tim's experiment

There are times when the line emanating from the Liaison Office becomes crystal clear because every toady and sycophant in Hong Kong is parroting it. This is one of those occasions. The line is that some means should be found swiftly which will land the prophets of independence in court and preferably behind bars. Quite how this is to be achieved has been entertainingly variable. Different left-wing lawyers (how did these people pass their exams?) have trekked through the legal undergrowth in the hope that there is a trap hidden there somewhere. At various time these experts, and their lay followers, have pounced with cries of triumph on the Preamble to the Basic Law, on Article 1, on sundry other articles, on the parts of the Crimes Ordinance which deal with treason, and the parts which deal with sedition. The rather desperate suggestion was made that the independence advocates could be prosecuted under the Societies Ordinance because the police have apparently so far refused to register them. Still to come, no doubt, is the possibility of a prosecution for dishonest access to a computer.

Now look, dimwits, one of the things we were promised would remain the same after the handover was that Hong Kong people would continue to enjoy freedom of speech. Freedom of speech does not comprise just the freedom to say what everyone else agrees with. It must also include the right to be unusual, or indeed outrageous. Freedom of opinion, as a judge once put it, must include the freedom of opinions which we despise. The Basic Law has a variety of interesting things in it, but they do not include a commitment to eternity. There is, in fact a mechanism for changing it. We must therefore suppose that there is an implicit right for people to discuss the sort of changes which they would like. Independence may not be a very practical suggestion but it is not in itself so dangerous that merely uttering it should be a criminal offence. The answer to erroneous speech is more speech. Nobody can object to people saying in public that independence is impractical and undesirable. Attempting to put the word on a par with pornography or libel is outrageously repressive. It has been suggested that the mere existence of an independence party in Hong Kong would impair China’s security. Nonsense. “Security” is one of those words like “discourse” and “inappropriate” that have my bullshit detector ringing merrily. It is not an expression of thought but a substitute for it. No doubt the existence of such a party would be rather embarrassing. Tough.

Actually it would be a great help if people could abandon the idea that this is a legal problem. It isn’t. People who have been reading my ramblings for a while will recall the observation that the SAR government should not regard the end of Occupy as a problem solved. People who found that non-violent protest on a large scale was ignored would explore other avenues, which the powers-that-be might find even less welcome than a tented village outside the Legco palace. Some of them are exploring the possibilities of conventional politics, some are exploring the possibilities of violence, and some are exploring the possibilities of drastic constitutional change. The answer to these explorations is to show not that our paramilitary police are wonderful, but that the system can deliver what people want. If our government is determined to stay in a dream world of its own devising, then jailing a few dissidents is not going to help. In fact if I were trying to found an independence party I would be hoping very much that I would be arrested. The person who is prosecuted for the cause will become an instant hero. The church, as they used to say, is fertilized by the blood of its martyrs.

It is time the government put a stop to the bureaucratic guerrilla warfare with independence seekers which just encourages them and inspires their supporters. If it is obvious that independence is a “dead end” then there is no need for such dubious skullduggery as censoring people’s election leaflets, refusing to register their societies or dreaming up pretexts for nakedly political prosecutions.  Another good idea would be to stop expanding the “independence” movement by putting people in it who don’t belong there. Asking for self-determination is not the same thing as asking for independence. People may self-determine that they do not wish to be independent. Asking for freedom of choice is not the same thing as advocating a particular outcome. People who oppose bans on smoking are not advocating smoking, they are advocating choice. Likewise with self-determination.

The hysterical reaction to independence parties is an interesting example of failing to get the point. The point is that we were promised that Hong Kong would as a Special Administrative Region be allowed to decide by itself about matters other than defence and foreign affairs. Maybe that was sincerely intended at the time, but it is not what is being delivered now.  If we had a government which could credibly claim to put local interests first there would be no problem. People who now advocate independence have given up hope in the present arrangements and drawn an unusually rigorous conclusion. Do not assume that nobody shares their despair, even if they draw other conclusions from it.

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Let me get my retaliation in first. Property prices are now falling. Even real estate professionals, for whom optimism is an endemic disease and a professional necessity, are resigned to a “correction”. They are now murmuring that prices might float down in a vague way over the next two years. This seems to me rather unlikely. Bubbles do not deflate gently over two years. They pop. That is why they are called bubbles. Anyway, with the first signs of the bubble deflating, or bursting, as you will, we also get the first bleats about “negative equity”.

This opaque phrase describes a simple situation: the home you bought becomes worth less than the loan you took out from the bank to pay for it. Let us say you pay $10 million for a flat. You borrow $9 million of this from the bank. Prices then fall. You find that your flat is worth $8.5 million. The value of the flat has now become minus half a million dollars. In theory at this point you might give up, stop your repayments and move to your nearest Macdonalds. But why should you? In theory your bank may ask you to put up extra security for the loan, but in practice for reasons we will come to in a minute that will not happen either. So why should you worry?

