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Risking serious brain damage, I endeavoured to read the Court of Appeal’s findings in the case of Leung Kwok-Hung, alias “Long Hair” and the Secretary for Justice, alias one of the PRC’s local poodles.

Frankly I do not recommend this, unless you are having serious difficulty in getting to sleep. Most of it is dauntingly technical. One finds one’s attention wandering.

Mr Leung was one of the six legislators disqualified for irregularities in their taking of the oath of office required of legislators in our system, following an “interpretation” by the National People’s Congress Standing Committee which added detailed requirements to the procedure stipulated in the Oaths and Declarations Ordinance.

Most of the judgement is devoted, if I have understood it correctly, to the question whether the “interpretation” added to the law or merely clarified it, and whether in any case this made any difference.

These points are discussed at great length with detailed reference to past decisions of various courts. This I fear leaves the lay reader with the impression that Hong Kong judges could have saved us all a lot of trouble if they had wheeled out some years ago something along the lines of James I’s observation that “Kings are not only God’s lieutenants upon earth, and sit upon God’s throne, but even by God himself they are called gods.”

With, of course, the NPSC inserted in the place of the King.

It is a characteristic of legal arguments that people are allowed to try different approaches, not necessarily compatible with each other, in the hope that one of them will be acceptable to the court. There is a danger that in rejecting a variety of different arguments the court will appear to be guided more by the desire to achieve a particular result than the merits of the points put forward.

No doubt the appearance is misleading. I was dismayed to discover, however, that in the closing — less technical – stages the court seemed to have flatly contradicted itself

Consider this paragraph: “Neither the Clerk nor the President of the Legco has any discretionary power to determine whether a legislator-elect has declined or neglected to take the Legco Oath under section 21 of ODO … they are oath administrators.  And it is for the courts, and the courts alone, to determine if the constitutional requirements under BL104 and the legal requirements under the ODO have been satisfied.”

Now this is a puzzle. The clerk or the president has in the past refused to accept particular oaths as valid. Under the old dispensation this led to the legislator concerned being required to take the oath again. And later on in the judgement the clerk’s discretion has magically reappeared:

“As pointed out by Mr Yu, the Clerk did not provide any reasons why he considered the appellant’s Oath taking was valid.  It is thus not clear why he so decided.  In the circumstances, his decision is of little weight to the Judge.  Since the whole episode of how the appellant purported to take the Legco Oath was recorded by transcript and videotape, the Judge was in as good a position as the Clerk to view and assess the appellant’s conduct.”

This paragraph is meaningless unless the Clerk had some right to reject oaths he was not happy with. If he made a “decision” then there must have been the possibility of rejection. I do not blame the clerk for not giving a reason and it seem odd to expect it. A reason must be given for rejecting the oath. Accepting it is the default option. Nobody complained at the time.

I am concerned by the appearance of what might be considered by an uncharitable observer a measure of judicial arrogance. Leaving aside the centuries-old tradition that the courts do not intervene in the internal affairs of the legislature, there are practical problems with judges setting themselves up as a sort of video assistant referee for legislative oath-taking.

The first one is rather specific: they are political eunuchs, and expected to be such. This leads to potential misunderstandings. The Court of Appeal seems, for example, to have been quite upset that Mr Leung took his oath (or as we must now say “purported to take the oath”) holding a yellow umbrella.  But of course beholders of the proceedings would have been perfectly well aware that this was simply a symbol of his political views, just as other legislators might wear blue ribbons or Mao badges. Solemnity is in the eye of the politically literate beholder.

A more serious objection is to the time involved. VAR in football matches has been greeted with mixed feelings because the teams have to stand around for a few minutes waiting for the assistant referee’s verdict. It spoils the flow of the game.

But the few minutes spent by football assistant referees are a mere millisecond compared with the time it takes to get a definitive view out of the legal system.

Mr Leung was elected in September 2016. He swore, or did not swear, the Oath on October 12. On November 7 the NPCSC issued its interpretation. The government’s lawyers then sprang into action and Mr Leung was disqualified on July 14 2017. He appealed in September last year. The judgement of the Court of Appeal has just emerged.

Mr Leung proposes to try a further appeal to the Court of Final Appeal, as he is entitled to do. Even if permission for this is refused it will take another two or three months. These days it takes the government at least six months to hold a by-election, sometimes longer.

