Archive for the ‘Uncategorized’ Category

Why am I writing about the National Security Law again? I ask myself this question, and the answer seems to be that our leaders just cannot stop talking about it. For something which is only supposed to effect a very small number of people it gets a lot of mentions.

An interesting rift has now opened. On one side of it we have the Secretary for Justice, issuing a flood of op ed material to the effect that the NSL is clear and unambiguous, featuring crisp definitions of all the offences therein.

On the other side of the rift we have her senior colleagues, to whom the NSL seems to be a cross between the pronunciations of the Delphic Oracle and the Prophecies of Nostradamus: a conundrum wrapped in an enigma, full of exciting but mysterious possibilities.

Consider for example a recent speech by the Secretary for Security, Chris Tang. Mr Tang was apparently incensed that Ted Hui, a political exile in Australia, had posted a message urging his Hong Kong sympathisers to spoil their ballots in the upcoming Legco election, in protest at the new electoral arrangements.

Indeed Mr Tang went on at some length about the deficiencies of Mr Hui, accusing him of “despicable” behaviour and “asking people to go forward while staying backward yourself”.

Mr Tang also thinks it was “cowardly” of Mr Hui to stay abroad. Whether refraining from returning to Hong Kong to settle in for a few years of correctional M&Ms displays cowardice or common sense is a point we shall not explore here.

Mr Tang pointed out, quite correctly, that urging people to spoil their ballots or, indeed, not to vote was an offence, since an amendment to that effect was inserted in the relevant ordinance last May as part of the election revamp. So Mr Hui’s message would clearly be illegal here. Mr Tang rather implied that it was still illegal if perpetrated in Australia, which seems dubious. Hong Kong ordinances generally apply only in Hong Kong.

Perhaps that was why Mr Tang also felt the need to dive into the legal fogbank that is the NSL, which applies everywhere, and announce that asking people not to vote or to cast a blank ballot “may” violate the NSL.

This observation was no doubt delivered with such authority and confidence that only listeners who were paying close attention would have noticed that it was a declaration of ignorance.

When considering whether any action violates the NSL there are only two possibilities. Urging people not to vote may be either a violation of the NSL or not a violation of the NSL. Stating that it “may” be a violation tells us nothing one way or the other.

It seems that the offence is a sort of legal Schrodinger’s cat. It is locked in a box and we can’t tell whether it is alive or dead until we open the box. In the meantime it is potentially alive or dead, suspended between the two states.

The problem with this is that the rule of law is generally held to require that citizens may know what the law is without getting involved in the quantum mechanics of dead cats.

Unfortunately the new law on incitement not to vote seems a potential problem of a more conventional kind. The international Covenant on Human Rights, which according to the Basic Law still applies in Hong Kong, states that freedom of expression may be infringed to achieve certain important objectives.

The relevant one for present purposes is described as “public order (ordre publique)”. The French translation is added to indicate that “public order” is to be interpreted in the broad continental way rather than in the restrictive traditional English one which covers little more than the absence of street fighting.

I suppose this concept could be extended without too much difficulty to campaigning for spoiled ballots. A large number of spoiled ballots would disrupt the count and make it much more time-consuming. Each one has to be displayed to the agents of the candidates and the large crowd of other people attending the count, so that it can be shown and agreed that the ballot is spoiled, and not just an unconventional attempt to indicate support for a candidate.

This could not only lead to a lot of time wasted, but also to the display before the attending crowd, and through them to the public, whatever deplorable message the person spoiling his ballot has added instead of the traditional X. Large numbers of people watching on live streams might be subjected to subversive slogans like “Hong Kong add oil!” We can’t have that, obviously.

When it comes to urging people not to vote, on the other hand, the effect is quite the opposite. The smaller the number of votes to be counted the easier it is to run the election. The absent voter does not make extra work, convey an objectionable message or disrupt the proceedings in any way. This being the case I wonder if making advocacy of non-voting a crime is actually constitutional.

It will not have escaped the attention of readers that it would be embarrassing to the government if the turn-out in the Legco election is much lower than it was last time. This explains why Mr Tang and, in a later speech, his boss, have been all but begging voters to turn out and cast a ballot. Mr Tang urged enthusiasm; Mrs Lam called for voters to participate “actively”.

But causing embarrassment to the government is not a crime against the NSL, is it? Or is it? Is the cat alive or dead? Will someone open the box? Not me.

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This question arose the other day when four unusually elderly people were arrested for what seems to have been a mini-protest in Mong Kok.

Police then announced that the foursome, who apparently displayed a banner calling for “real universal suffrage” had been arrested on suspicion of “seditious intention”.

Back to your books, boys. There is no such offence as “seditious intention”. There is a section called “seditious intention” in the Crimes Ordinance but it does not by itself create an offence of that name or any other. The offences come in the next section and as well as the intention require an act, speech or publication.

That is one for the legal pedants, perhaps. I note also that it was reportedly considered relevant that the four, ages ranging from 61 to 85, had with them a yellow umbrella and were wearing yellow clothes.

It is time we had some common sense with regard to coloured tee-shirts and other things. Our police force is not supposed to be run along the lines of the Millwall FC supporters who pounce on any visiting fan wearing the colours of the wrong team.

