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What is it about our government and domestic helpers? Quite the most disgraceful moment of the COVID epidemic so far was the suggestion that it would be a good public health measure to cancel their days off. Now we have – in response to one case (ONE CASE!) an order that the entire overseas domestic helper population must get tested by next Sunday.

Predictably this meant in many cases that the helper must get a test on her day off. The resulting rush led to distressing scenes of ladies spending up to seven hours of their supposed holiday queueing in the open air.

Clearly this is partly a result of our government’s scorn for the interests of poor people. If it became necessary to test all property developers, or all senior civil servants, we can assume, I think, that more humane and convenient arrangements would have been made.

It is also of a piece with the blatant racial discrimination against overseas domestic workers, which results in them not qualifying for residence however long they stay here, in marked contrast to the treatment of overseas workers in more prestigious occupations.

These points have been made very eloquently by my fellow columnist Sharon Yam, so I shall not dwell on them at length here.

A subsequent story which bothered me concerned the reaction to this debacle from the chairman of the Equal Opportunities Commission, Ricky Chu Man-kin. His first reaction was that the requirement was not a violation of the Disability Discrimination Ordinance because it was “reasonable”.

However he conceded that a policy which landed heavily on one race might be against the Race Discrimination Ordinance. But requiring overseas domestic helpers to get tested did not target a race because it “targets an occupation, so it is not against the ordinance”.

Come off it, Mr Chu. The policy would be targeting an occupation if it required all domestic helpers to get tested. There are after all local domestic helpers. I used to employ one myself.

The word “overseas” is the give-away. We know what it means in this context. It means the new requirement applies to a domestic helper if, and only if, she was imported from the Philippines or Indonesia. 

Clearly a policy which applies to two races can be just as objectionably racist as one which applies only to one race. 

This is disappointing. Generally we find that people who are appointed to head commissions quickly become enthusiastic – sometimes excessively enthusiastic – about the topic they are supposed to be working on.So the Privacy Commissioner becomes a privacy fanatic, the Tourism Commissioner becomes immoderately keen on tourism and so on. 

It would be nice to see a similar level of passionate commitment in the Equal Opportunities Commissioner.

One recalls, rather worryingly, that American presidents have a habit of gelding government agencies they disapprove of by appointing as their heads people who do not agree with the objectives of the agency. So President Trump’s Consumer Safety Commissioner was demonstrably uninterested in consumer safety, his head of the Environment Protection Agency was a vociferous supporter of polluting industries, and so on.

I have no idea why Mr Chu was selected for his present post. And indeed, even if the selectors thought he would be a soft touch for the government, such expectations are sometimes disappointed, as Henry II found with Thomas Becket. 

Mr Chu has been willing to talk the talk on discrimination, which is good. But it is also not enough. Upon discovering that he spent five years as the Secretary General of the Independent Police Complaints Council one has to wonder if he has perhaps had more practice at rejecting complaints than any man needs.

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What ’s this? We have a little rash of stories warning that, as one headline put it, “UK move ‘won’t make your kids happy’, expert warns”. This is supposed, perhaps, to be a reproof to parents contemplating a BNO move to the UK “for the sake of the children”.

This all started with a Letter from Hong Kong. This is an RTHK radio programme which, for many years, occasionally featured me. The performer talks  — for I think it was 12 minutes — on any topic of his or her choice. No doubt the performers are chosen rather carefully these days.

Last week’s star was Prof Ho Lok-sang, a retired economist. I have serious misgivings about economists studying happiness, an elusive and less quantifiable thing than their usual prey. But Prof Lo has worked in the area before and in 2015 actually published a piece in the usual academic circles on an Annual Happiness Index in Hong Kong, which would make interesting reading now.

However the news hook to which Prof Ho hung his comments was a report by the Boys and Girls Association of Hong Kong, which said that happiness among Hong Kong youngsters had fallen to its lowest level in five years. It also found, though this did not feature so prominently in media reports, that about 10 per cent of Hong Kong youngsters thought they would emigrate in the near future.

Well as a matter of common sense, leaving the economics out of it, I must say I rather agree with Prof Ho that emigrating is not in itself going to make the kids happy. My parents moved a lot when I was very small – we lived in Germany for a while, a daring choice in the late 1940s – and as long as the family was together it just seemed a minor background thing that we lived like gypsies.

Emigration is stressful. On the other hand staying in Hong Kong is likely to be stressful as well, under present circumstances. Prof Ho’s advice that we should all “nurture a mind which is at ease with ourselves” is good, but perhaps a bit beside the point. Stone walls do not a prison make, nor iron bars a cage, sang the poet, but the thought of being consigned to the hospitality of the Correctional Services for opining that voting in the new system would be a waste of time is still off-putting.

Having disposed of the common sense point, I must say I thought the statistical evidence very questionable. Measuring people’s happiness is inherently tricky. Small changes in the circumstances in which the question is asked can produce drastic changes in the answers. And questions like “How happy are you with your life these days” involve cultural influences which comparisons of the GDP figures do not have to worry about.

