the outcome you hoped for. No doubt some mechanism of this nature explains the government’s sudden curiosity about the public’s opinions. The fact of public consultation will imply the fantasy of public consent.

I am not sure that this trick still works. The proposals for regulation are certainly controversial, but it takes many sides to make a rousing debate. After the tremendous efforts expended in the last two years on stifling political pluralism I fear we shall see a demonstration of the soothing effect of jailing the opposition and promoting the people’s poodles.

There will be a resounding chorus of “amen to that” and “you can say that again” with occasional expressions of dissatisfaction from our more lurid Legco members that the proposed new offences are not punishable by hanging.

One or two lawyers who have not yet trimmed their sails to the winds of the times may point out that – even in the view of the writers of the consultation document – most of the possible problems arising from crowdfunding are covered by existing laws. And the document really has very little to say about the most obvious one: some variation on collecting for widows and orphans before blowing the proceeds on fast women and slow horses.

One or two commentators in safe havens overseas will complain that this is another step in the government’s effort to silence dissenting voices, and the proposed regime will just be used to continue “lawfare” against anyone who is not joining the Party party.

They will unkindly point to the absence of any requirement for the proposed Crowdfunding Affairs Office to keep in mind the need to combine the preservation of the public interest with the preservation of the rights to organise, to express opinions, and to solicit support for non-commercial activities.

They will also note that the CAO’s permission will, according to the proposals, provide no protection for people who have it, if “the CAO and relevant law enforcement agencies have reasons to believe that the continued conduct of the activity will jeopardise public interests, public safety or national security, regardless of whether a consent notice has been issued by the CAO, or whether an application to the CAO has been made.”

More sympathetic observers of the scene may see here a government haunted by the fear that someone, somewhere, doesn’t like it and will attract support and cash for saying so.

There is the imaginative bit near the beginning: “some individuals had in the past raised funds from their affiliated groups through the above means, claiming that they would use the funds raised to help people in need, but they turned out to be using the funds for purposes which were unlawful and jeopardised public interests, public safety, as well as national security.” This is the official view of recent history although nobody who has actually been convicted so far appeared to be deploying large sums of money from any source, crowdfunding or otherwise.

Further down we get: “In the absence of regulation, crowdfunding may be used as a means to raise funds or launder money for various types of illegal activities, including those unlawful acts endangering national security or supporting terrorist activities.”

The CAO will consider “whether the nature of the activity and the use of funds would jeopardise public interests and public safety as well as be contrary to the interests of national security.”

And in due course: “The major factors to be considered when giving approval include whether the crowdfunding activity is conducted according to appropriate and sound procedures, whether the individuals involved are reliable, and the risks of the activity giving rise to illegal conducts or endangering public interests, public safety and national security, etc.”

Variations on public interest, public safety and national security are a recurring theme. The whole plan looks suspiciously like an attempt to shut the stable door on a horse which bolted in 2019.

The relevant Secretary, Christopher Hui, did not dispel this impression when launching the new scheme. The only example of problematic crowfunding he could come up with was the 612 Humanitarian Relief Fund, which helped with the legal expenses of defendants and the welfare of convicted prisoners. Mr Hui skated effortlessly past the fact that there has not been the slightest suggestion that any of the money raised for this purpose was mis-spent. The only offence of which the people running the fund have been convicted is failing to register as a society

The point which made the fund a target, most spectators believe, is the fact that those defendants it aided and the prisoners succoured were among the protesters against the Extradition Bill and subsequent gassings and pepperings.

Personally I am distressed by the evident confusion in the whole presentation between what is unlawful and what is merely in some people’s view undesirable. Clearly fund-raising to support illegal activities is itself already illegal. Persons accused of such a crime will face a court.

National security is a legal concept, albeit a troublingly vague one. Whether an activity will endanger public interest or public safety, on the other hand, is problematic. These are not legal concepts and people’s ideas on the matter are likely to vary.

After struggling through the consultation document we may also notice that there is no mention of a right to appeal a CAO decision.

An interesting inclusion, on the other hand, is the suggestion that the new law will apply to the entire world. Anyone who accepts crowdfunding money from Hong Kong will be covered.

They will be required to submit a “description of the crowdfunding purpose, and fill in a statement indicating that the crowdfunding activities will not involve any (wait for it) activities that would jeopardise national security…” Somehow I can’t see this happening.

Anyway the proposal is interesting, but looks to me too much like a sledgehammer designed and intended to crack a nut which has already been flattened. This sort of thing used to be upsetting. Now I’m numb.