tim's experiment

Romping through the bureaucratic undergrowth the other day I came across a little animal which generally eludes watchers. This is the Advisory Committee on Post-office Employment for Former Chief Executives and Politically Appointed Officials.

I must hasten to add that the subcommittee, though obscure, is not secretive. It produces a steady stream of press releases about its work, which – alas – rarely find favour with media editors. So nobody hears about it.

Generally we are not missing much. The subcommittee vets applications from retiring or resigning political appointees – policy secretaries and their permitted flotillas of assistants – and Specially Appointed Officials, which seems to mean full-time members of the Central Policy Unit, when we had one.

The results are not newsworthy. I cannot find any example in which the subcommittee actually sdvised the government to refuse permission for a job. In every case there is approval subject to some conditions.

In the earliest cases recorded on the subcommittee’s website, which go back to 2012, there is much variation in the conditions imposed, but by the time Ms Carmen Cheung Sau-lai left the job of Political Assistant to the Chief Secretary for Administration in 2014 the committee had settled on a formula which, with some minor verbal elaboration, has been its standard set of terms ever since:

• No representing people or firms in dealings with the government.
• No lobbying.
• No bidding, or advice on bidding, for government contracts
• No divulging secrets.

Of course they do not put it as briefly as that. Item 4 for example comes out as:

“without derogating from her obligations under the Official Secrets Ordinance (Cap. 521), use, communicate or divulge to any person any classified information or information that has come to her knowledge during her office as Political Assistant to Chief Secretary for Administration that is not already in the public domain.”

But you get the message.

So far this is uncontroversial. Of course we do not want former political appointees exploiting their government contacts. Indeed some of us might consider that the “Relevant Period”, as the subcommittee puts it, could usefully last longer than the current one year.

What may concern us, though, is that the subcommittee has of late decided that it has another purpose besides preventing the indecent exploitation of government experience and contacts, and this is to preserve the government from being “embarrassed”.

As far as I can tell this concern first appeared in 2017 when Mr Fung Wai-kwong left the post of Information Coordinator and expressed a desire to start a new career as (horror!) a newspaper columnist. The committee recommended that he should not be allowed to “include in his articles anything in relation to his employment as Information Coordinator which may cause embarrassment to the Government.”

This condition has appeared sporadically ever since, most recently being applied to Dr Law Chi-kwong, who following a stint as Secretary for Labour and Welfare wished to return to university teaching. People who are threatening to teach during the “Relevant Period”, are often, though not invariably, told not to “include in his teaching materials anything related to his office as [insert job title] which may cause embarrassment to the Government.”

People intending to move to journalism, PR or writing books are also often subjected to this restriction.

And the question which then arises is whether a committee dedicated to avoiding “well-founded negative public perception embarrassing the Government” should be restricting the freedom of speech in this way.

Remember that the people affected are already subject to the item quoted above about information which is not already in the public domain. So it appears that the committee wishes further to suppress information which is in the public domain, but may embarrass the government.

The other possible interpretation is that we are not dealing here with information at all, but the expression of opinions about how the government operates or ought to operate.

Whichever way you look at it this item is a restriction on freedom of expression. Indeed the subcommittee itself calls it a restriction. The right to freedom of expression is not absolute, as we are invariably reminded by people coming up with new ways of trampling on it.There are, though, only a few permitted exceptions, and these are summarised in the Bill of Rights Ordinance. Restrictions are allowed only:

(a) for respect of the rights or reputations of others;

(b) for the protection of national security or of public order (ordre public), or of public health or morals.

Bill of Rights Article 16

I do not see how any of those exceptions could be extended to cover restrictions whose sole effect and intention is to preserve the government from embarrassment.

No doubt there are more worrying freedom of expression issues in Hong Kong than the right of recently defenestrated government servants to give an honest appraisal of their experience, but we must suppose that this subcommittee has legal advice … from government lawyers … from whom we might hope for some sensitivity to the requirements of human rights generally and freedom of expression in particular.

Hope, but not expect.

Read Full Post »

Something strange happened the other week. Our government, which has spent the last couple of years telling us what to think about life, love, the nation, the president, the rule of law and above all national security, has noticed that the public, also, has opinions.

You are invited to participate in the “public consultation on regulation of crowdfunding activities”. Lengthy document from the Financial Services and Treasury Bureau here.

This procedure was a habit of the old colonial government, and indeed of its post-colonial successors. What usually happened was that the government perpetrated a “consultation paper” on which people were invited to comment. Once the ensuing cacophony of conflicting voices had subsided the government would announce that public opinion was “divided” and go ahead with whatever it originally intended.

This was not by any means an ideal arrangement, but it gave people an opportunity to make their voices heard, even if they suspected that the eventual decision was not much affected by anything they might have said.

It provided also a sort of consent, in the sense that participating in the process implied willingness to accept the outcome, even if it was not the outcome you hoped for. No doubt some mechanism of this nature explains the government’s sudden curiosity about the public’s opinions. The fact of public consultation will imply the fantasy of public consent.

I am not sure that this trick still works. The proposals for regulation are certainly controversial, but it takes many sides to make a rousing debate. After the tremendous efforts expended in the last two years on stifling political pluralism I fear we shall see a demonstration of the soothing effect of jailing the opposition and promoting the people’s poodles.

There will be a resounding chorus of “amen to that” and “you can say that again” with occasional expressions of dissatisfaction from our more lurid Legco members that the proposed new offences are not punishable by hanging.

One or two lawyers who have not yet trimmed their sails to the winds of the times may point out that – even in the view of the writers of the consultation document – most of the possible problems arising from crowdfunding are covered by existing laws. And the document really has very little to say about the most obvious one: some variation on collecting for widows and orphans before blowing the proceeds on fast women and slow horses.

