tim's experiment

Chui Chun-man, who was sentenced to ten months in prison last Monday for sedition, must be among the least likely convicts to attract sympathy.

Mr Chui, who was a policeman himself at the time, greeted the death of a marine police colleague with some thoroughly ill-chosen words, including the suggestion that the victim “deserved to die” and that “it’s not enough to see only one dog official dead.” There may have been other equally objectionable stuff; news stories were understandably sparing with quotes.

Mr Chui, who did not help himself by explaining to the magistrate that he was “grumpy” at the time and did not really believe what he wrote, will I fear have an interesting time in prison, avoiding people who disapprove of his former job (he has resigned from the police force) and other people who disapprove of his offence.

However, it is an old axiom that official abuse of the law always starts with the least sympathetic victims, and spreads to the rest of us later. Accordingly though we may feel Mr Chui is now where he belongs, we may still feel some misgivings about how he got there.

The law on sedition forbids attempts to “bring into hatred or contempt or to excite disaffection against” the Hong Kong government. Disaffection is a rather technical word which does not mean the opposite of affection. As we can see from the separate section of the Crimes Ordinance on “incitement to disaffection” it means attempting to persuade someone who owes a duty of obedience to the government – soldiers, policemen and such – to repudiate their allegiance.

We lay people are left with hatred and contempt. Further down the ordinance we also have to avoid encouraging social change by illegal means, encouraging violence or law-breaking generally. The administration of justice has had special protection since 1970.

Mr Chui’s remarks, deplorable though they may be, look difficult to fit into this framework. The learned magistrate thought there was a danger of them inspiring violence against police people, which is a bit of a stretch. The law is supposed to protect the reputation of the government in general, not parts of it. The Police Force, wonderful though it may be, is not the government. Or is it?

As a practical matter, anyway, it seems that potential enemies of the force are unlikely to be much influenced by a serving member thereof. And somebody who was trying to start a violent insurrection would hardly raise his first flag on the Police Facebook page, which is where Mr Chui put his literary efforts.

It does appear, though that sedition cases – for decades unheard of – are suddenly being produced in large quantities. This sits uncomfortably with another part of the relevant law, which goes like this:

Legal proceeding (1) No prosecution for an offence under section 10 shall be begun except within 6 months after the offence is committed (2) No prosecution for an offence under section 10 shall be instituted without the written consent of the Secretary for Justice. 

Very little discussion has been reported of what these items were intended for – they are rarely found in other ordinances – or what they tell us about the intentions of this part of the law.

The time limit has on the whole been observed. In one case the prosecution introduced evidence of offences before the six month limit, and claimed when this was queried that the items concerned were not part of the charge; they were merely introduced as evidence of the defendant’s state of mind. Once a rebel, always a rebel, apparently.

The bit about the Secretary for Justice came up in one case, and was roundly dismissed by the presiding judge as “meaningless” because all prosecutions are brought by the secretary or people acting on his direction and behalf.

This particular judge is not one of the brightest candles in our local judicial chandelier and this observation was well down to his usual standards.

The drafters of this piece of legislation were well aware of the role of the Secretary for Justice (or the Attorney General, as he then was) in running his department, deciding its prosecution policies and lending his title to some case names, which appear in the calendar with him as the prosecuting party. So why would they stipulate that he must approve prosecutions personally?

This condition is rare, but not unique. It is inserted when prosecutions will need to be evaluated on a broader basis than the traditional test, which is whether there is a reasonable chance of success.

The Secretary for Justice is not a purely legal figure. He also has one foot on the political side of the fence. He participates in policy deliberations and has regular contact with senior political figures. He is called upon to authorise prosecutions when non-legal considerations are legitimately entertained.

So in sedition cases the secretary can ask himself whether the proposed defendant, if convicted, will be widely regarded as a miscreant or a martyr. Will the practical consequences of a conviction be worth the reputational risks if the government appears to be using the law to suppress criticism of itself? Does the risk to public order justify trampling on a cherished freedom? Does prosecuting people for possession of a book bring back some unhappy memories?

The intention of the “legal proceedings” section, it seems to me, is to ensure that although the law is expansively drafted prosecutions will be rare and only undertaken in cases where there is a serious danger of immediate trouble.

This would bring it more or less into line with international standards. Most common law countries have either abolished sedition altogether or restrict it to advocacy of violence. Observers in those countries are unlikely to be impressed by the number of cases now cropping up in Hong Kong, or the rather imaginative connection with violence involved in some of them.

It is no good our government complaining that overseas writers or officials are “scandalising” our judicial system if its conduct is by their standards scandalous.

And while we are on the subject of Hong Kong reactions to overseas criticism could the writer concerned please note that there is no point in claiming that the SAR has no “secret police”. This may be true but it is also true that governments which do have secret police always deny their existence. If this was admitted then the force would no longer be secret.

A government denying it has secret police is like a millionaire denying he has a mistress. We realise that this may be true, but in the absence of further evidence…

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Article 27 of the Basic Law of the Hong Kong SAR states that: “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

Some of these freedoms have been looking a bit battered of late. They are of course all subject to some restrictions in various circumstances, and the right to process and demonstrate has for some years effectively been suspended in the interests of combating COVID.

Some suspicious observers will have detected symptoms of a limited affection for this particular freedom in the fact that the government’s endless tinkering with its COVID precautions had one resounding exception: the limit of four people on outdoor gatherings.

This looked a bit suspicious when the limits on indoor gatherings reached three digits. But no doubt it helped to keep us all healthy.

However this excuse – I beg your pardon requirement – is no longer relevant. So the question which now arises is whether the “freedom of assembly, of procession and of demonstration” will now come back to life or whether during the pause for the plague years it was quietly euthanised.

