Feeds:
Posts
Comments

Archive for the ‘Uncategorized’ Category

The Hong Kong Court of Final Appeal’s thoughts on Jimmy Lai’s bail application are now up on the Judiciary website. Their lordships will have gratified Mr Henry Litton by keeping their comments brief – at least by judicial standards – so readers with a taste for this sort of thing can be recommended to go here.

The newsworthy gist of the CFA’s thoughts was that Mr Lai can stay in jail. However further action is in prospect. The court held that the High Court judge who released Mr Lai approached the matter in the wrong way. But if he had approached it in the right way he might have arrived at the same conclusion. So Mr Lai is free to try again.

Mr Lai has now been jailed by a magistrate, freed by a High Court judge, rejailed by the Court of Appeal, and been told he can return to stage 2 by the Court of Final Appeal. This is a good illustration of the old joke that the law courts are open to all … like the Ritz Hotel. Mr Lai is a millionaire, which is lucky for him, in the circumstances. The rest of us can look forward to being bullied by publicly-funded prosecutors.

Lawyers will note the unsurprising observation that the Hong Kong courts cannot consider whether acts of the Central Government might be incompatible with the Basic Law. If they are, so much the worse for the Basic Law. The CFA also noted that the National Security Law (hereafter the NSL) stated that in the event of a conflict between the NSL and Hong Kong’s existing laws, the NSL would prevail. That is also unsurprising.

The effect of this is that Hong Kong now has two parallel legal systems. If you are an ordinary decent criminal who mugs old ladies or swindles banks, then your prosecution will be conducted under the old system and you will benefit from the rights which that system enshrines.

If you infringe the NSL, on the other hand, you fall down a regulatory rabbit hole into a legal system where some of those rights are no longer available. You do not have the right to bail, you do not have the right to a jury trial, you do not have the right to a judge not drawn from a list compiled, effectively, by the prosecution, and you may, if the prosecution thinks things are not going too well here, find the whole proceedings transferred to the mainland, where you will be deprived of further constitutional embellishments like the right to the lawyer of your choice and the right to a fair trial.

The least one could hope for, under these circumstances, is that the boundary between the two systems would be clear. But the Department of Justice — eyes firmly fixed on its major objective these days, which is to put as many of the government’s critics as possible behind bars — is not helping.

Last Wednesday Mr Edmund Wan Yiu-sing appeared in the West Kowloon Magistracy on a charge of sedition. This is not a charge under the NSL; the prosecution cited the relevant parts of the Crimes Ordinance. These are a venerable colonial-era offering which started life as a piece of model legislation circulated by the then Colonial Office of the British government in the 1930s.

Why this course was adopted is not clear. People have been pointing out the existence of a law against sedition for years without prosecutors using it. Maybe the idea is simply to keep the number of NSL cases in PR-friendly double digits.

However, Prosecutor Ivan Cheung said that although the charges were not covered by the NSL they did involve “behaviour endangering national security” and cited the CFA’s judgement as warranting a “more stringent” approach to the granting of bail in national security cases. The magistrate then remanded Mr Wan in custody. The full trial will not take place until May, so this means that Mr Wan, who is entitled to be presumed innocent, will have been inside for three months before he gets his day in court.

And the question which arises is, of course, is it acceptable – is it legal? – for the procedural parts of the NSL to be applied to cases in which the offence is an ordinary pre-existing one. The CFA did not consider this point because it was not at issue in Mr Lai’s case. So Prosecutor Cheung’s reliance on that decision could be considered a bit premature.

Musing over the documents which the CFA relied on when considering the legislative intent of the NSL one is not much helped. A great deal seems to depend on the rather slender question of whether “the law” is the same thing as “the Law”. Consider, for example the Address to the NPCSC (the legislature for practical purposes) which includes this passage: “… The Law expressly stipulates that human rights shall be respected and protected in safeguarding national security in the HKSAR. The rights and freedoms … which the residents of the HKSAR enjoy shall be protected in accordance with the law. The Law also fully reflects the internationally-practised rule-of-law principles such as conviction and punishment of crimes as prescribed by law, presumption of innocence, protection against double jeopardy, protection of parties’ rights in litigation and to fair trial.”

