Feeds:
Posts
Comments

Archive for the ‘Uncategorized’ Category

Goodness, the power of the pen! Last week’s offering is already out of date. David Perry QC decided this week that he would not after all be coming to Hong Kong to lead the prosecution of nine pro-democracy figures for their part in a peaceful protest last year.


Actually the decision is of course nothing to do with me. Mr Perry gave two reasons for his decision: pressures in the UK and “the extension of quarantine”. Curiously, although the reaction from local pro-government figures to the comments in the UK were extensive, detailed and passionate – “ferocious attacks”, “despicable”, “very shocking” etc – nobody thought fit to explore the extension of quarantine.


So we still do not know who was plotting to arrange Mr Perry’s quarantine requirements or what they were up to. The fact is that it takes six weeks for us ordinary peasants to qualify to fly from the UK to Hong Kong these days and there is also a quarantine requirement going in the other direction. We cannot even say whether Mr Perry’s problem was that the rules were not being waived as much as he hoped, or whether he feared that having the rules waived at all would bring further complaints.


Still, it is interesting that half of Mr Perry’s reasons produced such detailed comments while the other half were left an unexplained mystery.


Some of the resulting complaints from the government’s legal supporters were entertaining. Mr Grenville Cross thought the cancellation very regrettable because having such a knowledgable figure prosecuting would ensure the defendants’ rights were protected. Far be it from me to dispute this prediction.


It is indeed a feature of the British legal system that lawyers are officers of the court, expected to put the interests of justice before the interests of their client, if the two conflict. This may be compared with the American system where prosecutors keep careful track of their “conviction rates”, at the cost of a tendency to try to win at all costs.


However it is difficult to believe that the Department of Justice decided to import Mr Berry from an excess of enthusiasm for the human rights of the defendants; I think they wanted him because they thought he would win.


Indeed Mr Cross’s interesting point does not appear in the Secretary for Justice’s comments on the situation, which appeared in the China Daily’s English version on Thursday. Unfortunately Ms Teresa Cheng’s version of the complaints has some serious deficiencies.


The case, she said, “has nothing to do with the National Security Law or any offences relating to it. The nine defendants were charged with two offences under the Public Order Ordinance (legislated before 1997) for organising and … taking part…etc.”


The bit in the brackets is the problem. The Public Order Ordinance was certainly originally passed long before 1997, in fact in 1967. On the other hand in 1991 the Hong Kong Bill of Rights Ordinance was passed and it then became apparent that the POO in its then current form was incompatible with the rights enunciated in the Bill of Rights. A revised version of the POO to meet this objection was passed in 1996.

The new version was condemned by the NPC Standing Committee as a violation of the recently drafted Basic Law, and after much dispute another revised version was passed by the Provisional Legislative Council and came into force on July 1 1997. So the suggestion that this ordinance is a colonial bequest is seriously misleading. One expects better from senior officials. Or at least one hopes for it.


Ms Cheng complains that a UK politician thought the prosecution was “ under the really questionable law that was produced at the behest of China,” and takes this to be an erroneous reference to the National Security Law. Perhaps it was, but it may be a correct reference to the Public Order Ordinance, which is both questionable and produced at the behest of China.


Ms Cheng stresses the “determination of the Department of Justice to fairly and objectively deal (what is it about lawyers and the split infinitive?) with each case based only on the evidence and applicable law without fear or favour,” which is nice.


Mandy Rice Davis achieved undying fame, at least for people in my generation, when asked to comment in the witness box at the Old Bailey on the fact that another witness had denied having an affair with her. She said “He would, wouldn’t he.” But I digress.


The part of Ms Cheng’s article which really annoyed me was the last paragraph, which goes like this: “As legal proceedings are on-going it is inappropriate for anyone to comment further on the case as it is a matter of ’sub judice’. Comments that create a public discussion which may lead to a trial by the public as opposed to an established judicial system are to be avoided.”


My first reaction to this was unprintable and frightened the dog. I have been complaining for something like 20 years about the fact that there is actually a law against media comments on on-going legal proceedings, but the Department of so-called Justice, which Ms Cheng heads, makes no effort to enforce it.


I have tried complaining in print. I have tried sending the department copies of egregious violations. I have tried asking them what the hell I am supposed to teach aspiring journalists: that the law says this but because it is unenforced nobody follows it?


In the end I gave up teaching media law. I also tried to give up complaining about it, but if Ms Cheng is going to raise the matter the question of her role in the problem arises.


In fairness this problem did not start with Ms Cheng’s regime. It has been going on much longer than that. Also it doesn’t only concern the “sub judice” situation. Other similarly neglected rules cover the reporting of cases involving juveniles, cases involving sex and cases involving divorce.


If you complain the Department of Justice says it only considers prosecutions if they are referred to it by the police. The police are neither qualified for nor interested in monitoring the media for infringements, a task which used to be done by the Legal Department, as it modestly called itself in colonial days. Many of the infringements actually come from the police themselves, as anonymous leaks or, sometimes, official announcements.


The result is that prejudicial comments and reporting are rife. If Ms Cheng reads the China Daily as well as writing it she will have seen, for example, some ripely prejudicial offerings on Jimmy Lai. Ta Kung Pao is worse. The Beijing press is not published here, but it is read here, at least by a few people. That used to be enough to attract at least a warning. I remember talking the then Legal Department out of prosecuting one lady who had sent a story clearly labelled “not for use in Hong Kong” to her employer in Oz, only for three copies of the offending item to crop up in the Mandarin Hotel newsagent shop.


Since the turn of the century there has been one newspaper prosecuted for contempt of court. Do you need three guesses? Of course you don’t; it was Apple Daily.


It seems to me that Ms Cheng either needs to muzzle the pro-government attack poodles, or resist the temptation to preach about the potential evils of public discussion. The remedy is in her hands, not ours. The rule of law is not supposed to mean the rule of selected laws. 

Read Full Post »

Considering the events which came later in the year it is rather surprising to see the Department of Justice pulling all the stops out to prosecute nine people for “participating in and organising” an illegal assembly on August 18 last year.

This was a completely non-violent affair in which political objectives took a back seat: the main focus was to protest at police brutality.