So far the diagnosis does not look good. The pioneering effort earlier this month was a march to be organised by the Hong Kong Women Workers Association, on the Sunday before International Women’s Day, which inconveniently fell on a Wednesday.

The rights of women workers are not a hot-button political issue in Hong Kong. Perhaps they should be. Nothing overtly subversive or rebellious was in the offing.

As various non-political events – New Year celebrations, fundraising walks and such like – had been approved without problems the women workers had reason to hope that their march would get the green light, and so it did. On the Thursday before, after what the police described as an “assessment” the required letter of no objection was duly issued.

Then on Saturday, the eve of the planned march, the women workers called it off. The announcement was made on their Facebook page and offered no explanation.

We were however treated to a police press conference, the main purpose of which appeared to be to warn anyone who might still have itchy feet that as the march had now been officially cancelled they would be participating in an illegal gathering.

The police orator, acting Senior Superintendent Cheng Wai-kin, offered the explanation that the “association had decided to cancel the event after considering the interests of all parties,” which does not help us very much. He also said that they had heard that “many people” were planning to attend the event, including some “violent groups.”

Alas we were not told who the violent groups were. One supposes that local triads would not be interested in demonstrating for women’s rights. I presume also that Mr Cheng was not referring to the chemical warfare department of his own Force.

It appears also that he was not referring to the League of Social Democrats, of which four members including the current chairman had been told on Friday – when the march was still legal – that they would be arrested immediately if they turned up.

Some hint as to what put the organisers off can be gleaned from the letter permitting the march, which according to HKFP included:

According to the conditions set out by the police, the association would have to ensure that the demonstration would be in compliance with laws including the Beijing-imposed national security law. The organiser also had to ensure that the protest and rally “would not be contrary to the interests of national security,” according to the police document.

This was a theme also taken up by our Chief Executive John Lee in an interview quoted by Radio Free Asia:

Hong Kong Chief Executive and former police chief John Lee said the organizers of public events have a legal responsibility to ensure it doesn’t break the law. “Anyone who is not confident, is incompetent, or is worried about whether they can do this should not organize public activities, because they have to bear the legal responsibility,” he warned.

What are we to make of all this?

Firstly, it seems to me a flagrant abuse of police power to threaten specific individuals with instant arrest if they seek to exercise a freedom which the law confers upon us all. Members of political parties which the government or the police dislike have the same rights as the rest of us as long as they conform to the relevant law.

Secondly I do not believe that China’s national security is so fragile that it needs to come up whenever a political gathering is in the offing. All fish can swim, but not all animals that swim are fishes. Similarly we may hope that all acts which endanger national security are illegal under the national security law; it does not follow that all acts which can be regarded as illegal under that law do actually threaten China’s national security.

What are we afraid of here? Will people wave five fingers, chant “Hong Kong add oil”, hum the tune of Glory to Hong Kong? Would the state’s foundations crumble of somebody raised a yellow umbrella?

Thirdly it seems to me that, with all due respect to the Chief Executive’s extensive experience in extending the law to areas it did not previously reach, it is quite wrong in law to imply that the organisers of a march or protest are responsible for everything which happens while it is in progress.

The job of the organisers is to comply with all reasonably imposed conditions and encourage fellow marchers to do the same. The march should start where it is supposed to start, follow the approved route and finish at the previously agreed time and place, so far as that is within the organisers’ power. If large numbers of people are expected the organisers may be required to arrange marshals to ensure that participants know where they are supposed to go.

But at an event where anyone is free to turn up, it is neither a practical possibility nor a legal requirement that the organisers should control the activities and expressions of other participants. Keeping order on the streets during a protest is the job of … wait for it … the police! Just as it is the rest of the time.

Making organisers responsible for everything anyone does will simply make marches and processions impossible. Quite apart from the activities of over-zealous supporters, organisers will be vulnerable to deliberate attempts by opponents to sabotage the proceedings.

It would be deplorable if citizens were deterred from exercising their rights by legally imaginative bullying from the parts of the government which should be protecting our freedoms. We shall see.

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“Constant vigilance is the price of freedom”, we are told, though apparently this remark did not originate with the American founding father, hero, slave owner and rapist Thomas Jefferson. Still, this orphan quotation is highly spoken of, so in that spirit I would like to note that the Hong Kong Court of Appeal has just come up with a really bad idea.

The matter before their Lordships concerned two cases in which the presiding judge had ruled that the defence had no case to answer and aquitted the defendant off his or her own bat, as it were.

The appeal judges were asked by the Department of Justice to assess the correctness of these moves. This was not in the strict sense of the word an appeal because the verdicts were final. The successful defendants had in fact left the territory, which the judges seemed to feel was rather inconsiderate of them. But the accused were all from distant countries (both cases concerned drug smuggling) and one imagines that two years in remand custody in Hong Kong would cause in most people an acute case of homesickness.

Their lordships’ judgement is neither easy reading nor brief. Readers who survive the experience will have had a lengthy tour of the law on “no case to answer” in several jurisdictions and some decided local cases. Their conclusions may be summarised as: the two judges were wrong and the law is reasonably clear, but some recent statements of it were, no doubt unintentionally, ambiguous and confusing. Error was understandable.

The way this works is that in criminal cases the proceedings start with the presentation of the case for the prosecution. When the prosecution has done its stuff the lawyer for the defence may ask the judge or magistrate to rule that there is “no case to answer”. In other words the prosecution’s case is so weak that the defendant should be acquitted without further ado.

Judges who have brushed up on the latest from the Court of Appeal will only do this in two sets of circumstances. One is if the prosecution’s case incorporates a fatal error in law – if for example they have charged you under a statute which was not in force at the time of the offence. The other is if they have produced no evidence at all for some indispensable fact related to the case, that the white powder in your suitcase was actually a controlled drug, say.