One or two commentators in safe havens overseas will complain that this is another step in the government’s effort to silence dissenting voices, and the proposed regime will just be used to continue “lawfare” against anyone who is not joining the Party party.

They will unkindly point to the absence of any requirement for the proposed Crowdfunding Affairs Office to keep in mind the need to combine the preservation of the public interest with the preservation of the rights to organise, to express opinions, and to solicit support for non-commercial activities.

They will also note that the CAO’s permission will, according to the proposals, provide no protection for people who have it, if “the CAO and relevant law enforcement agencies have reasons to believe that the continued conduct of the activity will jeopardise public interests, public safety or national security, regardless of whether a consent notice has been issued by the CAO, or whether an application to the CAO has been made.”

More sympathetic observers of the scene may see here a government haunted by the fear that someone, somewhere, doesn’t like it and will attract support and cash for saying so.

There is the imaginative bit near the beginning: “some individuals had in the past raised funds from their affiliated groups through the above means, claiming that they would use the funds raised to help people in need, but they turned out to be using the funds for purposes which were unlawful and jeopardised public interests, public safety, as well as national security.” This is the official view of recent history although nobody who has actually been convicted so far appeared to be deploying large sums of money from any source, crowdfunding or otherwise.

Further down we get: “In the absence of regulation, crowdfunding may be used as a means to raise funds or launder money for various types of illegal activities, including those unlawful acts endangering national security or supporting terrorist activities.”

The CAO will consider “whether the nature of the activity and the use of funds would jeopardise public interests and public safety as well as be contrary to the interests of national security.”

And in due course: “The major factors to be considered when giving approval include whether the crowdfunding activity is conducted according to appropriate and sound procedures, whether the individuals involved are reliable, and the risks of the activity giving rise to illegal conducts or endangering public interests, public safety and national security, etc.”

Variations on public interest, public safety and national security are a recurring theme. The whole plan looks suspiciously like an attempt to shut the stable door on a horse which bolted in 2019.

The relevant Secretary, Christopher Hui, did not dispel this impression when launching the new scheme. The only example of problematic crowfunding he could come up with was the 612 Humanitarian Relief Fund, which helped with the legal expenses of defendants and the welfare of convicted prisoners. Mr Hui skated effortlessly past the fact that there has not been the slightest suggestion that any of the money raised for this purpose was mis-spent. The only offence of which the people running the fund have been convicted is failing to register as a society

The point which made the fund a target, most spectators believe, is the fact that those defendants it aided and the prisoners succoured were among the protesters against the Extradition Bill and subsequent gassings and pepperings.

Personally I am distressed by the evident confusion in the whole presentation between what is unlawful and what is merely in some people’s view undesirable. Clearly fund-raising to support illegal activities is itself already illegal. Persons accused of such a crime will face a court.

National security is a legal concept, albeit a troublingly vague one. Whether an activity will endanger public interest or public safety, on the other hand, is problematic. These are not legal concepts and people’s ideas on the matter are likely to vary.

After struggling through the consultation document we may also notice that there is no mention of a right to appeal a CAO decision.

An interesting inclusion, on the other hand, is the suggestion that the new law will apply to the entire world. Anyone who accepts crowdfunding money from Hong Kong will be covered.

They will be required to submit a “description of the crowdfunding purpose, and fill in a statement indicating that the crowdfunding activities will not involve any (wait for it) activities that would jeopardise national security…” Somehow I can’t see this happening.

Anyway the proposal is interesting, but looks to me too much like a sledgehammer designed and intended to crack a nut which has already been flattened. This sort of thing used to be upsetting. Now I’m numb.

Read Full Post »

In 1918 the then French Prime Minister Georges Clemenceau was told that US President Woodrow Wilson had propounded 14 points to guide the making of peace in Europe, where the first World War was still in progress. Clemenceau responded: “Fourteen points? The Good Lord gave us only ten. And do we abide by those?”

What would he have thought of our friendly local Education Bureau which (to paraphrase another well-known Clemenceau quote) has decided that education is too serious a matter to be left to teachers, and has propounded no less than 70 rules for their guidance?

The Guidelines on Professional Conduct as they are called (but do not take “guidelines” too seriously – penalties for violation can include being banned from the profession for life) replace a marginally more brisk set produced by the Council for Professional Conduct in Education, which used to do this sort of thing, but was recently abolished on the grounds that it processed complaints too slowly. Failure to produce the post-protest bloodbath desired by the pro-government media had nothing to do with it.

So instead of a self-regulated profession we now have teachers who are regulated by a government department, and can be drummed out of the profession by a combination of civil servants and political appointees. Any resemblance to the way these matters were handled in the USSR is no doubt coincidental.

The civil servants responsible for this latest masterpiece have, alas, ignored one of the fundamental laws governing the drafting of codes of practice, ethics, professional conduct and other platitudes. You can, as the Book of Common Prayer puts it in a rather different context, be either quick or dead.

If you go for something short and sweet the people concerned will read it, probably several times. This does not guarantee that they will follow it but at least the thought will cross their minds occasionally. However if you go in for something long and turgid it can be expected that those expected to follow it will read it only once if they read it at all.

The new guidelines are long, platitudinous, repetitive and an odd mixture of aspirations, orders and descriptions of the obvious. Lurking among them are a surprising number of things which teachers are apparently no longer allowed to criticise, including the teaching profession, schools, and “the nation”.

The objectives of education are now to “Foster students’ whole-person and balanced development; nurture in them positive values and attitudes; equip them with the knowledge and skills required to have a foothold in Hong Kong, an affection for the country and a global perspective.”

Observant readers will spot the item which has dropped off this list. “Critical thinking” is no longer on the menu.

