tim's experiment

Tanya Chan, former legislator and former barrister, has been censured by the disciplinary committee of the Bar Association for “bringing the profession into disrepute” in two speeches made in 2014 to Umbrella protesters. That is a long time ago. Over the proceedings hangs a familiar smell.

Many will find it surprising that the Bar Association seems to have overlooked a worrying possibility: that any harm to the profession’s repute accruing from Ms Chan’s oratorical indiscretions will be outweighed by the harm caused by the appearance that this is a voluntary contribution to the government’s efforts to throw any legal brick it can get its hands on at anyone who – in the dim and distant days when Hongkongers thought they could say what they liked – called for more democracy.

We all understand that legal proceedings — especially those involving any kind of prosecution – move very slowly. Consequently it may well be that lawyers have a different sense of time from the rest of us. Even so the anonymous complainant in this case seems to have been extremely dilatory.

The speeches complained of were made in 2014. No prosecution ensued until 2017. In the meantime a complaint could have been made, and was not. Ms Chan and others were then charged with variations on incitement to commit a public nuisance. The matter thus became sub judice so a complaint would no doubt have been postponed anyway. In 2019 however verdicts were returned and the matter became discussable again, although Ms Chan was not sentenced until the following year for medical reasons.

There ensued another three years in which the complainant could have come to the rescue of the profession’s reputation. In 2021 Ms Chan emigrated to Taiwan, which you might think would render the proceedings pointless.

On the other hand in January 2022 a new regime took over at the Bar Association after bitter complaints from government supporters about its predecessors. The new regime promised “no politics”, which usually means politics of a different kind. The complaint was filed the following August.

In short the complainant, we are asked to believe, waited eight years, in six of which a complaint could have been dealt with promptly, before the urge to protect the profession’s reputation became overwhelming.

We are not told who the complainant was; the prosecution was on behalf of the Bar Council. At best, it appears that the complainant waited until he or she thought the political winds had changed and a complaint might be more warmly received. At worst this looks like a deliberate bid to test whether the new leadership of the Bar has got the drift of the times.

I note with amazement that one of the counts against Ms Chan was that she “did nothing to warn the audience of their potential legal liabilities”, which must surely be the first time a lawyer has been punished by her colleagues for not giving legal advice for which she had not been paid. As it happens none of the audience was prosecuted so the potential legal liabilities remain – well, potential.

Also on the financial front, Ms Chan will not be much inconvenienced by a formal censure, since she is neither practising nor living in Hong Kong. However connoisseurs of legal costs will cherish a fine specimen of comprehensive billing: Ms Chan was ordered to pay $140,000 costs of the action to the Bar Council.

This seems rather a lot for a case in which the defendant effectively pleaded guilty and the facts could be lifted from the previous court case over the same matter. This is after all not a major complaint: there is no aggrieved client, no denunciation of incompetence from a disgusted judge, no missing money. I would not personally blame Ms Chan if from the safety of Taiwan she told the Bar Council their cheque was in the post and was likely to remain there for a long time.

Anyway, there we are. The question which then arises is how long and how far the effort by the government and its fans to dig up legal brickbats they can throw at retired democratic politicians will go.

Are we going to follow in the footsteps of Pope Stephen VI, who in 897 had the body of his deceased predecessor dug up and put on trial, with a hapless Deacon conscripted to the role of defence counsel to a silent and presumably rather smelly client?

Will there be international snatch squads, like those who roamed Europe on behalf of Charles II, hunting for the people who had signed his father’s death warrant?

The rule of law is not just a matter of whether you have the people and machinery. It is also a matter of the uses to which they are put. Contemplating the rise of the dictators in Europe in the 30s, the American judge Richard Posner noted the “extraordinary plasticity of legal rhetoric, which enables a clever judge to find a plausible form of words to clothe virtually any decision, however barbarous.”

Of course that is not the kind of thing that could happen here. Is it?

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The doings of our new legislature continue to provoke riveting – well at least copious – coverage in the sycophant press. Generally this is not very interesting reading, but for those who are prepared to dig through the chaff, wheat occasionally emerges.

The Legislative Council’s latest masterpiece was a four-day tour of near-by cities. No less than 83 councillors made the trip. No doubt the remaining seven who declined the honour will be appropriately chastised in private. Also on the bus were five government officials and Chief Executive John Lee.

