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In the UK a year’s delay is a possible abuse of legal process. In Hong Kong it’s business as usual

Posted in Uncategorized, tagged , , , on May 22, 2024| Leave a Comment »

It is nice to know that we still enjoy the rule of law, as we are constantly reminded. Still there are some important differences between the rule as practised in Hong Kong and what happens in other places.

This was brought home to me last week by reports of the legal problems of Sam Kerr. Ms Kerr is a woman footballer of extraordinary gifts who plays for Chelsea Women and Australia, the country she comes from. Last season’s output here – this year she has been sidelined by a knee injury.

Ms Kerr went out with friends and team-mates to celebrate her team’s victory in the Women’s FA Cup last year and had a few – well perhaps more than a few – drinks, leading to a dispute with a taxi driver and an ensuing dispute with a policeman.

The sequel to this rather routine sequence of events illustrates the different treatments accorded to the normal man in the street, famous footballers, and famous female footballers, when they succumb to the effects of alcohol.

When I was a court reporter people who got drunk in public places were routinely charged with what we called D and D, or Drunk and Disorderly. There were cases most weeks but we did not have to report many of them because the defendant was usually from outside our circulation area.

People who got drunk in public places were either itinerant street sleepers who drank in public because they could not afford to get plastered in a pub with the respectable alcoholics, or holidaymakers who drank in public because they did not want to stop when the pubs closed for the afternoon break which was legally required in those days.

The trial proceeded more as a ritual than a debate. The arresting officer would recite from memory the traditional description of the arrest: “the defendant was shouting and waving his arms about. When I approached him he smelled of alcohol. His eyes were glazed, he was unsteady on his feet and his speech was slurred. I concluded he was drunk.”

The arresting officer would then read out the defendant’s reaction to being arrested, which was often rude though occasionally amusing. I cherish the memory of “Go away and leave me alone or I shall call a policeman.”

The defendant, usually lawyerless, would then offer some mitigation or explanation, with a pledge of future sobriety. After one particularly eloquent promise of future abstinence the presiding magistrate said, quite gently, “Yes. That is what you said last time.”

The defendant would then be sentenced to a small fine, which meant if he was penniless, as he usually was, a few days in prison for non-payment.

If the person concerned is more famous, naturally, this harmless ritual may or may not be changed. Male footballers, like male politicians, are generally expected to be enthusiastic drinkers and would generally have to do something quite attention-grabbing to set the legal wheels in motion.

The situation of women is rather different. After long deliberation the prosecutorial machinery decided that Ms Kerr should be charged on the basis of her “verbal” on being accosted by the arresting cop with “causing racially aggravated harassment, alarm or distress to a police officer.” It may be – the prosecution and defence differ on this point – that she called him a “stupid white bastard.”

Perhaps I am getting old, but I do not remember policemen being so sensitive when I lived in London. In Australia “bastard” is almost a term of endearment, I presume the policeman was not shocked to discover that he was “white” and stupidity is in the eye of the beholder. Ms Kerr may well be sensitive about race; she has ancestors from India.

Anyway this was not the feature of the case which had me rolling on the floor laughing. The odd feature of the case was that her legal team was planning to claim the charge should be dismissed as an “abuse of process” because she was not charged for a year.

Good grief! A mere year? How unlike the life of our own dear justice system. A year in Hong Kong is nothing. The Secretary for Security recently told legislators that the time for a protest-related case to work its way from first appearance before magistrate to conclusion in District Court is “generally from 300 to 400 days or so”.

A team of researchers from the University of Georgetown commented in 2023 that:

Defendants must wait an exceptionally long time to reach trial. We found that more than 41.8 per cent of protest cases take more than a year to complete, with an average wait of 343 days, but this number almost certainly underestimates the true situation as it only includes counts that have completed; those with the longest wait times have now been waiting for well over two years.

And some of them continued to wait. Trials relating to the storming of Legco and disorders at Chinese U, both in 2019, came up last year. A man charged with posting subversive Facebook messages in 2020 was tried only last week. The famous 47, after first hearings at which most of them were refused bail in March 2021, are still awaiting a verdict, as are staff of Stand News, a case also started in 2021.