Prof Ho offers for comparison three sets of figures. The first is the Boys and Girls one. The second is an annual exercise called the Good Childhood Report, conducted by something called the Children’s Society, which is an offshoot of the Church of England.

The report says that the level of happiness of British children has declined for five years in a row. I am not sure that that comes as a great surprise, in view of events in the UK over the period.

More contentiously it goes on to cite a survey conducted in 2018 which found that British children were in some respects among the least happy in Europe. Actually this is a partial result of the PISA survey of education systems, and only applies to 15-year-olds. The Children’s Society tweaked it a bit but it is true that on this measure the Brits were quite gloomy.

Now I think we need to be a bit careful with the Children’s Society. It is a charity, and like most charities it needs a good cause which will attract donations. It thrives on bad news and those who thrive on bad news can usually find it somewhere.

I also believe that the comparison with Europe is no doubt very relevant for potential British donors to children’s needs, but quite unfair if put to Prof Ho’s purpose, which is to imply that kids in the UK are less happy than those in Hong Kong, so moving there will make your offspring miserable.

Concentrating on Europe means setting a very high standard. The big global survey of happiness among adults is the World Happiness Report, which covers more than 100 countries. The top places are invariably filled by Scandinavian countries, followed by other European democracies. The latest figure has Finland as the world’s happiest country, the UK at number 18 (Taiwan at 19 is the top Asian … euphemism) China at 52 and Hong Kong at 66.

Over the three years 2018-20 the top three were Finland, Denmark and Switzerland, with UK 17, Hong Kong 77 and China 84. These results are fairly stable. The previous three years: Finland 1, Denmark 2, Norway 3, UK 15, Hong Kong 76, China 93.  

Another way of looking at it is to ignore the rankings and look at the actual figures from the PISA questions. True, the Brit results were depressing when compared with some others, but 64 per cent of the respondents were satisfied with their lives, 93 per cent reported a high level of happiness generally, 40 per cent said they were rarely or never sad and 57 per cent had no complaints about their sense of the purpose of life. 

If you wanted to risk a visit from the Nat Sec police you could tentatively draw from all of the above that becoming more like China will make Hong Kong a bit less happy and moving to the UK will make anyone more happy, though not as happy as if they moved to Finland. This is probably drawing more from the statistics than is justified.

Actually whatever the factors in society which produce these national differences, they will be quite overwhelmed in the case of individual people and families by more immediate events: the exam goes badly, the dog dies, the parents divorce, an expected promotion does not materialise, the house falls down…

It is right that people contemplating emigration anywhere should be warned that they are not diving into a bed of roses. The UK is no exception. You will not like the climate and some of the people are prejudiced. On the other hand you can say what you like and you will never have to listen to the March of the Volunteers again. Your choice. 

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We must all be grateful to former legislator Ted Hui, for publishing his correspondence with the police complaints system.

There is plenty of evidence at the macro level, of thousands of complaints received and a number you could count on the fingers of one hand accepted and acted on, usually in a painless way for the policeman concerned.

We also have the Independent Police Complaints Council’s report on the 2019 disturbances, which paints a clear picture of an organisation desperate to avoid finding that the police did anything wrong, and when that becomes unavoidable wrapping it up in the sort of woolly language which confuses more than it illuminates.

But we do not often see an individual complaint in detail, working its way through the system to the usual destination: rejection.

The incident of which Mr Hui complained occurred at a protest on January 1 last year. Unusually, this one had a Letter of No Objection from the Commissioner of Police. It was, however, cut short by police at the scene, apparently because someone had vandalised a branch of the Hongkong and Shanghai Bank.

Nobody seems to have noticed that this is a rather questionable procedure. The Public Order Ordinance says that people planning a demonstration need a Letter of No Objection from the Commissioner. It does not say that this can be revoked at any time by a junior officer. 

One would have thought, or hoped, that once the LONO was issued the protest would be entitled to protection as a legitimate exercise of free speech rights. The right to protest is enshrined in relevant ordinances and international instruments. It is not a favour bestowed by the police on condition of good behaviour by everyone present.

After all we did not know, and indeed still do not know, who vandalised the bank. It could have been protesters, it could have been some thrill-seekers with no particular political thoughts in mind, it could have been agents provocateur who opposed the protest. It could, we must reluctantly include, have been plain clothes policemen who wanted a bit of fun.

If protest organisers are at the mercy of any passing stranger who breaks the law then the right to protest is not being protected. In view of events since January 2020 this is perhaps not surprising.

Anyway Mr Hui’s complaint did not pursue this point at all. He complained that while he was standing on the pavement, in apparent accord with police instructions, a policeman tore his goggles off and pepper-sprayed him at close range, and did this twice.

He also complained that the officer concerned was not wearing an identification number, but was wearing a badge which is not part of the approved uniform – saying “Police bad-ass” apparently – in violation of police rules.

Immediately after the incident there was, as there usually is, a police spokesman to explain that nothing untoward had occurred. Mr Hui had refused to disperse and was therefor to be “dispersed” with pepper spray.

This was not a happy inspiration. Police are not supplied with non-lethal weapons so that they can “disperse“ anyone who is not being cooperative. The weapons are supplied for the protection of officers. If Mr Hui was obstructing police operations he should have been arrested and appropriately charged.