Mr Lee was reported as saying that the trip had achieved “three results and three understandings”. Diligently scanning the report I was unable to locate the “three understandings”, but the “results” were “legislators and officials achieving unity, showed Hong Kong’s attitude to integrating into the Greater Bay Area, and reaching consensus with GBA cities to develop unity”.

No doubt this sounded better in Chinese.

“Hong Kong and the GBA cities,” he said, “also established a consensus to work jointly to promote the development of the GBA to a higher level, to achieve twice the result with half the effort.” One does not wish to discourage worthy ambitions, but this is not the way the mathematical relationship between effort and result usually works.

Mr Lee also promised to take “patriots administering Hong Kong to a new level”. Quite what that might involve is a puzzle. Has the purge of non-patriots not been comprehensive enough? Perhaps this is just a euphemism for the up-coming unveiling of election-free district councils.

Anyway this is all quite routine stuff. Large group of people get four days of VIP treatment in return for spending a great deal of time sitting in traditional Chinese furniture drinking tea and listening to speeches in PTH. Mr Lee seems increasingly fluent in mainland officialspeak, which is no doubt a necessity in his job.

There was, though, a surprise. Mr Lee said that the delegation had “pleasant communication with each other” and the trip was “full of laughter”, something which (in the Standard’s summary) was missing before the electoral system was reformed. No wonder they had to change it.

This is nice for defenders of our new reformed electoral system. It may not be as democratic or as exciting as the old one, but look on the bright side: for the new legislators it is a laugh a minute. Actually this is a risky look on the mainland. Officials there tend to take themselves very seriously. Giggle at your peril.

On the other hand it would be perfectly safe and satisfactory it this talent for entertainment were to be displayed in local Legislative Council meetings, where funny moments have generally been rather thin on the ground.

Mr Lee did not, alas, provide any specimens of the jests which had our representatives rolling on the floor laughing, but aspiring stand-up comics in the territory may be able to make something of the last stop on the trip, which was in Guangzhou.

Here they were treated to a visit to a subterranean treat called the Lijiao Wastewater Treatment Plant, which is sited 17 metres underground. This is what we used to call a Sewage Farm, where excrement is magically separated into drinkable water and sludgy fertiliser.

Elizabeth Quat Ph D (Phoney Degree) thought this was something Hong Kong could learn from.

Insert your own joke here. All my ideas are too seditious to print.

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During what I now think of as a fallow period between university and journalism I lived in Lancaster, and several of my fellow drop-outs worked at the docks in the nearby town of Heysham

The port at Heysham is very small, and in those days still worked on a recruitment system which the big docks had recently abandoned. Every morning would-be workers would gather at the gate, and at 9.00 the boss would emerge and choose his team for the day. This was known technically as the “casual” system.

Effectively you were hired – or not as the case may be – on a daily basis. This system had been defended for years as necessary because of the wild fluctuations in the amount of work to be done on any one day, depending on the number of ships, types of cargo, state of tides and so on.

Even its defenders conceded that the arrangement had many disadvantages for both sides. For the workers it meant a permanent state of insecurity; those who were not favoured by the selector unless he was desperate might struggle to assemble a wage they could live on.

From the employers’ point of view the workers could not be expected to display any enthusiasm or commitment to the work. They had an incentive to make it last as long as possible and could not be prevented from pilfering vigorously from the cargoes in their care.

Large docks were neither efficient nor clear of corruption. When my father collected a consignment from the docks in London he used to take with him a bag of half crowns (the most valuable coin then available, worth maybe HK$20 in modern money) to grease the various palms which would be held out on the way to his crate.

So it was a bad system which the employers eventually abandoned, ironically just before the arrival of containerisation made all the traditional docks obsolete, putting both the employers and dockers out of business.

The norm, at least for a while, became less carnivorous. Employment might be ill-paid or unpleasant but it was at least expected to be reasonably secure. Victories of this kind are always temporary. There is a permanent clash of interests between employers, who want to adjust their workforce constantly, and employees, who want job security so that they can plan for the future.

It seems to me that the casual arrangement is now making a come-back, although we don’t call it that. “Zero-hours contracts” mean that workers do not know from day to day whether their services are required. Delivery and taxi apps which pay by the job mean that drivers are effectively unemployed whenever work is scarce.