I have a yellow tee-shirt. I also have a blue tee-shirt, though I am not a blue ribbon enthusiast. I have a red tee-shirt though I am not a communist, I have an orange tee-shirt though I am not a protestant. I have a pink tee-shirt though I am not gay. Nothing wrong with being gay, of course, but one would not wish to feature in misunderstandings on this point. I also have a black tee-shirt and do not wish on that account to be accused of rioting, a sport for which I am much too old.

To return to our four geriatric suspects, we must not, I suppose, trespass in the area of their likely guilt or innocence, which will presumably depend on whether calling for universal suffrage now constitutes a notion so subversive of good order and discipline that anyone uttering it can be charged with trying to bring the government into “hatred and contempt”.

No doubt the usual expert on political slogans will be wheeled into court to advise the judges on this point. Or perhaps he won’t. The gentleman concerned is now in line for a Legco seat. As this worthy position is virtually in the gift of the government people may think it casts rather a shadow over the expert evidence he might give, and indeed that his political ambitions might usefully have been mentioned before his last performance.

But we must leave such matters to the courts. What seemed to me to be both legally commentable and worthy of interest was the little snippet at the end of this story, which told us that the matter had been passed to the “Mong Kok district’s anti-triad unit for investigation”.

Has it indeed? We can I think exclude the possibility that the anti-triad unit has some unique skills which make them a good fit for this case. I do not recall, among numerous examples of triad activity in Mong Kok, that the display of subversive banners, clothing or umbrellas came up.

Given that such examples are numerous though, and probably only the tip of an iceberg, you would have thought that the anti-triad squad was extremely busy, and so it would be the last unit to be considered if there is a shortage of manpower for political censorship.

There seem to be two possible explanations for this curious decision. One is that the level of triad activity in Mong Kok has now declined to such a low level that the anti-triad people have nothing to do. All the syndicates have been smashed, all the vice establishments closed, all the protection rackets terminated. Congratulations!

The other possible explanation, alas, is that triad activity in Mong Kok is much as it has always been, but the police regard this level as perfectly acceptable, and are consequently happy to divert the attention of the anti-triad squad to other matters.

Perhaps the truth is somewhere in between, and the anti-triad squad has not had much luck lately, so it is being given a run out against an easy target, rather as a goal-starved centre forward might be given a run in the reserves to get his scoring mojo back. 

I am sure the Mong Kok triads, if there are any left, will be shaking in their boots.

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I am not a fan of the Independent Police Complaints Council. It s an incurably complacent body. Its latest report offers a truly mind-boggling example of the council’s ability to overlook the forest while looking closely at a tree.

The complaint concerns a man arrested by the police for alleged possession of drugs, and was made by his daughter.

Mr X – the IPCC report naturally does not give names – was detained in an unspecified police station and in pursuit of their inquiries the police confiscated his trousers. The drugs were allegedly found in his trouser pocket. Apparently the police guidelines require police to try to arrange replacement clothing in situations of this kind but the defendant was left to the tender mercies of the Station Sergeant working the case, who loaned him a pair of the sergeant’s own shorts.

A day later the daughter, later the complainant, turned up at the police station with a shirt, jacket and pair of jeans to be passed to her father. The PC behind the desk refused to accept the jeans and shirt, without giving an explanation, and accepted the jacket. But when her father turned up in court he was not wearing the jacket either.

He was then released on bail. Two days later he died of pneumonia.

The IPCC’s response to this is delightfully bureaucratic. The complaint about the PC refusing the clothing was “substantiated”, because the erring constable should have consulted the Case Officer about whether the suspect was allowed extra clothing. The IPCC also registered a count of “Substantiated other than Reported” against the Station Sergeant, because lending a trouser-less suspect a pair of your own shorts was “inappropriate”.

The IPCC noted without comment that the complainant “opined” that “her father’s death might have been caused by the Police’s failure to provide adequate clothing to her father during his detention”. This apparently, was not worth further investigation or indeed thought. One imagines that it was the meat of the complaint, in the complainant’s view. And it was ignored.

A word about the effects of low temperature. Technically pneumonia is not caused by low temperatures; it is a condition caused by a variety of microbes, viruses or fungi. On the other hand it is well established medically that exposure to low temperatures causes diminished effectiveness of the immune system and is particularly hard on the lungs so “The main causes of cold-related deaths are respiratory and cardio-vascular diseases” (says the Barcelona institute for Global Health) of which pneumonia is one.

Well how cold can a police cell be? Very cold, apparently. Mr Sam Bickett, who appeared in this space recently when he was convicted of obstructing a policeman who repeatedly denied he was a policeman, took to Twitter to relate his own experience, which was that the cell he was incarcerated in after his arrest was so cold that after what seems to have been at least 24 hours he turned a lurid colour and was taken to hospital.

In the meantime he was occasionally allowed out into a warm room and invited to confess without the presence of the lawyer and consular representative he had repeatedly requested.

In the hospital he met a doctor who “knew about the freezing room interrogation method for prisoners and said he ‘sees it often’” Note that this is not only a form of duress. The National Geographic, in a piece of advice for masochistic hikers, says that “hypothermic people easily become confused” and consequently “It’s particularly dangerous if you have to make a crucial decision in the cold.” So it appears that frozen detainees may be encouraged to take important and legally binding decisions in a condition where their reasoning is impaired. 

This ought to be worrying. The evidence may be a bit thin. Our complainant is anonymous and Mr Bickett is a convicted criminal, though he is optimistic about his prospects on appeal and so am I. The doctor’s evidence is hearsay.