Likewise, and even less often, the judge may decide after hearing the defence that the prosecution’s case has been so comprehensively demolished that there is no need to trouble the jury with it. If, for example, the alleged murder victim appears alive and kicking in the witness box, the presiding judge will conclude that this case is never going to fly and hoof it off the runway himself.

So far we have merely a restatement of what most people thought the law was anyway, more or less. Those of us who like to think of judges as human may wonder if the two judges concerned would have been less prone to error if they were not feeling some subconscious resistance to the local policy of sentencing the small potatoes of the international drugs trade to decades in prison, despite such sentences being both inhumane and demonstrably ineffective.

However the Court of Appeal did not stop at correcting error. It added the suggestion that if a defendant was acquitted under these circumstances the prosecution should be allowed to appeal against the ruling, as it can in England and Wales.

This is a reference to the Criminal Justice Act of 2003, which is a monument to the proposition that no principle can be too basic or ancient to be violated by a Labour government keen to present itself as “tough on crime”.

The principle concerned is that you cannot be tried for the same offence twice. An acquittal is final. This is so old that it is known by a squirt of Latin, not because mediaeval lawyers liked to display their linguistic skills but because it was actually a part of Roman law: “non bis in idem”. The equally incomprehensible mediaeval contribution is a “plea of autrefois acquit”.

Anyway you get the message. Once the case against you has been dismissed you can confess to the reporter on the courtroom steps with complete impunity. Well almost. Someone who did this recently was charged with perjury because of the evidence he had given in his own defence, but the original case was a dead parrot.

In the early 2000s the Blair government felt itself under pressure over two murder cases which had ended in acquittals. Both hit hot buttons with the tabloid-reading public, concerning respectively race and pedophilia. So 2000 years of legal history was binned and it was decided that in a range of the more serious cases the prosecution could appeal against an acquittal (whether by judge or jury) subject to the requirement that the Director of Public Prosecutions certifies that the appeal is in the public interest, and that there is “substantial and compelling new evidence”.

This was controversial at the time and has remained so, though actual cases have been extremely rare. While attention was concentrating on this innovation, though, the draftsmen also included a new procedure for cases in which some rulings were handed down which the prosecution might not welcome. The prosecution could, subject to stringent conditions as to speed, appeal the ruling – decisions that there was no case to answer were specifically included – to the next layer of courts up.

As far as I can discover very little use has been made of this. The Guidelines for Prosecutors in England and Wales (which are on the internet, like everything else) are explicitly discouraging. Prosecutors, after all, have many advantages already. If the case was so feeble as to attract a “no case to answer” ruling it is likely to end badly for the prosecution anyway.

And the question which then arises is whether this would be a good idea in Hong Kong, and my suspicion is that it would not. Hong Kong is a much smaller jurisdiction. Cases of interest would be rare. Is it worth abandoning the principle that an acquittal is an acquittal because of the fear that one or two miscreants may be freed in error?

The object of court trials is not just to punish the guilty; it is also to protect the innocent. Adding new facilities for the prosecution can appear as an attempt to nudge the scales of justice in a particular direction. In a jurisdiction where faith in the administration of justice is, to put it mildly, fragile, this is not a good look.

It must be said also that prosecution policies in the UK may feature a level of restraint that we do not find here these days. Many lawyers prosecuting cases in English courts also work as defence lawyers in other cases. They are attuned to the idea that the prosecutor is an officer of the court whose first loyalty is not to prosecutorial statistics but to enabling the achievement of justice.

The Department of Justice’s “leave no stone unthrown” approach to prosecution does not inspire confidence in any innovation sold on the basis that it will rarely be used in practice.

Local judges who would like to import some items from the UK should look elsewhere. Can we not, for example, have limits on the time people can be remanded in custody pending trial? There, they raised the “Custody Time Limit” from six to eight months temporarily during COVID. Here, a two-year wait for trial passes without comment.

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Legislators have been making a fuss over the inclusion in Hong Kong’s “Top Talent Pass” scheme of a work visa for He Jantui. Professor He has a criminal record, albeit a rather exotic and unusual one: he was convicted of doing unauthorised research after editing the genes of unborn babies.

This was a controversial experiment which many scientists considered premature and ethically dubious. But in many jurisdictions you wouldn’t end up in jail for it.

Complaints centred round the fact that Prof He had, presumably, declared that he satisfied one of the requirements of the talent-hunting scheme, which is that applicants have been working for three of the last five years.

Prof He has spend most of the last five years in prison. This is not, I suppose, entirely incompatible with paid employment. I don’t know if prisoners in China are invited to sew mailbags, paint road signs or do any of the other useful things sometimes offered as paid work to prisoners.

Anyway his visa has now been cancelled, and it is suggested that all future applicants for the scheme, which is supposed to boost our supply of “top talent” by admitting its possessors on easy visa terms, should be required to produce a certificate of no criminal conviction. That looks a bit like over-kill. Such matters are unlikely to come up very often. A swift Googling of the names would suffice to eliminate from contention anyone who has starred in an academic scandal.

A more serious criticism of the whole scheme is its preoccupation with the “world’s top 100 universities”. There are numerous lists ranking universities from which one might choose, so the Immigration Department has compiled its own, with input from four: “Times Higher Education World University Rankings, Quacquarelli Symonds (QS) World University Rankings, US News and World Report’s Best Global Universities Rankings and Shanghai Jiao Tong University Academic Ranking of World Universities.”

Having graduated from a university which was ranked the best in the world by one of those systems last year I hope I can say without being accused of sour grapes that lists of this kind are notoriously worthless.

The idea of ranking universities was launched decades ago by US News and World etc, which originally ranked only American universities. The ranking list has been dogged by controversy for years.