A similar economy has now been discovered by local universities, which recruit many teachers on a one-term-at-a-time basis. This means the hapless teacher has no idea whether he or she has any long-term prospects, and in the meantime does not get paid at all in non-teaching weeks, of which there are quite a lot.

Attitudes to “down-sizing” – or whichever euphemism for mass sackings you prefer – vary from place to place. In America it is seen as a sign of corporate machismo, commonly saluted by a rise in the relevant share price. In Japan, at the other extreme, it is regarded as shameful and large employers don’t do it at all.

The Covid outbreak presented an interesting dilemma for employers. Did one, at some expense, try to preserve a relationship with the staff you would need when the epidemic subsided? Or did you panic, sack everyone and leave the future to fend for itself?

Reports from the UK and US suggest that most employers panicked, with some notable exceptions. Ryanair is an outstandingly cheap airline famous for its brusque treatment of its passengers, but in the epidemic it stood by its staff, while providing a lot of unpaid leave, and as a result was able to get back up and running while competitors were complaining that they needed months to train new people.

And this brings us to Hong Kong, where those lucky local employers who grind the faces of the poor, water the workers’ beer and employ many of us, are lavishly represented in our new politics-free Legislative Council.

It is a curiosity of local journalism that publications which have stopped court reporting, even of the “trial of the century”, are happy to devote column inches – indeed column feet – to entirely meaningless debates in Legco.

So last week we were treated to a string of complaints about the “labour shortage”. Some speakers were tactless enough to blame this on the “emigration wave”, which I thought we were not supposed to be talking about. Others blamed the aging population, though it is difficult to believe that the population has aged that much in two or three years.

Strictly speaking there can be no such thing as a labour shortage, because the inexorable laws of supply and demand, so beloved of businessmen when they want to be left alone, will solve shortages automatically. The price of items in demand will rise, curbing the demand, until the market “clears”, at least in theory, with a price satisfactory to the surviving buyers and sellers.

At the level of the firm we all understand how this works. If you are having trouble hiring winkle-pickers the only recourse is to offer higher pay. Aging winkle-pickers will postpone their retirement; middle-aged ladies who left their jobs to raise babies will return to the workforce; restless young men will abandon plans to join the French Foreign Legion, and your workforce will expand.

Of course we must not suppose that economic theory is always on the side of higher wages. You may decide that the best course is to mechanise the whole operation and import a winkle-picking machine from Dusseldorf – or the less effective but much cheaper intellectual property violation from nearer to home – which will reduce your labour requirements to a few machine minders.

The general rule, though, is that industries which are short of labour are not paying the market rate. But our business councillors were of one mind: the solution to their problem was for the government to import labour. Adam Smith wrote that “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.” He should perhaps have added that some contrivance to lower wages is also a popular topic.

What nobody in Legco pointed out was that the employers who are now complaining about a shortage of labour had had every opportunity, during the last couple of years, to prepare for life after Covid. Neither the age structure of the population nor the emigration wave are recent developments. Now they are surprised: they walk out of the dockyard gate and there is nobody there. This was entirely predictable. The government is being asked to rescue foolish virgins from the consequences of their folly.

Not to worry. Secretary for Labour and Welfare Chris Sun Yuk-han promised that the government would “allow imported workers to be introduced moderately,” which seems to leave him a lot of room for manoeuvre. This will put the government in the interesting position of importing workers at the same time as it is urging young Hong Kongers to explore the exciting opportunities north of the boundary. Are our opportunities not exciting enough?

A last word from Mr Smith: “Our merchants and masters complain much of the bad effects of high wages in raising the price and lessening the sale of goods. They say nothing concerning the bad effects of high profits. They are silent with regard to the pernicious effects of their own gains. They complain only of those of other people.”

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As we approach Hong Kong’s National Security Education Day it behoves us all to do our bit. So I propose to offer a warning: it is not only ice hockey players who need to be careful when roaming the internet looking for music.

We are all aware, I trust, of the dangers of Googling “Hong Kong National Anthem”. There is a serious possibility that you will arrive not at “the March of the Volunteers” (which is ours because it is China’s, as we are) but at the Ditty which Dare not Speak its Name, at least in the respectful newspapers.