This is actually a good question. Your flat is still doing for you all the things it was doing before. You can live in it, raise kids, entertain guests or whatever takes your fancy. The bank is not going to kick you out as long as you keep up the mortgage payments. This is because they will then end up with a flat worth $8.5 million which is on their books as $9 million. They will immediately have to acknowledge losing half a million bucks. So as long as you keep up your payments you don’t have to worry about the bank. This is, of course, not a good time to sell your flat. But you are neither homeless nor out of pocket as long as you continue to live in it.

So why does the doleful chorus about negative equity rise every time property prices go down? Well the news is not so good if you bought a second flat as an investment, an almost universal hobby among Legco members, business people, professionals and what have you. Your investment has turned into a lemon. Instead of making money for you, it has landed you with long term payments which exceed what you are getting from rent and do not exceed the income you could have got from some alternative gamble like the stock market. If you bought a flat to live in, then “negative equity” is a theoretical concept, at least until you want to move. If you bought it as an investment, on the other hand, then “negative equity” is a painful reminder that real estate, like other investments, can go down as well as up.

It is interesting to see people who usually subscribe to the idea of general self-reliance and small government, calling for rescue from the consequences of their own folly. If the government proposes to provide pensions, public housing, relief for the poor or protection for the underpaid that is a deplorable interference with the beneficial operation of market forces, and an invitation to idleness and welfare dependency among the lower classes. If, on the other hand, the already rich are losing money on their property investments the government has a duty to rescue them from the toils of negative equity by manipulating prices upwards.

There are two other funny things about negative equity. One is that in the illustration quoted above I omitted the small detail that while the value of your flat was declining from $10 million to $8.5 million you were presumably paying off the loan. So the amount you still owe the bank should have declined accordingly. In fact the only way you could fall into this illustration is if you got a 90 per cent mortgage, which is actually rather unusual. So to fall into negative equity you must either have bought the flat quite recently or have succeeded in assembling loans worth a very large proportion of the price. This is not uncommon with investments, but much rarer with people buying a home for themselves.

The second oddity worth noting at this point is that the financial authorities are perfectly aware of the risks of buying an item with a volatile price – like property – on credit. So there are limits on the proportion of your price which you can borrow from the bank as a mortgage. Currently I believe the limit is 70 per cent. However this limit is routinely circumvented by real estate developers in their efforts to sell flats: they will put you in touch with people who will lend you the rest of the price, or most of it. So the people who are now complaining actually caused the problem.

It is difficult to rejoice in falling property prices. But it is only difficult if you own property yourself. The unavoidable fact is that if the price of any good falls there will be winners and losers. The winners will be those who need it and don’t have it, while the losers will be those who need a continuous supply, plus those who bought it as an investment. Since the vast majority of people in Hong Kong can only dream of owning their own home – let alone owning an extra home as an investment – we must suppose that a general fall in property prices is good news. Bleating about “negative equity” is merely a way of asking the government to over-rule this in the interests of people who made bad investments.

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Apologies for the long break in appearances, which was due to a technical problem. The right side of my keyboard developed a mysterious ailment, which meant that when I pressed one button I got two letters l;uijke thuis. My IT consultant (my son, who really does work in IT) diagnosed a case of digital dinosaurism. My keyboard was disintegrating because I hit it too hard.

No doubt this is a result of learning to type on a typewriter – which, my children, involved pressing a key which was connected to a series of levers which eventually stamped a letter on a sheet of paper through an artfully arranged strip of inky ribbon.

One of my regular editors suggested that I was pressing too hard for a proper modern keyboard because of suppressed hatred of someone, possibly CY Leung. I am sure this is not the case. I do not hate Mr Leung. I just wish he had more respect for the truth.

Let us take his latest outburst, which started with the claim that calls for independence from a few would damage the whole of Hong Kong. This is, it seems to me, highly questionable. In places where freedom of speech is offered, many nutty things will be said. There is no reason why visitors or potential investors should be put off by this, any more than they have been by the continuing effort to inform Hong Kong people, and visitors, about the sufferings of mainland Falun Gong believers.

But Mr Leung now offered an interesting manoeuvre, which when practiced in Tsimshatsui camera shops is known as “bait and switch”. No central government, he said, would support a city which called for independence. Well that also seems a bit dubious. It is a recurring habit of pro-China commentators to make sweeping generalisations about the rest of the world which are wrong. We have, for example, been told at various times that nobody allows non-nationals to vote, that no country would put up with having an occupation in its business district, that no country allows its citizens to talk about independence. All wrong.

But even if you subscribe to Mr Leung’s theory about the way a central government would react to calls for independence, note the not too subtle change which has been worked here. We have gone from a few people calling for independence to “a city that calls for independence”. But this is an impossibility. No mechanism exists through which Hong Kong can call for independence, or indeed anything else. We are saddled with a political system which cannot even call for universal pensions, popular though these would certainly be.

Indeed it will be interesting to see how candidates present themselves in the upcoming Legco elections, because it has become increasingly clear that there is a wide range of measures which the city does “call for” but which our political system is not prepared to deliver. There is nothing mysterious about this. Most of us would happily sign up for a decent pension, standard working hours, a generous minimum wage, reform of the MPF, a health service more or less free at the point of delivery and generous arrangements for education up to the age of about 21. Yet all of these things have been shunted over the last five years into the “too hard” basket, leaving the government struggling to square a circle by making homes cheaper without depressing property prices.