On the other hand this is a very serious matter. We have been told on numerous occasions that various rights which we fondly believed to be protected by law were not in fact absolute, and could lawfully be infringed in the interests of some important conflicting objective, like national security.

When it comes to the right not to be tortured, though, the international law is refreshingly clear. It is an absolute right and there are no circumstances in which states are allowed to infringe it.

Unfortunately we come at this point to a sad feature of Hong Kong as currently run. If you suspect that the police are violating the rights of arrested people, who are you going to call?

The Complaints Against Police Office is a branch of the force, the IPCC is a pompous joke, the Secretary for Security is a cop, as is the Chief Secretary. And the Chief Executive, only last week, suggested that Legislative Councillors who had urged, two years ago, an independent inquiry into the policing of then current disturbances should apologise.

This seemed particularly unkind as she was addressing the surviving rump of the purged Legislative Council. Some of them complained that, as indeed one might have expected under the circumstances, they had called for an inquiry in the confident expectation that it would exonerate the police on all counts.

There was no inquiry. Police persons now complain bitterly that people are unsympathetic when a blameless one of their number is killed on duty, and that some people still believe lurid stories about what they got up to in 2019. Well Macchiavelli said that every prince must choose either to be loved or to be feared. Those who choose the latter should remember that the two choices are exclusive. You are not allowed both.

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It seems that no venerable Hong Kong institution is safe now that the forces of obsequious pro-government enthusiasm have shed all pretence of tolerating opposition.

The latest in line to have its reputation shredded is Legal Aid. This is a service which has been operating for many years without serious complaint. It pays for the services of lawyers for people who cannot afford one themselves.

This is a potentially tricky area in that many of the people who seek legal aid are engaged in proceedings with the government on the other side. The most obvious example of this is criminal cases but there are others, like applications for judicial review.

Over the years the Legal Aid Department has done a good job of convincing most observers that it is sincerely neutral in considering the needs of applicants for its help, even though it is a part of the government, taxpayer-funded, etc. But that will not do these days.

Coming soon to a rubber stamp near you is a reform which will deprive Legal Aid recipients in criminal cases of the right to choose the lawyer who will represent them in court. Why would anyone want to do that? Well the cue is in the word “criminal”. Nobody is complaining about the choice of lawyers in civil cases.

Oddly enough defenders of the proposal have not felt it necessary to explain this. Poor Ronny Tong is expected, as usual, to defend any government policy with a whiff of law in it, and came up with some curious arguments.

“It is unheard of, or rare, to hear … complaints in years about the imposition of useless or incompetent lawyers on applicants,” he said. Could that be, one has to wonder, because applicants have had a choice, so lawyers, incompetent or otherwise, are not imposed?

He went on to say that some legal aid applicants tend to choose only a few barristers since the social unrest in 2019, which is not a “healthy” situation for the industry. “The legal aid system should distribute cases fairly, this is the most appropriate practice,” he said.

He also offered the stimulating thought that the new arrangement would allow lawyers who were not experienced in a particular kind of work to accept cases of a kind they were not used to, which would expand their skill sets or, as Mr Tong put it, “allow more of them to gain specialised litigation experience”.

Both of these arguments are entirely irrelevant. It is not the purpose of the Legal Aid system to enhance the “fairness” of the distribution of work among lawyers. In fact the distribution of work among lawyers is chronically uneven, something which is baked into the structure of the profession. There is no reason why Legal Aid applicants should be sacrificed to provide a sort of social security for inexperienced or less competent professionals.

Similarly it is not the function of the Legal Aid system to provide supplementary legal education for lawyers by providing them with a stream of captive clients who are no position to refuse the services of the inexperienced.

The purpose of the Legal Aid system is to ensure that indigent litigants and defendants are not at a disadvantage in court compared with antagonists who can afford their own lawyers. Rich people can choose their own lawyers so the “fair” thing to do, if fairness is really what we are after, would be to allow them to do the same.

Actually the Basic Law (Article 35) stipulates that defendants in criminal cases have the right to a lawyer of their choice. Mr Tong’s answer to this point is that you still have a choice between the lawyer offered by the government and one you pay for yourself. This does not work very well for poor people, for whom the second choice is imaginary.

The fact is that people make choices about who they consult, who they do business with and whom they employ for a variety of reasons. Some of them may not be very good, but freedom  to choose is like that. I remember the days when many chemists’ shops had two queues: one of men who did not wish to discuss their purchase with a lady assistant and one of ladies who did not wish to discuss their requirements with men. That now seems very dated. 

No doubt there is a tendency in legal matters for business to accrue to the experienced and willing, at the expense of the inexperienced and those merely waiting in the taxi rank. But the right to choose your lawyer is an important right. And this is particularly the case if your antagonist is the government, with its inexhaustible supply of money and manpower.

Mr Tong may be right in supposing that “60 per cent of barristers in Hong Kong handle criminal cases and they all have similar experience”, though that sounds a bit optimistic. But the individual defendant in a criminal case is not concerned with the statistics of the legal profession, he is concerned with whether the individual lawyer representing him is experienced, sympathetic and willing to take risks. Lawyers may be willing to ignore the threat of a torrent of abuse from the People’s poodle press if they beat off a much-wanted prosecution. But will the individual defendant feel confident of that happening in his case if his lawyer was chosen by a government department?

