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Mr Grenville Cross was at one time our Director of Public Prosecutions. He is still a law professor and a senior counsel. After his retirement from the government service he campaigned, for a while, for the introduction of a prosecutions system insulated from the political considerations which properly engage the attention of the Secretary for Justice.

He seems to have concluded after some time that this proposal was no more appealing to our current colonial authorities than it had been to their predecessors.

More recently his writings have tended to demonstrate to the general public why some recent official decision was legally right, and even inevitable, although in one or two cases this view of the matter was not shared by the Court of Final Appeal.

This is all well and good. But his latest effort in this vein is quite outlandish.

This is a piece in the China Daily explaining why it was perfectly acceptable for the Returning Officer to reject the nomination of Ms Lau Siu-lai to the current by-election, without giving her the opportunity to make representations on the matter.

Mr Cross starts with the resoundingly platitudinous observation that the right to run for election is not unqualified, and recites the legal requirements, which as well as age, residence and such like include a “declaration of willingness to uphold the Basic Law and pledge allegiance to the Hong Kong SAR”.

He then states that in the interests of the integrity of the system “false declarations need to be weeded out”. This is an interesting point, but I would have thought the need, if any, was met by the law which allows prosecution of anyone who makes a false declaration.

This would no doubt bring the disqualification of the candidate concerned in its train, but with this procedure the disqualification would be preceded by a proper trial in which the government had to prove its case and the alleged falsifier would be able to make such defence as she or he had available.

The current arrangement, in which the Returning Officer (who in our system, unlike the UK one, has no claims to impartiality) decides the matter on his own, was, Mr Cross notes, approved by Mr Justice Au in the High Court, on two conditions: that the evidence of falsity was “cogent, clear and compelling”, and that the affected person was given a “reasonable opportunity” to respond to it.

Mr Cross then goes through the evidence adduced by the Returning Officer, and loves it. We thus arrive at the point that Ms Lau has complained about not being given a chance to respond, and in a most unlawyerly way Mr Cross says that “as a matter of common sense Au’s guidance should be seen as directory, rather than mandatory. If Kwok [the Returning Officer] was satisfied on all the material before him that the case for exclusion was overwhelming, there would have been little point in inviting Lau’s comments.”

Dear me. The opportunity to respond is not just a matter of Mr Justice Au offering a little fatherly advice to Returning Officers. It is an application of the part of the Common Law known confusingly as ”natural justice”. What this states is that if a person or body is making a decision of a vaguely judge-like nature than he or it should observe some minimal judge-like standards.

What those standards are varies. For some purposes courts have held that the accused should have the right to see the evidence, cross-examine witnesses and call his own. In less fraught circumstances you may be entitled to a hearing and a lawyer, or a friend who is not a lawyer, or just a hearing, or just a chance to write in your defence.

The right to respond conferred by Mr Justice Au could be considered in this light as a bare minimum. Generations of Common Law practitioners would twirl in their graves if they could hear a senior counsel dismissing it on the grounds of “common sense”.

Let me at this point turn the microphone over to Mr Justice Robert Megarry, giving his view of the matter in John v Rees. If you wish to read the whole thing, it can be found at [1996] All ER 274,309.

It may be that there are some who would decry the importance which the courts attach to the idea of natural justice. ‘When something is obvious,’ they may say, ’why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’

Those who take this view do not, I think, do themselves justice. As everyone who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determination that, by discussion, suffered a change.

Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feeling of resentment of those who feel that a decision against them has been made without their being given any opportunity to influence the course of events.

A briefer statement of a similar point from US Supreme Court judge Felix Frankfurter:

No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found of generating the feeling, so important to a popular government, that justice has been done.

So, Ms Lau was entitled to be heard. She was not. This was wrong. Mr Cross is wrong. I am also cross.

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When I was at school we were all encouraged to read a book by Arthur Koestler called “Darkness at Noon.” This was an attempt to answer, in a novel, a question on many minds at the time: how were veteran revolutionaries caught up in Stalin’s purges persuaded to confess to capital crimes at their show trials?

Koestler had a highly intelligent and persuasive interrogator convincing his victims by argument that they really were guilty of treason. This was something of an intellectual game. The book carefully avoided mentioning any names – it was set in a dictatorship ruled by “The Party”, which was headed by “Number One” – and one has to suspect that in real life Stalin’s methods were somewhat cruder.