Now that people have worked out who is making the real decisions about such matters, and that these decisions are not being made by the Hong Kong government, calls for independence are understandable, if perhaps not very realistic. Our leaders are helpless puppets who do not care what we think. Independence would cut the strings. For that reason, of course, it will not be allowed.

Still, calls for independence have had one useful effect. People who have been complaining for 19 years that Hong Kong needed to legislate against sedition have now discovered the Crimes Ordinance, and in particular the sections of it which deal with sedition. I do not personally believe that they could be used against peaceful advocates of independence but at least the Liaison Office groupies now know that they are there.

I must, though, sadly pour water on the suggestion that the section dealing with Treason, suitably interpreted, could be used to suppress independence talk. This belief rests on the shaky foundation that the wording in the ordinance, which refers to “the Queen” could be reinterpreted in the light of post-handover blanket changes in terminology to apply to the Central government. There is a problem here in the rest of the ordinance. Treason consists of various acts which do not concern us here (taking up arms … aiding enemies) and more relevantly “denying the title”. This is a technical term which cannot be extended to cover any suggestion that some part of Her Majesty’s realm, or Mr Xi’s, would be happier if allowed to go its own way.

Denying the title refers to a quite specific verbal act, which is suggesting that the Queen or her ancestors at some point usurped the legitimate succession which, in the more obsequious history books, connects her with William the Conqueror. It would cover those nostalgics who seek to revive the claims of the House of Stuart (deposed in legally murky circumstances in 1688) and those gluttons for lost causes who look back with regret to the demise of the House of York (last serious claimant killed in battle in 1485). Over the years there have been occasions when the orderly succession was – shall we say nudged? – by prejudices against juveniles, women or Catholics.

However no such ambiguity attends the enthronement of Mr Leung, who emerged from a legally ordained process intended to produce a result satisfactory to our external rulers. The suggestion that his successors would fare better if chosen without outside interference is not seditious. It’s common sense.

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The offence of gaining access to a computer with dishonest intent is fast becoming a textbook example of how the rule of law can morph into the abuse of law to get prosecutors whatever they want. The latest case involved a man who put a camera in his bathroom to produce pictures of a lady using it. Where does accessing a computer come into this? He looked at the resulting video on his cell phone. When we last visited this topic a High Court judge had just decided that a cell phone was a computer. Fans of judicial lawmaking may clap here, if they wish. The almost infinite possibilities of this offence have not been lost on other people. The other day a DAB stalwart suggested that people who organised protests on their mobile phones could be prosecuted for “dishonest access” as well.

Indeed, why stop at cell phones. Many household appliances now have more computer power than a computer did a few years ago. Your car has more microchips than wheels. My new steam oven has enough computer power to baffle me. We also have one of those Japanese toilets which provides a variety of extra services and packs plenty of electronic ingenuity. Are you keeping your drugs stash in the washing machine? Could be a big mistake.

Now for the root of the problem. The relevant part of the Crimes Ordinance goes like this:

“(1) Any person who obtains access to a computer-

(a) with intent to commit an offence;
(b) with a dishonest intent to deceive;
(c) with a view to dishonest gain for himself or another; or
(d) with a dishonest intent to cause loss to another, whether on the same occasion as he obtains such access or on any future occasion, commits an offence and is liable on conviction upon indictment to imprisonment for 5 years.

Now I do not think you need to be a mindreader to work out what was going on in the collective head of the legislature when this item was passed. The intention was to criminalise the act of obtaining access to a computer which you were not entitled to access. The idea that an otherwise boring or trivial crime might be transformed into a passport to five years of enforced leisure if you did it over an iPhone would have struck the people who voted for this as absurd.

As of course it is. Our man with the camera in his bathroom is clearly a pig. No gentleman would do such a thing. Still, he is I think entitled to wonder what is going on here. If he was committing an offence, why was he not charged with it? If he was not committing an offence, then how does this provision apply to him? I see the “intent” bit is necessary to deal with cases where the posited crime was not consummated. But that is no reason to use it when the miscreant has achieved his fell purpose, whatever it was. Is it the legal view that a video of your maid in the shower is a “dishonest gain”?

It is distressing that the misuse of this provision has been allowed to continue for years, albeit with most of the victims being small potatoes who were not lavishly lawyered. Do judges never look at the laws they are applying? Is this a symptom of the idleness and complacency which are the hazards (I will not say the hallmarks) of prolonged judicial office? The late Lord Bingham devoted much of his retirement to examining what the rule of law required. One of the items he came up with was that “the law must be accessible, and as far as possible intelligible, clear and predictable”. Another standard worth a few moments thought in the Department of Justice is “public officials at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred”.

Perhaps we need to lower our standards these days. We can take comfort in the thought that abuse of the law is, so far, still done only by properly qualified lawyers. The Liaison Office’s hilarious variations on “treason” are a treat to come later.

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The whole of the Hong Kong commentariat – or at least that segment of it which likes banks and the Hong Kong government – has been churning out explanations for Joshua Wong’s mysterious difficulty in opening a bank account at HSBC. As often happens when the destination to be reached by an argument is more important than the means for getting there, the two leading innocent explanations flatly contradict each other.

