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Archive for September, 2024

Student leader’s case a grotesque parody of the Rule of Law

Posted in Uncategorized, tagged , , , , on September 26, 2024| Leave a Comment »

Lord Sumption, a retired British Judge and formerly one of our token foreigners on the Court of Final Appeal, was roundly denounced by the usual government spokesman when he marked his retirement from the CFA with an article in the Financial Times, complaining that the rule of law could no longer be relied on in Hong Kong.

“The rule of law is profoundly compromised in any area about which the government feels strongly,” his Lordship wrote. And this brings us to recent developments in the case of Mr Kinson Cheung King-sang. Before we get to the developments, though, some background.

Mr Cheung was the chairman of the Hong Kong University Students’ Union, back in the days when students were allowed such things. The union’s committee, in an ill-advised moment, passed a motion expressing sympathy for a man who had attacked a policeman and then killed himself.

The motion was rescinded the following day, but this was not enough to head off a major reaction in pro-government circles and several students, including Mr Cheung, were arrested. Three people were eventually charged: the proposer and seconder of the errant motion, and Mr Cheung because he chaired the meeting. When I was a student union chairman I was expected to be neutral when chairing meetings, so this looks a bit odd. But they’re not hot on democratic conventions in pro-government circles.

The three chosen ones were charged initially with encouraging terrorism, an offence under the Beijing-imposed National Security Law. After negotiations this charge was replaced with “incitement to wounding with intent”, an obscure but ancient and respectable limb of the Common Law. The three defendants then pleaded guilty. This enshrined an interesting legal notion, that the union’s motion had “incited” an act which had already happened when it was passed, and whose perpetrator was dead. Well, lawyers understand these things.

We must note at this point that Hong Kong now has in effect two legal systems. One of them, which we may call option A, is the traditional one, based roughly on the notion that, as the legendary jurist Blackstone put it, “it is better that ten guilty men go free than one innocent one suffer.”

The other one, option B, is for national security cases only, and dispenses with precautions – some of which go back to Blackstone’s time (1723-1780) – intended to reduce innocent suffering. Getting our ten guilty men behind bars gets a higher priority.

So the defendant no longer has the right to be brought promptly before a magistrate, the right to bail, the right to a jury in serious cases, the right to a judge not selected by the prosecution, or the right to the counsel of his choice. Reading national security cases one sometimes wonders if the presumption of innocence has been eroded a bit as well.

Another feature of option B is a limitation on the right of a convicted prisoner to participate in early release arrangements for prisoners who behave themselves in jail. This was not part of the gift from Beijing; it was a local inspiration incorporated in the Safeguarding National Security Ordinance. Inmates may be released early only if the Commissioner for Correctional Services is satisfied that such release will not endanger national security.

So here we have Mr Cheung, so far subject to option A, under which he was sentenced to two years in prison. He then appealed on the grounds that the sentence was too severe. The Court of Appeal agreed, replacing his two-year sentence with one of 15 months. The interesting consequence of this was that, assuming the usual discount for good behaviour, he was now eligible for release. The law works slowly these days.

But nothing happened. Mr Cheung was not released. He then applied to a High Court judge to order his release. At the first hearing the judge was sufficiently impressed to consider releasing him on bail pending full discussion of the matter, but was talked out of it by counsel for the government.

The following day a magical transition had occurred: Mr Cheung’s legal ordeal had been moved from option A to option B. The Commissioner for Correctional Services, apparently a fast worker, had accordingly considered whether Mr Cheung’s release would endanger national security, and decided it would.

The magical transition took the form of a decision of the National Security Committee, a gathering of government security bigwigs including an “adviser” who represents our landlord. The NSC had ruled that Cheung’s offence “involved national security” and that his early release would be “contrary to the interests of national security.”

Senior Counsel Mike Lui, representing the government, said “The development since the adjournment yesterday has been nothing short of momentous,” with which one can only agree.