Many of his victims, one imagines, were offered the sort of deal which the Nazis later imposed on Erwin Rommel: if you jump then you jump alone; if we have to push you then your family goes too.

For many years this matter slumbered in the back of my memory as being entirely irrelevant to daily life in England, or Hong Kong. But with the increasing mainlandisation of Hong Kong the question of how people can be persuaded to produce voluntary-looking confessions looks increasingly relevant.

There are two schools of thought on this topic. One, identified with Donald Rumsfleld and the writers of “24 Hours”, maintains that the best results are obtained by torturing the prisoners until they confess in order to end the ordeal. There is a victim’s diary here: http://issuu.com/canongatebooks/docs/slahi_unclassified_manuscript_scan?e=11163753/13005384

This idea has traditionally been popular with police, army and clerical interrogators, but it is open to several criticisms. One is that it is a violation of the UN Declaration of Human Rights, so if your country is caught at it some embarrassment will follow. It is also, in most nice countries, against the law.

There is also the practical objection that the quality of the resulting information is poor. You cannot torture someone into telling the truth. In the end you can only torture him into telling you what you wish to hear.

The other school of thought maintains that better results can be obtained without violence or duress, by an interrogator who forms a relationship with the victim. There is a victim’s eye view of how this works here: https://www.hongkongfp.com/2018/05/13/son-everything-china-forced-lawyer-wang-yu-denounce-human-rights-award/

On the face of it, it is difficult to see why a prisoner would form a relationship with a jailer. A certain amount of manipulation is necessary. From a practical point of view, if you are caught up in the system the process goes something like this:

In phase one they will be rough. You will be deprived of sleep, disorientated, and physically abused. This is done for two reasons: there is a hope that at this stage the victim is shocked and confused. Being captured or arrested is alarming and frightening in itself. He or she may, if pushed a bit, collapse completely and comply with his interrogators’ wishes.

Indeed you should seriously consider doing this, if they are not asking for too much. Signing a written confession has been much devalued. Many alert Hongkongers warn their friends before visiting the mainland that any confession they may sign should be disregarded.

For foreign correspondents, the police station visit and confession signing has become a sort of rite of passage. If you haven’t done it after a year or two in the job people will suspect that you are not trying hard enough.

The second reason for giving you a hard time is that this sets a low standard which will allow later interrogators to appear humane and friendly, even though they are, as you know, still your jailers.

The second stage is a bit different. After all your Chinese police people do not have to worry about the UN Declaration of Human Rights, or indeed about the law. They can do what they like with you. On the other hand they can’t do much with a written confession these days. News has to be digital. A video report of a confession by a quivering heap of human wreckage is not going to work.  Visible willingness is required.

So after the rough phase you will be moved. This is done in a disorientating way. You will be masked or hooded. Nobody will tell you where you are going and if some hint is dropped you will not know whether to believe it. At the end of the trip you will not know if you have moved hundreds of miles or just driven round the block a few times and returned to the cell next door to your old one.

You will have a cell to yourself. It will be padded. These things are not for your benefit. Solitary confinement is stressful and debilitating. The padded walls are to prevent suicide.

Here you will be left to stew for a bit. When interrogations resume you will meet Mr Nice Guy.

Mr NG is friendly, sympathetic. He can secure small improvements in your living conditions, and supply snippets of news from the outside world. Your encounters serve two objectives: he needs to establish himself as your only accessible friend in the world, and he needs to discover the hook with which he will draw you into compliance with his wishes.

So some discussion will be devoted to what you miss, or who you worry about. Your anxiety will be subtly encouraged. “Your father was taken to hospital last week but he is fine,,,” “I expect your son misses you…”

And then Mr NG makes his play. “I can make this go away and get you out of here, but you will have to help me. My boss wants you to make a video…” Of course, he says, nobody else will ever see it. This seems from the outside rather implausible but you desperately want to believe that Mr NG is a truthful person with your interests at heart. So maybe you make the video.

This gets you out of prison but when they play the video on national television it will horrify your friends and associates, which is of course the object of the exercise.

It should be clear by now that no blame attaches to people who succumb to this treatment and make the video. Indeed it could be considered a tribute to the effectiveness of this method that China uses it, despite a long tradition of torture and the complete absence of any safeguards against it. People do what works because it works. I expect it would work on me.

This comparatively non-violent part of the Gulag Archipelago is, however, still an abuse of human rights. Innocence is no protection. Nor is having a foreign passport. Staying in Hong Kong works for most of us. For now.