Clearly here “the law” is the law generally and “the Law” is the NSL. In this light we can perhaps interpret NSL clause 5 “A person is presumed innocent until convicted by a judicial body. The right to defend himself or herself and other rights in judicial proceedings that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be protected.”

In other words what we must now call the old system prevails unless the NSL applies because the offence is an NSL offence. This seems to be the view of the CFA in paragraph 42, which says that the NSL’s restrictive bail rules apply in “NSL cases” – so, presumably, in other cases they do not.

Similarly in para 53 there is a distinction between “offences either under the NSL or under HKSAR law.” A footnote offers “Such as the offences of treason, incitement to disaffection or sedition under Parts I and II of the Crimes Ordinance (Cap 200).”

That “such as” is ominous, since it implies that even the CFA is not sure which existing laws could be regarded as “laws of the SAR safeguarding national security.” Is it to be left up to the prosecutor in each case?

I expect in the long run the practical importance of a clear dividing line will become apparent and judges will insist that if the prosecution wishes to benefit from the considerable help provided by the NSL then it must charge an NSL offence. After all under the existing Hong Kong legal system, if the prosecutor can establish that the defendant is likely to offend while on bail then bail will be refused. The NSL’s “more stringent” requirement is that bail should be refused unless the magistrate is satisfied that the defendant will not reoffend. This is a higher bar, but not an insuperable one. It does not mean the refusal of bail should be automatic.

The Department of Justice needs, perhaps, to look at itself in a mirror. Leaving aside the legal intricacies there is something indecent about taking months or years to charge a person, and then insisting that national security will be endangered if he or she is not immediately incarcerated pending trial. We all have the right to be free unless convicted. This should not be trampled on without good reason. 

Read Full Post »

The new-look Legco, without opposition, without pan-Democrats and without the limited democratic legitimacy which surrounded its predecessor, is now with us, and will remain with us until next September at the earliest.

Further postponements of the elections cannot be ruled out. Our Imperial Big Brother does not love elections.

The Chief Executive. Carrie Lam, timed her expression of joy that the council had returned to “normal” nicely. It arrived just before the Economist Intelligence Unit decided that we should be moved from the Flawed Democracy category to the Hybrid one, which I think is the EIU’s euphemism for “the locals have no rights but foreigners can still do business”.

Actually the council has not returned to normal, because the normal arrangement in elected legislatures is that there is an Opposition. The usefulness of this is recognised in the British parliament by the fact that the Leader of the Opposition gets a publicly funded salary for doing the job.

The opposition provides two services. It exposes the government to criticism and scrutiny, and it provides the electors with an alternative to the party in power. Since our current leaders do not cherish criticism and regard the electors with a mixture of pity and contempt, they see no useful role for an opposition. And the Party is, of course, in power for ever and ever amen.

This is a pity. I have been reading a book about the relationship between Winston Churchill and Clement Attlee, who at various times were Prime Minister and Leader of the Opposition facing each other, and could hardly have been more different in their political ideology. They managed to remain remarkably good friends. Neither was ever arrested.

They did have the advantage, it is true, of having been colleagues in the Coalition government during the Second World War, in which Churchill was PM and Attlee his deputy who filled in when he was away. I cannot resist quoting this description of their contrasting presiding styles:

“When the Prime Minister is away, Mr Attlee presides. We meet at the appointed time and go through the whole agenda and make all the necessary decisions. We go home at night knowing we have done a good day’s work. When Winston is in charge we have no agenda, make no decisions at all and go home at midnight conscious that we have been present at a historic occasion.”

Don’t suppose our own dear Exco resembles either much. But I digress.

What is Ms Lam going to do with her new-look Legco which, she noted, would no doubt be willing to approve things which the old one would have choked over. A law against doxing will please the Police Force, the nearest thing Ms Lam has to a base, in the political sense.

Less comment was attracted by the other half of her new legislative programme – a law against “false news”.

But this is ominous. We did in the days of the previous colonial landlord have a law against false news, as I recall. It had not been used for many years and was a clear violation of freedom of expression. As a result it was frequently criticised as a relic of an earlier, more primitive form of colonial government and, with some reluctance, it was eventually abolished.