On the one hand we have the apologists for the banking sector, explaining that Mr Wong’s status as a high-profile person would mean his account, if he were allowed to open one, would need constant supervision and attention. No doubt this is necessary to ensure he does not join many famous people in sending his money to Panama.

On the other side we have people who, perhaps, do not like banks but really dislike Mr Wong. They say that Mr Wong, far from being a high maintenance celebrite, is a nobody. He is a young man with no job and no income. Why would a bank anywhere want such a customer?

Well times may have changed but I found this last question easy to answer. Mr Wong is a student. Banks have long since realized that by being nice to people while they are students they can snare customers whose future prospects are bright, however poor they may be now.

When I was a student this recruitment of the poor but promising was conducted with enthusiasm. All the banks advertised in student publications, however disreputable the other contents of those publications might be. All sorts of goodies were offered as an inducement to setting up an account. Indeed having inherited the family connection with Barclays before I reached university I rather resented the fact that I could not qualify for any of the presents.

The University of Lancaster’s then small and isolated campus had two bank branches, which in those days averaged out at about a branch per 1,000 or so students, which seems rather generous. Also generous was the general attitude to overdrafts. The manager of the Nat West branch, who was particularly famous as a willing lender, once explained to me that his employers accepted that his branch should not be measured by any of the usual banking metrics: its job was to recruit grateful future customers.

Universities continue to enjoy this sort of service, though. Baptist University also has two bank branches. As banking in Hong Kong is almost entirely a duopolous enterprise split between the HSBC group and the Bank of China fleet we can hardly expect more.  I suspect that if Mr Wong had turned up at a university branch where penniless young people are the standard cannon-fodder he might have opened an account without anyone noticing.

This may of course be quite wrong. One of the strange features of Hong Kong life is that although banking is supposed to be a fiercely competitive business one hears many complaints nowadays from people less newsworthy than Mr Wong of how difficult it is to open an account.  Perhaps both explanations are true. They don’t want you if you are rich and famous – too much trouble – or if you are poor and obscure – no money, no profits.

Certainly there is a particular problem for small businesses wishing to open a business account. Banks do not make it easy and will often flatly refuse. I have heard several sad stories of people tramping the streets of Central in search of a bank which was willing to take their business.

Indeed a popular view in start-up circles is that this would be a better route for government aid than the usual loans, advice, start-up parks and what have you. To boost business creation what they need is a simple bank, doing the simple stuff – cheques, deposits, credit cards – and skipping the investment advice, “financial products”, insurance disguised as financial products, and other efforts to diversify in the direction of rich customers. It should be willing to open an account for anyone with a business registration certificate, an ID card, and a deposit. It should have no connection with New York, so the American authorities can be told what to do with their FATCA forms.

It is one of life’s little paradoxes that the same bank which paid multi-million dollar fines for doing business with Mexican dope fiends is now threatening to close the accounts of harmless charities if they cannot prove they are not American.

Meanwhile what is poor Mr Wong to do if he really wants to open a bank account? Well there’s always the British Virgin Islands. They, it seems, are not fussy.

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What’s wrong with independence? Clearly under present circumstances it is a very long-term objective. But if that is really a politician’s dream there is a lot to be said for him saying so, rather than creeping along pretending to be something else until the right moment comes, if it ever does.

There is one attraction for Hong Kong’s younger generation: merely mentioning independence produces the sort of reaction from the people we love to hate which you would expect if you produced a string of garlic at a vampire wedding. Surely there must be something to be said for an idea which our real estate moguls and mainland puppetmasters are lining up to condemn?

While we are on this aspect of the subject, a prize for tactlessness for the billionaire who said that “Hong Kong had been returned to its rightful owner.” Hong Kong is not just a piece of land. It is people. People do not have owners unless they are slaves.

But I digress. We may acknowledge the truth of the criticism that independence is “not what most people want”. I suppose this is true, but the problem is that what most people want is the high degree of autonomy and “Hong Kong people ruling Hong Kong” which we were promised many moons ago. Unfortunately this does not seem to be on offer at the moment. Independence is like the Mark Six: for a small price you can dream for a few hours.

Now let us dispose of a few small items. The fact that the Basic Law states that “Hong Kong is an inalienable part of China” is not relevant here. Even the most despotic regimes suffer from one limit on their power: they cannot bind their successors so they cannot control the future. History is full of arrangements which were intended to be permanent and weren’t. Law describes the present.

We can also rule out the possibility of sedition. Contrary to the view often expressed by left-wing dimwits and Beijing officials, Hong Kong does have a law on sedition and it is contained in the Crimes Ordinance Sections 9-14. Of particular relevance to our present topic is Section 9 (2) (b), which states that an act, speech or publication is not seditious if all it does is “to point out errors or defects in the government or constitution of HK as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects.”