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Let us hail one unheralded record broken by the Express Rail Link: it has surely spawned more official mis-statements per kilometre than any previous railway project.

We are now expected to nurture the delusion that the new line may someday make a “profit”. This is a gross abuse of language. It will never make a profit in the normal sense of the word because in order to do so it would first have to repay the cost of construction. This is what making a profit means.

The Express Rail’s chances of making a profit are on a par with Carrie Lam’s chances of being elected the next Pope.

The financial indicator which is now being watched with bated breath by fans of the new line is not whether it makes a profit or loss, but whether it covers its running costs. In other words will the MTR, which is operating the thing, actually take in enough in fares to cover the expenses involved in doing this, while the railway, stations etc. are donated free of charge by the taxpayers.

If this does not happen, then the line will have to be subsidised. Under the circumstances it is perhaps a pity that the Express Rail Terminus, unlike other MTR erections, is not surmounted by a luxurious housing estate.

Instead it has a flamboyant and quite unnecessary roof. Nineteenth century railway termini had huge roofs – considerable engineering achievements in their day – because the locomotives all contained a raging coal fire. The resulting smoke and steam had to go somewhere.

The Express Rail terminus has no such requirements. The trains are electric, and in any case are five floors down, separated from the surface by three layers of immigration desks, customs halls, ticketing counters, shops, shops and – this being a Hong Kong project – more shops. The conspicuous roof has no purpose except to remind us that our expensive toy is under it somewhere.

So with no subsidy from property, will it break even?

Reading earlier predictions of how the railway would work does not inspire confidence.

In 2008 the “key project parameters” were that it would have 99,000 daily passengers, and cost $39 billion.

In 2009 we had the first appearance of the claim that the building of the station would create 10,000 jobs, which was repeated frequently over the ensuing nine years. The Legislative Council was also told that owing to changes in policy on the mainland “there will be a significant increase in the patronage”.

At the same time the “economic benefits” of the railway over 30 years were valued at $87 billion. Curious that a government which consistently fails to predict its own fortunes in the coming 12 months expects to be taken seriously when it offers a prediction for the next 30 years.

No doubt the figure is conservative. Still it became an alarming one as the cost of constructing the railway approached it, and then overtook it.

In 2009 the construction cost took its first upward leap, to $66 billion. At this point the figure was massaged back down by taking out $11 billion worth of “non-railway works” and treating them as an entirely separate item. So the official prediction became $53.7 billion.

In 2010 members of the Public Works Sub-committee were entertained with the notion that daily patronage “could go up to 116,000”, while a “less optimistic figure” would be 89,000.

Work started on this optimistic basis, and produced a stream of cheerful reports until 2014. By this time much work had been done. Cancellation was inconceivable. The cost to completion was revised up to $85 billion. At roughly the same time the “non-railway” items went up from $11 billion to $16 billion.

This leads us to the conclusion that the honestly stated cost of the whole project was $100 billion, which rather puts the estimated economic benefits in the shade. At the same time the expected daily traffic was increased to 109,200. Why the person responsible for this forecast thought it was accurate enough to be worth including the extra 200 remains a mystery.

The latest “best guess” of the daily traffic is 80,000. That could increase so we can wait and see on that one.

But now that the Great White Elephant is finished we can come to a solid conclusion about the repeated claim that the actual construction would create 10,000 jobs. This was a gross exaggeration.

Every six months the government provided a report for the railways sub-committee of the Legislative Council on the progress of the project. And each report included the number of people currently employed on it.

In December 2010 this was about 3,000. By June of the following year it had crept up to 3,600.

By June 2012 it was up to 6,000. The report was still predicting a peak of 10,000 to come later. But come it did not. At the end of June 2013 the daily average was about 8,500. And that was as high as it got. The figure for June the following year was 6,400; in December it was up to 7,700. By the end of 2015 it was still 7,712, by the end of 2016 it was 7,637 and at the end of last year it was down to 6,349.

Readers may also recall that when cancellation of the project was proposed in 2016, MTR boss Frederick Ma complained that this was a threat to “7,000 jobs”. Another 4,000 or so had never materialised

Were any of the early predictions worth the paper they were written on? Well, the railway is still the same length.

 

 

 

 

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Your sympathy, please, for Deputy Magistrate Samuel Yip Chung-him. Faced with an offender who had admitted assaulting another person at a demonstration, Mr Yip decided that as it was a first offence and said offender had pleaded guilty and shown remorse, a suspended sentence would be appropriate.