Periodically American institutions have tried to boycott it; it is particularly unpopular with law schools for some reason. Some academics decry the system as a joke, other complain that universities have learnt how to “game the system” to get higher ratings, and some of them have been caught cheating to do so.

The measurement of research output is a contentious area and scoring institutions on “reputation” looks circular. The easiest way to get a reputation is to score well on the ranking table.

Defenders of the system say it gives parents and students the information they need to make informed choices. But it has other purposes. The President of the University of Alberta said it was “time to question these third-party rankings that are actually marketing driven, designed to sell particular issues of a publication with repurposing of their content into even higher sales volume special editions with year-long shelf life.”

The international comparisons are open to similar objections. They also seem to have proliferated categories so that everyone can claim to be good at something: in Hong Kong, for example, HKU says it is “first in Hong Kong” (THES and QS) 10^th in “employability rankings” (QS) and 1^st in “most international universities” (THES). The UST is 2^nd in the list of “young universities” (QS) 1^st in Hong Kong in the employability rankings, and so on. CUHK is first in HK in the US News ranking, 2^nd in HK (ARWU) and 1^st in HK in Reuters Most Innovative Universities. City U is fourth in the young universities list and 1^st in HK in “citations per faculty”. Poly U is 2^nd in HK in “sustainability” (QS). This is a school in which all children win prizes.

The main focus though, in the lists which count for immigration purposes, is on two areas: research and “reputation”. Both of these have problems. The pursuit of research outputs favours the wealthy and, alas, the unscrupulous, who can resort to the subtle manipulations lamented by Stuart Richie in his book “Science Fictions” (a fun read, incidentally) or the blatant cheating recounted in an article in the latest edition of The Economist.

The reputation thing is a bit of a joke. When I was a university teacher I was occasionally asked by one of these ranking organisations to provide a list of universities which in my view were good. Unless you have had a very mobile career this is difficult to do fairly, or at all. I knew which Australian universities could put on a good journalism conference. I had some notion of their journalism teaching. And that was it.

I knew quite a lot about standards of English-language debating in Hong Kong because I was regularly conscripted as a judge. But that only tells you about a small bit of each institution. The HKU team, for example, always seemed to consist of fierce and fluent ladies of a South Asian appearance from the Law Faculty. This didn’t tell you much about the rest of the place.

So I put in a good word for the institutions I had studied at, carefully ignored Cambridge and decided after some thought not to mention the London School of Economics because whenever I write a reference for someone who is applying there they get rejected.

It is difficult to believe that many people put much more thought into this sort of thing, for which you are of course not paid.

In a recent article in “Nature” Elizabeth Gadd (a big wheel in the research assessment industry) said:

“The literature on research management is full of critiques of rankings. Rankings are methodologically challenged — often using inappropriate indicators such as counting Nobel-prizewinning alumni as a proxy for offering a quality education. They favour publications in English, and institutions that did well in past rankings. So, older, wealthier organizations in Europe and North America consistently top the charts. Rankings apply a combination of indicators that might not represent universities’ particular missions, and often overlook societal impact or teaching quality.”

Similar misgivings are expressed by Elen Hazelkorn, a professor at the Technological University of Dublin:

“There are over 18,000 university-level institutions worldwide. Those ranked within the top 500 would be within the top 3% worldwide. Yet, by a perverse logic, rankings have generated a perception amongst the public, policymakers and stakeholders that only those within the top 20, 50 or 100 are worthy of being called excellent.

“There is no such thing as an objective ranking nor a reason why indicators should be either weighted (or given particular weights) or aggregated. Although rankings purport to measure higher education quality, they focus on a limited set of attributes for which (internationally) comparable data is available. This means that most global rankings focus unduly on research and reputation. Rankings are not an appropriate method for assessing or comparing quality, or the basis for making strategic decisions by countries or universities.”

The complaints of inherent bias are confirmed by the Immigration Department’s list, which has 54 universities in the USA, a further 19 in the UK, eight in Australia and six in Canada. There are, for reasons we will not go into, nine in Mainland China. This doesn’t leave much room for the rest of the world and nine countries/territories only have one entry – Argentina (with the only top university in South America, apparently) Finland, Ireland, Malaysia, Mexico, Norway, Russia, Spain and Taiwan. Europe is well represented but only west of the Oder: there is no room for the famous and ancient institutions in the Czech Republic, Poland or Hungary.

In the department’s view there are no top universities in India or the entire African continent. Another odd feature of the “Aggregate Top 100 universities “ list provided is that there are 176 universities on it. Not compiled by a Maths Major, apparently.

A more subtle complaint about this approach is that being a graduate of a top university doesn’t guarantee that you will be a top graduate. Universities which are working on research and reputation tend to treat teaching as a subsidiary activity, to be fobbed off to the inexperienced, part-time, or semi-retired. Star professors will be recruited on the explicit basis that they will not be required to teach undergraduates.

And some American universities manage to combine a reputation for exclusivity with a variety of back doors through which unlikely scholastic stars like George W Bush can enter.

This is known as ALDC admission. A is for athletes, L is for legacies (which means the offspring of graduates) D is for dean’s list (which means the offspring of potential donors) and C is for Children (of the university’s own staff). These categories account for no less than 30 per cent of the students admitted to Harvard.

Then in the UK we have the system by which duplicitous toffs like Boris Johnson find their way to Oxford. Don’t get me started.

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One of the delights of the annual budget talkfest is that the Financial Secretary of the day can hardly avoid the obligation to give unscripted replies to unexpected questions. With occasionally curious results.

Consider, for example, Mr Paul Chan (our current money wizard) on why Hong Kong has not followed some of the Singapore government’s efforts to revive the post-Covid tourist industry, which apparently include a special fund for the travel industry and direct grants to small enterprises.