There is nothing in the law which authorises police officers to administer summary punishment for disobedience.

It also transpired that in the video – these days there is always video – Mr Hui was in fact on the pavement where he should have been.

This detail was quietly ignored in the subsequent investigation of Mr Hui’s complaint by the Complaints Against Police Office, which produced this verdict: “On January 1, 2020 at around 8pm on Hennessy Road… the police were conducting a crowd-dispersing operation and had given you and other demonstrators multiple verbal warnings and displayed warning flags,” the letter read. “At the time, the police were facing a large volume of violent demonstrators and had no other option but to use the minimum level of force – that is, to spray pepper spray at you and other demonstrators. Therefore, we classify this allegation as ‘without fault.’”

The letter added that this conclusion had been endorsed by the IPCC. Clearly they had not viewed all the video, in which there is a startling dearth of violent demonstrators and a surplus of police officers pepper-spraying anything which took their fancy, including the reporter doing the video, which can be seen here.

However people who have read the IPCC’s full length whitewash will not be surprised to find that in their view any place which the police wish to clear is a free fire zone. The report mentions in passing that a reporter was shot in the eye with a rubber bullet and its only comment on this incident is that she was “standing on a footbridge which the public had been asked to leave”.

Contemplating the work of the IPCC I am often reminded of Wittgenstein’s warning that when you measure a table with a ruler you are also measuring the ruler with the table. The IPCC’s work tells us very little about how policing is or should be conducted. It tells us a lot about the IPCC.

Still, perhaps Mr Hui’s spraying was part of an exciting scene and could perhaps pass as a forgivable result of law enforcement frustration.

What surprises is what became of the other complaints. The letter said that the officer wearing a “bad-ass” badge “did not affect the force’s image or its effectiveness”.

Really? Is it the Complaints Against Police Office’s view that the force image is now so bad that the spectacle of officers violating their own rules is shrugged off by observers as no more than they expect?

The objection to freelance badge selection has nothing to do with the possible effect of the words displayed on public opinion, or on the effectiveness of the force. The objection is that those authorised and empowered to enforce the rules should themselves obey them. If the police force thinks it is a worthwhile boost to morale for officers to adorn their uniforms with personal mottos then it should change the rules.

And the matter of not wearing identification numbers was a clear violation, not only of police rules but of the law. In November last year the High Court ruled that the failure to ensure that officers on duty wear a unique identification number was a violation of the Bill of Rights Ordinance.

The court also held that “The Government of the HKSAR is under a duty, pursuant to Article 3 of the Hong Kong Bill of Rights, to establish and maintain an independent mechanism capable of conducting effective investigation into complaints of suspected ill-treatment by police officers in contravention of Article 3 of the Hong Kong Bill of Rights, and that the existing complaints mechanism involving the Complaints Against the Police Office, with oversight by the Independent Police Complaints Council, is inadequate to discharge this obligation.”

And yet, it seems, nothing has changed and nothing is going to change. Isn’t the Rule of Law wonderful?

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Let us contemplate a paradox. As democracy recedes into the far distant future, the most unexpected people suddenly cannot resist talking about it. The very people who are depriving us of the reality cannot resist the word.

The Chief Executive, Carrie Lam, is a good example. Last week she was asked if she had any comment on a remark by Emily Lau – one of the few veteran democrats not in prison – that democrats might be reluctant to participate in the new system for filling Legco seats (there is not much actual election involved).

Ms Lau had said that potential candidates faced the hurdle of finding nominators in each of the new Election Committee’s five sectors, two of which are virtually filled with nominees of the Hong Kong or Beijing governments. Finding someone in those sectors who was willing to nominate a democrat was likely to involve a lot of rejections and candidates might find this humiliating.

Ms Lam might have expressed the hope that ambition and the wish to serve would overcome the prospect of begging for a nomination. Or she might have pointed out that the whole purpose of the new system was to discourage democrats so what did people expect?

Instead, she had a go at Ms Lau, who was “completely mistaken and did not know the spirit of elections and democracy”.

It is difficult to think of anyone less likely to be acceptable as an authority on the spirit of elections and democracy than Carrie Lam, who has never won a real election in her life. Ms Lau, by contrast, has won a number of elections of the old-fashioned kind, now no longer with us, in which anyone could stand and everyone could vote.

Similarly bereft of relevant experience is Mr C. Y. Leung, who opined last week that opposing government measures and filibustering were “not democracy”. Really? Filibustering is, I concede, controversial. Some people see it as a means whereby minorities can obstruct the will of the people, others see it as an important protection against the tyranny of temporary majority governments.

Opposing government measures, on the other hand, is generally considered rather useful.

Then we have another contribution from an election virgin, Mr Henry Litton. Mr Litton, like his fellow retired legal eagle Grenville Cross, has morphed gradually from a specialist commentator on legal matters to a stalwart defender of whatever the government is now doing.