The disturbing under-current to all this is the assumption that if teachers stray from the path laid out by government officials then students will follow them into erroneous thinking and illegal behaviour. There may have been something in this way back in the days when the local teacher was one of the few literate people kids would encounter, and the others were either priests or medics.

Modern students have access to a wide variety of sources of information, many of which have considerably more influence on them than their teachers do. It is entirely erroneous to suppose that local student protesters were radicalised by their teachers. This is not possible. A whiff of teargas, on the other hand, is extremely effective.

Many of the guidelines are open to no criticism except that everyone knows about them already – follow the curriculum, don’t grope the students, ask parental permission for outings – and would no doubt have a place in any guidelines worthy of the name.

Unfortunately in other parts there is a distinct whiff of a political purge in the offing, fortified by the whole exercise being presented by a Secretary for Education whose previous hobbies include being vice chair of the pro-Beijing mini-union for teachers.

The new Secretary, Christine Choi, has one pronounced advantage when compared with her predecessor. He was an accountant. She was a teacher, albeit in the part of the education industry which believes nothing happened on June 4^th. She also writes for the newspapers, if you consider Ta Kung Pao a newspaper.

Unlike so many avid government supporters Dr Choi has a collection of perfectly genuine degrees, including a doctorate from the Chinese University of Hong Kong. This is a doctorate in education, which PhD holders disparage as “not a real doctorate”, probably because it has some practical use.

Considering this is all good stuff the usual sources are surprisingly reticent about Dr Choi’s student history. Her Facebook page mentions none of it (only like: Chris Tang, Secretary for Security) and the official government biography just has “she taught in secondary school for more than a decade after 1988”, with credential collection continuing, presumably, on a part-time basis.

The anonymous compiler of her Wikipedia entry has a BA from Hong Kong Baptist University, awarded in 1988. But this cannot be right. BU is where I corrupted young minds for many years, including most of 1988. At that time it was Baptist College, and was not awarding degrees at all. It was nevertheless an excellent establishment in its way; it would be nice to see the qualifications it awarded worn with pride.

Read Full Post »

It is a sad fact of court life, in my experience, that witnesses are often not entirely truthful.

The defendant, if he gives evidence, wishes to establish his innocence. Prosecution witnesses, for more subtle reasons, may be eager to establish her guilt. So it goes.

The only help the court has in distinguishing the truth from the other stuff, unless there is video evidence (which is always interesting) is the tradition that any witness can be questioned by both sides.

That means that after each witness has been taken through the expected stuff by the side calling him, the lawyer for the other lot can ask questions designed to highlight inaccuracies or inconsistencies. This rarely leads to the complete collapse of a case, but is still an important safeguard.

However it seems that in at least one Hong Kong court this part of the procedure is now regarded merely as a time-wasting piece of grit in the wheels of justice.

This brings us to the West Kowloon Magistracy, where eight defendants accused of rioting appeared before District Judge Kathie Cheung. They were all convicted.

Passing sentence, Judge Cheung said that the sentencing of rioting charges should be based on the overall incident rather than anything the defendants personally had been proven to have done. This seems rather strange to me, but the law often seems strange to lay people so we shall let that pass.

Ms Cheung set five years as the starting point, which I presume is the established tariff for rioting cases, and gave seven of the defendants three months off for youth and clean records. Two of them, however, were given a further two months off because “they did not challenge the prosecution’s witnesses and saved the court’s time”.

And at this point it seems to me Ms Cheung, who spent virtually the whole of her pre-judicial legal career as a government lawyer, displayed an erroneous idea of what court proceedings are for.

The purpose of the proceedings is not to consign the defendants to long periods behind bars as expeditiously as possible. The importance of cross-examination – by either side – is that it assists the court in the pursuit of truth and justice, which may in some cases require an acquittal. The right to confront your accuser, in particular, is an important right. It is difficult to distinguish a discount for not exercising it from a penalty for exercising it.

It is generally very easy to get a lawyer to explain the importance of cross-examination; you just have to criticise the part of rape trials in which defence counsel tries to establish that the victim is a loose woman who probably enjoyed it.

Your legal eagle will then explain, quite rightly, that the defendant has a lot at stake in the proceedings. If convicted he will go to jail for a long time. It is important that his version of the story should be placed before the court and the version which is going to put him behind bars is vigorously tested.

This, I suppose, is also true of rioting, so however upsetting it may be for police witnesses to have their veracity questioned, the accused person or his lawyer has a right to try.

It will no doubt be argued in defence of Ms Cheung that defendants routinely get a discount for pleading guilty. But this concession – which is notoriously open to abuse – is based on the rather optimistic notion that if the person is guilty he would have been convicted anyway.

This is hardly the same thing as saying that the prosecution’s witnesses were so transparently honest that questioning them was a waste of the court’s time. Indeed those defendants who managed to establish that there was no evidence linking them personally to disorderly or violent acts were no doubt under the impression that this was the sort of thing the judge ought to find interesting.

I cannot resist the thought that the legal system seems to place a much higher value on its own time than on other peoples’, as those unfortunate defendants in their third year of pre-trial custody have found.

Read Full Post »

Reactions to the end of the Jimmy Lai fraud case were mostly predictable but eventually, in one case, surprisingly honest.

Mr Lai had earlier been convicted of fraud because a small part of the factory building he had leased was, in violation of the lease conditions, used as the office of the company which provided secretarial services to the firms in his Apple Daily group.

This was in itself a somewhat surprising event. Factory spaces in Hong Kong are routinely used for other purposes; in Fotan where I live there are factory spaces being used for shops, offices, restaurants, artists’ studios and in a few cases homes. This is generally regarded as a private matter between the landlord and his tenant.