The overall effect of this is that the electors in Mr Leung’s constituency, who happen to include me, have been under-represented in Legco for nearly three years and may well stay that way until the end of this year or the beginning of the next one.  By which time, alas, the newly elected replacement legislator will barely have time to get his feet under the desk before another election looms.

Indeed, if the Court of Final Appeal does decide to consider the matter, the vacancy may arrive so late that our leaders, whose adherence to democracy is increasingly questionable, may simply decide to leave the seat empty until the next territory-wide poll.

And this slow-motion procedure at enormous expense to the member concerned presents, to put it mildly, something of a temptation to people who would like a legislature purged of inconvenient members, although the preventive disqualification system seems to be achieving that already.

I wonder how many people will wish to continue to vote when the results of their efforts are treated with such contempt.

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Interesting press conference the other day from the Correctional Services Department.

The proceedings, presided over by the Commissioner of CS, Mr Woo Ying-ming, featured a predictable feast of statistics, a spirited defence of the department’s complaints system, which seems to share many features of the police one, and a “smart prison” plan.

This last was an attention grabber. Is Information Technology to be put at the service of correctional efficiency, and if so how?

Well they are going to have a “video analytic monitoring system”, which will keep a permanent electronic eye on prisoners, and alert the guards if something untoward is going on.  This sounds a bit ambitious for a computer program, but they are going to trial it soon.

They also propose to fit prisoners with wristbands which will monitor their health and whereabouts. My wife has one of those already. It’s called an Apple Watch. Don’t spend more than $2,000 a piece on building your own version, please.

The third item coming soon to a pilot programme in a local correctional dormitory was described as “a robot arm that searches for drugs hidden in faeces”. You what? I was momentarily non-plussed. Why would anyone hide drugs in their shit?

After some discussion in the office we concluded that the drugs were not exactly hidden. They were smuggled in a way which resulted in the drugs landing in it, as it were.

The ins and outs of smuggling things into prison in this way are an obscure topic, but one which attracts a whole chapter in Mary Roach’s book on the human digestive system, “Gulp”.

Ms Roach is the queen of science journalism, She writes books which are both informative and intensely amusing, usually with monosyllabic titles. Also recommended, “Bonk”, “Stiff” and “Grunt”, respectively on sex, death and the military.

Smuggling things into prison, where inmates are usually stripped on arrival, requires the use of the body’s internal accommodation. Things can be swallowed, but this is difficult, time-consuming and dangerous. For more ease and capacity an item can simply be pushed up a passage which usually passes traffic only in the other direction.

This is known in American prisons as “hooping” and is used to smuggle, it is estimated, more than 1,000 pounds of tobacco and hundreds of mobile phones into the California state prison system every year. Also often found: chargers, batteries, Sim cards and those little earphones which go inside your ears. And, of course, recreational drugs.

It seems our local CSD’s solution to this problem is to wait until the newly-admitted prisoner empties his bowels, and then go over the resulting output in search of contraband.

At the moment this is done in a rather low-tech way, by a correctional officer with a stick. We may be missing some important detail here, but it is difficult to work out what dramatic improvement might justify the invention of a robotic arm.

There are existing alternatives. According to Ms Roach there is a gadget called a Body Orifice Security Scanner, a high-tech chair, which saves waiting for a performance. Sit the prisoner in the chair and you get a picture of his internal cargo, if any, straight away. This may be expensive. It is too expensive for California anyway.

A rather different solution found in German prisons is a toilet attached to a glass tank instead of the usual hole in the floor. The prisoner performs in the usual way and the results can be examined from a safe distance without the use of a stick.

Or you could ask the Japanese people who make versatile toilets with a variety of extra functions if they could put together something with a sieve in it.

I apologise for an unsavoury topic. But there is a serious point here. There are technological innovations which look like a labour-saving breakthrough. And there are those which look like an elaborate way of wasting money. The “robotic arm” for stirring prisoner poop smells like one in the latter category.

 

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The case of Chan Tong-kai, which has slumbered in obscurity since last February, has ignited a small political and legal explosion.

Mr Chan was arrested after his girlfriend died in what we used to call “suspicious circumstances” while the couple were on holiday in Taiwan. He hastened back to Hong Kong before this was discovered and the Taiwan police would now like him, as we also used to say, “to help with their inquiries”.