Here is democracy according to Henry: “There are many models of democracy in the world; some are more successful than others. If democracy is to be defined as a community where government exercises power with the consent of the governed, then China is very much a democracy. An overwhelming majority of people in the Mainland today supports the government under the leadership of the Communist Party.”

Two errors here. Democracy is not defined as a place where the government exercises power with the consent of the governed. After all it is alleged on varying amounts of evidence that Adolf Hitler, Benito Mussolini, Josef Stalin and even Francisco Franco enjoyed at some points in their career “the consent of the governed”. This did not make their communities democratic. In a democratic community there is a mechanism for replacing the government when consent is withdrawn.

China, accordingly, would not be a democracy, even if we were prepared to accept that consent enforced by a million policemen and a further uncounted horde of spies and censors should be accepted as valid. How, one wonders, can Mr Litton, or anyone else, know that an overwhelming majority of people in the mainland supports anything? The overwhelming majority are not allowed to express an opinion.

Then we come to a more interesting offering from Ms Regina Ip, addressing the fear that there will be no pro-democracy councillors under the new arrangements: “They have participated in elections and so have I. Do they read more books about democracy than I do? I believe I have read more than a lot of people. How can you say that without them there will not be a pro-democracy camp?”

Ms Ip seems to be preparing to take over the pro-democracy banner, which should be an interesting spectacle. Actually nobody has suggested yet that the system is so completely rigged that no pro-democrat can be elected. It would be more accurate to say that the system is rigged so that no more than ten pro-democrats can be elected.

The question is whether being a permanent minority of ten in a 90-member council will appeal to any plausible pro-democrat, especially with the added hazard of campaigning in the shade of the national security law. 

Now let us turn to Mr Chris Lonsdale, a “consultant” with a flourishing China practice and, we need not doubt, a welcome visitor north of the boundary. Mr Lonsdale likes to condescend: ”For those with short memories, and those born after 1997, let us not forget that for the entire history of Hong Kong under British rule (except for the last few years leading up to 1997) there was NO direct democracy.”

Mr Lonsdale, alas, either has a short memory or was born after 1997. 

The Urban Council was founded in 1883 and had its first elected members in 1888. in 1956 changes included having half the members elected and in 1973 it became autonomous and entirely elected, electing a chairman and vice chairman from among its own members. There were a number of ways of becoming an elector and by 1981 it is estimated that 800,000 people were entitled to vote.

A condition of the council’s autonomy was that it stick to its official remit, which was to deal with a variety of domestic matters like sanitation, licensing, sport, culture, parks and such like. But once a year there was a general debate in which members could and did opine on any matter of public interest.

In 1986 a Regional Council was set up on the same basis to preside over services in the New Territories.

In 1997 the China-appointed Provisional Legislative Council passed an ordinance changing the constitution of both councils to include appointed members. In 1999 they were both abolished.

In 1982 partly elected District Boards appeared and in the 1985 DB elections more than half of their members were elected. By 1994 appointed members had disappeared but they were restored after the handover.

Over the ensuing years the appointees gradually disappeared again, as it appeared that the District Councils, as they were now called, were secure strongholds of the pro-government DAB. Now that is no longer the case they are likely to go the way of the two municipal councils.

Of course it is true, as Mr Lonsdale says, that the Governor was not chosen by Hong Kong people. Does he, I wonder, think the next Chief Executive will be?

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Let us now consider an interesting mystery. What are the powers and functions of the newly minted official post, the Chief Convener of the Election Committee?

This is an interesting question, firstly because the old election committee seems to have managed without a convener, so it seems some new service will be provided, if we can find out what it is. Secondly the clarifications provided by different people have been flatly contradictory.

Here is what the new law says:

There shall be a system of conveners for the Election Committee. The conveners shall be responsible for convening meetings of the Election Committee as necessary and handle relevant matters. A chief convener shall be an Election Committee member who holds an office of state leadership. The chief convener shall designate a number of conveners for each sector of the Election Committee.

Got that? The Chief Convenor seems to have two functions: to convene meetings of the Electoral Committee and to choose sub-convenors for each sector. That’s straightforward enough, if it leaves the conveners without much to do. Presumably the actual dispatch of summonses to action will be done by civil servants, as it is now. What would be the “relevant matters” to be handled?

Well here is Carrie Lam, answering a question on the topic in her press conference to launch the new system:

“The convener has been specified in Annex 1 …I want to assure you that this is a clause for use under very, very exceptional and rare situations, and this convener system will only kick in during elections. During normal periods of governance, this convener system or the chief convener has absolutely no role in the governance of the Hong Kong SAR. It certainly will not have any influence over the Chief Executive or the Principal Officials. 

It is really under very exceptional circumstances during the course of an election that something that is totally unforeseeable has happened, that it needs a plan to tackle, then the Central Government may trigger this convener system.”

So, the convener has no role in the government of Hong Kong, but the system may be “triggered” by the Central Government if something unforeseeable happens in an election. 

Now here is an interview with Tam Yiu-chung published in the Standard:

“The new role of chief convener of the Election Committee will be in a superior position to the city’s chief executive and will represent Beijing, says Hong Kong’s sole delegate to the National People’s Congress Standing Committee, Tam Yiu-chung.