Little was made of this oddity in local media because of the curious state of the law on contempt of court these days. You can imply that someone is guilty with impunity and the pro-government outlets do it all the time. Implying innocence is more dangerous so most of us give it a miss.

The passing of sentence ends the sub judice period so we can all now – at least in theory – say what we like.

Mr Lai’s legal team complained that the charges were “spurious” and part of a campaign of “lawfare” targetting Mr Lai for his leading role in protests and campaigns for democracy.

A local blogger pointed out that shorter sentences had recently been imposed on miscreants convicted of attempted murder in one case, and child abuse in another.

The US State Department said the sentence – five years and nine months – was “immoderate and grossly unjust”, and called for the authorities to respect freedom of expression in Hong Kong.

To the usual complaints, the usual reply. A Hong Kong government spokesman dubbed the State Department’s complaint “absurd”, and said it “disregarded the facts”. It was a “malicious slander on Hong Kong’s judicial system”

The spokesperson went on to say that Mr Lai had exercised his defence rights, and the court had passed sentence independently, based on facts and evidence after an open trial. Reasons for the sentence were contained in the publicly available judgement. He concluded that “a fraud case should not be tied with political considerations”.

So far so normal. An alert reporter could have written the whole controversy in advance. But the Office of the Commissioner of the Ministry of Foreign Affairs in Hong Kong had apparently not been in the loop when the “line to take” was decided.

A spokesman said that residents’ rights were protected by the rule of law, but “such rights are not a ‘free pass’ to criminal acts, which include opposing China and disrupting the city.”

This seems to confirm what many of us already suspected. Mr Lai was not, at least in this case, charged with anything like opposing China or disrupting the city. But in the Foreign Ministry’s view, apparently, anyone who is suspected of such a thing forfeits all rights, including the right not to be charged with spurious offences and condemned to disproportionate sentences upon conviction.

So it was political after all? What a malicious slander of Hong Kong’s judicial system!

Read Full Post »

Just when you thought Hong Kong was getting too quiet, Secretary for Security Chris Tang is offering us a “colour revolution”.

In case you missed it, this began last week at three local universities, where students – mostly from the mainland — demonstrated in support of protests which were occurring in many cities in China, mainly about stringent Covid restrictions and censorship.

The number of students involved seems to have been quite small. Seven people in a protest at Hong Kong U, followed by two people putting up posters, only one of whom was still there when police arrived. Posters also appeared at HKBU, and it seems there was a small gathering at Chinese U.

This doesn’t sound much: a small overflow from mainland student disturbances, no local implications, no violence, no personal attacks. Could this be a routine exercise of the freedoms which we are still said to enjoy?

Not according to Mr Tang, who was in full bloodhound mode. The events were “highly organised” on anti-China media platforms. They endangered national security. Is national security so fragile?

Some of the slogans, said Mr Tang, might violate the national security law because they involved words such as “revolution”, “autocracy” and “urging the leader to step down.” He also thought that “Some people who actively participated in the 2019 unrest were involved. This is not a coincidence.”

Not a coincidence, but also very difficult to believe. Three quarters of the people who were students in 2019 should have graduated by now, apart from those in prison. Mainland students were not conspicuously supportive in 2019 and in any case many of them are graduates who are only here for a year or two.

Still, this is a factual matter which sensible people can discuss. Not content with this sort of material, though, Mr Tang swept on to prophecy: “We’ve noticed signs of a colour revolution. Next they’ll make up false news, protest manuals and theme songs to smear the central government before taking to the street.”

This is totally unwarranted and imaginative. It is as if your local vicar, finding that some people had removed money from the collection plate instead of putting it in, predicted that the miscreants would go on to steal the lead off the church roof, hold Satanic ceremonies in the side chapel and do unspeakable things to the choirboys.

Some reassurance is clearly needed, along the lines of “Grandma, just because there is a sparrow on the lawn does not mean that buzzards will soon swoop on your cat and ostriches will pillage the vegetable plot.”

It is a fundamental fact of life that every oak tree started with an acorn, but very few acorns manage actually to turn into oak trees. Similarly even if every revolution (if I may use that dangerous word) starts with student protests it does not follow that every student protest leads to a revolution.

It is difficult to see why Mr Tang feels compelled to channel his inner Nostradamus in public. Is he suffering from some variation on Post Traumatic Stress Disorder (Post Disorder Traumatic Stress, perhaps) or just dumb?

While it is nice to see senior officials offering exciting material for local news media, it seems that Mr Tang is neglecting an important part of his job. As he said in a speech last August, “The freedom of speech in Hong Kong is protected by the Basic Law and National Security Law. It is allowed to criticize the government and express opinions urging the government to make development, citizens who make these actions enjoy the legal defence.”

It is nice to know that the freedom of speech is protected by the Basic Law and the National Security Law. It would be nicer if it was also protected by him. Covid prevention and censorship are legitimate topics for public discussion in a society enjoying freedom of speech. Such discussion should be possible without senior officials leaping into action with complaints about hypothetical future behaviour and predictions that some slogans “may violate the national security law”.

The national security law already appears very vague and constant warnings of possible violations are not improving its reputation. What is wrong with “urging the leader to step down”? Could one, without committing an offence, urge Mr Tang to step down?

Read Full Post »

The people I feel sorry for, reading this morning’s newspapers, are those Law Society worthies who recently returned from a trip abroad in which they reassured overseas colleagues that the rule of law was alive and well in Hong Kong.

Scarcely had the poor legal lambs returned than the Hong Kong government produced a new demonstration of what the rule of law now means. The law applies to you and me, but not to the government. Because if they lose in the courts they will simply change the law.