Just so you will know what to avoid here is a particularly shameless version of “Glory to Hong Kong”, performed by an orchestra dressed in what Hong Kong judges now regard as rioter uniforms. The lyrics, in their English version at least, seem to be mainly concerned with freedom, which is more than you can say for the judges.

Another trap for the unwary is “Do you hear the people sing”. This is from a musical tribute to the French Revolution, and the sentiments expressed are very generic:

Do you hear the people sing?
Singing the song of angry men?
It is the music of the people
Who will not be slaves again!
When the beating of your heart
Echoes the beating of the drums
There is a life about to start
When tomorrow comes!

This was a popular number during Hong Kong’s restless period, which is enough to condemn it by association. It is banned in nearby places.

While we are on the French Revolution you should also be wary of “Ca Ira”, a French song of the period here sung by one of my idols, Edith Piaf. The problem with this is its enduring call for “Les aristocrats a la lanterne”, which can be roughly translated as “The aristocrats should be hanged from the lampposts”. This could be classified as terrorism.

Dangers lurk in the most surprising places. The “Internationale”, for example, was at one time used as China’s national anthem, albeit between 1931 and 1937 when the party controlled only the liberated areas or Chinese Soviet Republic. This now seems a throwback to the days when the Communist Party was a revolution, not an establishment. Time has caught up with this passage from verse 3:

The state is false, the law mockery, and exploitation bows us down;
The rich man flaunts without a duty,and the poor man’s rights are none.

Or we can take that stalwart of Labour Party conferences, “The Red Flag”. It is a commonplace observation in English Labour circles that nobody knows the words, except for the chorus, which goes like this:

Then raise the scarlet standard high.
Within its shade we’ll live and die,
Though cowards flinch and traitors sneer,
We’ll keep the red flag flying here.

Now I suppose, possibly erroneously, that there could be no possible objection to this on National Security grounds, as the official flags of both Hong Kong and China are mostly red. But consider this disastrous passage from verse 2:

Look ’round, the Frenchman loves its blaze,
The sturdy German chants its praise,
In Moscow’s vaults its hymns are sung
Chicago swells the surging throng.

This is the sort of international connection against which Article 23 of the Basic Law warns us.

Another trap for the unwary is sedition, which includes conduct which tends “to promote feelings of ill-will and enmity between different classes of the population of Hong Kong”. This could be held to cover works like that music hall classic “They’re moving Father’s grave to build a sewer”, which includes lines like:

They’re moving his remains, to lay down
nine-inch drains
To irrigate some rich bloke’s residence

Rich people are entitled to the protection of the law, from things like “She was poor but she was honest” – blatantly subversive chorus:

It’s the same the whole world over,
It’s the poor what gets the blame,
It’s the rich what gets the pleasure,
Ain’t it all a blooming shame?

Then there are disrespectful and disparaging diatribes about our elders and betters like this. Or the Gendarmes Duet (which hails, believe it or not, from an operetta by Offenbach. Sensitive police people should not listen to the last verse.

My most surprising horror find was a song by the Dubliners. This was surprising because the Dubliners were an Irish group whose oeuvre comprised mostly songs about the pleasures of booze, interspersed with occasional visits to ancient heroes like Roddy MacCorley or Kelly the Boy From Killane, whose political proclivities are safely obscured by the mists of time.

However they also did a song called “Free the People”, whose title should perhaps have been a warning — freedom is a dangerous aspiration these days — which has two verses stunningly reminiscent of the slanderous things that so-called committees put in their so-called reports on the Hong Kong legal system:

The dismal dawn was breaking
When they took her man away
Not knowing what was his crime
Just what was he guilty of
Not one of them could say
But they’ll think of something in time
He says goodbye and remembers
We shall overcome

Comforting her children
Softly crying in the night
She tried very hard to explain
You know your daddy never did a thing
That wasn’t right
So soon he’s bound to be home again
He is a good man
And we shall overcome

To end on a happier note, there are also pleasant surprises. Consider, for example, a prescient tribute to the gentleman we are now expected to refer to as Our President, recorded by Charles Aznavour in 1974. Sample, with seven verses to follow:

Xi may be the face I can’t forget
A trace of pleasure or regret
May be my treasure or the price I have to pay.