Hong Kong’s tourism industry was quite different from Singapore’s, said Mr Chan, according to the Standard, “We are way more fun. We have natural mountains and tourists can also cross the border to the mainland.”

Natural mountains? We may think that setting Hong Kong up as more fun than Singapore is jumping over a fairly low bar. Singapore is not most people’s idea of a fun palace. But the Lion city can hardly be accused of seducing tourists with artificial mountains. Or indeed with any mountains at all.

It is a bit strange that Mr Chan, who one might think had some responsibility for the condition of the tourism industry, could think of no more stunning attractions for visitors, or consolations for struggling travel agencies, than geographical features for which the government is not responsible.

While we undoubtably have genuine mountains, moreover, Singapore also has an adjacent mainland to which visitors can resort. I am not sure that Johore is a great visitor magnet, but then Shenzhen is not most people’s idea of a tourism Mecca either.

This is harmless fun, perhaps. For a more serious item we can turn to Mr Chan’s performance in the Legislative Council Finance Committee meeting on his masterpiece, as reported in HKFP.

Legislator Tik Chi-yuen, who is the ONLY person in Legco not elected on a pro-government basis, had questioned the government’s sincerity in pursuing poverty alleviation, there being no allocation for this purpose at all in the budget. Under the circumstances, he said, it would be “very hard” for him to support the budget.

Mr Chan responded with a barrage of the usual platitudes, and then retired to his bunker:

“As a SAR official, I will not be intimidated. [Lawmakers] cannot use their vote of support or opposition to force me into doing something which I think would be inappropriate,” I presume this was originally in Cantonese as the Standard’s version, while clearly of the same quote, is slightly different: “As an SAR official I will not be threatened. I won’t be coerced by votes – for or against – to do something that I don’t deem appropriate.”

Am I alone in thinking that this — in either version — is a bit over the top when presented with the possibility that one, and only one, of the 90 legislative councillors might abstain from voting in support of the budget?

Given the way things are these days, it would be astonishing if an SAR official was intimidated in any way by the thought that anybody might not vote for anything he was doing. The government has nothing to worry about. The new electoral arrangements assure a comfortable — inceed overwhelming — majority is at its beck and call in the Legislative Council. Deliberative bodies which do not share this happy feature have been abolished or suspended indefinitely.

You have to wonder, really, why Mr Chan took the possibility of losing Mr Tik’s support so seriously. Are officials, in the interests of “happy Hong Kong stories” now expected to ensure that all proposals are not just passed, but carried unanimously?

We may have natural mountains, but our political system is beginning to look a bit … shall we say Singaporean?

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The Hong Kong Government continues to exhibit a strange and disproportionate preoccupation with the legal proceedings against Jimmy Lai, the former proprietor of a frisky tabloid not much given to admiring coverage of the administration.

Some weeks ago China’s National People’s Congress Standing Commmittee ruled, at the request of local officials, that Hong Kong courts will need to obtain a certificate from the Chief Executive when considering whether to allow overseas lawyers to represent defendants in national security cases.

This followed a spirited tussle in the courts here, in which the Department of Justice objected to Mr Lai’s plan to instruct a London-based barrister on his behalf. This bout went all the way to the Court of Final Appeal, where the department lost on the rather technical basis that it was seeking to advance arguments which it had not brought up in earlier hearings.

But these days any defeat in the courts for the government is temporary. If appeals fail it will change the law, either through Legco or by seeking an “interpretation” from the NPC Standing Committee.

It is difficult to see why the government is so exercised over Mr Lai’s choice of counsel. His particular case does not, as far as we know, involve any state secrets which should not be shared with foreigners. It appears to centre round some very public expeditions to the USA.

It would be tempting to infer that the squabble is merely a continuation of the campaign to get at Mr Lai by any means available. If he wants something it must be opposed as a matter of principle.

Anyway the latest development was rather predictable and uncontroversial, given the history so far. The department unveiled its proposed local legislation to give effect to the Standing Committee’s “interpretation”.

This will involve an amendment to the Legal Practitioners Ordinance. Courts hearing applications for overseas counsel will have to ask the Chief Executive whether the case involves national security, and whether allowing the proposed gwailo barrister to take the case would jeopardise national security. If the Chief Executive certifies that these two possibilities are in fact realised, then the application to deploy a foreigner must be refused.

I could have swallowed this with a silent grimace, if it were not for the statement accompanying it, which went like this:

The legislative proposal will not have adverse implications on the rule of law, the court’s independent judicial power as guaranteed by the Basic Law, and the party’s right to choose their legal representation and the right to a fair trial.

Paper submitted to Legco

Those of us who wish to believe that our government tells the truth most of the time will have to hope that this statement was originally penned in a more defensible form in Chinese, and badly translated. Because it is plainly not true.

The right to overseas counsel is not a big deal for most of us. It is a small twig on the branch which is the right to the lawyer of your choice, which in turn is a fairly minor offshoot of the right to a fair trial.

The proposed change could legitimately be defended as a minor reduction in defendants’ rights, applicable only in a tiny number of cases. After all how many defendants of any kind can afford to import an overseas barrister, a process which tends to involve First Class travel and a long stay in the Mandarin Hotel, quite apart from the fees?

So you can say, if you wish, that this will affect very few people. For them, though, it is clearly an infringement to the right to counsel of their choice, and an honest government would admit this.

Similarly the independent judicial power of a court is clearly diminished if in a certain type of proceedings it is required to follow the instructions of the Chief Executive. It may not come up often, but when it comes up there is no point in saying that black is white and the jurisdiction of the court is not diminished.