I am afraid that whatever intricate legal verbiage is offered in defence of the decision to ask the Beijing authorities to overrule the judicial decision to allow Brit barrister Tim Owen to represent Jimmy Lai in his upcoming trial, the view of the matter outside Hong Kong is likely to be critical.

One could hope that the rather similar decision to hastily plug the “loophole” revealed by a judicial review of the Health Secretary’s power to invalidate vaccination certificates might be overlooked outside Hong Kong. After all in most of the world COVID is an old story.

Mr Lai is another matter. When people are considering a territory’s claims to be an international city offering the full range of human rights and freedoms the jailing of the owner of a pro-democracy newspaper attracts attention.

You have to wonder why this particular row was considered worth the reputational risk. After all whoever represents Mr Lai it is difficult to envisage him emerging alive from prison, in the absence of an upheaval so drastic that even imagining it is probably a national security offence.

The decision of the Court of Final Appeal does not decide the legal question which seems to be bothering our leaders, because the judges refused to entertain the latest thoughts on the matter from the Department of Justice on the (entirely correct) grounds that they could only consider arguments which had been raised in the courts below. This means that in a future case the CFA can reconsider the whole matter in the light of the DoJ’s belated brainwave.

You have to wonder if senior officials have developed a suspicion that judges are getting a little resistant to the DoJ’s “leave no stone unthrown” approach to people the government disapproves of, and need a reminder that their decisions are not final.

Chief Executive John Lee said that there was “no way” of ensuring that overseas lawyers would observe the “duty of confidentiality” in the national security law. But this hardly seems relevant to Mr Lai’s case, which will presumably rely heavily on the contents of his newspapers, not really a secret.

Mr Lee went on to say that there was no way of ensuring an overseas counsel would not have a conflict of interest, and there was also no way to ensure that he has not been “coerced, compromised or in any way controlled by foreign governments, associations or persons.”

But this is surely taking paranoia – or patriotism – to absurd lengths. It is a characteristic of Hong Kong trials that they are held in public. Judges will insist that speeches are relevant. The duty of defence counsel is to do his best for his client. Where is there an interest for wicked foreigners here?

And after all foreign lawyers are not the only ones who may have a conflict of interest. The Department of Justice was quite happy to employ one on to argue on its own behalf. And local lawyers have other pressures to worry about. Cynical observers may attribute to the Hong Kong government a desire to ensure that defendants accused of national security offences are represented only by local lawyers who can be surreptitiously punished for excessive zeal.

Well if we are going to have announcements of this kind one would hope the organisers would come up with some more persuasive supporters. Mr Lee was backed up by a Wechat post from the State Council’s Hong Kong and Macau Affairs Office, a source which cuts little ice in Hong Kong and less overseas.

This pushed the curious line that the decision to admit Mr Owen violated the bit in the National Security law which obliges “the executive, legislative and judicial authorities to prevent, stop and punish activities which endanger national security.”

Indeed. But surely this is not a definition of a new offence or a new duty for judges. The role of the judiciary in protecting national security is to enforce the national security law and punish those who infringe it. Nobody has been charged with an infringement.

The anonymous Wechatter went on to say that the CFA’s decision was “against the purpose of legislation and logic in legal contexts”, which perhaps sounds better in Mandarin than in English, and had aroused strong discontentment among people who “love the country and love Hong Kong” and “those with righteousness in the legal sector”.

Then we had a supportive spokesman from the Liaison Office, who also claimed to be channeling local discontent among righteous and legal circles. The decision, he said, “not only has created convenience for foreign forces intervention but also damaged the professionalism of local lawyers and the rule of law in Hong Kong.”

I do not remember similar concerns about professionalism and the rule of law when the DoJ was trying to import a prosecutor.

Anyway if I were Mr Lee I would try to avoid having controversial announcements from him flying in formation with supportive offerings from official mainland organs. Or we might start wondering who is the organ grinder here and who is the monkey.

Read Full Post »

There is a curious down the rabbit hole, through the looking glass, Alice in Wonderland quality to Hong Kong these days. Maybe it is caused, or helped, by the massive purge of independent sources of information that has happened over the last two years. Whatever the reason, welcome to the new surrealism.

Let us start with reports of an overseas expedition to the US, UK and Singapore by four leading members of the Law Society. President Chan Chak-min said it was not their role to “tell a good Hong Kong story” (sorry, Mr Lee) but they had been dispelling misconceptions such as “all local judges are appointed by Beijing”, and that “there is no judicial independence, fair trials or free speech” in Hong Kong.

Reading this (it’s an RTHK story) you have to wonder which foreign lawyers they were talking to. I do not know anyone who supposes that “all local judges are appointed by Beijing”. There are substantial concerns about the increased influence the government exerts on judicial appointments and promotions, and equally substantial concerns about the increased influence which Beijing exerts on the government. But Beijing appointing all local judges? Fiction.

There is a similar lack of nuance to the other three “misconceptions”. Nobody believes that judicial independence has entirely expired, though it is certainly looking a bit under the weather. Some trials are fairer than others but nobody believes that there are “no fair trials”. Free speech is not an on-off switch, an either you’ve got it or you haven’t thing like pregnancy or being able to ride a bike. There are degrees of freedom and Hong Kong has moved the dial in the wrong direction quite a lot.

President Chan added a priceless observation about himself: “’I really can’t see under the current environment, we are not allowed to criticise the government. We criticise the government all the time,’ he added.”

Come off it Mr Chan. One thing we have not seen in the past few months is a stream of criticism of the government, or indeed anything else, from the Law Society. This may have something to do with the fact that the last set of elections to the society’s council were a triumph for the “professionalism” slate, warmly endorsed by Beijing’s Liaison Office in Hong Kong.

This in turn may have had something to do with threats by the then Chief Executive that if the Law Society elected a more critical council it might lose its authority over the profession. Talk of this “reform” subsided after the election had produced the desired result.