Speaking on a radio programme yesterday, Tam said the chief convener can call a meeting when there are election-related issues that cannot be resolved by law so it does not need the NPCSC to weigh in.

‘This is a gate-keeping mechanism so the chief convener should be superior than the chief executive,’ he said. ‘It means the person represents the central government at a certain level.’

So according to Mr Tam, the Chief Convener outranks the Chief Executive (who thinks he will “certainly have no influence over the Chief Executive and senior officials”) and represents Beijing. This is not what it says in Annex 1.

And what’s with the Chief Convener “calling a meeting” when there are election-related issues which cannot be resolved by law, so it does not need the NPCSC to step in?”

The NPCSC is China’s legislature. In “unforeseen circumstances” it can change the law. The Election Committee is not a legislature and if a problem cannot be resolved by law there is surely nothing the Election Committee can do to change it.

Does Mr Tam think that the Chief Convener’s handling of relevant matters could include changing the law on elections? 

It would also be nice to know how this “triggering” by the Central Government will take place. Presumably the Chief Convener will get the wheels turning off his own bat when he sees an election approaching. He doesn’t need to be triggered for such routine purposes. 

Maybe I’m missing something here, but I do not see how this is going to work at all.

Is the idea that the Chief Convener, horrified by – say – a campaign to boycott an election, might by himself define such activity as criminal? Under the Basic Law that is a job for Legco. Or is the idea that if the Police vetting and the two committees which will assess the eligibility of candidates let someone through who is not acceptable to the imperial capital, the Chief Convener can intervene and ban the candidate himself? That would, I suppose, count as gate-keeping, but would be a bit controversial.

This is a worry because apparently the only relevant “office of state leadership” is vice chairman of the CPPCC. That narrows the field down to two candidates, one of whom – Tung Chee-hwa – is getting a bit old for this shit. So this exciting new job could easily go to Leung Chun-ying. Isn’t that a soothing thought!

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The return to Hong Kong of ten of the 12 people who were caught apparently trying to flee to Taiwan brought us more than a few wanted targets. Some mainland legal habits appear to have been in the luggage.

It is a characteristic of mainland justice that defendants often disappear from view, their whereabouts a complete mystery to friends and family. Legal representation is sporadic and defence lawyers often appear to have been selected by the prosecution rather than the defendant.

Trials are short and may feature no legal argument worth speaking of. Important decisions are often taken in the absence of the defendant.

It seems that staying in a mainland prison has interesting effects. Some of the 12 are reported to have developed a mysterious aversion to lawyers and a desire to unburden themselves to police interrogators without the presence of such people.

Andy Li, one of the suspects, managed to disappear completely. After a remand hearing, at which he was not present, his family faced a wall of silence from government departments. The Correctional Services Department denied any knowledge of Mr Li’s whereabouts. So did the police.

Mr Li’s latest non-appearance before a magistrate did produce one interesting change, a lawyer appeared claiming to be working on his behalf. This was news to Mr Li’s family. The lawyer concerned kept up the wall of silence, refusing to tell anyone where Mr Li might be.

The CSD apparently now admits that Mr Li is in its custody. It refuses to discuss the case but cites a policy under which prisoners who wish to have their location kept secret are allowed to do this by the department. I can see some prisoners might need this service, but providing it under present circumstances to this group of defendants produces a disturbing scene. One wonders if Mr Li is working on a video.

Part of the problem here is the COVID situation. Apparently all the prisoners are required, like everyone else arriving in Hong Kong, to serve a period of quarantine. This is difficult to arrange if they are to appear in court so they do not.

The relevant departments do not seem to have considered the implications of the resulting spectacle: absent defendants unrepresented in court are remanded in custody after a brief formal hearing in which nobody present is looking out for their interests. This is not satisfactory. Decisions about people’s liberty should not be made on this basis: justice should be seen to be done.

I suggest that magistrates should insist on such occasions that an absent defendant is represented by someone, preferably a lawyer of his choice. If such a defendant adamantly refuses legal help he should be present via Zoom or some such gadget, so that he can at least see what is done to or for him, and any relatives or friends who turn up can see that he is still in one piece.

The two juveniles who were also on the ill-fated voyage raise a different issue. The mainland authorities took the humane and sensible decision that there was no point in lobbing them into the jaws of the local legal machinery, and sent them back to Hong Kong, where they arrived in December. Police said they might be charged with further offences and we have heard nothing since.

Hong Kong, like China, is a signatory of the relevant international treaty, the UN Convention on the Rights of the Child, which provides that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” The two kids on the boat are clearly covered by this treaty: “the child” in this context means up to 18 years old.

Consequently it is not acceptable for them to be treated to the usual approach to the persecution — I beg your pardon prosecution — of other political targets, in which the defendant languishes in custody for months while the Department of Justice (sic) gets its ducks in a row. 

This does not by any stretch of the imagination serve the “best interests” of the children concerned. If they are to be tried they should be tried without delay in a proper Juvenile Court.

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The law is sometimes accused of lagging behind the progress of modern technology, but nobody can now level that accusation at our courts. Two cases illustrate rather contradictory approaches to digitalism, reported by a convenient coincidence on the same day.