So the offender left the court a free man, and will so remain unless he commits a similar offence during the period of the suspension.

Mr Yip will, I fear, now come in for fierce attacks from those critics of the judicial system who believe that people who commit violent offences at demonstrations should be sent to jail.

The Department of Justice will shortly announce a request to the Court of Appeal for a more stringent sentence, which the Court of Appeal will happily provide, to a chorus of approval from the pro-government media.

The offender will then appeal to the Court of Final Appeal, which will reinstate the original lenient sentence, incurring a storm of abuse in the process. At each stage the relevant judges will be accused of grovelling to the Liaison Office or subversive sympathies, depending on which way they vote. Officials will vainly appeal for restrained comments. This is how these things are done in Hong Kong these days. But, perhaps this case will be different.

The actual fracas was recorded on video, so we can say with some confidence what happened. The victim was a member of the Labour Party. He was participating in a small demonstration at the Fanling Golf Club in favour of the notion that some of the club’s rolling acres might usefully be used for public housing.

The perpetrator, one Tong Chun-po, is a professional golfer and golf coach who was enraged by the possibility that anyone might wish, in the interests of housing people now sleeping in cage homes and other substandard accommodation, to deprive the club of one or two of its three (yes, it has three) golf courses.

The victim, a Mr Oscar Lo, was hit in a painful place – shall we say below the belt? – grabbed by the neck and pushed to the ground.

Observers who engage in the deplorable and unjustified practice of discerning bias in the system of justice may wonder if perhaps defending the sanctity of a golf course attracts more sympathy from the Bench than protests over trivial matters like democracy or freedom.

They may wonder if a court would have deployed the same quantity of mercy if the roles had been reversed: the perpetrator was a Labour Party protestor and the victim a golf coach.

We are encouraged to avoid this sort of speculation and indeed there is nothing to be gained by it today.

What we may usefully do, in case any readers find themselves in a similar plight, is consider how you should handle the matter if you are accused of a crime which was filmed, with the resulting footage being, as they say, widely shared on social media.

It is interesting to compare Mr Tong’s case with that of Mr Frankly Chu, who is now routinely and accurately described as a retired policeman but was a senior member of the force when he was filmed lashing out at an innocent passer-by with his “baton” (which is the law enforcement euphemism for a club) during a post-Occupy evening confrontation in Mong Kok.

Mr Tong, knowing that the film of his burst of martial artistry was going to be shown in court, elected to plead guilty, apologise and rely on his clean record and remorse to keep him out of prison. He also, apparently, rejected the idea of community service because of problems with his arm and his knee-joints. I thought golf was supposed to be good for you.

Mr Chu, on the other hand, despite the expectation that his crime would be screened in glorious technicolour for the entertainment of the judge, elected to plead not guilty. On his behalf one of Hong Kong’s more abrasive barristers grilled the prosecution witnesses in the vain hope of scaring up a reasonable doubt. This was not a success.

I could not help thinking that Mr Chu’s legal team would have done better by their client if they had explained to him at greater length that his actions as filmed, however justified he might have felt them at the time, clearly constituted the offence with which he was charged.

Attention would then have turned to the matter of mitigation, for which there was plenty of material. Lawyers do this so well. The speech almost writes itself: sad end to 30 years of unblemished service to the community … clean record marred by a moment of passion … totally out of character … police under great strain … defendant tired after a long shift … tense situation … only human … great remorse … humble apology to victim … commendations and medals awarded … testimonials from the Police Chief, Chief Executive, the Pope, President Trump etc … sorry for wasting the court’s time … custodial sentence not appropriate in the circumstances.

As the audience sobs in the public gallery the judge is considering the rival merits of a conditional discharge or a suspended sentence. And out into the street goes our defendant, still a free man, to tell the reporters gathered outside about his vindicated faith in Hong Kong justice.

Of course if you believe you are not guilty you have the right to plead not guilty. But if it comes to conviction and a sentence there is, as we all know, a discount for pleading guilty, a tradition of leniency on defendants who express remorse, and a discount for having an unblemished record. These can, as they did for Mr Tong, produce a sentence difficult to distinguish from a pat on the head. If you go for the Rotweiler defence you don’t get them.

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I do not go through life looking for opportunities to give Hong Kong judges a hard time. But someone has to do it.