Or to put it another way, who, if they were accused of criticising the government, or subversion as we are supposed to call it these days, would wish to find that his legal team comprised Junius Ho instructing Ronny Tong? 

What is going on here has, as usual, nothing to do with fairness, the well-being of the legal profession or indeed the needs of indigent people in legal trouble. The proposals are a sop to the wing of the DAB which wishes Hong Kong not only to be a police state but a nasty police state. Their purpose is to increase the likelihood that anyone accused of a public order or national security offence will end up in prison, and reduce the income of human rights enthusiasts in the legal profession.

The nasty view is that it is objectionable that there should be an organisation dedicated to helping people accused of crimes, or an organisation dedicated to providing help and encouragement to those remanded in custody, or indeed organisations dedicated to helping those convicted with gifts, visits or letters. We have sorted that out. It is also objectionable that people who are accused of public order offences should be able to patronise a set of lawyers who, nasty people rightly suspect, are probably not warm admirers of the government in general or them in particular. 

So they will put a stop to that. Hong Kong is now effectively a one-party state. And not a very nice party either.

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One of the complaints which lawyers routinely make about the national security law is that it is not clear enough about what is forbidden and what is not.  Eva Pils, a professor of Law at Kings College London, described the wording as “broad and malleable”, wondering if “mere criticism of the central party state [could] be treated as subversion or inciting subversion.” 

Eric Cheung, who teaches law at the University of Hong Kong, was quoted as saying that “It’s very broad. Basically, anything can amount to national security threats. No one will feel safe, even foreigners.” 

Tom Cheshire, Sky News’s Asia specialist, wrote ”Secession, subversion, terrorism and colluding with foreign forces now all carry a maximum sentence of life in prison. But they are drawn incredibly widely…”

The government response to this has usually come from the Secretary for Justice, Teresa Cheng Yeuk-wah, who has developed a little side-line in writing for publication. So in a letter to the Financial Times the “NSL expressly specifies the nature of each offence.” A later epistle to the Times said the law “clearly specifies the elements of each offence.”

A more elaborately legal version for Hong Kong Lawyer (the Law Society’s print offering for solicitors) had “The elements of each of the four offences in the NSL encompass the actus reus and mens rea and are clearly set out.”

Ms Cheng can perhaps be excused her fondness for Latin, which no doubt many lawyers share. The actus reus is the prohibited act and the mens reus (“criminal mind”) concerns the intentions of the perpetrator.

Unfortunately Ms Cheng does not provide any detailed examples. Non-lawyers may suspect that as Ms Cheng’s qualifications for her post included only a stellar career in commercial arbitration and bosom palship with the Chief Executive there may be other possible interpretations of the merits of the NSL as a piece of criminal legislation.

But as non-lawyers we can hardly assess this. One crude comparison is possible. Both the NSL and Hong Kong’s Crimes Ordinance have Sections (strictly speaking the NSL bit is a Part of an Article) dealing with sedition. This means that sensation seekers with time on their hands (I have retired) can engage in the entirely meaningless but interesting activity of comparing their length. Which is quite different.

The Crimes Ordinance version starts at Section 9, which is entirely devoted to defining a “seditious intention”. It has two sub-sections, containing six and four paragraphs respectively, and runs in total to 293 words. This is followed by Section 10, which details the offences, and has five subsections for a total of 310 words.

Section 11 is a quicky on proceedings, and runs to two subsections totalling 40 words. Section 12 is on evidence and is even shorter, at 18 words. Section 13 deals with search warrants and runs to 101 words. Section 14 deals with the powers of the police to remove subversive material and has three subsections sharing eight lettered paragraphs for a total of 155 words.

The structure of the NSL segment is naturally quite different. Article 22 has a preliminary paragraph (38 words) four numbered sub-articles describing the actual offences (124 words) and a concluding paragraph about sentencing (78 words) giving a total of 240 for that article. Article 23, which is about aiding, abetting, encouraging etc. adds another 105 words. And that’s it: a total of 345 words, nearly a tenth of which are consumed by the phrase “the body of power of the Hong Kong Special Administrative Region”, which occurs three times.

The NSL version, then, runs to just over a third of the length of the Crimes Ordinance sections. Even if you disregard the “power to remove” bit, which the NSL does not mention at all, the Ordinance version is still twice as long. It is difficult to believe that this level of abbreviation has been achieved without some loss of detail. 

Now of course brevity is not necessarily a bad thing. Sun Tsu’s “Art of War” barely fills a slim paperback, while Clausewitz’s “On War” came out in three hardback volumes. Both books are regarded as important landmarks. No doubt if the anonymous author of the Crimes Ordinance had known his work was going to be published only in hand-written Chinese characters on bamboo strips he would have tried for a more compact offering.

Having said which it does rather seem from the extreme disparity in the level of detail offered that the two sedition segments cater for radically different ideas of how legal proceedings work.

For the author of the Crimes Ordinance the function of defence counsel is, among other things, to question whether the conduct complained of actually contravenes the relevant law, and the function of the judge is, among other things, to decide whether that is the case or not. A good Ordinance leaves little wriggle room.

For the authors of the NSL, senior mainland apparatchiks, the function of the defence lawyer is to aid the accused in the drafting of his confession, and the function of the judge is to decide whether the resulting work is sufficiently mellifluous to justify a reduction in sentence. Statutes do not have to be argument-proof. They merely have to guide the defence in how to lose accurately, completely and solemnly, as the occasion requires.