The Department of Justice could have argued – if it allowed its muse to be hampered by such irrelevant considerations as honesty – that the effect of the changes proposed would be very limited, both in the number of instances in which it is likely to come up, and the effect on the proceedings when it does. It could further have argued that this occasional blip in the smooth progress of justice was a necessary price to pay for the important objective of safeguarding national security.

Instead we get the “nothing is happening” argument again.

This sits uncomfortably with the government’s continuing willingness to ignore completely the District Councils Ordinance. Latest explanation for this is that there is no mention of the councils in the Basic Law – which might be said of quite a lot of topics on which all legislation is local – and that work is in progress on a new arrangement which will conform to the Basic Law and ensure that “only patriots rule Hong Kong”.

These are two fat red herrings. Nobody has suggested at any time in the last 25 years that the existing arrangements conflict with the Basic Law. The councils are purely advisory and members no longer have any role in the selection of the Chief Executive, so they do not in any sense “rule Hong Kong”, whether they are patriotic or not.

Still, just in case, they have been required since 2021 to take “an oath … that the oath-taker will uphold the Basic Law and bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China”.

It is difficult to resist the conclusion that the government is simply ignoring the ordinance while it tries to come up with a procedure which looks like an election but returns the right people. This is a difficult task and likely to take some time. In the meantime the rule of law stops at Chapter 547 of the Laws of Hong Kong.

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There was a surprise for government-watchers when it was reported that our new bosom buddies in Saudi Arabia had been told that there were now no COVID-related restrictions here in Hong Kong at all.

This was, at best, a rather slippery use of language. We are still required to wear face masks in public and some individuals – mostly politically inconvenient ones, doubtless by coincidence – have been penalised for appearing bare-faced in public.

I suppose your friendly local nit-picker will say that being required to wear something is not in the strict sense of the word a restriction, It is an instruction. But it feels like a restriction for most of us.

Perhaps the government was just getting a bit ahead of itself. We are expecting to drop the mask requirement any time now. This is a good thing, because one of the less inspiring features of the rule of law in Hong Kong is that you can in theory currently be penalised for not wearing a mask, or instead for wearing one.

This poses a dilemma for the law-abiding which is not one of the “good stories” we are so eagerly seeking these days.

The interesting question for a lot of people will be what happens next. When it is no longer a requirement to wear a mask will people continue to do so most of the time, only in crowded places, or not at all?

Clearly at present there is considerable social pressure backing up the law, at least in places like shopping malls and railway carriages. If in a moment of forgetfulness you have turned up without a mask you will feel naked. And some helpful souls will remind you with interesting gestures that you are missing something.

Personally I always keep a mask folded up in a back pocket for moments like this.

In the open air the situation is a bit more ambiguous. Officially you are allowed, if I understand the advice correctly, to take your mask off while exercising, though not in government facilities for indoor exercise.

My personal observation of the dog-walking and hiking population is that about three quarters of these people wear a mask all the time, or slip one on when they see me coming before I see them. Half of the rest have a mask either worn on the chin or on a wrist, which may be put on as they approach a mask wearer. And the rest have no visible mask, although of course they may have one in a pocket for emergencies like the appearance of a police person.

An interesting thing is the effect of minibus queues. People in such queues are all masked, because the driver will protest if they board naked. So walkers with naked faces coming along the pavement are presented with a small crowd of mask wearers they have to pass, and mask up briefly.

When masks are no longer compulsory the situation will be more complicated. Some people may leave home without a mask. Some may carry one for use if its absence becomes embarrassing. Some will have a personal policy, like masks for malls and MTR; bare-faced out of doors.

This is no mere sociological curiosity, because a small industry has appeared catering for mask wearers. There are for example about six shops within a short walk of the Shatin station which sell nothing but masks.

People who are still sporting the traditional medical model, with its horizontal folds in any colour you like as long as it’s white, are missing the opportunity to make a personal statement.

Masks are now offered in a wide variety of colours and patterns. Some of them are topical: holly for Christmas, rabbits for the Lunar New Year and so on. You can get high-tech ones endorsed by the Surgeon General of the United States, and thin filmy ones which probably do more for your legal status than your health. You can have elastic or ribbons, washable or disposable.

The only variation which appears not to be available is political expression, since an incident two years ago when local sedition-spotters complained about a mask with FDNOL on it in tiny letters.

It is difficult to believe that this flourishing market will survive the removal of legal compulsion. Waves of retail enthusiasm traditionally come and go in Hong Kong. I remember years ago when video game machines first appeared and arcades became as common as rice shops used to be.

Legislators complained that rival offerings of more social utility were being driven out of business by the growth of play places. Age restrictions were imposed kto protect the gullible young. Proprietors were required to allocate a certain amount of space for each machine. Critics complained that the space required for a game machine was bigger than the space allocated to each public housing tenant. But of course the health of the machines was not the purpose of the rule.

Then video gaming migrated to the personal computer and games fans could rot their brains in the privacy of their own homes. Games arcades are now hard to find. I fear the same fate may be in store for mask shops.

From a medical point of view this is probably a shame. Apparently when we were all taking COVID precautions a lot of less publicity-conscious microbes had a hard time finding victims; many seasonal diseases missed their usual appearance.

On the other hand I am told by people who have started travelling again that it is really nice to be surrounded by naked faces. So masks will have to go.

This will leave us with a large supply of unwanted masks, looking for somewhere where naked faces are still not welcome. Well, some places still discourage naked female faces. Perhaps our new friends in Saudi Arabia…?

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Like many English people I have a weakness for underdogs and lost causes. Hereward the Wake against the Normans, Bonnie Prince Charlie against the Duke of Cumberland, John Henry and the steam hammer, the Alamo… Show us a loser and we love him.

But there are limits. Asking, as some people have done recently, for a public inquiry into the Hong Kong government’s handling of the COVID epidemic suggests that the people concerned have not been following the drift of current events at all. This is not an underdog; it’s a dead duck.