The only legal oddity was that the police had supplied a “no objection” letter for a static rally in Victoria Park, but had not approved a mobile march. When the park overflowed – organisers later claimed that more than a million people had shown up – the people who could not get in started to walk to Central, and it all picked up from there.

Among the defendants are “Father of Democracy” Martin Lee Chu-ming, the Tiananmen Square vigil organiser Lee Cheuk-yan, and the veteran activist “Long Hair” Leung Kwok-hung. And Jimmy Lai, of course. They’ll get him for something sooner or later.

But the trial, which is still a month away, hit the headlines because the Department of Justice obtained permission from a High Court judge to import a British barrister, David Perry QC, to prosecute.

I am indebted to a commentator on the Big Lychee blog for the first interesting point about this, which is that COVIDwise the application is already a bit late. People who wish to come to Hong Kong from the UK at the moment are required first to spend three weeks outside their virus-infested home country, and then to spend three weeks in a quarantine hotel in Hong Kong.

Unless the court hearing is going to be held in the hotel, or Mr Perry is going to appear by Zoom, there won’t be time for this. It also appears rather unlikely that Mr Perry, whose time is expensive, is prepared to waste six weeks qualifying to visit Hong Kong so he can appear in a District Court.

This leads to the suspicion that special arrangements are being made for Mr Perry. Is this going to be our Dominic Cummings moment, in which health precautions are discredited by the discovery that they can be waived for a famous few?

Then you have to wonder what Mr Perry is going to do for us. Chief Judge of the High Court Jeremy Poon Shiu-chor (whose permission is required for foreign imports) apparently foresaw a legal slugfest: “At the core of the parties’ contentions, the court will be asked to resolve the extremely important, difficult and delicate question of how to address and, if necessary, balance the competing interests involved in protecting the fundamental freedom of assembly on the one hand and regulating the manner and exercise of that freedom under the statutory regime, including the appeal mechanism on the other,” he said.

“The constitutional issues will have a real and significant impact on the exercise of the freedom of assembly in the future,” he added, saying it was “of great and general importance to the development of local jurisprudence”.

Well it may go that way. No doubt the prospect of prosecuting against a legal team which has Martin Lee as a sort of back-seat driver is intimidating. But Poon J seems to be assuming that the prosecution’s account of the facts will pass unchallenged.

What if the police evidence is contradicted by that of other witnesses, or – as seems to happen rather often these days – by some amateur video? The prosecution has to prove participation and organisation before the human rights aspect comes up.

Mr Perry has prosecuted in Hong Kong before, but the previous targets were in rather different contexts: Nancy Kissel, Rafael Hui and Donald Tsang were among them. The mysteries of the Public Order Ordinance are unique to Hong Kong. Is there no qualified local person?

It appears that if Mr Poon’s expectations are justified and matters of great constitutional import are raised and decided then whichever party loses will appeal. It might, you would think, have been a good idea to reserve Mr Perry’s expensive services for the Court of Appeal stage.

What is wrong with our Department of Justice, that nobody can be found who takes a profound interest in human rights matters? Well, anyone who has bathed in the river of verbiage which flows from the fertile pen of Mr Grenville Cross these days will perhaps suspect that human rights have not been a hot topic in the department for a long time.

Mr Perry has already come in from some stick back in his home country, where travelling to a distant despotism to prosecute pro-democracy agitators is not admired. 

Baroness Kennedy, also a QC, the chairwoman of the International Bar Association’s human rights institute, was quoted by the Times as saying “I cannot fathom why any reputable British barrister would provide a veneer of respectability to actions which are contrary to democracy and the rule of law. This decision will become a source of shame.”

Mr Perry, who perhaps does not take much interest in Hong Kong politics, seems to have overlooked recent developments. On previous visits he was working for an autonomous region’s government. This is no longer the case because Beijing has taken control. This time he will be working for Xi Jinping. You have to wonder who else Mr Perry would be prepared to work for: Victor Orban, Recep Erdogan, Vladimir Putin, or Kim Jong-un?

In his defence we have already been offered the Taxicab Rule. This states, rather implausibly, that barristers merely wait meekly for whatever brief drops into their letterbox, and are not allowed to pick or choose.

This is a useful argument in response to the “how can you defend people you know are guilty” complaint. Defendants are entitled to ask and I am not allowed to refuse.

In practice, though, it is not how things work. Barristers who are in demand can always be “too busy” for an unwanted client, or achieve much the same effect by asking for an outrageous fee.

They also, on occasions, break the rule for political reasons. In 1945 the British Bar decided that none of its members would be available to defend accused war criminals. This meant that those accused had to rely on German lawyers who were not familiar with the legislation or procedure, and had had few recent opportunities to practise their English. This was so obviously unsatisfactory that one barrister eventually broke ranks and appeared for Erich von Manstein.

In Hong Kong there was a case in 1985, usually known as the Braemar Hill murders, in which two British teenagers were murdered by a group of Chinese youngsters.

In order to reduce the racial undertones of the case the Hong Kong Bar agreed that all the defendants should be represented by expat barristers. They were not given a choice.

Mr Perry has a choice. Perhaps in view of the rather strong reactions in the UK he will reconsider it. After all Hong Kong public order cases don’t mean much these days. If the law does not go the way our imperial masters wish then it can always be “interpreted”.

Read Full Post »

The amazing thing about this week’s mass arrests is that the alleged crime of those held is to plan to follow a constitutional procedure laid down in the Basic Law. You would think this could hardly be illegal.

Not according to Senior Superintendent Steve Li. of the our new local Gestapo, the police national security unit.

The plan, he said, was to “handicap government” by using a legislative majority to veto budgets twice, thereby pushing the Chief Executive to resign and forcing the government into a shutdown.

This is a piece of constitutional codswallop so profound that I hardly know where to start. Let us take a simple point first. If the Chief Executive resigns that does not “force a shutdown” of anything. Her number two takes over – I think at the moment the poisoned chalice would pass to the Chief Secretary, Matthew Cheung – and a fresh election is held to produce a new CE.