One of the problems such laws present is the question what is false. I notice in the Education Bureau’s latest guidelines on national security education that students will be told that the new national security law did not diminish Hong Kong people’s rights and freedoms.

This is nonsense. A law which makes new criminal offences certainly diminishes people’s freedoms. It would be a complete waste of time if it did not.

Last year we were free to collude with foreign political organisations. This year we are not. This may be justified, trivial, a huge improvement on the old situation or all three. But it is clearly a reduced freedom. A government which is going to compel teachers to lie to their students is not an acceptable arbiter of what is false news.

Consider another bulletin from the education front: the slogan Liberate Hong Kong, Revolution of our Times, is to be banned because the government has “deemed” it to imply separatism, according to the relevant Secretary.

There are three objections to this. The first is that it is a clear usurpation of the powers and functions of the people who put the Oxford Dictionary together, and spend a great deal of time and effort on chasing an accurate definition of word meanings by looking at how they are actually used. I am proposing for next year’s update a new word – dictatwit – which I have just made up. It means an official who supposes it is his job to decide what words mean and believes anyone will take any notice.

The second objection is that the interpretation defies common sense. This can be easily demonstrated by inserting instead of Hong Kong a political entity to which separatism cannot possible be applied. Liberate China, Revolution of our Times. still makes sense (in the purely linguistic sense, of course), whereas – say – Home Rule for China, Revolution of our Times, would not.

The third objection to this sort of thing is that separatism is now an offence, and it appears that some people have been charged with it. Accordingly it should be up to the courts to decide whether in any particular circumstances a particular set of words bears the meaning complained of, and in the meantime the matter is, as the Secretary for Justice put it in a slightly different context, sub judice and not a proper subject for comment.

But would it, under Ms Lam’s new legislation, be false news to write that you did not believe the official “deeming” justified?

This is only one of the many problems attached to this sort of legislation, and there is no point in going through them all until some kind of draft appears. Let me just say that it is difficult to see our government coming up with something that will not result in a further slither down the EIU’s democracy rankings.

And I do not expect to be protected from ill-judged innovations by the surviving Legco. It seems the only media issue which arouses any passion in the remaining seat warmers is an intemperate desire to see RTHK gelded.

Read Full Post »

You would think in the light of recent events that local politicians would realise that after you lose an election trying to reverse the results by legal manipulations later is a bad look. This point seems lost on the Democratic Alliance for the Betterment of Hong Kong, alas.

Last week the party unveiled their plan to get their snouts back into the district funding trough: wholesale disqualifications. You may think it’s a bit late for this. The district councillors elected last year, when the DAB as massacred in every district except Islands, have duly taken their seats.

Never mind. The suggestion launched by the surviving DAB members goes like this. Firstly all district board members will be required to take The Oath. This of course could have the disappointing effect that all the existing councillors do take the oath, and the DAB stays in the wilderness.

So this gets us to stage two, outlined in an open letter to the Constitutional and Mainland Affairs Secretary last week, which involves setting up some mechanism to disqualify councillors who “breach their oath”. This was justified, said the councillors, because so many councillors were “blatantly opposing the central and SAR governments… made the district councils a critical platform to advocate anti-Chinese ideas and cause chaos in Hong Kong.”

These Trumplets evidently have a vivid imagination. I believe many of us would have noticed if District Councils were causing anything worth calling “chaos”. I cannot speak for the prevalence of criticism or opposition of the central or local governments because the fact is that District Council meetings are rarely reported so opportunities to subversive oratory are rather thin on the ground.

I have noticed, though, that in my immediate vicinity – I realise this is just the well in which I am the seated frog – the standard of municipal services has shown a considerable improvement since the change of regime. This rather confirms the experience of other places, which indicates that where the same party is in control for long periods this leads to cronyism, complacency and corruption.

It would be nice to see the DAB engage into some soul-searching, with a view to discovering why the party is so unpopular. After all the prestige and perks attached to being a district councillor depend to some extent on the democratic legitimacy of the members. A display of bad losership is not going to endear.

Instead, though, the whole pro-Beijing camp seems to be besotted with disqualification. They want close-circuit TV in local classrooms, so that teachers who fail to push the pro-Pooh line can be expelled from the profession. They want a committee to consider complaints about judges, with no doubt the long-term objective of debenching those who display unseemly attachment to the rule of law.

