tim's experiment

The Hong Kong government’s attitude to the rule of law is interestingly ambiguous. It wishes to claim credit for being a law-abiding government, but it does not want to sacrifice for this purpose the achievement of other desires.

This implicit conflict is nicely wrapped up in the matter of restaurant licences. In any sensible jurisdiction there are some requirements for restaurant operators, intended to ensure hygiene and other worthy food-related objectives.

However these days all government departments are expected to show their enthusiasm for national security. So last year the Food and Environmental Hygiene Department, which licenses restaurants, treated licence-holders to a letter warning that licences would be revoked if holders or their “related persons” engaged in conduct against national security or the public interest.

Now the FEHD has form in the matter of using existing regulations to pester or persecute restaurants which the government, for some basically political reason, does not like. So there were complaints that what was effectively a new licence condition was too vague, and consequently open to abuse.

Not so, the Chief Executive told a news conference. “Offending conduct means any offence that endangers national security, or acts and events that are contrary to national security and public interest in Hong Kong. It is very clear,”

But it is not very clear, because two very different things are being mixed together. An offence that endangers national security is a criminal matter. Conviction takes place in a public court and is a matter of record. A restaurant owner convicted of such an offence may feel that losing his licence is the least of his problems, but he can read the law and look at the way it has been applied.

He will avoid traditional menu items like Five Dumplings, Not One Less, or Three Hamburgers; Revelation of our Thyme. “Related persons” will be urged to behave themselves. But what does the public interest require?

This mystery persists in the latest version of the licence, which has a clause we can consider in full:

“I shall ensure that no act or activity engaged or involved in by me or any of my related persons (include the directors, officers, employees, agents and sub-contractors) may constitute or cause the occurrence of an offence endangering national security under the National Security Law or other laws of the HKSAR, or conduct is otherwise contrary to the interests of national security or the interest of the public (including public morals, public order and/or public safety) of Hong Kong.”

As tends to happen in very long sentences the grammar wilts a bit in the closing stages and seems to require either the insertion of “that” after conduct or the deletion of “is” in the same place. But this does not affect the meaning, which still leaves the question over what might be in the public interest.

There are some legal glosses on the phrase, though unfortunately they are not particularly helpful. Some restrictions on media stories can be waived if publication is “in the public interest”. Judges tend to be quite conservative about this but the general rule seems to be that the public interest is served by stories which expose iniquity (in a broad sense) or stories which alert the public to hazards which they need to know about.

In contract law it is well established that contracts will not be enforced if their effect is not in the public interest. Once again this does not come up very often – judges are even more hostile to unenforced contracts than they are to muckraking journalists – but traditionally contracts have not been enforced if they concern gambling or commercial sex.

The morals/order/safety part seems to have been inspired by the part of the Bill of Rights Ordinance which specifies the purposes for which the government may restrict freedom of expression. This suggests – a worrying thought – that the government intends to use threats to restaurant licences to restrict freedom of expression, and proposes if anyone complains to rely on the permitted restrictions.

This may not fly in court because the Bill of Rights Ordinance also requires that restrictions should be specified by law and necessary in a democratic society. Clearly legal language is being used here, but perhaps as an adornment rather than a substantial signal.

Where does all this leave us? Well one theory is that the government wishes to increase its options in efforts to suppress businesses which supported the wrong people in 2019. Asked if this was the case Mr Ronnie Tong, a government adviser, replied last year that it was “hard to say”.

Another theory is that the unstated purpose is to reinforce the existing routine practice under which food outlets which have accepted bookings from organisations the government does not like tend to cancel them at the last minute.

Maybe it is just that the “public interest” is one of those elusive philosophical concepts like “soft resistance” which puzzle the public but are perfectly clear to recycled policemen and the people who write the front page of Ta Kung Pao.

The other remaining puzzle is why restaurant licences have been singled out. All government departments, we are told, have an obligation to support national security. But the numerous other licences issued for various purposes by different departments have not been amended in the same way.

Yet.