There is no excuse for an error in this matter because the first Chief Executive, Tung Chee-hwa, did in fact resign – for “health reasons”, though he seems to have enjoyed robust health ever since and is still with us. Nothing was shut down, chaos did not ensue and in due course a replacement was installed.

It may seem a strange thing to veto the budget, but this is a procedure specifically provided in the Basic Law to deal with a situation in which the Legislative Council disapproved of the Chief Executive.

This always seemed rather a long shot. The elections to the council were carefully designed to produce a docile majority and the election of the Chief Executive even more so. Still the drafters did not expect that efforts to produce the desired result would extend to arresting or disqualifying every plausible dissident candidate. So some provision had to be made.

The significance of the budget is not that vetoing it will bring the government to a standstill. Its significance is that it will indicate the depth to which disagreement has reached. After all an unpopular government will often find that individual items of legislation come unstuck.

Indeed it is at least theoretically possible for a government to continue without legislating at all. Charles I managed it for 11 years and might have gone on longer if he had resisted the temptation to fiddle with the Church of Scotland. This story did not have a happy ending, but it shows what is possible.

Money is another matter. A government which cannot get a money bill passed has to face the fact that its time has come.

The provision in the Basic Law is discouraging, no doubt intentionally. If Legco rejects the budget the CE is entitled to call a new Legco election. Members who have rejected the budget will have to explain their conduct to the electors, while the CE can make the case for a more cooperative assembly.

If the new Legco is substantially the same as the old one the CE can, if he or she has a galloping death wish or is being propelled down the path to constitutional Armageddon by advice from the Liaison Office, present the same budget. If it is again rejected then he or she has to resign.

As I said before, this is not the end of the world. The number two takes over and a new CE is elected. Politics and administration continue.

Under present circumstances, alas, all this looks rather fanciful. Our government has effectively decided that chess is not its game and kicked the board over. The old rules no longer apply. 

In a more tolerant and democratic world, of course, it would be astonishing if anyone ever went through the whole procedure of two budgets, and two elections.

The election of the second Legco would be the decisive moment. If it appeared that the new Legco was much like the previous one then the CE would have to consider either negotiating some desired concession or resigning straight away.

One could envisage circumstances in which such negotiation would be impossible: relations would be so toxic that no deal was on offer. The only thing which would placate irate legislators would be the CE’s head on a plate.

But that was not the case here. Not all the candidates subscribed to the “reject two budgets” scenario and those who did were not asking for a replacement CE, they were repeating the “five demands”. 

So in the highly unlikely event that more than half of the next legislature comprised enthusiastic democrats there was surely some hope of compromise, if compromise was attempted. Unfortunately if Carrie Lam has any talent in this area she is not allowed to exercise it.

Still, arresting everyone concerned looks more like an effort to intimidate than a serious attempt to apply the law. The Basic Law is perfectly explicit about the procedure to follow if you are a legislator who disagrees fundamentally with the government’s policy in a particular area. It seems very odd that a candidate who states his intention to follow this procedure can be prosecuted for anything.

I realise that police training cannot cover everything, but Senior Inspector Li really has no excuse for the “flow chart” he exhibited to reporters, which included the beguiling but mendacious line “Legco refuse to pass the budget twice to stop the operations of government”. 

If a budget is not passed the Legco passes instead what is known in some places as a “continuing resolution” which allows the government to continue on a day-to-day basis following the old budget. Members are particularly likely to vote for this if they are facing an election because nobody wants to explain to the electors why they closed every swimming pool and police station in Hong Kong.

Well in these grim times we do not expect much from police press conferences, and explaining a dawn swoop on 50-odd assorted politicians is not easy. Still, I wonder about Mr Li.

In Gray’s “Elegy written in a country churchyard” he ponders the tomb of “Some village Cromwell guiltless of his country’s blood.” What are we going to write of Mr Li? Some village Himmler? Not guiltless, unfortunately.

Read Full Post »

A Dutch historian, Pieter Geyl, was interned during the Second World War, and passed the time by writing, from memory, a book about the different ways in which Napoleon had been treated by French historians.

After a short interlude to tidy up and check his quotes this was published in 1949, under the title “Napoleon for and against”, and instantly became a classic. It is the text which everyone refers to when they want to make the point, now verging on a platitude, that history is not a search for some elusive motherload of incontestable facts with which everyone will eventually agree.

On the contrary, historians are people of their times, and their writings reflect their own contemporary preoccupations and prejudices. The present pollutes the past, just as the past pollutes the present. In the 1830s Napoleon was a later version of Charlemagne. In the 1940s he was an early version of Hitler.

There are of course facts on which everyone can agree. No future historian will ever dispute that Hong Kong was handed over to Chinese rule in 1997. But as soon as you move on to what that event meant, entailed, or came from, then different people will look at the same event and see it in different ways.

So I was amused by the announcement that there is a Hong Kong Chronicles Institute, which is going to splurge $780 million on the production of a Hong Kong Chronicle, which will record our history over the last 7,000 years.

The chairman of the Institute, Mr Tung Chee-hwa, (yes, our first CE) said the chronicles would be “accurate and objective”, according to the Standard. Also engaged in this enterprise is Mr Bernard Charnwoot Chan (yes, the convenor of the Executive Council) who is quoted as saying “There is no endorsement from the government. We are independent.”

This rosy view of the matter was rather spoiled by the additional information that “Beijing’s top official in Hong Kong, Luo Huining, is one of the honorary patrons.” The other honorary patron mentioned is Carrie Lam, our much-loved Chief Executive. How independent can you get?

There is no such thing as accurate and objective history. If there was, though, you would not expect to find an organisation headed by people like this to produce it.

Give them credit for ambition, though. The “chronicles” will run to no less than 66 volumes. Even with 7,000 years to play with this seems a bit ambitious. Some comparable efforts:

  • The Cambridge History of Britain occupies four volumes, no doubt helped by the fact that it only starts in 500AD.
  • The Cambridge History of the US has reached 11 volumes and is not yet finished, though work started in 1982.
  • The Oxford History of England was produced between 1934 and 1986, eventually comprising 16 volumes plus a joint index.
  • The Penguin History of Europe runs to seven volumes, starting with the Trojan Wars but finishing, so far, in 1949. 