Probably the current record-holder is Benny Tai, who was charged in July 2021 with election offences committed in 2016. But the competition is lively. The latest prosecution arising from the Yuen Long incident was brought only this year. Of the 10,000 people arrested at one time or another in 2019 there are still at least 8,000 who have not yet appeared in court.

These inordinate delays should not have come as a surprise. Senior barristers warned in 2021 that the justice system could not handle the volume of cases brought to it by a policy of leaving no suspect unprosecuted and no pound of flesh uncollected. They suggested that prosecutors should not pursue cases in which no violence was involved.

This suggestion was not well received. So here we are. Legal delays are not so much feared as expected. The Director of Environmental Protection was recently asked if the government feared its latest development brainwave would be challenged in court. He said “Every judicial review will bring harm to the whole of society. No matter who wins or loses, it will take a long time, often years, to complete.”

Well it takes years to do anything. We have already had one case in which the convicted defendant walked free at the end of the trial because his time already spent in custody exceeded the prison term to which he was sentenced.

Part of the problem may be that Hong Kong judges are used to working rather slowly. They take long breaks. Hearings start later and end earlier than most peoples’ working days. At the end of the trial the judge or judges may take months to produce a decision.

This owes something to the prosecutors’ evident aversion to juries. In a jury trial the question of guilt or innocence is answered by the jury and the judge goes straight on to passing sentence. If there is no jury he must not only determine guilt but give written reasons for doing so. These will be carefully examined by the defence and, possibly, the Court of Appeal. So some care is understandable.

Still, there is someone responsible for all this, and that is the Secretary for Justice, Paul Lam. Mr Lam recently assured us all that we are free to criticise the government so he will presumably not mind my saying that he presiding over a disaster area. Faced with a shortage of capacity in the justice factory he has failed either to expand the staff, speed up the production line or reduce the production quota. So the unfinished work is piling up.

The DoJ’s Prosecution Code says that, “The prosecutor must be alert to the rights of an accused which are relevant to the prosecution process, including equality before the law, the rights to have confidential legal advice, to be presumed innocent, and to have a fair trial without undue delay (my italics) under Basic Law Articles 25, 35 and 87 (Bill of Rights Articles 10 and 11).

Is that requirement really satisfied if the defendant can fit in a four-year degree between arrest and verdict?

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We should not be expected to pretend that press freedom has survived recent changes intact

Posted in Uncategorized, tagged , , on May 15, 2024| 4 Comments »

A strange, indeed barely believable, controversy has erupted over a question which appears hardly disputable: whether Hong Kong still enjoys the degree of press freedom that it did before 2020.

Nothing has changed is the official line pushed by official government spokesmen in Beijing, echoed by local gaslighter general Grenville Cross in newspaper pieces. For the opposite view we have Reporters Without Borders (Reporters Sans Frontiéres or RSF if you are subject to Quebec Province language laws) who are the compilers and curators of the relevant international league table, the World Press Freedom Index.

The message provided by the index is stark. Two decades ago Hong Kong was right up there among the respectable countries to which one might wish to emigrate, at number 18. In 2023 it was number 140 out of 180 countries covered. This year it improved to 138. The compilers gloomily noted that this was not because Hong Kong’s score had improved, but because some others we must now consider rivals had deteriorated.

As a result we have now surpassed South Sudan, Syria, Ethiopia and Lebanon. That is the sort of company in which we now find ourselves.

I realise that compiling tables of this kind is not an exact science. Indicators have to be selected, turned into numbers and aggregated. During this process choices have to be made and different choices will produce different results.

On the other hand it is difficult to believe that any subtle adjustment of the methodology would produce much alleviation of a 120-place drop down the table. People are free to wonder about the details: are we really worse than Bolivia? They may argue that things could be worse. China, after all, sits in place 172 this year, rescued from a lower slot by massive deterioration in Afghanistan, Syria and Eritrea.

However the complacency crew prefer simply to ignore all this. They also ignore some rather obvious anecdotal milestones. When the News of the World was caught in criminal mischief its owner, Rupert Murdoch, was summoned to a hearing in the House of Commons. He was not paraded through his newsroom in chains.

When the Hong Kong Standard was found to have fraudulently faked its circulation figures the owner was not prosecuted at all. The explanation, vigorously propagated by Mr Cross in his previous role as a government lawyer, was that such a prosecution might have resulted in the owner, Sally Au Sian, closing the newspaper and putting hundreds of its employees out of work.