To this end they have asked for him to be sent back to Taiwan. Mr Chan was promptly arrested and charged with some rather technical offences which can be seen as having taken place in Hong Kong. He cannot be tried in Hong Kong for murder, or indeed for any other crime he may be suspected of committing in Taiwan, because the Hong Kong courts have no jurisdiction outside the territory.

Normally you would expect Mr Chan to be extradited to the place where his alleged crime was committed. But this is tricky. Hong Kong has extradition agreements with 20 countries, including Australia, the US and UK. China is not one of them. Taiwan is, of course, not mentioned at all.

The Fugitive Offenders Ordinance, which governs such matters, specifically excludes any such arrangement with the People’s Republic of China. I don’t know why the Mutual Legal Assistance on Criminal Matters Ordinance comes up in this context, because it does not cover the surrender of suspects, but it excludes China also.

Why these exceptions were made is not clear, but both ordinances were extensively amended in 1999 so we must suppose that this problem is not just an overlooked colonial relic.

Anyway it appears to be generally agreed that there is no present routine legal arrangement under which Mr Chan can be sent to Taiwan against his wishes. It seems that there is no limit either to the time he can be kept tangled up in Hong Kong’s legal machinery while the Security Branch ponders the problem.

It appears from reports of the matter that the Branch does have a recourse in cases like this: it can make a one-off request, which has to be scrutinised by the Legislative Council. I can find no trace of this procedure in either of the ordinances. Perhaps it is somewhere else.

The Branch says, though, that this is “operationally impracticable” because the council’s proceedings are public. So the proposed deportee would hear of the matter and flee before his deportation was authorised.

This may be a problem in some cases, but certainly not in that of Mr Chan, who is safely ensconced in the bosom of the Correctional Services Department and is not going to flee anywhere.

So what is going on here? Well, suspiciously, the Branch now wishes to extend the procedure in the Fugitive Offenders Ordinance to Taiwan. Since we must not mistake Taiwan for a separate country however much it looks like one that will involve extending it to Macau and the People’s Paradise as well.

Cue political row. Clearly this could lead to people being sent to the mainland against their wishes. Hong Kong people, as Claudia Mo put it delicately, “lack confidence in the mainland judicial system.”

James To observed that having the Chief Executive as the person who triggered requests for surrender would result in pressure on that official to send people to China for trial for things done in Hong Kong and not crimes here. Everyone mentioned booksellers.

For the Government we have FTU chairman Stanley Ng, a deputy to the National People’s Congress, complaining that critics were seeing “reds under the bed”, an interesting thing to say in this context where the reds are not so much under the bed as all over the room. More coherently he complained that people were “politicising the amendment with conspiracy theories.”

Holden Chow, for the DAB, said that human rights would be preserved because the extradition request would have to be accepted by a court, and the proposed deportee would have the right to appeal. This is not entirely true.

The application to the Chief Executive and the imprisonment of the deportee are done “ex parte”, meaning the victim of the proceedings is not heard until later. In the meantime he or she is in custody, and stays that way during the appeals, if any. If the last appeal succeeds, which could take years, the right to personal freedom has been infringed in a major way.

If the famous Ms Meng spends the next three years under house arrest in Canada and is eventually allowed to go home I imagine Mr Chow will get this point.

Alas, the Standard did not tell us which of the pro-establishment legislators perpetrated the hilarious idea that “the mainland legal system is not worse than that of the SAR”. It did, however, offer a creative approach from columnist Mary Ma.

Ms Ma said that there was no need to worry about China abusing the proposed extradition procedure because if China wanted to put someone who was in Hong Kong on trial, it could just kidnap them as it had done with Xiao Junhua, who has not been heard from since he was grabbed from a Hong Kong hotel in 1917.

This seems rather like saying that you should not lock your car because if anyone really wants to steal your radio he will break the window.

Are we witnessing a politically tone-deaf government treading in a nest of worms by accident? Or is it all a cunning plot to subvert Hong Kong’s legal autonomy and allow the Panda People to posture about Taiwan?

Suspicions are bound to arise because — as Ms Ma, sundry democrats and the Civic Party spokesman all agreed — there is an obvious solution to the immediate problem, which is to have an extradition agreement specifically with Taiwan alone.