The Op Ed page of the China Daily had an interesting piece last week suggesting that the Bar Association was unfit for purpose and should be replaced by a committee “appointed by the chief Executive” (!?) which would approve qualifications and, in due course, disqualifications.

We seem to be progressing surprisingly quickly towards what we might call the Stalinist model for controlling the population through a stranglehold on its ability to earn a living. In due course there will be a Wheel-tappers and Shunters Association of which all wheel-tappers and shunters must be members. Dissident shunters will be expelled from the association and will no longer be able to work in that capacity.

It seems that thousands of people are planning to take advantage of the opportunity to move to the wet, cold, COVID-raddled island where I was born. This regrettable hemorrhage is not caused by a fear of criticism or chaos. Freedom is like indoor plumbing. You can do without, but once you have had it you won’t want to.

Read Full Post »

The prosecution of Jimmy Lai, Martin Lee and sundry other conspicuous democrats staggers from pothole to pothole. British QC David Perry decided not to accept the prosecution brief after getting a good deal of stick in the UK over the ethics of the gig. The Department of Justice now proposes, it is reported, to brief local star Benjamin Yu SC.

The problem with this is that Jimmy Lai is being defended by Audrey Eu, who despite the different spellings in English translation happens to be Benjamin’s elder sister.

Apparently the Department of Justice supposes this to be no more than an entertaining coincidence. Not so, alas.

The Code of Conduct for Barristers promulgated by the Hong Kong Bar Association states (at 6.2 (f)) that a barrister must refuse a brief if “by reason of any connection with the Court or a member thereof, the impartial administration of justice might be or might appear to be prejudiced.” 

Some further illustration is provided in an annex. The examples given concern cases where the barrister is related to the judge. The question of a relationship with an adversary’s advocate is not considered. Perhaps it has never come up. But there is also paragraph 6.2 (i) which says a brief must be refused “if, for any other reasons, there is or appears to be a risk that he will be hampered in his ability to discharge, or be embarrassed in the discharge of, his professional duties.”

Consideration of this matter usually starts with a quote from Lord Brougham, who pioneered the genre of messy Royal divorces by appearing for Queen Caroline, as she then was, against George IV in the House of Lords (which was where you had to go for a divorce in 1820). Brougham’s remarks go like this: “[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.”

The point here is that the danger is rather different from that posed by appearing before a related judge: it is not a question of bias – your lawyer is expected to be biased, in your favour – it is a question whether your legal gladiator will exert him or herself to the full if the adversary is a spouse or family member, or whether he will be seen to have done so by spectators, particularly those dissatisfied with the outcome.

Writers on this topic rarely resist the temptation to mention a movie – Adam’s Rib, made in 1949 – about a husband and wife who find themselves on opposite sides of a trial for attempted murder. The husband prosecutes and the wife defends. The movie is praised for its early recognition of the possibility that women will become lawyers. But the plot is criticised on the grounds that having two spouses on opposite sides of a serious criminal case would not have been allowed then and would not be allowed now.

After much foraging on Google I have to say that this rule, if it is a rule, is rarely enunciated explicitly. It may perhaps be inferred from the Hong Kong prosecution code, which says: “A prosecutor must not be influenced by: (a) any investigatory, political, media, community or individual interest or representation; (b) the personal feelings or beliefs of the prosecutor concerning the offence, the suspect, the accused or a victim of crime; (c) the possible effect of the decision on the personal or professional circumstances of those who have the conduct of the case.”

This is put more briefly in the UK’s Code of Conduct for barristers, which states (at paragraph 302 – it’s a long code) that a barrister must “prosecute and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person.”

The Uniform Bar rules of NSW say “a barrister may refuse a brief if there is a personal or business relationship between the barrister and the client or another party, a witness, or another legal practitioner representing a party.”

The matter gets more coverage in North America, mainly because so many more women now become lawyers that the question of spouses on opposite sides could crop up quite often — although according to one writer it doesn’t; apparently spouses generally manage to avoid each other. It is estimated that half of all the lawyers in the USA are women, and half of those women are married to other lawyers. If my statistical extrapolation from this statistic is correct it means that if you pick a lawyer at random there is a 50:50 chance that he or she will be married to another lawyer.