In the first we had the Department of Justice complaining to the Court of Appeal that three defendants had been erroneously acquitted of rioting on the grounds – prepare to be shocked – that they were not present when the riot took place.

The Department argued that people could still be participants in a crime if not present, as long as they had “a common purpose”. This is a legal doctrine of great antiquity, whose history is littered with miscarriages of justice. A notable example was the case of Derek Bentley, who was actually in police custody when his accomplice in a burglary shot a policeman. Bentley was hanged. His accomplice, the actual killer, was only 16 and so not eligible for the rope. This case is not now regarded as a great success.

Anyway, as our local “riot” defendants had been acquitted by a District Court judge there was no question of overthrowing the judge’s verdict. So there was apparently nobody present to dispute the Department’s view of the law. Proceedings in our courts are usually said to be “adversarial”, meaning that the result emerges from the judge or judges listening to presentations and evidence from both sides of the argument.

When the only argument presented is from the Department of Justice we can, I fear, expect fairly terrifying results, and that is what we got.

The judges decided, and we need not be surprised at this, that there were a variety of roles in public disturbances, and some of them – funding, providing of “back-up”, or acting as look-outs – might not involve actual presence. So far this is as expected.

Then we get this: “Given the prevalent use of social media applications such as WhatsApp, Instagram, Telegram and Facebook, people nowadays can easily find themselves placed in situations where they can be accused of encouraging people to participate in unlawful assemblies or riots by posting comments or sending messages or even simply sending a ‘like’”. 

Then we get the usual platitude about freedom of expression having limits and “”if there is sufficient evidence to establish their liability under the accessorial rules or the doctrine of joint enterprise they are no longer people exercising their freedom of expression. They have crossed the permissible line and become a perpetrator to an unlawful assembly or riot and should be held liable as such.” 

Got that? A misplaced ‘like’ and you’re a rioter. As nobody is actually going to prison at the end of this case we can assume there will be no appeal, so this will be the law until someone else goes to the enormous trouble and expense of taking the matter to the Court of Final Appeal.

Now let’s move to the High Court, where District Council election loser Jimmy Lam succeeded in an election petition which sought to overturn the result because the victor, Timothy Lee, had falsely claimed the support of sundry pro-democracy stars.

This was a perfectly logical decision. Candidates in elections are apparently required to submit a “consent to support” form indicating that anyone they claim support from is happy with the arrangement. Mr Lee claimed the support of seven people – including serial disqualification star Lau Siu-lai – in his election advertisements.

There was no evidence that Mr Lee had actually done this without the consent of the people concerned. As he was a pro-democracy candidate and his adversary was a member who had been sitting in the establishment interest (albeit under the banner of Kowloon West New Dynamic, whatever that means) it would be surprising if they were unwilling.

Lurking in the Standard’s report of this matter (solid job by Carine Chow) was one interesting phrase: “Lam said Lee had only contacted the supporters through WhatsApp and Telegram …” In other words Mr Lam is not disputing that they consented. This was not enough. Mr Lee was unseated for deficient paperwork.

Each of the two decisions above appears perfectly rational and lawful. Taken together, though, they produce a rather unpleasant smell.

If you are an opponent of the government the mere pressing of an ill-chosen ‘like’ button can turn you into a rioter. If you elect instead to run for election to your local district council, on the other hand, a mere ‘like’,or even an Instagram message, is not enough to validate your claims of support. The putative supporter must fill in a paper form, preferably with a quill pen, to satisfy legal requirements.

More learned pens than mine claim we still have an independent judiciary. What difference would it make if they were dependent?

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The pro-government press has been fawning over an unlikely hero – retired judge Lord Sumption. His Lordship pleased the poodles by writing a letter to The Times of London, defending his decision to carry on with his appointment as one of the overseas judges invited – one at a time – to sit on our Court of Final Appeal.

Apart from a detour into Hong Kong history, which is both inaccurate and irrelevant – we became an ex-colony 25 years ago – his basic idea is that you can have an independent judiciary and the rule of law without democracy, and this is still something valuable.

In short, he’s doing it for us. It is rather touching, really, that this elderly gent is prepared to suffer the rigours of first-class travel, and endure the privations of several weeks in a five-star hotel, for us. How sweet. No doubt there will be some parsimonious lai see thrown in, on which he will not have to pay tax because it’s earned outside the UK, but I’m sure he doesn’t need the money.

His Lordship seems to have rather poor sources of information in Hong Kong. The nomination of judges to hear national security law cases has, he says, been uncontentious. Well there hasn’t been much contention because the whole process has been entirely secret. You only find out who’s on the list when he appears at the trial.

This part of the national security law has one happy consequence for his Lordship, though. The overseas judges on the Court of Final Appeal are not on the list and are not on the bench for national security cases. So Lord Sumption can, as it were, get his snout in the trough without getting his trotters dirty.

But I cannot, alas, agree with his idea about the separate value of an independent judiciary if you are ruled, as we are, by a distant dictator. Independent judges are a useful protection against illegal action by overbearing officials. They are no protection at all against bad laws.