Did nobody think of that, or was it too easy?

 

 

 

 

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Many of us have been waiting for years for the government to take the rather obvious step of making the middle Cross-Harbour Tunnel more expensive to encourage people to try the less-crowded other two.

It seemed last week that this was finally going to happen. The government was going to introduce a motion in the Legislative Council to endorse a deal in which the Eastern tunnel (which belongs to the government) would put its fees down, the middle one (which also belongs to the government) would put its fees up, and the Western one (which belongs to CITIC until 2023) would reduce its fees and collect a large dollop of public money to compensate for the resulting loss of income.

Alas, it appears that this rather obvious move has been shelved at the moment because it was opposed by the DAB, still smarting over its role in the government’s effort to raise the age at which social welfare recipients become old.

The legislative poodles are rebelling, as they often do, curiously, when anything is proposed which might make motoring more expensive. It seems to be difficult for people on generous legislative salaries to get their heads round the point that actually most Hong Kong people do not own cars.

What struck me as interesting about this proposal, though, was the way in which it originated.

Transport Secretary Frank Chan said that the proposal was negotiated by Chief Executive Carrie Lam, who personally discussed the deal in Beijing with CITIC group. As a result the chance of any change was “near-zero”.

Another of Carrie’s Beijing brainwaves, then. There must be something in the air up there.

This is the way we do things now, it seems. Indeed I have complained before that these days we seem to have government by brainwave, a dangerous innovation.

In the old colonial days, when Governors had no claims to democratic legitimacy and were not expected to have “visions”, the production of government plans and policies was generally a bottom-up thing.

People in the relevant department would spot a problem or an opportunity for improvement, and propose it to their superiors. This plan would be passed up to the relevant policy branch, where it would be critically reviewed by the eager amateurs of the Administrative Grade.

If it passed this ordeal it would be passed on to the Chief Secretary and the Financial Secretary, who would consider its urgency in comparison with other plans calling on the government’s financial and administrative resources.

I do not suggest that this system was infallible by any means, nor that it was invariably followed. Governors sometimes made important interventions: clean up that police force, build that housing. Sometimes the results were disappointing, or proved unsaleable to the general public, like road pricing.

Still this meant that on the whole any proposal had two characteristics: it had originated with people who knew what they were talking about and it had been assessed by people who could without jeopardising their own career prospects suggest that it might be better to do something else, or indeed nothing.

This system was abruptly changed in 1997. Brandishing their bogus claims to a democratic mandate, Chief Executives claimed the right to extrude initiatives to which the civil service’s expected response was obedience.

So under Tung Chee-hwa we had, for a while, housing targets. Under Donald Tsang the public housing programme was surreptitiously dismantled. Under Leung Chun-ying it was revived, though far too late to do anything for Mr Leung’s reputation.

And we have Carrie going to Beijing, running into some superior CITIC person and doing a deal with him which was apparently only divulged to the relevant department – or indeed to the relevant policy secretary – afterwards.

The puzzling thing about this is that changing the tunnel tolls is a thunderously obvious idea which has been floating around for years. The Transport Department’s response has always been that as far as the Western tunnel is concerned it would not help. Although the tunnel is far from capacity it is connected to Central by only one lane of road and this is already the scene of major morning queues.

How typical, you may think, that the Transport Department thinks the only people who count are those who drive to work in Central. But if you are going through the Western tunnel to Pokfulam or Aberdeen the road connection is worse. Still one lane, but steep hills and traffic lights.

So basically we are asked to believe that the government built a three-lane tunnel leading into about one and a half lanes of road. Isn’t planning wonderful?

I have not been through the Western tunnel recently – too expensive – but when the Google streetview car went through it still offered only one lane to Central so I suppose this is still the case.

Accordingly it appears that Carrie’s brainwave was to throw a large sum of public money at CITIC to no good purpose. Sounds familiar. She’ll ask them to build a bridge next.

I have some misgivings about the Transport Department’s warnings because the department seems to have an instinctive response to any suggestion, which is to come up with a technical sounding reason for doing nothing.

When the management of our estate humbly petitioned for a bus shelter outside the gate for the benefit of minibus riders the response, we were told, was that this could not be done because it would obstruct the pavement.