The National Security Committee was set up under the National Security Law, which outlines its powers and duties as follows:

The duties of the National Security Committee are to analyze and assess developments in relation to the safeguarding of national security in the HKSAR, make work plans, formulate policies, advance the development of the legal system and enforcement mechanisms, and coordinate major work and significant operations.

Call me a legal pedant, but I do not see anything there which suggests that the National Security Committee has a role in adjudicating on individual cases, or that it would be proper for the NSC to issue detailed instructions to a judge hearing a case. The local Nat Sec law, on the other hand, says that:

The courts are to adjudicate cases concerning national security independently in accordance with the relevant provisions of the Basic Law and the HK National Security law, free from any interference.

I infer that the judge in this case had the cart the wrong end of the horse when she said that “No jurisdiction [in Hong Kong], including the Judiciary, shall interfere with the decision made by the [national security committee]. His detention is fully lawful.” Did it not occur to the learned judge at all that the NSC might be exceeding its powers, or are we now so cowed that the idea of a government body exceeding its powers has become meaningless?

In jurisdictions which enjoy the rule of law it is out of order for essentially political or administrative bodies to jog the elbow of judges actually adjudicating cases. The committee, or the legislature, may change the rules, but in the meantime defendants and convicts are entitled to know what rules apply to them. This case is a grotesque parody of the rule of law, the more unpalatable because the government seems to be motivated entirely by the spiteful inclination to nullify the Court of Appeal’s decision and keep Mr Cheung behind bars for as long as possible.

After all the implications for national security are trivial: Mr Cheung will be free in November anyway. I also note that the judge who granted Mr Cheung pre-trial bail (over-ruling a magistrate who had refused it) did not seem to think that Mr Cheung was a great threat to national security.

I met a lot of student union chairmen when I was one. Two of the creepier specimens eventually became government ministers. Nobody became a revolutionary. I am sure Mr Cheung will in due course become a respectable member of society … with, perhaps, some highly critical views of the Hong Kong legal system.

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Why do govt press releases read as if they were written by a computer?

Posted in Uncategorized, tagged , , , on September 19, 2024| Leave a Comment »

Malcom Gladwell is a great populariser of scientific obscurities, so we now all know that in order to achieve proficiency in almost any worthwhile pursuit you have to put in 10,000 hours of practice. Or alternatively, it now appears, you can outsource the grunt work to a computer and just claim the credit.

This has led to much discussion in the places on the internet where writers gather – that is real writers who produce novels, not mere scribblers like me. The question is how much help can you get from Artificial Intelligence and still regard the resulting output as your work.

Having done my 10,000 hours long ago I have resisted the temptation to dabble in AI-aided composition. But I see there is a tricky question here. If I ask the computer to – say – write an epic poem in the style of Dryden’s “Absalom and Achitophel” on the recent ownership of Chelsea Football Club, and the result is a resounding success, who deserves credit? Clearly the piece has not been written by Dryden. He died in 1700. But it hasn’t been written by me either.

A similar dilemma arises with blame. If you invite ChatGP to write a piece in the style of George Orwell’s “Animal Farm” about the recent history of Hong Kong, it is quite possible that a national security judge will consider the resulting work to be subversive. But he can’t jail the software.

These are extreme cases, I suppose. What bothers the writers is the intermediate case in which the author has had some help, and the question is how much is acceptable before the participation of AI has to be acknowledged on the cover.

After all even dinosaurs like me accept some help. I tune out or switch off comments on my grammar or sentence length. But I pause for a moment after writing words with tricky spelling like accommodation, embarrassment, or Philippines, to see if the tell-tale red line appears to indicate that I have missed a double consonant somewhere.

This certainly does not call for specific acknowledgement. We all know the spell-checker jokes. Serious publishers still employ human editors. What about a detailed plot line and story structure, passed to the computer with instructions to flesh it out as a racy romantic potboiler fresh from the desk of Betty Bodiceripper?