No doubt Ms Cheng will continue to encourage the view that the NSL is detailed and specific. Readers of the Times may swallow this. I imagine local observers would be more impressed if she could persuade local supporters of the status quo that not every sign of opposition or discontent should be interpreted in terms of national security, particularly if that interpretation is questionable.

I notice, for example, that the NSL on sedition explicitly covers only actions by force, the threat of force, or other unlawful means. In other words if there is no force, no threat, and no breech of any other law then the NSL is not infringed. I take this to mean that there can be no legal requirement for the organisers of marathons to censor contestants’ shorts, tee-shirts or tattoos, however political. 

Indeed, the NSL also states (Article 4) that the rights and freedoms of Hong Kong citizens shall be protected. I do not believe it was the intention of the drafters to make it a criminal offence to have “Hong Kong add oil” on your running shorts. 

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I am not sure how “national security” crept up on us. It was not, as far as I remember, mentioned at all in the 2000s, or for that matter in 2014. It is not mentioned in Article 23 of the Basic Law. Yet in the last couple of years it has become something like heresy in 16th century Spain – an all-purpose offence of which anyone can be accused, with dire consequences for the convicted, offering an opportunity for vigorous virtue signalling by amateur witch-finders.

Many years ago I signed up for what Kings College London, with an admirable scorn for euphemisms, still calls War Studies. In those days “national security” was a favourite concept in what we called “strategic waffle” – the penning of lengthy op-ed style pieces full of recycled news reports and unverifiable predictions couched in learned language.

It played a murky role in justifying governments’ interests in spots outside their jurisdiction, like the Austrian Empire’s preoccupation with the ownership of the mouth of the Danube, or the British government’s supposed national interest in the neutrality of Belgium.

The idea that “national security” required the rigorous suppression of dissenting voices or the criminalisation of criticism did not come up.

It has now become a rising tide which threatens to engulf us all. The latest manifestation of this came with a spasm of concern in the Legislative Council about the credentials of social workers. Members professed alarm that some social workers had been accused, and in some cases convicted, of public order offences which suggested that they had supported the 2019 “insurrection”.

This was a danger to national security. Such people might indoctrinate or subvert the clients in their care, who might include impressionable people or children. The destination to which we were invited to proceed at the best possible speed was a purging of the profession, in which the politically unreliable would be deprived of the right to work in it.

Something similar seems to be in the offing for teachers who, we were told last week, will all have to take an examination  in the finer points of the Basic Law, and perhaps later the national security law as well. This was combined with a broad hint that the school network was due for pruning because Hongkongers are not producing enough victims to fill local classrooms. No doubt performance in the new examinations will be considered when choosing which institutions will be surplus to requirements. 

A large cloud also hangs over the future of the Bar Association. Will it be purged of the unruly, or perhaps combined with the solicitors, whose obsequious majority will swamp it? Some form of unfrockment for lawyers of a disputatious disposition can then be wheeled into place with the consent of the profession.

Then, or perhaps first, it will be the turn of the journalists. Expect the “false news” legislation, when it comes, to include some form of exclusion from the profession for people who perpetrate untruths, or refuse to parrot the government ones.

It seems that being “unsound” on national security is going to be like being a sex offender in California: after you have served your sentence, if any, you do not return to your former life. You have to conform to a variety of restrictions on where you may live, work and socialise. The irony is that Hong Kong has not got round to a sex offenders register yet. So it appears that our legislators regard anyone who was caught up in an illegal assembly as a worse threat to society than a decent honest pedophile.

Indeed they were falling over themselves last week to complain that prosecutions for public order offences were not happening in the desired quantities.

The Secretary for Justice admitted there was a backlog of cases, but denied that her department was the bottleneck. Actually this is not good enough. As the government’s senior law officer the Secretary has wider responsibilities than just running her own department. If there is a bottleneck it behoves her to identify the problem and obtain its solution.

As it is I find myself in the rare and uncomfortable position of agreeing with Elizabeth Quat. It is a scandal that prosecutions are taking so long in coming to a hearing. The time is now measured in years rather than months, which is unfair to everyone concerned. Memories fade, witnesses become unavailable, evidence disappears… Detailed discussion of international standards in this matter here.

In many jurisdictions cases expire altogether if the prosecution without a good excuse fails to bring the case in a reasonable time. Hong Kong has no similar rule. 

The problem is exacerbated by the prosecutorial habit of throwing juveniles into adult courts. This led to a scandalous case the other week in which a defendant was convicted of engaging in a fracas with a policeman at a protest against parallel traders. When the offence took place the defendant was 15, and consequently a “young person” within the meaning of the relevant ordinance.

By the time the trial was finished he was 18, and so too old for the facilities intended for juveniles. The judge had no choice but to sentence him to an adult prison. This is not the way the system is supposed to work. 

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It would be nice if a government proposing to legislate against “false news” was itself scrupulously truthful. Nice, but perhaps a bit too much to hope for. Consider the latest exchanges on this topic between a reporter and our Chief Executive, Carrie Lam.

“The reporter … asked whether rumours that district councillors who were disqualified would be asked to hand back salaries and subsidies they had received since the beginning of their term would qualify as ‘fake news,’ and why the government did not clarify if the rumours were not true.