We also need not linger over the argument that independence is impossible because “China will never allow it”, see above, and without that approval we would run out of water, be over-run by the PLA etc. Clearly any practical route to independence will include somewhere along the way the consent, however reluctant, of the Chinese government of the day, and the willingness to make sensible arrangements for the resulting new relationship. No doubt an independent Hong Kong, even if that independence ran as far as a new flag and a seat in the UN, would have to tread warily round its giant neighbour. The situation would be rather like that of Finland in relation to the Soviet Union during the Cold War. Independence always has limits, at least for small countries.

The more interesting argument is the one which goes, or implies, that if Hong Kong became independent this would be to the detriment of China, and a sacrilegious trespass on the Holy Ground which has been forever ruled by Beijing. I propose to approach this in a rather round-about way. On the internet you can find interesting animated maps in which 2,000, or even more, years of history pass in a couple of minutes. I think it is a good idea to show one of these to students of international relations, to make the point that all borders except those which consist of a seashore are in the long run temporary and transitory arrangements. The European version of the map comes with a commentary from me, drawing attention to the periods when half of France was in England, half of Italy was in Austria, half of England was Danish, and so on. We note the appearance and passing of the Grand Duchy of Lithuania, the Duchy of Burgundy, and more recent mayflies like Yugoslavia. The Asian version of the map does not come with a commentary from me, because I don’t know enough Asian history. But a conspicuous feature of the comings and goings is that there is clearly no such thing, historically, as an eternal China. Kingdoms come and go, expand and contract, foreign empires take over and expire in their turn. In fact modern China seems to be the largest version on offer. The current government’s view of this matter seems to be that any territory which at any time acknowledged the rule of a mediaeval despot in Beijing is to be regarded as historically Chinese. The merits of, and reasons for, a Communist regime trying to reconstruct a hereditary feudal empire are too complex a matter to go into here. But it does seem that the historic Chinese empire exerts the same sort of mysterious attraction which led European statesmen, for some 1,400 years, to seek some sort of restoration of the Roman empire. The only person who got close (the Emperor Charles V) eventually recognized the futility of the project and divided his empire in his will. But the notion survived in the Holy Roman Empire – famously neither holy, nor Roman, nor an empire – until Napoleon killed it off at the beginning of the 19^th century.

The trouble with this sort of ambition is that what worked as an ancient empire may not work as a 21^st century state. Modern political assumptions include the expectation and hope, to say the least, that people will be ruled by arrangements to which they have broadly consented. Historic empires relied on force. A more serious problem is practical. When empire involved nothing more demanding than an occasional exchange of gifts between rulers there was no practical limit on size. If the government of a modern state aspires to the full range of functions, on the other hand, then size may be a serious problem. China is the only country of its size which does not have a broadly federal structure – that is to say with states or provinces which have a vigorous separate existence from the central government. The only other possible exception – hardly a happy portent – is Russia.

It is tempting to offer as a wild generalization that it is probably impossible to govern China satisfactorily in its present form. There must either be a devolution of powers to the provinces or a reduction in size. And if neither of these options is chosen voluntarily then it is likely that one or the other will be imposed by events.

That may be over-stating the position. But we can surely at least agree that agitating for more autonomy for Hong Kong is not an attempt to sabotage China. If anything it is an attempt to wean the country off the notion that long-term progress can be made in a situation where the central authorities select a target and provinces are expected to hit it. Our surprisingly numerous local Hayek fan club seem to overlook one point about the great man’s critique of attempts to steer markets: he wasn’t attacking Keynesian economics, he was attacking centralized state planning.

Well we shall see. What we shall see is how confident people feel about the rightness of their views, because it is lack of confidence which leads to calls for suppression of dissenting voices. If independence is a stupid idea then nobody will vote for it and there is no harm in a political group calling for it. We may give them some credit because, as John Stuart Mill put it, an idea which is never challenged changes from a living truth to a dead dogma. If there turns out to be substantial support for independence then it will perhaps get into the heads of our real rulers the idea that the present arrangements are not what we signed up for.

I notice one of the regime’s academic running dogs the other day pointed out that “a high degree of autonomy” does not mean “complete autonomy”. This is true. But it must mean something substantially more than we have now, in which it appears that the only matters on which our government exercises untrammelled discretion are the provision of lifts at footbridges and non-slip finishes on the floors of public toilets.

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Well it’s nice to know that owners of valuable dirt have their rights protected in Hong Kong. This was demonstrated last Sunday. Earlier this month a pile of dirt 10 metres high was discovered in a field near Tin Shui Wai. This is a big heap. Think beached Titanic.

Protests from local residents produced no sign of official action.

A group of protesters turned up on Sunday, thinking they might collect a few bags of the dirt heap and deposit them on appropriate government doorsteps.

However the arrival of the protesters was closely followed by the arrival of the police, who arrested them on suspicion of theft. Theft?

I must say this came as a bit of a surprise. About the same time as the megapile of dirt appeared in Tun Shui Wai somebody started dropping off small piles of construction debris on the grass next to the car park at the top of Sui Wo Road, where I live. I would have thought that anyone who picked up some of it and took it away would be doing a public service.

Surely the law does not regard it as an offence to pick up something which someone has thrown away? The exuberant lady who cleans our road finds a lot of tins and packets, especially after weekend nights. I suppose they all have a potential value to someone, but at some point surely private property becomes public litter.