The 900 or so journalists and many other workers who have lost their jobs due to the current spate of prosecutions will no doubt wish that this consideration still found favour in the Department of Justice. Mr Cross, like his successors, seems to have discarded it.

I still encounter working journalists from time to time, as well as people who used to be working journalists, and there is a clear consensus in the profession that times have changed. Indeed a common topic of conversation at journalists’ gatherings these days is who will be next for closure, jail or exile.

Perhaps this is too pessimistic. Mr Cross’s argument, shorn of some wolf warrior points about British hypocrisy, rests on two feet. One is that press freedom is protected by the Bill of Rights, the Basic Law, the National Security Law and its local supplement. The other is that large numbers of media organisations still have “a presence” in Hong Kong.

To take the second point first, this is not an indication of anything except, possibly, that Hong Kong is an easier place for journalists than the mainland, hardly a tribute to our “vigourous media scene”. The figure cited is for December of last year, so it does not include recent departures like those of Radio Free Asia and the Asian Wall Street Journal. Also the inclusion of a “public service broadcaster” in the scene hardly does justice to recent changes at RTHK.

But the legal side is Mr Cross’s speciality and here we are perhaps entitled to be most disappointed.

The Bill of Rights Ordinance was a genuine attempt to entrench notions of human rights in the Hong Kong legal system. It failed. Judges, possibly sensing an attempt to lure them into a political minefield, refused to cooperate. Attempts to rely on the newly codified rights were usually rejected on the grounds that the ordinance merely enumerated the rights that were protected under the existing law. The only substantive effect of the ordinance was the deletion of some “reverse onus” arrangements, under which the defendant was in some circumstances required to prove his innocence instead of the usual arrangement under which the prosecution has to prove guilt.

Judges have been equally unreceptive to suggestions that the provisions about rights in the Basic Law should be interpreted as invalidating any existing law which violates those rights. The national security law is, of course, above local supervision and any attempt to limit its purview would be over-ruled by Beijing.

It is a characteristic of legislation that it supersedes whatever was there before it so the local Article 23 legislation is not going to be much help in court either. Hong Kong, in short, has very fine verbal protections for freedom of the press, but they are in practice no help at all. They are like the similar protections in the PRC constitution. The talk is there; the walk is not.

This is regarded as a commonplace item of information outside Hong Kong and the idea that press freedom in the territory has been curtailed neither originated in nor is confined to the British Foreign Office. It is no doubt held with particular enthusiasm by the three freelance journalists who were refused admission last year, as well as the RSF representative who was barred more recently.

It may well be that things could be worse. We do not have prior censorship yet. The number of apps mysteriously absent from the Apple store matches the number in Russia, but not the much higher number in China. I can still write that we do not live on Planet Cross.

It may also be that national security requires sacrifices, and a reduction in the degree of press freedom available is one of them. I wouldn’t dare express an opinion on that. It is not my nation. But cake cannot be simultaneously had and eaten. Maybe the destruction could have been worse. Maybe it was worth it. But we should not be required to pretend it has not happened.

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‘Glory to Hong Kong’ is going the way of Barbra’s mansion

Posted in Uncategorized, tagged , , , on May 11, 2024| 1 Comment »

In 2002 a geologist called Kenneth Adelman started a project in which he documented coastal erosion in California with a series of aerial photographs, uploaded to the internet and still visible here.

In 2008 he was sued by the owner of a coastal property, Barbra Streisand, who claimed $50 million for invasion of privacy, and asked for an order for the removal of photograph no. 3850, which included her clifftop home:

As a lawsuit this was not a success. Mr Adelman counter-sued under a California law against SLAPPs (Strategic Lawsuits Against Public Participation. Ms Streisand lost and was ordered to pay her opponent’s costs, which came to US$177,000. An order to remove the offending picture was refused.

As a way of preserving Ms Streisand’s privacy this was not a great success either. Before the case blew up “image 3850” had been viewed six times, including two visits from Ms Streisand’s lawyers. More than 420,000 visits were recorded in the month after the case hit the headlines. Everyone now knows where she lives.

In her memoirs Ms Streisand blames her lawyer for attempted overkill. She says she would have been quite happy just to have her name removed from the caption and that was all she asked for. The bid for $50 million in damages was not her intention. No comment.