So I would not bet on the 66th volume coming out on schedule in 2027. No doubt the budget will come under some strain as well. One third of it comes from the usual suspects: the Jockey Club, banks, property companies, Li Ka Shing Foundation. Curiously we were not told where the other two thirds were coming from.

And who, one wonders, is going to read this thing? I am a glutton for history books, but 66 volumes? I am afraid the involvement of so many government heavyweights reduces confidence in the reliability of the eventual product. After all one of the features of the last few months has been the industrious rewriting of recent history.

Take, for example, the famous Yuen Long MTR station incident on July 21 last year. At the time this was described (in the SCMP) as follows “At least 45 people were injured in unprecedented late-night violence at a Hong Kong railway station on Sunday, as a rampaging mob of men in white T-shirts attacked black-clad protesters and passengers indiscriminately. No police officer was in sight as dozens of men, who witnesses suggested were triad gangsters, stormed into Yuen Long MTR station.”

By the time the supposedly Independent Police Complaints Council reached it the event had already been changed to a “stand-off” between two groups who are treated as equals: the white-clad men outside the paid area and the people in black inside it, in which the eventual attack on the MTR train is treated as an unexpected result of “provocation”.  

This is a legally blind way of looking at the two groups concerned. Nobody has suggested that the passengers arriving in the station that night were looking for some men in white to beat up. Whatever they had been doing earlier – no doubt some had protested legally, some had protested illegally, and some just happened to be wearing black because it’s a popular colour – when they reached the station they were just a crowd of law-abiding citizens going home.

The men in white, on the other hand, were not would-be passengers who were prevented from going into the paid area by the presence of a hostile band of protesters. They had come to the station looking for a fight.

Wading through a small lake of details about the police response, which was slow and timid, we come eventually to this:  “The IPCC notes that live stream news reports on the confrontation between the two groups, one clad in white and the other in black, invariably featured with prominence persons in white attacking those in black outfits.” 

Well how about that! What can we deduce from this interesting imbalance in “prominence”? Note that a livestream is by definition not edited. You point your camera at what seems most exciting and whatever happens happens.

The IPCC seems to have trouble with the idea that if most of the footage showed people in white attacking those in black then that was probably because the people in white, who had assembled armed for the purpose, were doing the attacking.

This trend of treating the whole affair as a brawl between two groups of consenting adults has now reached its logical conclusion. As well as sundry persons who were presumably once in white shirts we also have people who were in the black shirt group charged with “rioting”.

Then we come to the interesting incident at Nam Pin Wai in which a senior police person patted, petted, or possibly merely redirected, a person in a white shirt. This has been a huge preoccupation with police spokesmen and apologists ever since. The IPCC offers an elaborate – and of course innocent – explanation. The explainers fondly suppose that if they can see off this bit of video they can refute the accusation that there was “collusion” between police and triads.

This is an error. True some people drew the obvious conclusion from the late arrival of police rescuers at the station that the police were not in a hurry to protect and serve anyone who was wearing black. True too that the person in white who was petted, or redirected if you prefer, would if he had been wearing black in Causeway Bay have been treated to a faceful of pepper for failing to follow police orders.

But these features of the evening would not have led so many people to the same conclusion if it had not been for the history of Yuen Long, a place where everyone knew who the bandits were but somehow they were never arrested.

This was not entirely due to police failure. Very senior officials strenuously discouraged police inquiries into the activities of rural bigwigs, because the “administration” valued the support of such people. It was assumed erroneously that village potentates who were allowed to play with fireworks, eat dog, hold gambling parties and other peccadilloes would not seek to enrich themselves from the numerous opportunities which immunity from the law opens up.

Collusion can take many forms, and it does not necessarily imply joint enterprises or cooperation. The history of Yuen Long is of a tacit “live and let live” approach to rural criminality which has persisted for decades. Do not expect to read about this in the Hong Kong Chronicles.

Read Full Post »

It has been obvious for a long time that the COVID epidemic would make a mess of Christmas. But it turned out to be unexpectedly traumatic all the same.

Usually the way of it chez Hamlett is that we order a large turkey, and also a large ham. Some 20 or 30 friends then come round to consume the result of a long day’s cooking, exchange presents, drink too much and engage in other conventional festive rituals. Well that was obviously not going to happen this year.

In fact as there were only going to be four of us it was immediately obvious that no plausible turkey would be small enough.

No problem, said the chef – who for these purposes is me. When I was very young the idea of universal cheap turkey had not yet arrived. Meat of all kinds was still expensive, rationed or both. So the extended Hamlett clan assembled at my parents’ place and my agricultural Uncle Philip arrived with a large whole chicken, which he plucked and gutted in our kitchen. And that was the festive bird.

So we would have a roast chicken. Now although I cook at least once every week I have no experience of buying whole chickens in Hong Kong. I prefer boneless thighs, which are easy to cook and reasonably cheap even if the packaging is embellished with glowing descriptions of the luxurious life and lavish diet enjoyed by the deceased bird.

I do not have the necessary thick skin to choose a live chicken and have it butchered while I wait, still less to buy a live bird and carry it off to be executed, plucked and drawn at home. This was the standard arrangement used by our neighbours when we lived in a rural village. Some people had a small hen house in which condemned prisoners could spend their last days.

Call me a softy if you like. My idea of a chicken for human consumption is a nice clean package on a supermarket shelf which is already naked and dead.

All the chickens offered in Hong Kong shops appear to be very small. This was not a problem. We would buy two. We selected a couple from the supermarket shelf which were neatly packaged in the usual plastic tray and film, and put them unopened in the fridge.

On the day of the feast my son arrived to help, as he usually does. I had lined up a Gordon Ramsey recipe which required a rather elaborate stuffing and was working on that while he unpacked the two chickens.

A wail of dismay greeted the first piece of bad news. Our dead chickens still had their heads on. At this point I became very busy with the stuffing. There was some discussion of the rival merits of decapitation with a sword – we keep one in the house for dancing purposes – or an axe. Did Henry VIII worry about this? Would it be least upsetting if one of us held the bird up by the head and the other one took a wild swipe?