Clearly the megapile in Tin Shui Wai contains no ordinary dirt. This is designer dirt. Having matured for a few years in a New Territories field it will become Vintage dirt, commanding a monstrous premium from dirt connoisseurs.

In the meantime it would be nice if the dirt owners conformed to the law, which at least in theory regulates where such owners can leave heaps of their property to undergo the maturing process.

It seems that as in so many matters in the New Territories the law is, if not completely helpless, at least extremely sluggish about this sort of thing.

The relevant Permanent Secretary, who happens to be the disreputable but durable Paul Chan Mo-po, said that three departments were “strictly following up the matter”, but were engaged in gathering evidence and investigating the law.

This brought immediately to mind a rare moment of enlightenment in the colonial Legco, when a member responded to a rather similar problem by relating an old Chinese proverb: If one monk is in charge of getting the water he brings two buckets on a pole over his shoulder. If two monks are getting the water they bring one bucket on a pole between them. If three monks are supposed to get the water we have no water.

Clearly Hong Kong has no lack of competitiveness when it comes to providing a supportive environment for the dirt industry. Dirt owners can be assured that they can park their property wherever they like.

If the resulting heap annoys nearby residents, never mind. They will be invited to play pass the parcel with three government departments, leaving your heap to ferment in peace. If on the other hand some local miscreant threatens to take a shovel to it, then the cops will be on his case right away.

Isn’t the rule of law wonderful!

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People have been complaining about the deteriorating standards of behaviour among the young since Socrates was executed for corrupting the youth of Athens with the notion that truth was the highest good. Rioting, like other strenuous sports, appeals mainly to people in their late teens/early 20s, so recent events have provoked much speculation about what is wrong with our young things.

For up-market tastes there are the offerings of Prof Richard Wong, which appear rather incongruously on the back page of the SCMP’s business section. Last week we had Hegelian historicism and post-modernism. This week German romanticism, the decline of Liberalism and post-modernism again. I confess to some doubts about this approach. I do not claim to understand those noisy discussions which fill the air in Mong Kok teahouses but I do not believe they are devoted to the rival merits of Hegelian historicism and Popper’s criticism of them. Post-modernism is a purely academic construction with no points of contact with the real world. It asserts that there is no such thing as truth so all beliefs are valid, depending for their status only on the fervour with which they are held. This is the sort of thinking which, as Nissam Taleb puts it, people with jobs in the real world leave for the weekends. Most of us cling to the belief that there is a real world, that some words explain it better than others, that actions have consequences and these can to some extent be predicted and evaluated.

For a cheap and cheerful explanation of current events, on the other hand, we can always depend on Rita Fan, who said that young people were being led astray by “bad media”. This seems an unkind slur on the Hong Kong media, most of which have already bowed to the wind from the north and some of which are actively fanning it. In any case this explanation flies in the face of a great deal of research which has revealed that media really have very little effect on what people think and even less on what they do.

Somewhere in between we have the complaint that our young people “do not understand China.” I find this extremely hard to believe. In the first place Hong Kong is the only place in China where the media are allowed – if they wish, and some of them don’t – to report China matters as honestly as they can. If you want to understand China then Hong Kong is probably the best place in the world to do it, because you can avoid the avalanche of official lies. Also, a great many people in Hong Kong come from China, and most of the rest have visited it, often frequently. Anyone who is in the least bit interested can feast on personal experiences of China, his own and other people’s. I believe Hong Kong young people know China very well. They know it is a rising power with a growing economy. They also know it is a nasty police state which combines traditional despotism with modern technology to promote the compulsory pretence that it is loved and admired.

Another interesting suggestion puts the blame on the Liberal Studies subject, now compulsory in all schools. This, we are told, gives teachers — who are all rabidly pro-democracy as we can see from the people they put in Legco — the chance to corrupt young minds with unhelpful Western notions. You know the sort of thing: that we are entitled to life, liberty and the pursuit of happiness, or that our government should observe and implement the Universal Declaration of Human Rights. Shocking stuff. But this surely overstates the affection which most schoolkids feel for the material being shovelled over their desks. University students, in theory, are encouraged to think independently, leading to a regrettable tendency to think things which their elders disapprove of. But for most of the school population this is a distant dream. The purpose of the Hong Kong education system, as they experience it, is to reduce the number of people eligible for university to a manageable number by eliminating them and their friends from the queue.

Some observers have pounced on the fact that many of those arrested during or after the disturbances were unemployed. If only we could create jobs for these idle young men then all would be well, they think. But this is surely confusing a symptom with a cause. Of the people who feel dissatisfaction some will grumble to their friends, some will protest peacefully, some will protest robustly. People with jobs and families are likely to stop at this point. Those with neither will be more tempted to go on to rioting, because they have little to lose. That does not mean they are the only people who are dissatisfied. The other day I was chatting with a young man who would not under any circumstances riot. He is a civil servant in one of the more socially useful departments and has a promising career ahead of him. As we picked our way through the freshly-constructed desert between the old Star Ferry pier and the new one he suddenly said “Hong Kong is dying. No. Hong Kong is dead.”