This seems a bit rich coming from a department which has littered pavements all over Hong Kong with signs, fences, bollards and barriers despite the overwhelming evidence from the rest of the world that this abundance does not increase safety, it reduces it.

Also, about 30 yards from the proposed bus shelter you come to a place where the Transport Department itself chopped a foot off the pavement to accommodate a totally unnecessary roundabout.

Still, it is a worry that ideas which used to be critically assessed are now accepted limply if they come from the Chief Executive. Psychologists have observed a tendency for people in positions of power to abandon thoughtful policy formation and instead to place an unjustified faith in the accuracy of their own instincts.

Or to put it in more homely words, the bigger the bull … well watch the video: https://www.youtube.com/watch?v=9PG6sITiNEs

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“Put not your trust in princes,” sang the psalmist. This may come as a surprise. Until I looked it up I thought it came from Macchiavelli.

Well we have no princes to tempt us here. And I imagine few people will be foolish enough to put their trust in officials, still less in the products of our much manipulated electoral processes.

We are, however, repeatedly urged to put our trust in judges. There is an annual festival to this effect, known as the Opening of the Legal Year, in which the judges parade in quaint costumes and are regaled by speeches in their praise from sundry big-wigs – some of whom do actually wear big wigs for the occasion.

The theme of this year’s carnival, sung with different variations by the Secretary for Justice, the Chief Justice, and some lesser vocalists, was that we should not criticise judges. I am reminded of an old saying about Hollywood actors: if you’re not praising them they’re not listening.

This is not quite fair to them, of course. The official line is that polite criticism is all right, but vulgarity and personal abuse are not. It appears though, from the frequency with which this song is sung, that almost any criticism of a judge can be considered either vulgar or personal or both.

I do not defend those people who characterise judges as domestic animals of various hues, depending on the preferred ribbon colour of the accuser. “Personal” is perhaps another matter. Spectators who discover matters in the background of a judge which might have led a less robust individual to withdraw from the case are surely entitled to argue that less robustness would have been in order.

Those of us who discern in the Vice President of the Court of Appeal a tendency to ride personal hobby horses in his judgments are presumably free to point out that this eccentricity has also been noted and condemned by the Court of Final Appeal.

It is argued, on the other hand, that the Rule of Law requires us to believe, or pretend to believe, in judicial infallibility. Or to put it another way, that respect for the law and admiration for judges are the same thing. It is like some versions of Christianity: belief is an obligation, salvation the reward.

This is not very convincing. I have been reading, as I do from time to time, “The Literature of the Law”. This is a collection of pieces, mostly extracts from judges’ announced verdicts, collected and sympathetically edited by a senior barrister, Brian Harris.

Mr Harris seeks to show, with to my taste considerable success, that the best judicial writing is a model of functional prose, especially when suitably pruned.

The interesting thing about this selection of prize judgments is how many of them were not actually the majority opinion of judges at the time.

Indeed Mr Harris, no card-carrying liberal himself, notes as “interesting” the fact that so many of the great historic judgements in defence of human rights were either delivered as a dissenting minority opinion or were subsequently over-ruled by a higher court.

In at least one case the minority opinion was rescued by posterity, and then over-ruled again. Lord Atkin, who opposed the government regulation which allowed suspect aliens to be detained indefinitely during World War II, was out-voted by his fellow Lords at the time but was generally thought thereafter to have had the right of it. Then the War on Terror came along, and the Lords capitulated again to the government’s desire to jail foreigners without trial.

Lawyers in the Common Law tradition are fond of claiming descent from Chief Justice Edward Coke, who rather daringly told King James I (and VI of Scotland – the man of Bible fame) that the King was subject to “God and the Law.”

What happened next is recorded less often, but according to a contemporary went like this: “His Majesty fell into high indignation as the like was never known in him, looking and speaking fiercely with bended fist, offering to strike him etc. which the Lord Coke perceiving fell flat on all fours, humbly beseeching His Majesty to take compassion on him and to pardon him if he thought zeal had gone beyond his duty and allegiance.”

And this, I fear, is the fact of life about judges. On a good day, they speak inconvenient truths to power. On other days they are on all fours, humbly beseeching the approval of the powers that be.

Students of Kahneman (“Thinking fast and slow”) will know that logical thought is a rare and difficult accomplishment, often merely a disguise for less elaborate mental processes of which the thinker is unaware. Some of his most disturbing examples are from studies of judges.