This week we had the judgment of Mr Justice Andrew Chan in the matter of five men accused of criminal contempt by obstructing bailiffs enforcing a court order.

They were convicted. The offences, which could be described as having a whiff of politics about them, took place four years ago during the clearance of the Mong Kok part of Occupy. The law’s delays, as Hamlet observed, are one of the things we all have to put up with.

Ploughing through Chan J’s 17-page judgment, the Hong Kong Free Press’s diligent reporter came across a fine self-contained gobbet of horse manure. I quote: “Regarding Yung, Chan wrote that the slogan on the back of his T‑shirt – which said ‘rather die for speaking out, than to live and be silent’ – ‘indicated his intention and described his involvement beyond doubt.’”

So young Mr Yung was convicted, it seems, on the evidence of his tee-shirt. This is very disturbing.

To start with, the slogan concerned seems a very fragile peg on which to hang the conclusion that the wearer set out to obstruct the bailiffs. The offending shirt did not say “Occupy Mong Kok for ever,” or “Who cares what some old fart in the High Court thinks?” The slogan concerns speech, not occupation.

And there is nothing particularly unusual or ambitious about it. It is descended from Pasionaria’s “Better to die on your feet than to live on your knees”, which dates from the 1930s and in turn perhaps owed some inspiration to Patrick Henry’s “Give me liberty or give me death”, which was orated in 1775.

Even if you think, as a conservative and elderly judge might, that this is so subversive in its implications that the wearer must be a rabid revolutionary, before hastening to judgement there are some further possibilities to consider.

We have all seen people wearing tee-shirts which said incongruous things. This seems a particular problem in Japan, where people wear tee-shirts with English slogans which either don’t make sense at all or mean something which the wearer would be embarrassed by if she knew what it was.

Such accidents are not unknown in Hong Kong. Generally people who buy cheap tees from factory outlets and such are tempted mainly by the low prices. If it happens to say “I’m too pretty to do housework”, or “Good girls are better liars”, they do not mind, but they do not mean it either.

When I worked in Blackpool there was still a traditional vogue for hats which said “Kiss me quick”. Passers-by did not take this invitation literally.

I do not criticise. I have a tee-shirt I bought in Japan with a lot of writing on it. I am assured by a colleague who reads the language that it is a recipe for cooking fish. This is a relief because I cannot read it myself. It only occurred to me when it was too late that my shirt might say something unfortunate like “Hands off the Diaoyus”, or “Yasukune Shrine Supporters’ Club”.

We should all, I think, deny vigorously the suggestion that the wording on our tee-shirts is evidence of our “intentions and involvement” in anything. A person whose tee reads “Vote for Guy Fawkes, the only man to enter parliament with honest intentions”, may have poor political taste, but he is not going to blow anything up.

A person whose tee-shirt says “Eat the rich” is not prone to cannibalism, and a picture of Adolf Hitler is not necessarily evidence of Fascism. It sometimes comes with a small caption underneath saying “My picture of Che Guevara is in the wash”.

As far as I can tell from some hasty Googling the international consensus is that nothing written on a tee-shirt should be taken too seriously. The only exception I could find was an American lady who was refused boarding on a booked flight because she was wearing a (I presume) feminist effort which went “If I wanted the government in my womb I would fuck a senator.”

If Hong Kong judges are going to jump to conclusions on the basis of tee-shirt slogans we are all going to have to examine our collections closely. Would there be objections to “Free Tibet”, and would these objections be withdrawn if it was followed, as it sometimes is, by “with a purchase of another Tibet of equal or greater value”?

Will the long-awaited Article 23 legislation bar us from wearing “Property is theft” (Proudhon) or “The urge to destroy is also a creative urge” (Bakunin)?

Perhaps someone could  commission a tee-shirt for Mr Chan, with the useful phrase “Aucupia verborum sunt judice indigna”, which means “Catching at words is unworthy of a Judge.” It is a quote from one of Mr Chan’s colleagues, albeit one who was working in 1616. Before tee-shirts became evidence.

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From time to time some official, or a sympathetic commentator, laments the dearth of constructive suggestions among the criticisms which tend to greet any new government policy. On the other hand, when one comes along it doesn’t get a very warm reception.

This thought was prompted by a recent announcement from a group called the Real Property Federation, which was responding to the government’s request for opinions and suggestions about the shortage of land for housing.

Never heard of the Real Property Federation? Me neither. Apparently it comprises developers, real estate agents and professionals like architects and surveyors. A gathering of rich participants in the real estate racket, then.