And would it then be another new novel if you fed in the same materials but told the computer you wanted a serious exploration in the style of Albert Camus of the dilemmas of the human condition in the 21st century?

The problem for most of us (as opposed to writers) in all this is that it is becoming difficult to read anything published after 2013 without the lingering suspicion that much – or even all – of it is the product of an agile microchip.

This brings me to a particularly interesting literary form, Hong Kong government press releases condemning some outrageous comment made by a politician or newspaper overseas.

Anyone who has wrestled with our government’s efforts to provide services over the internet will happily dismiss the thought that our leaders have developed sufficient digital fluency to outsource the production of these little masterpieces to a computer. It is, though, perhaps a problem that they so often look like the output of an AI programme urged to produce a “Hong Kong government press release rejecting foreign interference in the style of a Ministry of Foreign Affairs press conference in Beijing”.

Anyone who reads all of these things will be unable to suppress the suspicion that the unnamed “spokesman” responsible is getting in a bit of a rut. The language is always the same: “slander and smear” “lies and hypocrisy”, “government will resolutely discharge its duty”, “violation of international law”, “bound to fail”.

You may wonder if we are here in the presence of a standard PR technique, writing a press release by digging out an old one and updating the names. This does not seem to be the case. On the other hand the consistency of the tone, bitter resentment and anger, is very striking. The “spokesman” seems to be making a conscious effort to sound as if he is purple in the face, with steam coming out of his ears.

It may be a problem that in the old colonial days the government spokesman wrote his rebuttals and refutations in English, and they were then translated into Chinese. Now, it appears, they are written in Chinese and then translated into English. The result comes across as rather blunt.

Chinese writers are much less influenced than Western ones by the desire for “elegant variation”, which leads even eminent publications like the Economist to inflict “the black stuff” on readers because it does not wish to use “oil” twice in the same paragraph.

This may in turn be due to differences in culture and education. In cultures with alphabetic languages, like this one, words are regarded as a substitute or symbol for an elusive underlying idea. In cultures with ideograms, like Chinese, the ideograms are the idea. So in a European university asking the student to report Saint Augustine’s views on virtue in her own words is a test of learning. Asking a Chinese student to report Confucius’s views on the same topic in her own words would be sacrilege. Who are we to improve on the words chosen by the Master? Learning was traditionally demonstrated by the ability to recite the Analects from memory.

The rather limited vocabulary employed in official corrections may have a more mundane explanation. Although printing with movable type was a Chinese invention the Chinese language presents serious problems for printers, because so many characters have to be available. Putting a piece together while picking from thousands of characters is hard work and writers were expected not to to make it harder by choosing from a wide range of words.

Nowadays the computer has solved this problem but English newspapers are still following conventions inherited from the old printing methods and so perhaps other people are too.

Anyway the point which our spokesman may consider worth pondering is that turning on the extreme indignation every time eventually becomes ineffective, and even risible. It may be too much to ask that you consider the possibility that some criticisms may have merit, but could we at least try to be – shall we say – more Harris and less Trump?

One might also wonder whether every criticism needs the same response, or indeed any response at all. I realise that you may fear that silence in the face of fierce attacks will be mistaken for indifference, or even assent, but surely there are some quarrels not worth picking? It is very regrettable that the New York Times was not impressed by the new National Security Exhibition Gallery. But if you hadn’t replied, would anyone have noticed? The same might be said of the British Foreign Office’s six-monthly report on Hong Kong. We all know what this is worth by now.

And you might have waited a bit before taking aim at the Hong Kong Economic Trade Office Certification Act, after it passed the US House of Representatives. Despite its name this is not a law. It is what we call a Bill: a piece of proposed legislation which still has to go through a long and arduous process before it becomes law. On average the proportion of proposed laws which make it through the US legislative process to the statute book ranges between two and nine per cent, with the lower figures coming when, as now, the two houses are controlled by different parties. Figures here.

Clearly the US legislature is not at all like ours.