An additional problem there is that generally in the US prosecutors are full-time prosecutors, so if you are a criminal specialist who is not employed as a full-time prosecutor you will have to be a full-time defender. And you may be employed as such. I found three instances where couples had asked their local ethics authority if it was acceptable for one of them to work in the District Attorney’s office and the other as a Public Defender. A typical answer (from New York): “the spouse of an assistant district attorney can work in the same county as an assistant public defender, though husband and wife should not appear on opposite sides of the same matter.”

This may be distinguished from civil matters where, as the  North Carolina State Bar succinctly puts it: “a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent.” In other words it’s OK in civil cases if you tell both the clients and they don’t mind.

The American Bar Association is refreshingly explicit on the position in criminal matters: “The prosecutor whose current relationship to another lawyer is parent, child, sibling, spouse or sexual partner should not participate in the prosecution of a person who the prosecutor knows is represented by the other lawyer.”

So there you have it. We may add that because the right to a fair trial is generally held to include the right to the lawyer of your choice (one of the many reasons why you don’t get a fair trial in China) the task of avoiding this type of conflict of interest falls on the prosecution.

I do not doubt for a moment that the Yus, or Eus, are experienced and competent professionals who are confident that they can represent their respective clients with appropriate levels of enthusiasm even if they are on opposite sides.

Whether the Department of Justice should have arranged this in-the-family fight by picking Mr Yu is another matter. This does not accord with the highest international standards and will reinforce Hong Kong’s reputation as a place where the Rule of Law is falling into disrepair.

Read Full Post »

What has got into Mr Lam Chi-wai? Mr Lam is the chairperson of the Junior Police Officers’ Association, to which most policemen belong. He had his allotted 15 minutes of fame last September when he suggested that his members should feel free to shoot protesters who threw petrol bombs.

He is, I suppose, subject to the general policy of the Force that members should not engage in political issues generally. Mr Lam enjoys an exemption from that as far as his union work is concerned, but why is he suddenly participating in matters which have nothing to do with his members?

Earlier this week Mr Ng Chau-pei, who is an NPC delegate and chairman of the pro-Beijing Federation of Trades Unions, attacked RTHK for running a story about the recent local lockdown in Mong Kok.

The reporter had, as any enterprising reporter might well do, booked into a guest house in the cordoned-off area and reported, among other things, that the food parcel supplied by the government included tins which required an opener, which he or she did not have to hand.

Mr Ng said this was “intentionally misleading” and an “abuse of power”. Well we expect this sort of thing from NPC delegates. Mr Ng in rabid form here. Anyway the point, such as it is, had been made. Enter Mr Lam to make it again. Mr Lam said RTHK had “hurt Hong Kong” by making disparaging comments on the food parcels issued to residents.

In a statement on Tuesday Mr Lam denounced as “political smearing” the publication by RTHK of a picture in which the tins did not appear to have ring pulls and said the reporter had deliberately distorted the picture. Other residents, he said, had found ring pulls on their tins.

Now we can deal with the substance of this complaint quite quickly. The government’s official description of its distributed items includes the information that 80 per cent of the tins had ring pulls and 20 per cent did not. Another media organisation found in a shop a can of luncheon meat identical to the one issued to the RTHK reporter. No ring-pull.

So it appears that this complaint is entirely without merit, as well as having the serious drawback of being pathetically trivial. The reporter was unlucky enough to get cans without ring-pulls. No dishonesty, political manipulation or abuse of power was involved.

RTHK is a target for government supporters these days but this is a pretty desperate effort to attack it. Perhaps it shows that, if I may borrow a quote from Mr Ng’s Facebook comments on the matter, “He who has a mind to beat his dog will easily find a stick.”

Well no doubt Mr Ng is being encouraged by his imperial superiors to join the campaign against RTHK. But what about Mr Lam? This is not by any stretch of the imagination a police matter. If Mr Lam wishes to improve the work of Hong Kong media he could look nearer home and try to dissuade his members from shooting reporters in the face with rubber bullets.