This may justify a certain suspicion, but good ideas can crop up in unlikely places. Some of the federation’s proposals had a whiff of special pleading about them. They did not approve of developing the Fan Ling golf course. They did approve of reclamation as a long term measure. They wanted public-private partnerships to develop agricultural land owned by developers.

So far, so rather boring and predictable. Their short-term proposals were more interesting. One was to nearly double the plot ratio on public housing sites. This would mean a lot more flats on each plot. I am not sure about this one. Some of the recent public housing estates are quite crowded enough already. But it’s a quick fix.

Another one was to “revitalise” industrial buildings for use as temporary housing. This would no doubt give some pleasure to owners of moribund industrial buildings, but it could house a lot of people.

The most interesting suggestion, eagerly seized by the Hong Kong Standard, which seems to have been the only English medium covering this particular event, was that the government should moor some large boats in the Kai Tak Nullah to provide temporary homes for people who were waiting for public housing.

This is not on the government’s official list of suggestions, which doesn’t go far out of the box, or off the wall. But it is something new, constructive, and surely worth considering.

The idea is to put pre-fabricated container homes on barges, which would be moored, presumably next to a dock constructed for the purpose. The word “barge” is here used in the technical sense of a vessel which is not expected to propel itself. Actually the boats would apparently be big – the federation proposes about 400 container homes on each barge.

The idea has been roughly costed. Apparently a suitable barge could be built from scratch for $60 million, though it might be cheaper to buy a second-hand ship and adapt it. Another $80 million would be needed for containers, services, etc. Each barge could accommodate about 2,000 people.

Now I am prepared to believe that the authors of this scheme may have overlooked some hidden drawback, or been a bit optimistic in their costings. On the other hand compared with the competing suggestions floated this is quick, cheap and doesn’t require displacing any current land users. So you might think it would stir up a certain amount of interest.

Not at all. The Standard’s intrepid reporter managed to collect two reactions.

One came from a Marine Department spokesperson. She said that nobody was allowed to live on a boat in Hong Kong unless it was licensed for the purpose. And “no new licence for a dwelling vessel will be issued,” she said firmly.

According to the Marine Department there were only four licensed dwelling vessels in Hong Kong last year. This comes as a surprise because a swift search for houseboats or “live-aboards” for sale in Hong Kong finds 28 on offer at just one yacht broker.

Now this may come as news to the Marine Department, but it is not the absolute monarch of all Hong Kong’s wet parts. If the government decides that it would be in the public interest for large numbers of people to live on barges specially constructed for the purpose then the Marine Department’s policy on this matter will have to change. It is a government-made rule and the government can remove it.

Actually if the Greenland icecap succumbs to global warming and slithers into the sea next year we may need a lot of floating homes round here.

The other reaction came from legislator Andrew Wan Siu-kin, who by a convenient coincidence is also a member of the Housing Authority. It was kind of Mr Wan to offer a comment on this proposal since he was clearly unencumbered by any relevant knowledge.

The proposal, he said, was “impractical and weird”. He went on, “it won’t be fun to live on the fifth level when there are waves, and people living on land can’t get accustomed to it, as they get seasick even on ships as stable as ocean liners…”

What is weird is that Mr Wan apparently doesn’t know that thousands of people used to live on boats in Hong Kong. Some of them, according to legend, never went ashore. Some of them, according to undisputed fact, only went ashore in emergencies because they were mainland women married to Hong Kong fishermen and were for some reason not eligible for ID cards.

People can get used to all sorts of things. Actually a barge in a backwater like the Kai Tak nullah is not going to encounter large waves, even in a typhoon. A big boat, tethered, will not move that much.

Besides, we should remember, what counts as unattractive housing depends on where you are now. If the alternatives are sleeping in a cage, or McDonalds, or a subdivided firetrap, then a container home on a barge may look quite attractive. In fact if the long-awaited offer of public housing is a flat in distant and sorrowful Tin Sui Wai I imagine quite a lot of occupants would be reluctant to move out.

 

 

 

 

 

 

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I fear I will vomit if I have to read one more newspaper column claiming that someone of whom the writer disapproves is mistaken in the belief that freedom of speech is an absolute right. Nobody believes that freedom of speech is an absolute right.

As an American judge once said, you are not free to shout “Fire” in a crowded theatre. There must be some restrictions. This means that in any particular case you have to consider the circumstances and the reasons advanced for curtailing freedom, in the light of the permitted exceptions.