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Stand News case is a chilling reminder to opinion writers

Posted in Uncategorized on September 9, 2024| Leave a Comment »

Well, now it’s over and we can comment on the Stand News case we may note first of all the existence of a concept common in the academic circles where the fine points of free speech are explored: the chilling effect.

This refers to the tendency for expansively drafted laws restricting free speech for impeccable reasons to have an effect beyond the territory they are aimed at; the new rules restrict or discourage activities which they were (at least as presented by their drafters) not supposed to cover.

The chilling effect is alive and well in Hong Kong, and drastically curtailing the sort of journalism to which local consumers have access. Outside the government’s cheerleader chorus writing for government-approved media, opinion writing has become a rare and nervous activity. If it is written, editors are nervous about running it. Willing writers are on offer overseas, but publishers are unsure of the legal risks of using such sources, so offers are usually refused.

We are often told that publications merely have to obey the law, which is well known and perfectly clear. Oh yes? Yet in the Stand News case Judge Kwok Wai-yin acknowledged that in an earlier judgment on the “sheep village” books he had said that sedition must involve intentionally inciting others. He has now changed his mind, and the offence requires mere “recklessness of the consequences”. So all you suckers who perused the earlier judgment in the hope of finding out exactly what the law was were wasting your time.

In fact if you are interested, even perusing the law itself is not much help. Traditionally it was supposed that seditious content must be so extreme as possibly to inspire violence. If violence was not implicitly advocated there was no sedition. This condition has apparently lapsed. It is in any case specifically excluded by the relevant part of the Safeguarding National Security Ordinance, where the revised law on sedition now resides.

The law is ostensibly politically neutral. Social critics can say that if you outlaw resistance you are defending the status quo, but the idea of sedition looks only at public order consequences. You would not, however, gather this from looking at the output of its local defenders.

Virginia Lee, writing in the English-language version of the China Daily, notes that the Stand News output was scrutinised for “illegal ideologies”. Goodness. Last time I was in Festival Walk’s excellent bookshop I noted with some amusement that on one shelf potential readers could consider the works of Karl Marx, Adolf Hitler and Donald Trump. So which ideologies are illegal?

Fu Kin-chi, writing in the same publication, elucidates: the court “determined that the media outlet’s political ideology was ‘localism’ and its editorial policy was to promote ‘local autonomy’ in Hong Kong – both terms are an [?] euphemism for ‘Hong Kong independence’”.

I am not sure whether the equation of localism with independence was part of the court’s determination or Mr Fu’s, but in either case it is bilge. Localism, for many of its followers, was more cultural than political: an attempt to preserve Hong Kong’s language and lifestyle from overzealous attempts at updating and aligning with the mainland. Most of those who took a more political angle did not seek independence, whose practical difficulties and general implausibility were obvious. Local autonomy is not the same thing as independence and attempts to obliterate the difference are just an attempt to give a dog a bad name before hanging it.

Returning to the old definition of sedition, this involved efforts to “bring into hatred or contempt or to excite disaffection against” the Hong Kong government. There is nothing about illegal ideologies there. This was long supposed to set a high bar for the prosecution. Hatred is an extreme emotion. Many, perhaps most, people do not have strong enough feelings about political or constitutional matters to “hate” anything. Mere distaste or criticism was not enough. The words complained of must actively encourage resistance or rebellion.

National security judges have steadily diluted this to the point where vigorous criticism of one piece of legislation is enough, especially if it happens to be the National Security Law.

The definition in the new Safeguarding National Security Ordinance has been diluted even more. Protection is extended to a new range of potential victims, including the local Liaison Office, the local branch of the Ministry of Foreign Affairs and the local PLA garrison. We then go through much the same verbiage as in the old Crimes Ordinance section on this topic, until we come to two new bits:

(e) an intention to incite any other person to do a violent act in the HKSAR;

(f) an intention to incite any other person to do an act that does not comply with the law of the HKSAR or that does not obey an order issued under the law of the HKSAR.