There are, it is true, many interesting facets that such an inquiry might look into. Broadly I suppose it would conclude that people had done their best in a difficult situation, beset by conflicting advice from “the science” and messages from a northerly direction which were not always motivated by medicine.

But even if you accept that general conclusion there are many details which would make interesting reading. How did we make a good job of the original unexpected outbreak but make a mess of the Omicron arrival which was predictable both generally (viruses mutate) and particularly (other places got it first)?

It would be really nice to know exactly who were those public-spirited entrepreneurs who sold the government routine items at outrageous prices. Was it really a good idea to devote scarce resources and attention to distributing free Traditional Chinese Medicine on the off-chance that some ancient wizard had stumbled on a cure for virus-born diseases 5,000 years before the virus was invented?

And would the more conventional counter-measures have been more acceptable and effective if they had not been “adjusted” quite so often?

But people dreaming of a public inquiry into such matters have not been up-dating themselves on what is officially known as the “new constitutional order”.

The theory behind a public inquiry is that the government is answerable to the public, that its inner workings should, if interesting, be exposed to public view, and that those exercising power on the public’s behalf should be required to explain and defend their actions.

That is not compatible with the current constitutional arrangement, which is that our government is selected, approved and instructed by the central organs of the Chinese Communist Party. “Our” government is their government. The idea of a public inquiry is based on an incorrect understanding of the real meaning of “one country two systems”, which is that where two possible courses of action are offered we are required to select the right one, which is the one country one.

This would not necessarily preclude a public inquiry, but it would preclude one which satisfied the purposes of such an event. The person or people conducting it would be like Legco, carefully vetted to avoid surprises. Like Legco the consequence would be a widespread lack of interest in its entirely predictable proceedings.

We would be revisiting the old Chief Executive selection dilemma: someone who was popular in Hong Kong would for that reason be unacceptable in Beijing, while someone who was acceptable in Beijing would for that reason be regarded with suspicion in Hong Kong.

This is not to say, though, that opposition from the Liaison Office is solely to blame for the fact that this inquiry is a non-starter. After all our Chief Executive came to us after a career as a practitioner and beneficiary of the police approach to public relations.

This states that all arrestees are guilty, all violence is necessary, all shootings are in self-defence and all visits to vice establishments by senior officers are entirely innocent because Our Boys Can Do No Wrong.

This approach is now being spread to the whole government, which never admits error, never apologises and never admits to changing its mind, because it is without fault or flaw.

Local criticism can be prosecuted as subversion, while overseas criticism can be dismissed as a result of anti-China prejudice or scurrilous attempts by foreigners to hamper China’s rise to its rightful position in the world. This produces a very confident government.

It is difficult to find sympathetic international partners for this sort of view, but not impossible. I notice a large delegation of officials and business bodies visited Saudi Arabia last week in search of opportunities. Some of these were “business opportunities”, which I suppose are no worse there than anywhere else.

Officials also held out the prospect of “legal exchanges”. With a regime which jails critics, executes children, tortures suspects, stones adulterers, amputates thieves’ hands and punishes women for “disobedience”? How nice.

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The news that a Hongkonger had comitted suicide four months after migrating to the UK was tragic. At least it was tragic for most of us. For some people it was an opportunity.

The Standard’s report, for example, effortlessly extended the poor woman’s plight to “HK migrants” generally. The newspaper redeemed itself somewhat the next day with a thoughtful and sympathetic leader pointing out that migration was tough, people should prepare themselves, and part of that preparation was to accept that unless you happened to have some rare and mobile qualification you were probably going to finish up in the sort of job you were not accustomed to.

The Cross we have to bear went through some recent news stories about the UK – inflation, Brexit, strikes, NHS in crisis – and suggested that Hong Kong should offer grants to help migrants to the UK who had come to their senses and wished to return.

This rather overlooked one relevant point. Here Mr Cross is free to slag off the country he came from at the risk of nothing worse than being thought a creep by people whose approval he does not seek.

A Hongkonger in the UK who went through the same newspapers and complained on the basis of their coverage that – say – “the SAR has become a police state with fixed elections, increasingly kangaroo-like courts and a puppet government controlled by Beijing” would be accused, as Tom Lehrer might have put it, of “impiety, lack of propriety, and quite a variety of unpleasant names.” He or she would also be well advised not to return to Hong Kong.

The suicide case was picked up on Wednesday by a nameless spokesman for the China Foreign Office in Hong Kong. His main beef was that the BNO scheme violated the Joint Declaration (the one which was of “purely historical” significance three years ago) but he was also bothered by “Hongkongers’ hardships”, which included “embarrassment and discrimination” as well as despair.

Not to worry. According to another recent migration story disillusioned international bankers are returning to Hong Kong after discovering the drawbacks of London and Singapore. These comprised, apparently, the difficulty of finding servants in London and the fact that Singapore was “boring – you eat in the same restaurant every night”.

I had some difficulty in believing most of this. To start with I am surprised by the suggestion that where these people are posted is governed entirely by their personal preferences. Presumably if your bank wants you in Hong Kong that is where you go, and if not, not.

I also wondered why we were supposed to be reassured. There is no shortage of indigenous financial landsharks. A few foreigners here or there is not going to make much difference.

It is of course flagrantly untrue that you cannot get servants in London. Indeed there are schools in London where people pay through the nose to acquire the skills needed for working as a butler, nanny or cook.

The problem, if there is a problem, is that London does not have the employer-friendly rules which keep Hong Kong’s servants in what some people clearly think is their place. There is no two-week rule, so your servant is not thrown out of the country if she resigns. There is no live-in rule, so your servant can and will refuse to work six 16-hour days a week, or to sleep in the broom cupboard with your dog and/or offspring.