This is of course more trouble than simply dubbing anyone defending freedom of speech a deluded ignoramus who thinks the right to freedom of expression is absolute. But it should be a prerequisite for anyone who wishes his views to be taken seriously.

Freedom of expression is enshrined in the PRC constitution, an inspiring work of fiction.

It is also enshrined in the Basic Law, which says at Article 27 that “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

This is promising, but so sweeping as to be unhelpful. Freedom of expression is not an absolute human right like the right not to be tortured or enslaved. To answer the question what restrictions are acceptable we must look elsewhere.

Help will be found in Article 39, which states that “The provisions of the International Covenant on Civil and Political Rights … as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.”

This gives us to two tests to be applied: is a restriction prescribed by law, and does it meet the requirements of the International Covenant, which by a convenient coincidence is incorporated in the Laws of Hong Kong as the Bill of Rights Ordinance.

Article 16 is the one which concerns “freedom of opinion and expression”. As well-drafted constitutions do it sets out the right and then goes into the permitted exceptions to it.

So (1) Everyone shall have the right to hold opinions without interference, and
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The third item states that there may be “certain restrictions” and lays out their limits. They must be “provided by law” again, and “necessary” for one of four purposes: respect of the rights or reputations of others; or for the protection of national security or of public order (ordre public), or of public health or morals.

These exceptions are generally assumed to justify the law of libel (reputation) contempt of court (public order) obscenity (morals), and so on. Public order is interpreted in the French way (which is why the French translation is inserted) and so includes rather more than the absence of violence in the street.

We are now in a position to consider properly whether any particular restriction on freedom of expression is justified. Let us take the advocacy of independence. Is a ban on this “provided by law”? Not at all. Even the famous “sedition” section of the Crimes Ordinance preserves the right to:

“(b) point out errors or defects in the government or constitution of Hong Kong as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or

(c) to persuade Her Majesty’s subjects or inhabitants of Hong Kong to attempt to procure by lawful means the alteration of any matter in Hong Kong as by law established; or

(d) to point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill-will and enmity between different classes of the population of Hong Kong.”

Clearly attempts to use the Societies Ordinance, or the ownership of Victoria Park, or such influence as the government can exert on a private club which is its tenant, to prevent the expression of views which are not prohibited by law is a violation of the freedom offered by the Basic Law and the Bill of Rights Ordinance. Andy Chan is not breaking the law. The government is.

Note that the permitted exceptions are subject to the condition that they are specified by law. A speech which is not prohibited by law does not become unlawful just because in some people’s view – or indeed in everyone’s view – it might harm a personal reputation, national security, public order or whatever. The “provided by law” comes first and if it is not satisfied then the exception is not allowed.

Of course it is nonsense to suggest, in any case, that China’s national security can be endangered by anything said in Hong Kong. The real objection to independence advocacy is that it was specifically forbidden by President Xi, whose speeches, inconveniently, do not have the force of law in our system.

China’s habit, alas, is simply to change the language if it suggests an inconvenient obstacle to the Party’s progress.

There was a good example of this last week in a charming story about trout. There is a shortage of salmon in China, I suppose for simple geographical reasons. Some restaurants had taken to serving rainbow trout, which apparently when skinned and cooked looks pretty salmon-like. However the rainbow trout is a fresh-water fish, and as the water in China’s rivers tends to be anything but fresh some diners were not pleased.

The government’s solution to this problem was to reclassify the rainbow trout, which is now officially a salmon.

The problem with this sort of thought control is that it doesn’t work so well in places where people can make their own minds up. Mr Chan is not really expecting Hong Kong to become independent, and the reporter who castigated him for not having a plan for this process was a simpleton.

What the Hong Kong National Party does is to demonstrate in a very practical way the true nature of Hong Kong’s situation. We are not an autonomous region, we do not have the rights and freedoms we are supposed to have, and our distinctive culture and language are under attack.

Insisting that this isn’t so is not working too well in Hong Kong. Of course it works even less well overseas. It is an entertaining paradox, if viewed from a safe distance, that China wants the world to pretend that Taiwan is not a separate country, which it manifestly is, but also wishes it to pretend that Hong Kong is a separate country, which it clearly is not.

I don’t know what the conditions are for WTO membership but how much longer will we be able to justify our separate Olympic team?

 

 

 

 

 

 

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