Why do people with extensive education and impeccably law-abiding instincts feel this? I suppose because the old colonial government, with all its flaws, had the useful characteristic that its main objective was a happy and prosperous Hong Kong. The territory was a historical embarrassment to the UK, not an opportunity for exploitation. Governors were expected to run a system which produced levels of social welfare consistent with European ideas, and left to get on with it. We now have a government which presumably wishes to see a happy and prosperous Hong Kong, but that is not its main objective. Success is not achieved by pleasing Hong Kong people. indeed dismal poll ratings roll off our leaders like water off a duck’s back. Success is getting a pat on the head in Beijing. Unfortunately happiness and prosperity are not a simple matter. The idea that they can be achieved as a happy by-product from a government prostrating itself before a distant tyrant is not very promising.

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Before we get to the meat of this week’s diatribe, a word of apology. I understand that students of journalism in a number of local universities have been invited to consume my scribblings about journalistic commentary and the right to a fair trial. As a result I have made two columnists famous for alleged neglect of this important matter. This is not entirely fair to them because I have since discovered worse things going on in the China Daily. And I dare say readers of Chinese newspapers could also come up with interesting examples. None of them, I fancy, would be as terrifying as a recent burst of creativity by Mr Tony Kwok Man-wai, who is – rather worryingly – a former deputy commissioner of the ICAC.

Mr Kwok last week published an article on a pro-Beijing news website called Speakout Hong Kong in which he urged readers to “hunt down” the judge (strictly speaking a magistrate) who had allowed bail for Raymond Wong, when Mr Wong appeared before him on rioting charges. The object of the hunt was to “see whether there is evidence to prove [the judge] and his family’s relationship to pro-democracy parties”. This was, by the standards laid down by the Court of Appeal in the Oriental Daily’s scandalising the court case, a clear infringement of the law. Mr Kwok seems to have had some thoughts along these lines also, because this version of the article was soon replaced by a more diluted version, in which he called for the establishment of a “court watch” to record and publish the names of judges who gave “unreasonable” sentences. Mr Kwok explained that the early version was a draft which had been published by Speak Out HK in error.

I must admit to some difficulty in working out such an error might happen. If the early version was a draft, why send it to Speak Out HK at all? In the world of WordPress such a misunderstanding is avoided by having the word “publish” printed on the button which publishes your story. This button is a long way from the different button called “save draft”. I do not know what software Mr Kwok was using but some arrangement of this kind must surely be pretty universal. Never mind, digital latecomers like Mr Kwok, and me, must be allowed the occasional fat finger.

Mr Kwok then went on to explain that the tone of his earlier draft was influenced by the fact that he “really felt angry” that the judge had granted Mr Wong bail. He thought this was inappropriate as Mr Wong had been “hiding since the Mong Kok events” which led to the case. Woops. We do not know Mr Wong had been “hiding”. He had left home to stay with a friend. Staying in the address where you usually live is a right, not an obligation. People leave home for a variety of reasons: they may need a break from their voluntary work, they may wish to elude the media for a few days, they may feel in danger of a sudden irresistible urge to smuggle themselves over the border to help the mainland police with their inquiries for three months. We should not speculate. Mr Kwok’s words are clearly prejudicial.

His view of the matter is also based on a fallacy. The defendant who appears before a magistrate prior to his trial is entitled, as we all are, to be presumed innocent until he pleads or is found guilty. The request to remand the prisoner in custody accordingly is a request for an innocent man to be deprived of his freedom and should be refused unless clearly justified. Although “granting bail” sounds like a favour it should be the usual arrangement. The two circumstances justifying exceptions are where the defendant can plausibly be shown to be likely to flee, or to interfere with witnesses. A remand in custody is not supposed to be a punishment, or an expression of society’s disapproval of the alleged offence, or a vindication of the efforts of the forces of law and order. The magistrate in Mr Wong’s case was clearly entitled to the view which he took of the matter. As a retired senior security official Mr Kwok’s emotions are understandable. But surely someone with his background should know the rules?

He also really has a bee in his bonnet about this court watch thing. For in the latest SCMPost, there he is on the op-ed page, under the headline “Hong Kong should welcome trend of citizen-led court watchdogs”. This is a headline, so not Mr Kwok’s responsibility, but it summarises his effort quite well. Court watches are “very common” around the world, says Mr Kwok. Around the world, it turns out, means the US, with one example from Canada and one from Poland. The merits of court watches, he says, are that they enshrine the principles that “all judges, as public officials, [are] subject to public accountability”, and “it should also uphold freedom of expression”.

Mr Kwok points out, quite rightly, that we are all entitled to discuss the performance of judges. He then introduces the case of New York Times Co vs Sullivan, which is hardly relevant. “Although this US case law does not apply in Hong Kong,” says Mr Kwok, “it does set an international standard…” Which is nonsense. No other jurisdiction in the world is as expansive in its definition of freedom of expression as the US. But even the US does not now meet the standard of the Sullivan case, which was decided at the height if the civil rights movement and was so expansive that the Supreme Court has been making exceptions to it ever since.