It is difficult to believe that RTHK has “hurt Hong Kong” by revealing that some of the tins distributed to confined citizens did not have ring pulls. There is a serious danger of further harm to relations between the police and the media, though, if Mr Lam is going to set himself up as a one-man press council issuing judgements on the merits and accuracy of stories which have nothing to do with his duties, whether as a policeman or as a union leader.

Ironically it appears in fact that the RTHK reporter got the story right, and his critics discovered the hard way that factual reporting is not as easy as it looks. Some tins had ring-pulls; some did not. Some people were happy with their food, and some were not. This is ever the way with food. Everyone has an opinion. There is nothing surprising in this and nothing which will damage Hong Kong in any way.

Mr Lam’s reputation, on the other hand, now looks rather tatty. And that, in some people’s eyes, will rub off onto the police force, which has enough credibility problems already.

Read Full Post »

When it comes to public relations, it’s often the little things that let you down. Consider the unfortunate way in which the case of Mr Sunny Chiu and six other people concluded itself last week.

Mr Chiu, a Shatin District Councillor, and two other council colleagues, together with four of their office assistants, were caught up in a mass arrest by the police, during a protest on July 1 last year. The protest was against the new national security law, the day after it came into force.

The event took place in Times Square and was, by the standards to which we became accustomed last year, a pretty tame affair. Some people chanted … um … Foxes Don’t Nest On Limetrees, or the even more objectionable FRUIT, or as it is spelled in progressive circles FHROOT. 

No doubt there was also some singing of The Song, which is deemed subversive because it includes references to foxes and fruit.

If I may digress for a moment as The Song is now banned protesters could consider that my Irish ancestors wrote a lot of songs about freedom which are no longer needed in Ireland, like this one, which, My Lord, cannot be considered subversive because it is clearly not about Hong Kong. We don’t have rivers.

To return to Mr Chiu, he and his companions were taken to a police station, charged with offences under the Public Order Ordinance, and released on police bail. Seven months go by. Last week he was contacted by the police and told that the charges would be dropped “for lack of evidence”.This is the police person’s tactful way of saying that you are guilty but we can’t prove it.

However we should be clear that this has no legal status at all. As far as the law is concerned Mr Chiu, like the rest of us, is innocent until proven guilty in a court of law. In other words in this case an innocent citizen has been plucked from his lawful occasions, hustled off to a police station, and subjected to seven months of anxiety and inconvenience, in error.

Mr Chiu was understandably a little sceptical about whether it was an entirely innocent error, and indeed claimed in his Facebook report of the latest developments that police were using arrests and charges which had no prospect of being proven as a tool to persecute people they disapproved of. This would, if true, be entirely unacceptable.

Let us suppose for the moment that it was just an understandable mistake. Large numbers of people are milling around Times Square; it is difficult to distinguish who is protesting, who is spectating, who is shopping, who has turned up to monitor police tactics and who is a reporter. So slip-ups will happen.

Knowing our police force as we do we will not expect anything faintly resembling an apology. As someone who would like to see the force respected and liked, though, I cringed at what came next: “Chiu has been instructed to go to the police station on Monday to pick up his clothing, a work mobile phone and a backpack, which were seized on the day of his arrest.”

Has he indeed? `Let us leave aside the interesting and unanswered question why Mr Chiu’s clothing was seized, what, if anything, he was given to wear instead, and what the police thought they could do with said clothing … scan it for traces of subversion?

Still, having erroneously confiscated several items of an innocent person’s property, you would think it might have crossed someone’s mind that perhaps some more emollient approach was called for than “come on Monday and collect your stuff.”

Maybe it would be a waste of police time for the force to return the items, by – say –  delivering them to someone’s office. Perhaps it would be a waste of public funds to get Gogo Van to deliver it on their behalf. But for pity’s sake could Mr Chiu not at least have been asked to drop by at a time of his own choosing and convenience?

Surely we can avoid the appearance that police now work on the theory that anyone not wearing a blue ribbon is guilty; it just haven’t been decided what of … yet. In the meantime we will treat you as a criminal.

Read Full Post »

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


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


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


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


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


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


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


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


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


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

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


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


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


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


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


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


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


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


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


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


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


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


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

Read Full Post »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read Full Post »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read Full Post »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read Full Post »

« Newer Posts - Older Posts »