Regular readers will recall a piece in August in which I said that the idea that the government could reclaim salaries and allowances from people who were disqualified for refusing an oath which was not required when they were elected was legally nonsense. It seems that the government’s lawyers agree. Nothing has been heard of the idea since the first disqualifications took place last month.

“‘I don’t know where the rumours came from,’ said Lam. ‘We have a lot of rumours every day, if we have to clarify messages circling in society every day, [we] won’t be able to do anything else.’”

Well let me help Ms Lam out a bit. On July 21 the SCMPost reported that “Government insiders had earlier told the Post that authorities were well aware they had a weak legal case for such a demand, but that the ‘tactic’ of floating the possibility ‘had worked’”. 

I take that to mean that the idea that councillors would be liable for a million bucks or so if they were disqualified, and this liability could be avoided if they resigned first, was deliberately aired as a tactic by Ms Lam’s minions, with the intention that it would induce a large number of resignations, and allow the government to avoid the odium which would be attracted by an avalanche of simultaneous disqualifications.

I would like to believe, and no doubt Ms Lam would also like us to believe, that this deliberate dishonesty was perpetrated without her knowledge. But alas this was not the case. The Post’s revelation about the tactic which had worked was tacked on the end of a report on a “meet the press” session held on July 20.

On this occasion Ms Lam was asked about the mass resignation of councillors, and at that time had every opportunity to torpedo the “rumour” that there would be a million dollar penalty for District Councillors who failed to jump before they were pushed.

The Post reported, “Asked if her administration would deal with the repayment issue in a ‘humane’ manner, she said: ‘Handling this according to the law is the only way out.’

The Standard had “For those who have been disqualified, Lam said, authorities will handle the issue of their pay in accordance with the law, and leniency is out of the question.”

I do not see how you can infer from these statements anything but that Ms Lam was perfectly well aware in July of the “rumour” and was actively engaged in fostering it.

After all saying that the government will deal with the matter “in accordance with the law” could be considered a statement of the obvious. In some jurisdictions it would hardly be worth reporting. Even in Hong Kong I do not suppose many readers interrupted their breakfast to say, “Look, Mabel, the Hong Kong government says it is going to follow the law.”

Perhaps Ms Lam felt it necessary to provide this assurance because she had just announced that the government was going to flout the law on the filling of vacancies on District Councils.

But what are we to make of “leniency is out of the question”? Clearly this would be understood to mean, and Ms Lam intended it to mean, that the government had a strong legal case for taking a million bucks off councillors who were slow to resign, and that no pound of flesh would be left uncollected.

So this was not some vague rumour which bubbled up from who knows where. It was a deliberate tactic employed by the government, of which Ms Lam was perfectly well aware, and in the circulation of which she actively participated.

Maybe the poor lady is losing her memory. I hope so, because the alternative is rather distressing.

I would like someone to tell Ms Lam that we do not expect her to “clarify messages circulating in society every day”. It would be welcome if she could just sort out the mendacious government ones. 

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There was a reception last week for the “media sector”. This gave a little foretaste of what the media sector is likely to consist of when the national security police have finished pruning it.

Organisers included Patrick Li, who has presided over the obedience training at RTHK, a bigwig from the Ta Kung Wen Wei Media group, and a big cheese from Xinhua. Independent news outlets were not invited and two reporters from such outlets who turned up, supposing the event to be newsworthy, were refused admission.

Carrie Lam addressed the assembled throng as “media friends”. You get the picture.

Ms Lam took the opportunity to repeat a line which has, to put it politely, been getting a bit tired lately. “The national security law.” she said, “targets only an extremely small minority of people that endanger national security.”

Well it is not for us to say what Beijing officials “targeted”, but this formulation obscures the flagrant fact that if it was only supposed to affect an “extreme minority of people” then the national security law was “targeted” very badly.

The obvious victims of the new law are the unlucky minority who find themselves jailed for months awaiting trial. But it has an affect much wider than that.

Unintended (perhaps) targets include Hongkongers who find their favourite newspaper or website is no longer available, people who find organisations of which they were members or whose services they enjoyed have suddenly ceased operation, people who are eased out of jobs by employers who fear legal liability for something they might say, people who supported regular public events like the June 4th commemoration which will, we may surmise, never happen again.

Many Hongkongers, including me, find that since the national security legislation was passed none of the people we voted for on various occasions are still in office, or indeed still in politics. Government fans are now desperately trying to rustle up some plastic pro-democracy politicos, to disguise the fact that life has become impossible for the real thing.

I am not the only writer who has lamented the effective disappearance of the public sphere, the evisceration of debate, castration of the media, systematic bullying of dissenters. That may not have been the intention of the national security law but it has palpably been its effect.

We are now told by Tam Yiu-chung that local legislation to implement Article 23 of the Basic Law will only affect “a small group of people”. Do you really expect us to buy this lemon twice?

What we are being offered here, in exchange for the freedoms which Hong Kong used to enjoy, is a new narrative of history. In this official version the resistance to the extradition bill was entirely the work of a tiny minority of the population, who had been duped or bribed by the CIA. Everyone else supported the government. This is nonsense.

It has become almost impossible for people to express views critical of the government. Anything which used to be said in the street in 2019 has become a national security offence. Organisations through which non-violent sympathisers could offer support and encouragement have been hounded out of existence. We are told that things have returned to “normal”. Well, to what was normal in Stalin’s Russia or Ceausescu’s Rumania, perhaps.