We settled for something conservative with the usual kitchen chopper. Then another interesting discovery. The chickens still had their feet. These were removed without too much trouble.

My renewed tussle with the stuffing was then interrupted again. There were some internal parts still inside the chickens. This was not the usual polite arrangement found in commercial turkeys, in which the parts you might wish to use to make the gravy are inside the bird, neatly enclosed in a plastic or paper bag. 

The internal parts were spectacularly gory and still attached to the inside of the bird. At this point my interest in the stuffing became all-absorbing. All I could offer was the possibly unhelpful suggestion that my son, who is an enthusiastic watcher of hospital soap operas of the ER kind, should regard this as an opportunity to practise an emergency operation.

My son is a good soldier on these occasions, and continued to work on removing the sundry bits found inside the chickens, while expressing serious doubts about whether he would ever want to eat chicken again.

Quite what gets left and what gets removed remains a mystery. There was no sign of a heart, or of the digestive system, which I assume takes the form of a long tube. We thought there was a liver and possibly two kidneys there somewhere. Also there were some mysterious spongy bits on the inside of the rib cage which may have been the remains of the lungs.

Finally we had our two chickens stuffed, seasoned and in the oven. Fortunately they had to stay there for an hour and a half, during which time traumatic memories of their internal plumbing had dimmed and we both managed to eat them.

Still, this was not so much a celebration of Divine Grace or the Winter Solstice as an unexpected lesson in the merits of vegetarianism. There is a moral here for squeamish consumers: if buying a whole chicken in Hong Kong look closely; you may get more of the chicken than you really want.

Read Full Post »

I am still worrying about the implications of a story the other week, which recorded that a shop selling face masks had closed because of fears that its wares might contravene the new national security law.

One of the controversial items was a yellow mask (a subversive colour?) bearing the initials FDNOL.

It appeared from the attached picture that these letters were so small as to be barely visible to the naked eye. But some national security enthusiast had noticed them, and deduced that they were supposed to stand for one of last year’s popular slogans: Five Demands Not One Less.

I do not recall that the five demands actually included anything hostile to national security. One of them, the withdrawal of the extradition bill, had already been conceded. The withdrawal of the word “riot” in official descriptions of one event was a purely verbal request, and the idea of an inquiry into policing was quite popular even in pro-government circles.

Lots of countries have occasional amnesties without imperilling their security, and democracy is, after all, described as a desirable destination in the Basic Law. So the slogan seems to suffer from guilt by association with the people who like it, rather than any intrinsic legal problem.

Anyway I shall leave that question to more learned pens. What bothers me is the ambiguity involved in criminalising a set of initials. These are always ambiguous. Good example the other week of someone who ended a sympathetic email to a bereaved friend LOL, thinking it meant Lots of Love, only to discover that the recipient decoded it as Laughing Out Loud.

After all FDNOL could stand for a variety of things besides five demands etc. Fidel’s Definitely Not Our Leader, perhaps. Or Fearful Ducks Nest On Lampposts. How about Fairies Dance Near Our Lodgings?

I quite see that you might jump to a conclusion on this matter if you saw the fatal letters waved at a protest demonstration. But in tiny letters on a face mask? The national security law is frighteningly ambiguous, but is there not a venerable legal principle (encased, as such principles tend to be, in a bit of Latin), which goes “De minimis non curat lex”, usually translated as “the law does not concern itself with trifles”?

The other sensitive slogan presents even more problems. This is “Free Hong Kong, revolution of our times”. whose Chinese version has already sprouted a variety of interesting disguises.

The English initials present an opportunity for serious ambiguity. In the first place the “Free” character in Chinese is sometimes translated as “Liberate”. Hong Kong in some publications is one word. So for this part of the slogan we could have FHK, LHK, FH or LH.

The revolution part has other possibilities. Anyone for a patriotic tee-shirt urging us to ROOT for Hong Kong?

The trouble with getting excited about subversive abbreviations is that some people will regard it as a challenge. New formulations will appear. For DAB haters we could have FTDAB. Fans of our glorious leader might like OLIASC. For the footloose: IM OK BNO.

Whether these would be acceptable as number plates is an interesting question. As it happens I was a member of the number plate vetting committee for many years (an underpaid but entertaining job) and I cannot recall any plausible pretext for refusing BE WATER. The Transport Department has banned it anyway.

Well of course the times are a-changing, and this is happening quite fast. The ink was barely dry on my piece about the need to consider when to leave when it emerged that people migrating to the UK under the BNO scheme would not be able to take their MPF money with them. Or as a number plate might put it BNO NO $$$.

The news that various people’s bank accounts have been frozen also had a chilling effect (sorry).

It would be nice if our leaders discouraged amateur witch hunters from looking too zealously for possible national security violations. Initials have a meaning only to people who are already politically activated one way or the other. We were told when the national security law first appeared that of course nobody would be prosecuted merely for waving a banner or shouting a slogan. 

Well that turned out to be a good joke. But we are not ROTFL.

Read Full Post »