We cannot say, of course, what happens in private. But if the Law Society is providing a stream of public-spirited criticism they are doing it in a surreptitious way which does not help to dispel suspicions about freedom of speech.

Still on freedom of speech we have an astonishing article by Junius Ho and a co-author, about this very topic. Much of this is a survey of the legal and philosophical arguments for freedom of speech which could usefully be shared with one’s students, and indeed with the Secretary for Security.

What, though, is the outrage which has spurred Mr Ho into the lists on behalf of a threatened freedom. Is it one of the slaughtered media outlets or jailed journalists he is worried about, the use of sedition charges, the censorship of libraries? No. The victim, in Mr Ho’s eyes, is himself.

This is weird. Mr Ho is a legislative councillor whose words of wisdom are often reported lavishly by the media. He also has a regular gig on the China Daily op ed page. He is not on the mysterious but influential list of non-people who must not be interviewed by government-friendly media.

Mr Ho’s beef is with a retired banker, Mark Peaker, who wrote a letter to the SCMPost in 2021. This contained a “dictatorial remark” in which “the torch of freedom of expression is being threatened by the brutal attempts of Peaker to forcibly bend the public discourse toward his LGBTQ-based viewpoints.”

Goodness, the torch of freedom of expression in danger! What did Mr Peaker say?

“In a letter dated June 11, 2021, he criticized Junius Ho Kwan-yiu, one of the co-authors of this article, for referring to the Gay Games as disgraceful. He further called on Ho to shut up and apologize.”

I have not personally participated in discussions of the Gay Games, for which I do not qualify, but I can see why people might be offended by a writer who characterised them as “disgraceful”. Whatever you think about this, a response on a newspaper letters page which urges Mr Ho to shut up and/or apologise is neither brutal nor forcible. Indeed since 2021 Mr Ho has been voluble on a variety of topics. And he has not apologised. No force, no brutality. Jimmy Lai should be so lucky.

Mr Ho’s quarrel with the Gay Games, it turns out further down the article, is the fear that they will be used to “promote same-sex marriage as a special right in Hong Kong.” This is turn takes on a national security tinge: “Spiritual pollution knows no frontiers. To safeguard cultural security on the Chinese mainland, we should guard against the spread of corrosive cultures across the boundaries.”

Goodness, the Chinese mainland is so sensitive! Which brings us to the great Anthem Bandwagon, which agitated so many defenders of cultural security last week.

Rugby Sevens started life as a little end-of-season thing which rugby clubs did for the entertainment of their own members, in much the same spirit as rowing clubs mark the end of the season by having short races in which the crews are picked by lot. No practice, just a fun thing.

This sprouted a national version which was held at Twickenham every year, and in turn led to the Hong Kong Sevens, a carnival of booze and ball games which compensated the city’s foreign inhabitants for the fact that we don’t have real internationals here because our team is not good enough.

After years of success in Hong Kong, Sevens became a thing in itself, sprouting a sort of international circus which circulates the globe, stopping at other places and coming here (public health restrictions permitting) as one stop on the circuit.

Most of the teams are “national”, which provides the opportunity for a good deal of flag-waving and anthem playing. Sevens matches are quite short so there is plenty of time to fill.

And so to South Korea where, at the latest iteration, the Hong Kong team was serenaded with the protest anthem Glory to Hong Kong, instead of the Chinese national anthem, the March of the Volunteers. This seems to have been the result of a simple error. As Hong Kong does not have an anthem of its own, if you Google “Hong Kong anthem” you do in fact get Glory to Hong Kong.

This sort of error happens occasionally. But…

Cue outrage. The Hong Kong Rugby Union had “extreme dissatisfaction”, the Hong Kong government said it “strongly deplores and opposes the playing of the song”, Chief Executive John Lee said it was “unacceptable”.

The Secretary for Culture, Sports and Tourism said the song was “closely associated with the riots that promoted Hong Kong independence” which is untrue both in respect of the song and the riots. Junius Ho, unsilenced by his brutal experience on the SCMPost letters page, opined that the only solution was to dissolve the Hong Kong team. Nobody told him to shut up.

An FTU lawmaker called on the government to unleash the national security police (in South Korea?) and Ronny Tong said omnisciently that the playing of the song was “definitely not unintentional”. Regina Ip thought the sinner involved should be charged with a criminal offence and could then be extradited to Hong Kong. Generally countries will not extradite people for offences commited in their own country which are not offences there. Extradition proceedings would also raise the question whether the person concerned could get a fair trial in Hong Kong.

An alternative offered by the secretary general of the Sports Federation and Olympic Committee of Hong Kong was that South Korea should be punished by being banned from holding rugby matches, or if possible any international sporting events, “for a while so they can reflect on their actions”.

Meanwhile a queue of increasingly obscure legislators were dipping their bread: Steven Ho discerned an “insult to the nation” and urged to government to “strengthen its efforts on national security matters”, while Tommy Cheung said it was a national security threat “in the flesh”. Lilian Ho called for more resistance to “foreign influences” and claimed, a surprise, that there were still “books about Hong Kong independence” in Hong Kong public libraries.

It seems to me that it would be better for everyone concerned to make less of a fuss about this. The idea of a Hong Kong “national” team is looking increasingly tricky as we snuggle into the bosom of the motherland. The older ball games, like rugby, will not complain because they have accommodated “national” teams from Wales and Scotland for years. Other sports may wonder why, if Hong Kong’s anthem is the March of the Volunteers, China should in effect be allowed two entries to everyone else’s one.