Judge Kwok will no doubt note with some concern that “intention” is clearly required, which suggests that his innovative “reckless disregard” approach may have been a poor idea.

Connoisseurs of carelessly drafted legislation will note that (f) is open to very wide interpretation. I did not realise, the other week, when I wrote that owners of small dogs and suitable bags could travel with them on the MTR in defiance of the railway rules, that this was a possible offence. Does an “order issued under the law” cover anything a policeman says to you?

Clearly this new law received all the careful scrutiny you would expect from a friends-only legislature working in a hurry. Nice work.

But I don’t hate you.

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Anyone for badminton … nudge nudge wink wink?

Posted in Uncategorized on September 1, 2024| 1 Comment »

Teaching young teenagers about sex is a tricky matter. It has to be attempted, because otherwise curiosity will lead potential pupils to the steamy parts of the internet, where you can claim access to “adult” stuff by simply clicking on a “yes” button.

But avoiding potential pitfalls is not easy, as the Education Bureau has recently discovered. One wishes to describe the machinery accurately, as it were, while subtly discouraging premature experiments in its use.

The Bureau’s efforts came in for a good deal of criticism. One of the potential problems is that your efforts to foster celibacy will launch a fleet of risqué jokes. The new curriculum’s suggestion that people should sublimate lusty urges by playing badminton gave a harmless pursuit a new sexy edge. Inviting someone for a game will never be quite the same again. And what will they say when they discover that the English name for that little fluffy thing they bat backwards and forwards is “the shuttlecock”?

Another danger is that the message will be sullied by well-intentioned statements which are visibly unjustified by reality. The new curriculum says that pre-marital sex is regarded in society as “deviant”. Really?

Still, if our government has problems with conventional sex, they are as nothing compared with its problems with the constantly growing list of alphabetic alternatives, which has now, in The Guardian at least, reached LGBTQIA+.

It is understandable that in the search for patriotic placeholders very little attention was paid to candidates’ attitudes to unconventional sexual preferences. But as a result some of the newly minted public figures combined a laudable enthusiasm for national security with distinctly old-fashioned attitudes to LGBT etc.

This was most visible in the history of the Gay Games, which followed a trajectory reminiscent of the Post-SARS Harbourfest, starting with general jubilation about an event which would put Hong Kong on the map, and concluding with bitter recriminations about wasted money and foreign influence.

More surreptitiously the new puritanism is gradually affecting the parts of the government which interact, or ought to interact, with the community of people with minority sexual tastes or preferences.

For example, the Constitutional and Mainland Affairs Bureau (curiously) is in charge of an Equal Opportunities (Sexual Orientation) Fund which, since 2015, has supported NGOs working in this area.

For the current financial year its budget dropped by almost half. Many groups had funding cut or deleted altogether. The fund went from supporting 18-24 groups to supporting just ten. Also, among the survivors are three groups, all founded by the same person, offering “conversion therapy”, a scientifically disreputable attempt to turn gay people “straight” much cherished by religious groups.

Funding for AIDS prevention work (which comes from the Health Bureau) has also been cut. And the Equal Opportunities Commission has dropped its earlier enthusiasm for legislation against discrimination based on sexual orientation.

Like other NGOs which do not attract official support those working in this area find it difficult to hold events in public places or to book venues for private ones. Fund-raising has withered because of the legal hazards, particularly if the funds come from overseas.

These changes are ominous for the communities concerned. No doubt government funds are shorter in these deficit-haunted times, but the fact that cash can still be found for fundamentalist nonsense suggests that something else is at work. There is also a worrying implication in all this for all of us.

After all NGOs catering for the needs of sexual minorities are not in themselves political. Encouraging people to feel comfortable in their preferences is not subversive. Distributing health education materials and free condoms is not a threat to national security.

Are we approaching a new reality in which any NGO not wrapped in the tentacles of the local establishment is going to be frozen gradually out of existence? Fairness, like justice, must be not just done, but seen to be done.

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