If the law is arbitrary, brutal and oppressive the judges will loyally enforce it, because that is what judges do. When ruining people’s lives is part of your job description you need to think that you have no choice. It helps with sleep. So arbitrariness, brutality and oppression will occur.

His Lordship does not seem to have got his head round what we are encountering here. Perhaps if some of his friends had been jailed he would share my misgivings about foreign lawyers fostering the pretence that we still enjoy the rule of law.

He has, after all, written perceptively about the way these things change: “We will not recognise the end of democracy if it comes. Advanced democracies are not overthrown. There are no tanks on the streets, no sudden catastrophes, no brash dictators or braying mobs. Instead, their institutions are imperceptibly drained of everything that once made them democratic. The rhetoric of democracy will be unchanged, but it will be meaningless.”

And this is the way it goes with the legal stuff as well. We still have the courts, the robes, the wigs, the rhetoric. All that is missing is trivial things like the right to bail, the right to a fair trial, the right to trial by jury … Hong Kong judges have to navigate through this as well as they can. Visitors can stay home.

And you pro-government people need to be careful what you wish for. Lord Sumption has made an interesting post-retirement career as an advocate of civil disobedience.

Here is His Lordship on the subject: “I feel sad that we have the kind of laws which public-spirited people may need to break. I have always taken a line on this, which is probably different from that of most of my former colleagues. I do not believe that there is a moral obligation to obey the law… You have to have a high degree of respect, both for the object that the law is trying to achieve, and for the way that it’s been achieved. Some laws invite breach.”

This is what Benny Tai has been saying for years. And look, your Lordship, where it has got him.

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The trouble with having 47 defendants in one case is not just that the proceedings become so long as to be a health hazard. People get tired and excited. Mistakes are made.

While this was understandably not featured in reports of the case of the 47 co-accused, there was a little problem with the matter of reporting. I am told that at the beginning of the hearing the prosecution complained that some media had not been observing the statutory restrictions on reporting of committal proceedings.

This was interesting, at least, to those of us who have been complaining for some two decades that the Department of Justice has effectively repealed all the statutory restrictions on court reporting by failure to enforce them. Indeed usually the only media who take any notice of these restrictions are those news organisations who believe that the government would leap happily on any legal excuse to give them a hard time.

Well, the assembled media in the courtroom asked the magistrate if he would remove the restrictions, in view of the enormous public interest in the case. The magistrate, quite rightly (we will get to the legislation involved in a minute) refused. Some of the defendants then said that they would not mind the restrictions being removed. The magistrate erroneously supposed this to make no difference.

The law on this subject is contained in Section 87A of the Magistrates Ordinance. This is modelled on a similar English law, although that ancestor is no longer with us because committal proceedings have been abolished in England and Wales.

A word on vocabulary. If you are arrested and charged with a serious offence the police will bring you before a magistrate. He will not decide your guilt or innocence. He will initially make sure you are available for future proceedings by putting you on bail or in custody. Eventually there will be a hearing at which he is invited to “commit you for trial”, meaning to pass the case to a higher court.

The reason for restricting reporting on these things is that the way the legal tactics go can work unfairly for the accused person. The prosecution has to convince the magistrate that it has a case. So it will wheel out all the evidence it is going to deploy at the eventual trial. The defence, on the other hand, has a good reason for keeping its assets to itself, because if the magistrate refuses to commit the accused for trial this does not amount to an acquittal. The prosecutors can brush up their evidence, pick holes in yours and try again. If you are tried and acquitted the verdict is final. You can – and this has happened – confess your guilt on the courtroom steps after the trial. There is nothing anyone can do about it.

The result of this situation in the days when witnesses all appeared in person was that the newspapers (this is an old story) would be full of the prosecution’s case, possibly for days. As the jury had not been chosen yet the people who were going to decide on the guilt or innocence of the accused person might be immersed in this deluge.

So to the restriction, which says that reporters may only report items on a list: the name of the court and magistrate, identity of the defendants and witnesses (if any), names of the performing lawyers, the magistrate’s decision and (a mysterious inclusion) whether the accused got legal aid.

Oddly enough, unlike its English predecessor, the ordinance does not explicitly allow reporting of whether bail was allowed and what conditions were attached to it. But this may be subsumed under “any decision of the magistrate to commit the accused for trial”.

There is no provision for the restriction to be lifted in cases which attract great public interest. There is, though, one way in which it can be removed: the magistrate must (the word “shall” is used, not “may”) waive the rule if any one of the defendants asks him to.

The reasons for this are also lost in the mists of time: public trials are supposed to be the default option, and it was believed that the defendant might feel publicity would help him in, for example, bringing new witnesses to light. So he (or she) should have an absolute right to opt for publicity if it seemed to be helpful.

But note that the defendant does not have to have a good reason and does not have to give one. Indeed in one famous case it was widely known that a defendant asked for the restrictions to be lifted because he had been paid a large sum by a newspaper which was eager to report the hearings. The hearings continued, with reporting.