Unfortunately putting a rich elderly person on a dais and subjecting him or her to a daily diet of lawyerly grovelling is unlikely to produce a humble awareness of the limitations of what is going on inside the judicial skull, or indeed on the limits on what the owner of that skull knows about those goings on.

Well, as Fielding put it, we are all no better than God made us and many of us are a good deal worse. Judges are only human. We can hope for heroism but we should not expect it.

What we can expect, I humbly suggest, is greater speed. It is disturbing to read of cases heard by a judge alone which have been argued and decided, but still await a written judgement six months after the hearing.

Disputes over elections are not meaningfully settled if it takes half a term of the office in dispute for a decision to emerge from the legal machinery.

No doubt judges are busy. But there is the matter of priorities and relative importance. Depriving people of their liberty is a major infringement on their rights, particularly if they turn out to be innocent. It is a reproach to the system that we have people winning appeals when they have already served most or all of the erroneous sentence.

 

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I suppose the Secretary for Justice must be an intelligent lady with a fine knowledge of the law and some common sense. She had a successful career going on before taking up the public post.
Alas, exposure to the upper reaches of public administration has taken its toll. She is now as delusional as the others.
Here we have the way one newspaper reported Ms Cheng Yeuk-wah’s long-awaited Legco performance on the decision not to prosecute C. Y. Leung:
During a Legislative Council meeting on Wednesday, Cheng listed scenarios in which the Department of Justice may seek external legal advice.
One such scenario would be when there is a possible perception of bias or issues of conflict of interest, Cheng said.
“In this case, that does not apply,” she added.
You what? Has she not been reading the newspapers? I do not ask you to believe, gentle reader, that there was or was not bias involved, a question on which, like most of us, I know only what emerges in the news media.
But it is surely plain to the meanest intelligence that the reason why so many people are interested in why Mr Leung was not prosecuted is because of the obvious possibility that the decision was influenced by the fact that he was the Chief Executive at the time of the alleged offence, and is still the holder of a senior state sinecure in Beijing.
This is, in the ordinary and natural meaning of the word, a form of bias.
Let us consider a homely and historic example. Many years ago, when Hong Kong was still a colony, a policeman stopped a foreigner who was driving in Central and asked to see his driving licence, as policemen do.
The foreigner produced a UK driving licence. The policeman asked him how long he had been in Hong Kong. People who moved from the UK to Hong Kong in those days were allowed to use their UK licence for a year, after which they were required to get a local one.
And our foreigner had exceeded the year. So he no longer had a valid licence.
It also turned out that the foreign gentleman was the Attorney General, which was what they called the Secretary for Justice in those days.
I have always wondered what happened to that particular policeman afterwards. Did he become a Legend in his Own Lifetime? Or was he drummed out of the Force for excessive zeal?
But I digress. The important point here is that the offence involved was trivial. Nevertheless anyone in the Legal Department – as it was then called – contemplating the matter would have been considering the merits of prosecuting his own boss. So an outside lawyer was recruited, and duly recommended prosecution. The Attorney General was convicted of driving without a valid licence and paid a small fine.
Now let us come back to more recent times and imagine the situation of a person in what we now hilariously call the Department of Justice contemplating the merits of a case starring Mr C.Y. Leung. This legal eagle would be considering the idea of prosecuting his boss’s boss.
At best, assuming that the investigation had managed to consume the entirety of Mr Leung’s term of office, he would be considering the prosecution of his boss’s ex-boss, now a big if powerless wheel in the nation’s capital.
In other words, this is a textbook case of an occurrence where a “possible perception of bias” arises.
After all it is not disputed that Mr Leung took the money. Nor is it disputed that he did not declare it. It appears that Mr Leung may have been following legal advice, but legal advice is not infallible and ignorance of the law is no excuse.
And if that advice came from the very department which was later landed with the question of whether Mr Leung should be prosecuted… Well, just how trusting does Ms Cheng expect us to be?
I am quite prepared to believe that anyone who assessed the evidence in detail and considered it in the light of the applicable law would decide that there was insufficient evidence to prosecute Mr Leung, or indeed perhaps that Mr Leung was as innocent as a new-born babe.
I find it very surprising, though, that anyone who has followed this sage can stand up in public and say that in this case there is no possible perception of bias.
It appears that the case of Ms Cheng herself (involving possibly illegal structures on her house) was not passed to an outside lawyer either.
Times have changed.