I have been reading “Fake Law”, by an English barrister who operates under a pseudonym to avoid accusations that writing books about the legal system is a way of advertising his services.
In it he laments the widespread ignorance of the finer points, or indeed many of the less fine points, of the law among journalists and politicians, and the resulting circulation of false or misleading ideas about how the legal system works.
I do not know how long it took him to collect the examples of this trend in England. Most of the examples offered concern issues which have not come up here, like the effect of economies on the Legal Aid system, the circumstances in which a court may rule that medical treatment is not in the interests of a dying child, or the role of juries in rape cases.
Still if he ever runs out of material in England he will find a copious supply of odd legal comments in Hong Kong. Some examples from the last week or so come to mind.
Let us start with Mr Ho Lok-sang, who pens pieces at the rabid end of the pro-government spectrum for the China Daily’s English language edition. Mr Ho is upset that Ted Hui escaped to Denmark, having gathered as the eighth summons dropped through his letterbox that someone in Hong Kong was out to get him. Mr Hui was on bail.
“The legal principle when dealing with bail applications is quite simple,” says Mr Ho. “The primary consideration is the defendant’s likelihood of absconding.”
That is totally wrong. The primary consideration when dealing with bail applications is that the applicant has not been convicted, is presumed to be innocent until a trial decides otherwise, and that consequently he should be left at liberty unless there is a strong case for keeping him in custody for some reason, one of which might be the likelihood of absconding.
This is the correct approach and if it is adopted there will inevitably be occasions when the defendant manages to disappear. That is not a reason for piling on the magistrate concerned.
On this erroneous basis Mr Ho proceeds to some vigorous judge abuse.
Three magistrates and one judge are explicitly accused of political bias. Mr Ho offers an entertaining contradiction by asserting at the beginning of one paragraph that there is “righteous public indignation in response to Hui’s escape” and at the beginning of the next that “Hong Kong people are not upset over Hui’s escape”.
Nevertheless, apparently, “some members of the public now see the judiciary, or at least some magistrates and judges, as part of the conspiracy to allow these rioters and activists to escape justice by granting them bail and permission to leave Hong Kong.” And they should be investigated by the ICAC.
Mr Ho is in some danger of discovering that it is still a common law offence to impute corrupt motives to judges. But then perhaps he isn’t, because this is the sort of law which is rather neglected where the pro-government press is concerned.
For an altogether more polite and upmarket form of judge abuse we can turn to Mr Henry Litton, who has turned his retirement into a one-man campaign for shorter judgments of a kind which he agrees with.
Like Mr Ho, Mr Litton starts with an obvious error. Last year the police force, he says, was “the target of extreme violence”. Dear me, no. I have a master’s degree in extreme violence. The course was called War Studies.
This is also basically irrelevant. We do not have collective punishment, and we should not have collective excuses either. Whether any particular police action represents an appropriate use of force depends on the individual circumstances.
You may have supposed that Mr Litton’s occasional appearances in print were aimed at rectifying some error in the way Hong Kong judges approach matters concerning the Basic Law and the PRC constitution. No such matters arise here. The case concerns whether the police force should be required to display individual numbers so that they can be identified by members of the public, and whether the existing system for dealing with complaints about the police is satisfactory.
The judge decided that the police should display numbers and the system was unsatisfactory, which will strike many observers as common sense conclusions. Mr Litton disagrees. There is much dissection of parts of the judgment. Mr Litton complains that it is 66 pages long.
Well judgments are printed in a very wasteful way, and lawyers generally do not have the gift of brevity. Mr Litton, alas, took up so much space on more important matters that he did not have room to expound on the dangers and merits of having very senior retired judges commenting on cases which are still open to appeal.
Curiously it seems that besides the judgment’s contents — “the stuff of comic strips, of fairy tales” — his most cherished objection is that the Commissioner of Police will ignore it. This is a plausible prediction but hardly the judge’s fault, one might think.
Mr Litton proposes a few simple rules to avoid future outrages, the last of which is that “The courtroom is no place for debate with lawyers”. Really? What are lawyers for if not to perform in courtroom debates? We may be heading for a system in which the only role of defending counsel is to help the prisoner at the bar to draft his confession. But let’s not rush it.
Now we come to the strange affair of the Duty Lawyer Scheme noticeboard. The controversial corkboard is located in the Shatin Magistrates Court. A website called “Save HK” printed a picture of said notice board, complaining that it had “pro-protester items pinned on it, including one entitled Hong Kong Protest ABC.”
This provided an opportunity for DAB lawmaker Holden Chow to leap into action, asking for “disciplinary action in light of the breach of neutrality inside court buildings.” Putting up posters which support illegal protests with inflammatory slogans was “a despicable action which damaged the reputation of the Judiciary.”
Well there is no such thing as a rule on “neutrality” in court buildings. We expect the judge or magistrate to be neutral. The police, prosecution and defence are not. The Duty Lawyer Service is not part of the Judiciary and it is not expected to be neutral because its role is to help defendants who cannot afford a lawyer.
Many recent defendants have presumably been protesters so you might think it a good idea for the Duty Lawyers to have some idea of what the protests were about and what the protesters thought they were doing. Still, the service is funded by the government so the posters were removed. A spokesman for the service said the “individual staffer involved was severely reprimanded”.
Looking at the actual posters it is difficult to see what all the fuss is about. The “protest ABC” is a cartoon-like joke: A is for Angry, B is for Be water, C is for Crowdfunding, D is for Demonstration, E is for Extradition Bill and so on. Each letter has a little sketch: the Extradition Bill for example has what appears to be a dead duck.
There are a lot of functional notices on the board and two red bannerets of the kind people put on their doorposts at Chinese New Year, which I cannot read. And there is one poster on which the only clearly legible phrase is “Freedom was a basic human right.” Is that “deemed subversive” now, I wonder. Has “free” become a dirty word? This is going to be a problem for publishers in the future. Free is a four-letter word beginning with F. But F*** already means something else.

Read Full Post »