It is also unfair to suggest that bankers posted to Singapore have to eat in the same restaurant every night. The Lion City offers a wide range of expensive dining choices covering most of the international cuisines. It is of course true that Singapore is boring, but that is not because of the food.

Singapore is boring because it has a permanent ruling party which successfully discourages dissent and criticism. This creates an environment in which creative and original people feel unappreciated so they either leave, or abandon public manifestations and cultivate their metaphorical gardens.

These people are trouble-makers to the tidy administrative mind, but they put the bubbles in your public life Prosecco, and without them the product is flat. There is a lesson for Hong Kong here, and it goes a bit further than how we can create a welcoming environment for international business bodies.

Law, order and discipline are wonderful things. But like most wonderful things they can be overdone.

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I have been writing opinion pieces and op eds on and off for about 50 years. One gets occasional feedback, sometimes praise, sometimes criticism. I try not to be inflated by flattery or downcast by brickbats. Still, after so long it is nice to get some original advice.

This brings me to the current trial of sundry employees, and the owner, of the Stand News web channel, on charges of sedition. Prosecuting counsel Laura Ng, while cross-examining a former editor, suggested that all commentaries should be “balanced”.

The editor’s answer to this was much more polite than mine would have been. I do not wish to imply in any way the guilt or innocence of anyone on trial in this case, which would be quite improper. No doubt the judge would not be influenced in any way by anything I wrote here anyway.

But in the interests of what is left of Hong Kong journalism we need to establish firmly that it is neither necessary nor desirable that opinion pieces should be “balanced”.

There is certainly a case for balance in news reports. This is why reporters like conflicts which have two clear sides – Labour versus Conservative, strikers versus an employer, the prosecution versus the defence. Balance is achieved by giving roughly the same amount of space and attention to each side.

In more complicated disputes the matter becomes difficult. On environmental matters, for example, there will be a variety of different views ranging from the prophets of doom to the spokesmen for complacency, with many niches and specialities in between.

There is also the question of when a view becomes so outlandish that we can effectively ignore it. Writers about the holocaust do not feel it necessary to include in every piece a paragraph acknowledging that some people deny it ever took place. Space stories do not acknowledge flat earth theories and stories about the British Royals ignore the rival claims to the throne of the descendants of James II.

Other offerings are more difficult to categorise. Are we obliged to note the objections of the small but noisy groups opposing vaccination, fluoride in water, or the results of the last presidential election?

Editorial writers are generally spared these headaches. An opinion piece is supposed to be about an opinion. The editorial – if your news outlet still has one – expresses the opinions of the editor or proprietor. News outlets aspiring to persuasion will attempt a serious tone, and as part of this may acknowledge that on a particular topic their view is not the only one.

By-lined opinion pieces – those with a named author – are free to expound a view.

That does not, of course, mean that gullible readers will necessarily be swayed by it. Let us suppose that some hypothetical columnist believes that the “so-called” Department of Justice is staffed largely by mercenary mediocrities who, having sold their souls for a well-filled iron rice bowl, have little knowledge and less care for the rights on which they are expected to trample.

Readers of this deplorable diatribe do not need a reminder that the Secretary for Justice takes a very different view of the matter. Indeed the secretary has many opportunities to make this clear even if he doesn’t (as the present one does) write op eds for sympathetic news outlets himself.

Balance is achieved overall because we report the secretary’s speeches and print his department’s press releases, on other occasions. This possibility is specifically catered for in the law on court reporting, which recognises that on any one day the proceedings will often be dominated by the prosecution or the defence. Coverage remains ‘fair’ (an important matter for defamation purposes) as long as you cover the other days as well.

Our government puts out a great deal of stuff, which the media generally gobble fairly uncritically. Critics struggle to get a word in.

This brings us to another point about “balance”, which is that it assumes that, outside the media outlet concerned, ideas are competing on a level playing field. This is not the case at all. Governments and other organisations have large operations dedicated to the manipulation of public opinion.

When I was a working reporter we all knew that some of the people engaged in this activity could not be relied on for a straight answer. We printed their lies in the interests of balance and tried to alert readers by the use of verbs like “claimed” or “asserted” where we might normally have stuck with “said”.

These PR people were often under great pressure to get the desired result. In the days when I provided short courses for government information officers I was routinely told that their immediate superiors had no interest in explaining government policy to the public; they expected their information people to stir up personal publicity for the director or secretary concerned.

In the days when hotel coffee shops kept a vat of over-brewed coffee sitting on a hot plate, a reporter (not me, thank goodness) wrote a piece about the low standard of coffee in such places and named names. The hotel identified as having Hong Kong’s most disgusting coffee took immediate action: it sacked its PR person.

Experiences of this kind engender a certain professional skepticism in journalists, a suspicion that unless otherwise stated all idols have clay feet, all emperors have no clothes, and all official statements are deceptive.

Conversely we tend to believe that the poor and oppressed, among their other disadvantages, have few opportunities for getting public exposure for their needs and views. Writing about such issues does not need to be balanced by a detailed account of the responses of the rich and powerful, who need no help.

This is the sort of thing which happens in places with a free press, and it is a concern that it not only does not happen much any more in Hong Kong, but that the forces of law and order seem to find it actually objectionable.

Reading recent court cases it appears that there is now an official view of the events of 2019, based on the observations of the NPC Standing Committee, that the protests were anti-China, pro-independence, and inspired by scurrilous foreigners taking advantage of young Hongkongers whose brains had been addled by the Liberal Studies subject.

Any alternative interpretation can accordingly be prosecuted as subversion. The extradition bill never existed and our policemen are wonderful, OK? Isn’t it wonderful to have a free press!

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