Anyway Glory to Hong Kong in the instrumental version is not a song, it is a tune. A set of pro-popo words for it was written but did not catch on. Tunes are adaptable. Haydn’s “Austrian hymn” for Catholics famously became the Methodist hymn Glorious Things of Thee are Spoken, and the German national anthem. The original words for that last purpose – Deutschland Deutschland Uber Alles – have now been replaced with a less bombastic set.

Another conclusion we might draw from the latest calamity is that Hong Kong could usefully have its own anthem, at least for sporting purposes. Was there a tune to “Below Lion Rock”?

Read Full Post »

Local lawyers and judges have for many years enjoyed the opportunity to tell us all how lucky we are to have them, at the ceremonial opening of the Legal Year. This is always marked by assurances from sundry legal bigwigs that the rule of law is vital to our stability and prosperity, alive and well, etc.

In the last three years we have also had a Legal Week, held in November, when much the same people can sing much the same song. Cue speech from the Chief Justice which you can read here.

The one point I agree with (he said it twice) was that “the rule of law is not static”. Hear hear. The description of it is wonderful, but seems to have little connection with what happens in local justice factories.

Consider the case of Ms Paula Leung, who appeared last week in a Kwun Tong magistrates’ court, acting Principal Magistrate Amy Chan as the woman with the whistle, charged with insulting the national anthem.

Ms Leung was in a shopping mall in July last year (only 16 months ago; this is the new normal) where a large number of people were watching the Olympics, and enjoying the success of Hong Kong’s gold medal winner. After the medal ceremony the PRC national anthem was played.

At this point Ms Leung waved a copy of the old colonial flag and then draped it over her head. There was booing, about which accounts differ. The more patriotic media suggested that the booing was directed at the colonial flag; others suggested it was directed at the national anthem.

Some of those present called the police, but by the time they arrived it was of course impossible to establish who had booed or why. Ms Leung, however, had been asked to identify herself by mall staff, and instead of recommending the pleasures of self-taxidermy had complied. So in due course she was arrested and charged with insulting the national anthem.

Readers of a legal disposition may have some doubts at this point about whether an entirely silent symbolic act in front of a giant television really meets the requirements of this offence, but Ms Leung prudently pleaded guilty so we shall not explore that.

However Ms Chan was not left to consider this point without assistance. The Standard’s man in the press box wrote:

According to an expert report from Lingnan University history professor Lau Chi-pang, the colonial-era flag is a connection between Hong Kong and the United Kingdom and had not been used since the handover in 1997. Waving the flag is an insult to the national anthem, Lau said in the report presented at the hearing.

Standard Nov 11

And I am now going to protest again at the sloppy legal thinking which allows non-experts to supply “expert reports”.

To start with, history is a wonderful subject to study but it simply does not produce the hard nuggets of scientifically certifiable fact which you get from a forensic pathologist, or the lab which analyses your suspicious white powder. Historians should not be giving “expert evidence” about anything.

If you were looking for an expert historian, moreover, you would not choose Professor Lau. He is not currently a professional historian at all, being laudably engaged in the administration of Ling Nan University where he is, according to the university’s web site,

• Associate Vice President (Academic Affairs and External Relations), Lingnan University
  Professor, Department of History, Lingnan University
  Co-ordinator, HK & South China Historical Research Programme, Lingnan University
  Director, Jockey Club Hong Kong History Learning Programme, Lingnan University
  Director, Hong Kong Local Records Office

The History Professor title is now aooarently a bit of an ornament. Indeed the university also notes other hobbies:

• He had served the Tuen Mun District Council, Heung Yee Kuk, Antiquities Advisory Board, Advisory Committee on Revitalisation of Historic Buildings, Town Planning Board, History Museum Advisory Panel, Lord Wilson Heritage Trust. He is currently a member of the Legislative Council, Chairman of the Advisory Committee on Built Heritage Conservation and member of Advisory Council on the Environment.

Clearly Professor Lau is regarded as a safe pair of buttocks by the government’s seat-filling machinery, but what does he know about colonial flags?

Professor Lau’s academic interests include the intellectual history of the Song, Yuan, Ming and Qing dynasties, Hong Kong history, as well as the study of Chinese Local Records. He has focused on the research and teaching of local history in recent 20 years, publishing more than 20 books on a wide range of topics such as: the development of Tuen Mun, the New Territories and other places; oral history records of residents from So Uk Estate and Chung Ying Street, local artists from 1960 to 1975, Shandong policemen in the last century, Hong Kong people during Japanese Occupation, etc.; as well as the history of the bar-bending industry, Ta Teh Institute, Hong Kong International Airport, Tung Wah Group of Hospitals and so on.

LU website

I fear that Prof Lau’s supervisor, when he had one, would have worried that he was spreading himself rather thin. Some historians would regard the intellectual history of the “Song, Yuan, Ming and Qing dynasties”, which span nearly 1,000 years, as enough to keep a man busy. Or might say the same thing about the history of Tuen Mun.

The result is a shortage of outputs. When I was in the academic business we were encouraged to produce at least one refereed journal article a year. Prof Lau has six to his name, the last one appearing in 2014. Since then he has produced two refereed book chapters, both on the Hong Kong maritime industry. Well I suppose ships have flags.

Regular consumers will recall that I was not happy with Prof Lau’s appearance in the case of Tong Ying-kit, the motorcyclist with banner who was accused in Hong Kong’s first national security law case. But at least on that occasion Prof Lau had been asked to research and pronounce on a specific point: the meaning of “Liberate Hong Kong, revolution of our times”.

This seemed to me an elusive concept – phrases rarely have exact and indisputable meanings – but they are least more subject to learned interpretation than the act of waving a flag. And if it were to be interpreted, one might have more confidence in the result if it came from someone without another of Prof Lau’s side hustles: he is an Executive Member of the Chinese Association of Hong Kong and Macao Studies, a well-known venue for professorial pro-Party pompom-waving.