If this fantasy is repeated often enough, though, some people will manage to believe it. Perhaps Ms Lam and Mr Tam have already managed to convince themselves that this is the true story. 

But if that’s the case, why are they so reluctant to face an audience which has not been purged of potential critics? Even the “media sector” had to be decaffeinated before consumption. 

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From time to time we are told, sometimes in a tone of rather self-righteous condescension, that we must respect China’s legal system. We haven’t, however, heard any of this since the release of the “two Michaels”.

The pair, surnames Kovrig and Spavor, were arrested in China and charged with various crimes, soon after extradition proceedings against Ms Meng Wanzhou started in Vancouver.

Outsiders who complained that the Michaels had been grabbed as hostages to be exchanged for Ms Meng were firmly told that no such thing was possible in the mainland’s new and shiny legal system. The two Canadians were genuinely suspected of espionage offences and the law must take its course.

Then Ms Meng’s legal team reached an agreement with the US Department of Justice, which had been seeking Ms Meng’s extradition to face a charge of violating US sanctions against Iran. Ms Meng admitted committing the offence, the department agreed to defer prosecution, and she was free to leave.

This is perhaps as good place as any to note that Ms Meng’s three-year incarceration in Vancouver took the form of what is apparently known in Canada as “open house arrest”. This means she could live in her own house, which I dare say is fairly palatial, and even go out during the day. No M&Ms, no hair clip rationing, no correctional food.

Ms Meng then flew to China and, mirabile dictu, the two Michaels were on the same day suddenly free to leave and fly home.

Even China’s ever-zealous internet defenders did not take seriously the official suggestion that the two Michaels had miraculously, on the same day, qualified for “medical parole”. They said that the Michaels had been hostages and so was Ms Meng, so that was fair.

In other words, the “legal proceedings” to which they were subjected were a total sham.

The Chinese Ministry of Foreign Affairs said much the same thing about the proceedings against Ms Meng, but this is difficult to substantiate from the facts.

In the first place Ms Meng has now admitted that she did, in person, at length and with Powerpoint, mislead a bank about the status of Huawei’s subsidiary in Iran. This is an offence against American law even if you do it in Hong Kong.

Readers may be surprised that the American courts claim any jurisdiction over acts done in Hong Kong, but as our courts claim jurisdiction over national security offences committed in America we can hardly complain about that.

A more substantial complaint about the Meng case is that previous prosecutions for violating sanctions – and indeed for many other commercial crimes – have generally been directed at the companies concerned, not at individual executives. Indeed some people have been complaining about this for a long time. The fines levied are effectively a punishment of shareholders while the people who actually did the offending deed go free.

It is difficult to see why the Department of Justice should have departed from its usual policy in the case of Ms Meng. But such departures are not unprecedented. Michael Milken did time. Two Enron executives were prosecuted. The theory that Ms Meng was picked on in response to the Trump administration’s hostility to China and China tech companies in particular remains a theory. 

What seems beyond dispute, though, is that the proceedings in Canada were not political in any way. The government refused to intervene, as governments must in countries which take the rule of law seriously.

The judge correctly held himself bound by the extradition agreement between Canada and the US. Two countries sharing a long and fairly transparent land border must have effective extradition arrangements and they must be taken seriously.

China’s beef with Canada seems to be that the proceedings should have been stopped on political grounds, either because the original prosecution was politically motivated (a point Ms Meng’s legal team were free to make in court) or because China is a big important country and Canada is not.

China’s Foreign ministry spokeswoman Hua Chunying said, “Canada should draw lessons and act in ways that serve its own interests.”

No doubt Canada will. The lesson appears to be that China does not have a legal system and does not recognise the constraints imposed on other governments which do. The judges are party puppets and nobody is safe from arbitrary incarceration. That now includes us. Thanks. 

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Some interesting news is leaking out of local prisons, followed by lurid reactions from officials and their supporters.

The actual event occurred in a women’s prison at Lo Wu. The wardens staged a surprise raid on some inmates’ cells, and discovered some “prohibited items”.

Sources vary on what the “items” were. It appeared from the Security Secretary’s comments on the subject that they comprised M&M chocolates (the only kind prisoners are allowed) and hair clips. Later versions of the story replace the hair clips with “stationery”, which I suppose in this context means writing paper and possibly envelopes.

The six inmates concerned, who apparently included Tiffany Yuen Ka-wai (once a district councillor) were then “disciplined”. No details of this have emerged yet.

Then 18 other prisoners engaged in some kind of protest at the unfairness of the discipline. Cue the arrival of the anti-prison riot squad (The “Black Panthers” – our boys do love those macho nicknames) and dogs. The 18 inmates were then “withdrawn from association”, which sounds like a euphemism for solitary confinement. Ms Yuen was also reported to be in solitary. Naturally this exciting event was reported.

This modest incident turned out to be the mere tip of an iceberg – a pyramid of paranoia over the possible results of putting large numbers of political prisoners inside with the usual customers.

In an ensuing interview Commissioner of Correctional Services Woo Ying-ming said that some inmates held over national security or public order offences were exercising “unprecedented influence” in local prisons.

It transpired later in the interview that the only evidence for this on offer was that Ms Yuen, on being returned to the women’s prison for a second tour of the legal machinery, received a “hero’s welcome”. Or to be more precise, five other inmates hugged her and held up welcome signs. She has, in words of one syllable, made friends.