This is not really the issue anyway. Nobody is suggesting that criticism of judges should be banned. Many observers will suspect, though, that the destination towards which Mr Kwok is inviting us to travel is a system of blue-ribbon vigilantes monitoring politically-tainted court cases and hurling public abuse at judges who do not share their politicised view of the matter. The overseas examples are rather different from this. Most of them are in the US, where the idea of judges being answerable to the public is widespread and indeed many judges are actually elected. This leads, perhaps, to rather high standards of judicial eccentricity and some monitoring may be justified. It must also be noted that most court watch organisations are interested in family law or domestic violence cases, and are motivated by the fact that this sort of case is often subject to a variety of reporting restrictions which commonly result in them not being reported at all. Unless some citizen volunteers take up the job, nobody is watching.

This is hardly the case in Hong Kong, where interesting court cases are still routinely reported. What is not routine in Hong Kong is the idea of public officials being subject to public accountability. On the contrary it is the routine experience in Hong Kong that public officials are not accountable to the public at all. Indeed in spite of the so-called “accountability system” it appears that they are not accountable to anyone, or at least not to anyone in Hong Kong. Mr Kwok seems to be perfectly happy with this arrangement. I wonder why he wants to make an exception of judges…

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Every year I take a group of students on a tour through the parts of the Hong Kong legal machinery which concern the media. This week, as luck would have it, we have reached the matter of contempt of court. The purpose of this part of the law is to ensure that an accused person has a fair trial. The method used to obtain this objective is a prohibition on the media publishing material which suggests that any person who has been caught up in the legal mincing machine is guilty – or for that matter innocent. This is a question to be decided by the courts without any help from the media.

The law on contempt is only one of the provisions designed to do this. I have complained before that many of the others have suffered from gross neglect lately. The Department of Justice does not monitor newspapers, as it used to do when it was called the Legal Department. Consequently infringements are not noticed or punished. Media outlets which restrain themselves as the law requires find that they look stupid. Lessons are learned.

As a result standards decline. Consider the case of Mr Ray Wong Toy-yeung, who was arrested on Sunday and charged with rioting. Any reporting of this matter is governed by the law on what is called “strict liability contempt”, which means that the newspaper is liable whether it intended the offence or not. The law states that from the time when legal proceedings are “imminent” we must not publish anything which produces a “real risk of substantial prejudice” to the proceedings.

Now let us see how this rule is observed in the SCMPost these days. On Tuesday Mr Alex Lo decided to write about the Hong Kong independence movement. Nothing wrong with that. In fact on this topic I suspect Mr Lo and I are in entire agreement. But Mr Lo’s forays into discussion of public issues are often spiced with a little personal venom. The HKU Staff Association, for example, were characterised in his column on the university’s autonomy and related matters as junior lecturers motivated by envy of their elders and betters. The group of academics who urged an independent inquiry into the fishball riots were not just misguided. They were mostly “assistant professors or associate professors without PhDs.” So it does not come as a complete surprise that Mr Lo’s “take” on seeking independence included a good deal of personal denigration of Mr Wong, who on the previous page could be seen flanked by two policemen and wearing a bag over his head.

Mr Wong, said Mr Lo, was “mesmerised by the sound of his own voice.” After a list of items found in the flat where Mr Wong was arrested we conclude that his “inclinations towards violence and sex are rather pronounced”. And “Those who have tried to justify and explain away the delinquent nature of this movement have helped create this monster.” I suppose it will be argued on behalf of Mr Lo that the “monster” is the movement, not the man. But as his piece starts with the announcement that Mr Wong is a “key figure” in the group I am not sure that this is much help.

The following day there is more interesting reading for legally inclined readers. On the front page we have Mr Wong’s first appearance in court. This comes in the category of “committal proceedings” and reporting is restricted to a list of items which the Post’s reporters scrupulously observe. There is nothing, for instance, about the circumstances of his arrest or possibly incriminating items found at the place where it took place. For these, however, readers only have to turn the page to Michael Chugani’s column, where “I point out that Ray Wong Toi-yeung, convenor of localist group Hong Kong Indigenous, was in a flat with bomb-making chemicals, weapons, drugs and over half a million dollars in cash when police arrested him in connection with the riots.”

This is precisely the sort of writing which the law is supposed to prevent. Actually, if Mr Wong had been arrested in my house the police could, had they wished, have found bomb-making chemicals, weapons and drugs. I do not keep that much cash around the place. Many household chemicals can be used to make bombs. I have two swords, one used for Scottish dancing and one souvenir of a visit to the Shaolin Temple. And at my age, taking pills is a way of life. But in any case the house is mine, not Mr Wong’s. What Mr Chugani is pointing out is that he believes Mr Chow to be guilty, precisely the matter which is supposed to be left up to judges.

It may be, I suppose, that even as I write these words the Department of Justice is swinging into action to protect Mr Wong from the stream of rampantly prejudicial coverage which is being squirted in his direction. If so I apologize. But years of inaction have lowered expectations. Can Mr Wong be assured of a fair trial, unsullied by prior publicity which assumes his guilt? Readers may feel that Mr Wong deserves little sympathy. But if he is not protected by the presumption of innocence, then neither are the rest of us. Anything to say, Rimsky?

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