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There was once a mini-scandal in the rock music world over the unreasonable demands that some bands were making of promoters. A shining example, it was believed, was provided by the band Van Halen, who stipulated that there should be a bowl of M & Ms (Smarties in the UK) in the dressing room, with all the chocolate ones removed.

The lead singer eventually explained that this was not a case of people making unreasonable demands because they could get away with it. The band was neither addicted to M & Ms nor allergic to chocolate. The stipulation had a practical purpose.

The band’s requirements for concerts ran to many pages, mostly concerning technical matters involved in the provision of sound and lighting. These were at the outer edge of what most venues could provide in those days.

The purpose of the bowl of Smarties was to provide a signal. If the bowl was on the table, and on examination contained no chocolate, then the band’s requirements had been read and attended to in detail. If there was chocolate, or worse no bowl at all, then a complete technical check was called for.

I was reminded of this by our current mini-scandal over the government’s decision to change the age at which social welfare recipients qualify for the old people’s scale – which is worth another $1,000 or so a month – from 60 to 65.

The government’s justification for this did not seem terribly impressive. No doubt the population is increasing in its average age, but that does not make life any easier for poor people in their 60s.

The fact that some 40-odd per cent of the people in this age group are still working is hardly to the government’s credit. I imagine a rather similar percentage of the 65-70 group are working too. Indeed, so inadequate is provision for the elderly poor that many go on after that.

What reminded me of the old M & Ms story was the embarrassing discovery that the legislature had overwhelmingly approved of this new measure, because it was in the last budget.

The chief executive, Carrie Lam, said she was surprised that members had apparently voted for the budget without noticing this item. Unaccustomed as I am to agreeing with Ms Lam about anything, I also think this is surprising.

Clearly most of the legislators who voted for the budget had not troubled to read it first. There are no M & Ms. Check the power points.

The democrats, in this case, are off the hook. Most of them voted against the budget. If you are so opposed to one part of it that you are going to vote against the whole thing then there is perhaps no point in reading the rest.

There can be no such excuse for the pro-government group, who all voted for the budget and might reasonably be expected to have familiarised themselves with its contents.

One of the DAB crew, united yes-men on the budget as on many other issues, complained that the budget was 600 pages long. Members could not be expected to find items “buried” in it.

Well, one wonders, what do they think they are paid for. Being a legislator is not just a matter of improving your c.v., decorating your business card, getting free parking in Central and being able to put “the honourable” in front of your name.

There is actually supposed to be some work involved. Legislators are supposed to scrutinise the work of the government, with particular reference to spending and new legislation. Members of the pro-government camp may feel that this should be done in a supportive way, with constructive suggestions in public and criticisms, if any, in private. No doubt this is also the wish of the Liaison Office, to which they report, and possibly also of their electors.

But monitoring in a supportive way is no justification for not monitoring at all. Legislators are lavishly paid. They are provided with offices, assistants, clerical staff and copious supplies of free coffee. This should enable them to make sense of the acres of official prose which come their way.

It is not, actually, necessary for them all to read every word of the verbal tsunami with which they are soaked.

In the first place, some of the stuff can be ignored. There are two choke points where all the government’s plans and projects, dreams and fantasies, emerge into the light of day. These are the policy speech and the budget. In both cases legislators have weeks to study the admittedly large volume of information supplied before they vote on it. This time should be used.

Groups of like-minded individuals like the DAB squad can also economise by dividing the work among themselves. Let the social welfare specialist study the social welfare bit, the transport specialist study the transport part, and so on. Unlike your essentially solitary functional constituency member a party can organise, divide the work, and delegate the routine stuff to political assistants.

The government has an obligation to tell legislators what it is doing. It does not have an obligation to flag for their benefit items to which they may have an objection.

Still, the fact that our pro-government legislators are either idle or stupid is bad for the territory’s reputation and I think the government should wake them up a bit.

For next year’s budget, I suggest a hint that somewhere in the document will be a proposal to cut legislators’ salaries by half. I expect this to ensure that they will at least read the whole thing. Whether they can pick out the chocolates is up to them.

 

 

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