The 13-month prison sentence imposed on Joshua Wong has rightly attracted a lot of attention. This has rather overshadowed a less spectacular but still interesting matter, which is what happened when he was first detained back in November.
When you are remanded in custody in Hong Kong you are taken to a place called the Lai Chi Kok Reception Centre. This name is not a mere euphemism for Lai Chi Kok Prison; it recognises an important difference.
People who are remanded in custody pending trial are not convicts. The remand is not a punishment because in our system you are presumed to be innocent until the trial. Keeping people in custody before the hearing is supposed to be a rather reluctant concession to some practical needs: to ensure that the defendant turns up, does not repeat the crime, and does not interfere with potential witnesses.
When I was still a full-time reporter I used to receive occasional suggestions from people who had been unwilling guests at Lai Chi Kok that conditions there were scandalously Spartan. The official response to requests for comment on this was that the facilities were simple because stays were expected to be short.
In that respect, alas, times have changed. It used to be supposed in the vast majority of cases that the defendant had a right either to a speedy trial or to be freed on bail while the prosecution got its act together.
Standards in this matter have slipped. I notice that by the time Mr Tam Tak-chi stands trial for a number of legal antiques alleging “subversion” he will have been in custody for nine months.
Anyway back to Mr Wong. It seems, according to a “ letter from prison” on his Facebook page, that on his arrival in the Reception Centre on November 23 he was X-rayed. The correctional X-ray interpreter decided that there was some unexplained object in his stomach.
The nature of this object was apparently quite unclear. It “could be drugs, rings or gold and silver objects”, he was told.
He was then placed in a cell on his own. The cell light was on at all times. He used a blindfold to sleep, but was woken every four hours to have his blood pressure and oxygen saturation checked. He was not allowed the usual hour of outdoor exercise.
He was required to defecate … to hell with the euphemisms … he was ordered to shit on a plate. This had to be handed to a Correctional Service person who checked the output for drugs, rings, gold and silver objects etc. After the inspection of the plate Mr Wong was required to sign an “isolated observation form”, whatever that is.
He had to pee in a washbasin. It did not have running water. He was subjected to further X-rays. He was not allowed to see the results but they cannot have shown very much because after three days no gold and silver objects or other treasures had appeared. So it seems there was nothing unusual in Mr Wong’s stomach at all. He was then allowed to mix with the other prisoners, take exercise, etc.
This story raises a number of questions of the kind which one might once have hoped would be asked by some alert Legislative Councillor.
The first one is: are all new arrivals at the Reception Centre routinely X-rayed? This is a medical procedure which usually requires the patient’s consent. There are hazards attached to exposure to X-rays, which is why if you have one in a hospital the camera operator invariably leaves the room before the actual picture is taken.
They do not have to worry about undetected pregnancies in Lai Chi Kok, because the Reception Centre only admits males. Still, some people may be harmed by exposure. And after all, a remand prisoner is not a convict. He does not have the right to leave; that does not mean he loses all his other rights as a citizen and a human being.
If the X-ray is not applied to all new arrivals it raises another question: why was Mr Wong singled out for the privilege? Mr Wong is, whatever you think of his politics, a fully paid-up member of the middle classes. He is an unlikely dope dealer. Why anyone would want to smuggle personal jewellery into the Reception Centre is not clear.
Then we may wonder what is with the recurring visits for tests of blood pressure and oxygen saturation? Was this a medical necessity? Did the repeated X-rays show anything, and if not why did Mr Wong’s solitary confinement continue?
Interpreting X-rays is notoriously tricky. The matter has been much studied and error rates in the range 20-40 per cent are commonly found. More disturbingly, in one experiment where the radiologists were offered the same X-ray picture again they disagreed with themselves about 20 per cent of the time.
I shall not name the rather prestigeous and expensive Hong Kong hospital which, having sent me home with a clean bill of health, telephoned the next day to say that on a second look at my X-rays they had detected a broken leg. It happens.
If, when it happens, you are confined to a toilet for three days with the light on and constant interruptions, you are entitled to wonder what is going on. And if you have in fact eaten nothing abnormal you may wonder, when the X-ray is repeated, whether any of the people looking at it know what they are doing.
I have some good friends in the Correctional Services Department. The department has an improbable enthusiasm for Scottish music. I am sure most of the correctional people are humane and benevolent individuals sincerely trying to do the best they can for the people in their custody. I recognise also that the staff at Lai Chi Kok cannot choose their guests, some of whom are a rough bunch.
However you need more faith in the milk of human kindness than I can muster to look at the way Mr Wong was treated and shake off the suspicion that someone in Lai Chi Kok thought it would be a good idea to give him a hard time because of who he is. This is not supposed to happen.

Read Full Post »

The city of Lviv, now in Western Ukraine and said to be very beautiful, has had the misfortune of an interesting history. At various times in the past it has been called Lemberg, Lemberik, Lwow or Lvov.
A change of name usually signalled a change in political ownership. And this change, if there was time to think about it, posed a question to the inhabitants: to leave or to stay.
Unfortunately this usually involved a great deal of uncertainty about the practical prospects, and a range of subordinate questions, some of which had no obvious answer: will people like me be killed, enslaved, or deported, will my religion still be acceptable, may I continue to speak my mother tongue and may my children be taught in it, will I still be able to work in my present job, will there be law and order and if there is will it be fair?
This sort of dilemma seems very alien to Hong Kong expats, most of whom come from stable democracies which have not been invaded for a century or two. It will be all too familiar to some locals; I used to know several musicians who had fled Indonesia at a time of anti-Chinese pogroms, only to land in the mainland just in time for the Cultural Revolution.
Well if it seems alien to you it’s time to get used to it. Choices of this kind were familiar in the 20th century and one of their features was that delay was sometimes expensive or even fatal. Those who failed to make an early getaway from the then Czechoslovakia in 1948 found themselves in the Soviet block for the next 40 years. Citizens of East Berlin could simply walk to freedom until the construction of the Berlin Wall in 1961. After that, attempted emigration could get you shot.
Similarly those who failed to make a timely exit from Shanghai in 1949 discovered (if they were not shot as counter-revolutionaries) that after liberation they were no longer free to leave, or were allowed to leave but could take no belongings with them.
I was talking the other day to a Hongkonger of Jewish ancestry, and he was acutely aware of the need for timely choices in this matter, because some of his ancestors paid with their lives for failure to read accurately the political tealeaves in Central Europe.
And this brings us to Hong Kong, where it is clear that great changes are in progress. It is of course far too early to say whether they will quickly, or ever, reach a stage where it becomes difficult to get away, or at least to take your winnings with you.
The thought that this is one possible destination, though, adds some urgency to the matter. This seems to be more recognised abroad than it is here. I was still digesting the new national security law when the first offers of a temporary home in the UK arrived, closely followed by a warm endorsement from my brother of the Malaysian government’s scheme for elderly immigrants.
You can choose between two theories about what is going on now. One holds that the heat is being turned up gradually so that the frog will stay in the pot until it is cooked. The other is that the softly softly approach has been abandoned and our landlord would be quite happy if we all got BNOs and migrated to Scunthorpe, to be replaced by a similar number of loyal and well-behaved mainlanders.
What you cannot do, it seems to me, is to argue seriously that nothing is happening. There is a certain delightful irony in the fact that this manifest untruth is printed in newspapers which can barely squeeze the news in between full-page advertisements for properties in desirable destinations.
It was possible for some years to argue that “50 years without change” was a dynamic concept, in which a gradual and inevitable increase in the soft radiation from the Liaison Office would be balanced by a gradual increase in local democracy and control over our government. Well that is clearly not going to happen.
The change is naturally more evident in some areas than others. Journalism is in a precarious state. The future for lawyers looks murky. I am glad I am no longer working in the education business, which is clearly going to get the full Holy Inquisition treatment any time now.
Foreigners may feel that this has nothing to do with them. You can still be outspoken in English, as long as you are not a teacher. And they can go somewhere else at the drop of an alarming rumour.
On the other hand they are all potential hostages if their home government annoys our imperial authorities. I would personally be a bit concerned if I had an Australian passport just now.
So we all have to consider: will the end be quick or will it be slow, and at what point will it become difficult or impossible to leave?
There are no tempting choices in this situation. Emigration is always a painful wrench, and happy landings are not guaranteed. Expats who have lived in Hong Kong for half their lives are regularly warned that they will not, if they return, recognise the place they came from.
On the other hand, in another year or two Hong Kong may also be unrecognisable.