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I understand why Hong Kong officials feel the need to respond to every adverse or critical report or comment on their doings from overseas bodies. Silence may be misinterpreted as indicating agreement. Or at least indifference. We do though need to be more aware of the perils of this approach, especially if the refutation goes into detail.

Firstly it may attract widespread attention to allegations which might otherwise have fallen with a soundless plop into the deep well of public indifference. Secondly the refutation may do more harm than the original charge. Consider the recent efforts of the Secretary for Security, Paul Lam, to defend Hong Kong’s national security legislation, much criticised by the UN Human Rights Committee.

According to RTHK, “Lam said with fewer than 30 people convicted since the legislation was introduced nearly three years ago, everyone would agree that the law affects only an extremely small number of people, when compared to the local population of seven million.”

No they would not. Indeed even Mr Lam did not put it quite that way; RTHK were trying too hard. It is clear from the fuller report provided elsewhere that Mr Lam realised the law had also “affected” the “less than 250” people who had been arrested (a curious way of putting it – the figure is 249).

He also accepted that the new law had also had some impact on the victims of his department’s enthusiasm for sedition charges under the Crimes Ordinance. As well he might; they are treated to the National Security Law’s procedural provisions, which means they get a judge selected by the prosecution and are usually refused bail. But still: “Hong Kong has a population of seven million. Comparatively, I think everyone would… agree that only a very small number of people have actually been affected,” Lam added.

It does not seem to have crossed Mr Lam’s mind that a situation in which 249 people have been arrested and less than 30 have had their cases disposed of might be considered evidence of some deficiency in the legal system. Two possibilities spring immediately to mind. One is that some, or many, of these arrests were unjustified, caused by incompetence or the desire to intimidate. The other is that Mr Lam’s department works at a pace which would shame a reasonably fit snail.

But there is a more fundamental objection to his argument. You cannot judge the “effect” of a piece of legislation by the number of people convicted under it. I know of nobody who has been convicted of accepting a free plastic bag from a supermarket in defiance of the new law on the subject, and if any supermarket has been prosecuted for issuing such a bag the case passed by unreported. Yet we have all been “affected” by the bag ban.

More seriously only 60 people were convicted of homicide (murder, manslaughter etc) last year. But we all depend on the fact that killing people is illegal, so we do not have to worry that if we get an argument with a stranger we will be in danger of our lives. A recent case suggests that a certain wariness may still be needed if the stranger is a retired policeman, but generally we go about our daily lives without fear.

Well you can argue that long-standing laws of this kind are obeyed for a variety of reasons, and most of us do not need a legal deterrent to discourage us from killing people. With the national security law, though, the effects on people who have not been arrested are clearly visible.

Since the passage of the law about half of the population has been deprived of the media of its choice because the organisations concerned closed, either because their staff and/or owners had been arrested or because they thought they would be next. More than 60 non-government organisations have folded. Independent trade unions have disappeared, Respected opinion leaders are barred from writing by bail conditions. Books have been banned from schools and libraries. These may be worthwhile sacrifices that we all have to make on the altar of national security but to claim that very few people have been affected is obvious nonsense.

Indeed Mr Lam’s colleagues seem to be quite willing to extend the “effect” of the national security law by using it as a threat to silence critics of the police.

Consider the reaction of Secretary for Security Chris Tang to criticism of the requirement that demonstrators in street processions should wear number plates: “… unfortunately some people stirred up other’s emotions and smeared the government on purpose,” he said. “I believe some of those people aim to incite discontent and hatred against the government, in a bid to endanger national security and make Hong Kong no longer peaceful.”

I do not doubt that Mr Tang is well aware that parts of this read like a direct quote from the sedition part of the Crimes Ordinance, and that many people would regard the mention of national security as an open threat.

There is no question of a smear here. Protesters were required to wear number plates and whether you regard that as a reasonable public order measure or an intolerable imposition is a matter of opinion and evaluation. On this matter Mr Tang can hardly be regarded as an impartial judge. Retired policemen should be less pugnacious.

Citizens have the right to criticise the actions which government departments take for their benefit. We may criticise the way the Transport Department sites bus stops, the way the Drainage Services Department disposes of sewage, and the way the Information Services Department creates it. It is the job of the Police Force to regulate demonstrations and to preserve the right to participate in them. How the force discharges this duty is a legitimate topic for public discussion.

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