But that is not how Mr Woo saw it: “This is how groups begin, like terrorist groups recruiting followers. They help you play tricks in prisons and follow you upon release,” he said, according to the SCMP. “Like triads, they don’t promote the ideology in the beginning. The triads recruit people and take care of them. Then they gradually teach these followers how a triad is run and start spreading the ideology. It is subliminal.”

It is difficult to see why Ms Yuen attracts so much hostility from government supporters. Perhaps her being young, pretty and popular is offensive to people who are none of these things.

Mr Woo went on to complain that prisoners on remand for political offences received “insane” numbers of visitors. He solved this problem by banning all non-official visits on COVID grounds. This seems rather unfair to prisoners who merely wish to be visited by their families but Mr Woo has somehow got the idea that his men are on the “front line” of the fight for national security, so perhaps anything goes.

He also complained that visitors helped prisoners to air complaints. This was intimidating for prison staff. Clearly there are some real problems here, though they have very little to do with national security and nothing at all to do with how terrorists are recruited.

Mr Woo’s orderly realm has been disrupted by an influx of young, articulate members of the educated middle classes. This has led to much more public attention being given to the finer points of the correctional regime than it is accustomed to.

Mr Woo himself made this problem worse by decreeing that all the political prisoners should be dispersed among his prisons to reduce their contact with each other. The unintended consequence of this is of course that they have more contact with other inmates of the ordinary decent criminal type.

The idea that they are recruiting hordes of followers by judicious manipulation of the prison market in M&Ms, hairclips or stationery, is ridiculous. Every poll, whether of the academic sampling variety or the old-fashioned we-can-all-vote type, has told us that a clear majority of the Hong Kong population supported the aims of the 2019 protests, if not always approving the methods. This is particularly true of the young.

It follows that in any large selection of Hongkongers, whether in prison, university, office or factory, there will be a majority of sympathisers. National security defendants do not need to recruit followers. After all the only crime most of them are accused of is trying to get elected to Legco. Now that the elections are fixed and democrats are banned, why bother?

This has not prevented commentators from picking up Mr Woo’s fears and playing on them. Consider a lengthy piece by Mr Greville Cross, formerly Director of Public Prosecutions and now recycled as our friendly local Lord Haw Haw, called “Prisoner radicalisation: Protecting inmates and reforming fanatics.” Note that in Mr Cross’s view these two categories cover the entire prisoner population: they are either ordinary decent criminals or fanatics who participated in, or approved of, the 2019 “insurrection”.

After a few paragraphs about local prisons which could have come from the annual report, Mr Cross goes international: “In 2015, Penal Reform International reported that it had been aware for some time that ‘prisons can play a critical role in both triggering and reinforcing the radicalisation process’. In some places, prisoner radicalisation is now a huge problem, and internal arrangements have been reformed. In Europe, for example, many penal institutions have become breeding grounds for Islamic extremism, and this has resulted in terrorist outrages.”

How is this relevant to Hong Kong? Mr Cross says that in a recent book Joshua Wong has confirmed “in terms” that nefarious radicalisation is already happening here. “In terms” seems to be a euphemism for “in my lurid imagination”, because none of the quotes Mr Cross supplies bears this out at all.

Then we come to this: “It would, however, be a mistake to assume that radicalisation only comes about through open practices, and not to acknowledge that softly, softly tactics also play their part. On Aug 27, for example, it was reported that the ex-legislator and national security suspect, Claudia Mo Man-ching, was teaching English to fellow inmates at the Lo Wu Correctional Institution. However surprising, it must be hoped that English is all she is teaching them, and that they are not also being exposed to the vile political ideas which caused such harm in 2019.” 

I have two quarrels with this passage. The first one is that Ms Mo is a remand prisoner. She has not yet been tried for anything and consequently is for the moment presumed to be innocent. She is entitled to a fair trial and that means she in entitled to be protected from grossly prejudicial newspaper commentaries. It is both inaccurate and unlawful to imply in print that she is some sort of cross between Rosa Luxemburg and Osama Bin Laden.

I realise that the law on this subject has been much neglected of late, but Mr Cross is a Senior Counsel. Does this not impose some obligations?

I am also surprised by the use of the word “vile”. I presume the political ideas referred to are the subversive notion that Hong Kong should have real elections in which anyone can run and everyone can vote. I realise that many people now maintain that this is an effete Western system inferior to Stalinism with Chinese characteristics, and some of them really believe it. But “vile”?

Is that the best we can do for the ideals of Pericles and Pitt, Lincoln and Locke, in defence of which two generations of my ancestors were willing to “go to their graves like beds”, as the Bard put it? 

What seems to be going on here is a form of divide and rule. Anyone who believes in the ideals of 2019 is a fanatic and potential violent terrorist, however harmless he or she may appear. A disinclination to violence, or even a commitment to non-violence, is dismissed as a front.

We are all urged to regard the national security defendants as a tiny militant minority, nothing to do with us, though, Mr Cross charitably urges, in need of enlightenment and reform. “If,” he says charmingly, “hardened robbers, thieves and sex offenders are considered capable of reformation, there is no reason to despair of hardcore fanatics and ideologues.”

I can see little hope of reconciling our little local differences unless government spokespeople official and voluntary can be persuaded to be a little more polite. Not everyone who supported the “five demands” was a fanatic or an ideologue. If we still have a civil society, as the Chief Executive maintains, then its members should be civil. 

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