The ordinance also requires the magistrate, if a defendant is not legally represented (i.e. does not have a lawyer to tell him about all this) to advise the defendant of his right to lift the restrictions and ask him if he wishes to do so. Local magistrates do not appear to be doing this, but as in most cases there will be no reporter present perhaps they have got out of the habit.

Anyway the moral of all this for reporters covering trials is very simple. If you want the restrictions to be lifted ask one of the defendants to exercise his right to have them removed. The magistrate has no discretion to refuse and it does not matter what the other defendants think of the idea.

Best do it surreptitiously, though. Exposing the government’s legal machinations could get you kicked off the Liaison Office Christmas card list for life.

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Not for the first time, we find ourselves wondering if the Rule of Law is being abused by our rulers, much though they claim to cherish it

Consider the case of the 47 suspects charged last week with offences against the national security legislation. I have nothing to say about the merits of the charges against them. Such chat would be unlawful, though that has not stopped sundry Mainland officials, academics and journalists from wading in.

One of my colleagues tried asking the Department of Justice to comment on this orgy of prejudicial comment. I have tried this before and expected an evasive non-answer, which is what she got.

But what of the actual procedure? The usual arrangement, if you are a respectable member of society accused of a criminal offence, is that you are told the trial date and you turn up. If your lawyer thinks you might be remanded in custody you bring a toothbrush.

The 47 were all arrested on the Sunday and held in custody pending an appearance before a magistrate on Monday. They were then all piled into the same court, with predictable results. The proceedings were interminable. Four of the defendants had to be taken to hospital. At the end of the second day the magistrate adjourned the proceedings at 10.30 pm saying that some of the defendants looked “tired”.

As the previous day’s hearing had lasted into the small hours of the morning this was not surprising. By the time the defendants had been booked back into the Lai Chi Kok Reception Centre some of them only had two hours to sleep.

By the third day some of the defendants had not had a bath or a change of clothes since Sunday.

Personally I found it difficult to believe that this was the normal arrangement. I do not remember anything like this happening before. But of course I am not a lawyer. What do I know about such things?

However I do, for some mysterious reason, feature on the mailing list of one of Hong Kong’s better known law firms and a senior partner therein occasionally writes a sort of blog there. Some of the content is personal, some of it comments in a fairly neutral way on current events, some of it is about legal matters. 

Now I do not know why I get this. I do not know if the author knows who I am or what I do, and I do not know if he intends it for further publication by anyone who finds his opinions interesting. So I shall not name the firm or the writer, except to say that as he is a (or should that be the?) senior partner, he is presumably not some young radical fresh from the teargas-sodden barricades.

His view of the events outlined above goes like this: “I cannot recall a situation such as this in my four decades as a legal professional in Hong Kong. We have long-established protocols and processes in place. In cases involving scores of defendants, it is usual for bail hearings and the like to be done in batches to avoid drawn-out proceedings. It is reasonable to expect charges to be laid once investigations are almost complete, not at an immature stage. Defendants are entitled to presumption of innocence and should be treated thus. I confess to having serious concerns about what is happening in this case.”

I infer that the arrangement is unusual. This leaves us with three possibilities, all equally unpalatable. The first is that the person in charge of prosecution arrangements in the Department of Justice (sic) is dumb and did not realise what would happen as a result of his actions.

The second is that the person concerned, thinking that the magistrate would spread the proceedings over a week or two, thought this would be a good way of gratifying his puppet-masters by demonstrating the Hong Kong government’s ability and willingness to contrive stays in jail for purportedly innocent purveyors of inconvenient opinions.

The third is that said person knew exactly what he was doing and eagerly seized the chance to arrange some cruel and unusual punishment for opponents of the official line.

The upshot of the proceedings was that 15 of those accused were granted bail, to which the Department of Justice immediately objected. The remaining 32 were not. Those who were supposed to get bail were remanded in custody with everyone else. The DoJ later withdrew its objection to bail for four defendants, who are now free.

There is an interesting question of interpretation here. The National Security Law says (in the now notorious Article 42) that “No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.”

Much amusement was occasioned in legal circles by the CFA’s strenuous efforts to pretend that this did not mean the defendant was presumed to be guilty.

But still. It presumably means the defendant will not continue to commit the acts of which he is accused. It would be intolerably broad and flagrantly contrary to any concept of justice if the magistrate was required to decide if the person in the dock was the sort of person who might in some circumstances infringe the NSL in some unspecified way.

Now the case against the 47 defendants is that they participated in the “primary election” exercise which was supposed to choose pro-democratic candidates for the 2020 Legco election.

The election has now been postponed for a year. Plausible rumours suggest that it will be postponed for a further year while measures are wheeled into place to ensure that there is a secure majority for the Xi fan club. Clearly there is no question of the defendants organising another primary in the near future, if ever. 

So however subversive their conduct may have been it appears that there is no likelihood, and indeed no opportunity, for them to repeat it before their trials. So why keep them in custody? All the possible answers to this are probably a violation of the NSL.

Be that as it may, the unintended consequence of all this is to remove the stigma which used to attach to being in custody. Henry Thoreau said “In an unjust society the only place for a just man is in prison.”

We’re getting there.

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