We now come to Ms Chan’s contribution to the proceedings which, in the light of the guilty plea, was limited to passing sentence.

Ms Chan thought the accused could have brought about a “dangerous situation” by waving the flag. The thought behind this, I suppose, is that rival members of the yellow and blue camps might have come to blows over it.

This is not very plausible, but even if it were likely the general rule in these matters is that non-violent expressions of opinion should be protected, and violent reactions to them suppressed, not the other way round.

Ms Chan went on to show a worrying tendency to imitate one of the worst features of recent political cases: a mysterious compulsion to dismiss at length and in detail anything offered by way of mitigation.

Ms Leung, according to her lawyer, has autism and a low IQ. She attended a school for children with special needs and left it after Form 3. She had worked as a security guard for ten years but had recently been unemployed. Not an easy life, you might think.

But (Standard again) “Chan said she would not impose a lenient sentence since Leung did not suffer from illness, but had a different mental and physical condition compared to other people.”

And at this point I don’t know whether to laugh or scream. After all if you are run over by a truck and lose both legs you are not ill, but have a different physical condition. Most people would still regard this as a decent claim to leniency. A chronic problem is still a problem, and mental problems can be just as disruptive as physical ones.

It is true that autism covers a wide range. Some “high-functioning” autistics have compensating advantages, and indeed may not discover that they are autistic until adulthood, like neurologist and financial guru Michael Burry, one of the heroes of “The Big Short”, or like the owner of this interesting Youtube channel.

The advantages may include a flying start in the academic obstacle race: the other day I read that 80 per cent of early readers are autistic, a disconcerting thought for anyone who was an early reader before autism was discovered. Like me.

However, lucky or less unlucky though some autistic people may be, the fact that Ms Leung needed to attend a school for children with special needs and was diagnosed as having a low IQ suggests that she is at the unlucky end of the autism spectrum and describing her condition as “different” doesn’t do justice to her situation.

Ms Chan’s thoughts on this topic may have been more nuanced than the (legitimately) compressed version offered to newspaper readers. Still, she would do well to try harder to avoid giving the impression that she is an arrogant berk prone to jumping to conclusions about matters on which she is ill-informed.

Read Full Post »

The Hong Kong government has done a good job so far of keeping Jimmy Lai in prison for one reason or another. No doubt it will continue to discharge this important function. This does, though, require some logical and legal gymnastics.

Remember the row about British judges making guest appearances on the Court of Final Appeal? This arrangement was, in the official view, a gratifying endorsement of the Hong Kong legal system. Nobody was bothered by the undoubted fact that the CFA will from time to time have to rule on cases involving the National Security Law, or that the overseas judges did not speak Cantonese. Nor indeed that they were likely to rule on laws which they had not previously encountered in their various home jurisdictions.

They were a great asset; the withdrawal of those who withdrew was lamented, and the announcement that others would not withdraw was hailed as an endorsement of our legal system.

Yet the question of local knowledge and language skills were the things which bothered the DoJ when Mr Lai wished to be represented by a British KC (a KC is a QC whose Queen has died and been replaced by her son) Tim Owen.

If you want to employ an imported barrister you have to get the permission of a High Court judge. Such applications are routinely opposed by the local Bar Association on the grounds that suitably qualified locals are available.

Actually I suspect the suitably qualified locals were rather pleased that the routine opposition did not succeed; many of our comrades north of the border do not understand that barristers are expected and indeed required to represent people they do not approve of or agree with. A defence, particularly a successful defence, of Mr Lai would not go down well with the large group of commentators who call for judicial reform every time a court makes a decision they disagree with.

The DoJ also opposed Mr Lai’s application, and persisted in this opposition by appealing against the original judge’s ruling. This is harder to explain. Did the department not wish to import David Perry QC (the Queen then still being alive) to prosecute Mr Lai in another case, just last year?

I do not remember the point coming up at the time but I rather fancy Mr Perry does not speak Cantonese either. His decision to withdraw from the case may have been due to a storm in British political circles, or to some belated research into Hong Kong’s quarantine rules at the time for arriving travellers.

His withdrawal was roundly condemned by the usual chorus as a lost opportunity, an affront to the rule of law, and a demonstration of ignorance of Hong Kong’s many merits in British government circles.

The DoJ’s approach appears to be that it may usefully employ Mr Perry to prosecute Mr Lai in one case, but Mr Lai may not employ Mr Owen to defend him in another. Years of training allow lawyers to float undisturbed past such paradoxes. To the layman it looks unfair.

Similarly we shall no doubt soon be told that having one foreign judge at a time on the CFA is a useful protection of human rights, legality and other platitudes, but having a foreign barrister defending a local accused is an affront to the legal system and an insult to the legal profession.

Indeed Mr Leung Chun-ying, a reliable source of oratorical overkill, has already jumped into action. The three appeal judges who approved Mr Owen’s visit were “inviting British people to ‘develop’ national security law in Hong Kong China.”

This is the same Mr Leung who said that when two British judges withdrew from the Court of Final Appeal roster it was “a stain on the independence of the British judiciary” which had made Britain “a laughing stock.” The CFA has already ruled on national security cases.

He had no complaints about the invitation to Mr Perry. Now he complains that the judges who decided to admit Mr Owen have “humiliated” the local legal sector. Why a total of four judges should have agreed to do such a thing he did not say. Anyway Mr Leung, a serial offender against the building regulations, is an unlikely authority on the rule of law.

Indeed we seem to have a serious surplus of people in Hong Kong for whom the rule of law is a mere slogan, to be deployed when expedient and discarded whenever a judge produces a decision which they do not like. With defenders like this, who needs enemies?

Read Full Post »