Read Full Post »

Fed up with the stream of depressing news as Hong King is slipped into a new set of chains? So am I. Therefore let us, for a change, consider the bright side of totalitarian rule. The future is not all gloomy.

Living with dictatorship does have a bright side, difficult though it may be to appreciate it under present circumstances. So here is a rough list of the pleasures we can look forward to:

Cool uniforms: let’s face it, dictators do tend to have strikingly well-dressed minions. The gold standard for uniform design, by general if slightly embarrassed consent, was set by Hitler’s fashion team.

Of course it takes time to change these things, but we already have our own set of Men in Black.

Group callisthenics: nothing cheers up a drooping despot like the spectacle of a football pitch full of his loyal subjects, arrayed in neat rows and waving their arms around in a frenzy of healthy disciplined activity.

This was a big thing in Eastern Europe in the old Warsaw Pact days, and careful observers of the Beijing Olympics opening ceremony will have noticed that it goes down well in the Imperial capital as well.

Of course it is not just about the spectacle for the spectators. Participants are themselves taught the improving lesson that they are tiny cogs in a huge machine, and the alternative to discipline is chaos, as of course it is if you are trying to get several thousand people to do the same exercise at the same time.

Bigger parades: I’m afraid this is one area where democratic countries are a sad let-down. Apart from occasional bursts of Napoleonic nostalgia in France they do not do parades like their authoritarian competitors.

The Queen’s birthday is a good example. Just one Guards regiment doing an extended rendition of the sort of foot drill which won the Battle of Waterloo, and wearing uniforms from about the same era. Then you get a brief appearance from the Household Cavalry, and that’s it.

Your dictators, on the other hand, do not bother with nostalgic manoeuvres. They like their troops in solid square blocks, as here:

This is a formation of no tactical significance. Indeed it is of very little use for anything except marching straight along a wide boulevard or square. If you imagine everyone wielding a long spear you could mistake it for an Ancient Greek phalanx, but they went out of style somewhere between Alexander the Great and Julius Caesar.

The appearance is, though, most intimidating, which is no doubt the object of the exercise.

This brings us to Marching styles: Suggestions that Po-po, who set the local standard in these matters, should switch to something more Chinese, Russian, or (in origin) Prussian have so far been resisted. Only a matter of time, though, before we are treated to something like this:

Swifter elections: Don’t you find elections a drag? We have a solution for this. The leaflets, the loudspeaker vans, the queues, the noise, the people … all become unnecessary with a simple innovation: only one candidate is allowed to run for each seat. 

Our leaders are well on the way to achieving this very considerable saving in stress, cash and impact on the environment. 

Did you know that the total spending on the last round of elections in the US was nearly 11 billion US dollars. All that money down the drain. The next Legco election, by contrast, could come down to a simple government press release announcing the winners, which actually we will already have known since the close of nominations and disqualifications.

Shorter meetings: We really cannot have Legislative Councillors sitting at their desks for eight hours a day in case some trouble-maker challenges the quorum. It’s like having a real job, which is not what they signed up for at all.

The new, all-blue, opposition-free Legco will go back to meetings of what you might call colonial length: everything done and dusted in one afternoon on Wednesdays. Urgent matters will be transacted by email on a “let me know if you are not happy with this” basis.

The new-look Legco. Who needs members?

Nostalgics who remember the all-appointed Legco of the 80s, whose meetings were often derided as “scripted charades” can look forward to looking backwards.

More gardening: Many students of life under Communism in Europe have noticed the proliferation of small but lovingly tended plots. The owners of these mini farms often spent most of their free time in them.

This was no doubt partly in an effort to supplement food supplies, but flowers were grown as well. It seems to have been a sort of displacement activity: if you have no control over your own life you can at least bully your onions.

I expect to see a proliferation of those places in the New Territories where, for a small fee, you can cultivate a plot roughly the size of a small desk. No daffodils please. They’re yellow.

Shorter trials: It is an ongoing scandal that Hong Kong’s courts are wasting so much time deciding matters which are really, as Mr Henry Litton has pointed out, quite simple. But we can expect to see considerable economies in time as the mainland’s frugal habits leak over the boundary.

It is said that in the English legal system you are innocent until proven guilty, while in some Civil Law systems you are presumed guilty until proven innocent. In the mainland legal system life is much simpler. You are presumed guilty until you confess, and then you’re really guilty.

This is the destination towards which Hong Kong judges and magistrates are being pushed and it will entail huge savings. Mainland trials are generally over in a matter of hours and more than 99 per cent of them end in convictions.

You can see why people used to this system might find Hong Kong’s present practices a bit of a puzzle. 

Constitutional language: The reality is that it is a waste of time to read the Basic Law, because it means whatever our rulers wish it to mean. By way of compensation we will be treated to a great deal of elaborate constitutional verbiage.

Thus a cynical observer might suppose that we were now helpless under the successors of a bunch of rural bandits who shot their way to power and kept it by running a nasty police state. The politically correct way of describing this is that Hong Kong is now engaged in accurately and fully implementing ‘one country two systems’ in accordance with national policy and the Constitution of the People’s Republic of China. Doesn’t that feel better?

Read Full Post »

Older Posts »