However the curious result of this affair is that Ms Streisand enjoys a curious form of long-term fame which has nothing to do with her undoubtable proficiency as a singer and actress. The “Streisand effect” is used for attempts to suppress something which achieve the perverse effect of making it more widely known. The effect has a Wikipedia page.

The local relevance of all this is that future updates of the page may well include the Hong Kong government’s long-running efforts to banish the protest song “Glory to Hong Kong” from the internet.

This ditty, a popular item in shopping mall singalongs back in 2019, caused acute pain to local fans of the new order because for a while people who Googled “Hong Kong national anthem” found it at the top of their list, and as a result some people erroneously played “Glory” to salute the achievements of Hong Kong teams in international sporting contests.

The problem, it seems, was that Hong Kong did not have a national anthem – we use the China one – and the website explaining this was only available in Chinese. This has been fixed. Google searches now find a link to the Constitutional and Mainland Affairs Bureau website, where the situation is explained in English.

This is, however, still not the top result. And this is where Ms Streisand’s legal misadventure becomes relevant. The top results are reports of the Hong Kong government’s efforts to ban the song globally, endorsed by the Court of Appeal last week.

I am personally quite an admirer of “Glory to Hong Kong,” both as a piece of music and for the sentiments expressed in the words, which are mostly not about the subversive “revolution of our times” but about “freedom”. Senior judges, it appears, have now noticed that “free” is a four-letter word.

But these qualities are not what has made the song famous. What has made it famous is the government’s efforts to expunge it from the internet. Alas, this horse has now bolted. It is not just out of the stable but over the horizon.

“Glory” now appears in the most unlikely places, including the public piano in Saint Pancras station. Hongkongers who are reassured by Ronny Tong’s learned opinion that it is legal to “have it at home” can download the necessary chords for home performances with guitar or ukelele. But if I understand Mr Tong’s advice correctly the performance must not be audible to your neighbours.

The prospect of the latest appeal hearing catapulted the song up the download charts again. Many international media reported the matter, often providing a link for consumers who wanted to know what the fuss was about.

Data from Google trends, which measures the frequency of search queries, show upticks in interest which correlate with times when the song has been misplayed at sporting events, irate government reactions and ensuing legal attempts to ban it altogether. It is perhaps time for our leaders to contemplate the possibility that if they stop kicking this hive the bees will sleep…

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Binned bag plan: a matter of trust?

Posted in Uncategorized, tagged , , , on May 6, 2024| Leave a Comment »

Nobody is offering any official results, but it seems the outcome of the first test of the proposed solid waste charging regime was not a success.

The scheme, under which we will all have to buy bags from the government in which to dispose of household waste, has never attracted a warm welcome. Following a trial run it is now in so much trouble that politicians who have rarely seen a government proposal they didn’t like are suggesting politely that it might be postponed … possibly for ever.

This is not surprising. The government has a genuine problem in finding places to dispose of the mountains of refuse which Hongkongers produce every day. But for most of us this is an “out of sight out of mind” sort of problem. The charge for waste disposal is just a new tax.

For many years disposing of rubbish was completely free. You did not have to buy plastic bags for the purpose because most households simply reused the free bags provided when they shopped in a supermarket.

Then the government forbad the distribution of free shopping bags. So we all had to buy a non-disposable shopping bag for use in the supermarket, and rolls of garbage bags to dispose of our rubbish in. Now the government proposes to require us to buy our garbage bags from official sources. They will not be cheap.

The official position is that this is an extension of “the polluter pays.” But there should surely be limits to this. We are not expected to pay a carbon tax on the gases which we all emit when we breath out. And the provision of clean facilities is an important ingredient in a clean environment.

We do not charge people for the use of public toilets because we don’t want them doing it in the street. If we charge for waste collection some people are going to go back to a common tactic in early public housing estates, which was just to throw refuse out of the window.

As taxes go, moreover, this one is highly regressive. That is to say that it bears more heavily on the poor than on the rich. It is impossible to live a modern life without producing some solid waste. This does not increase in proportion to your wealth, although no doubt rich people do produce more. Also those who have the money and space can splurge a couple of thousand bucks on a simple garbage compressor which will reduce their consumption of government bags by half.

Anyway whether you look at this is a tax or an environmental reform it involves people paying for something which used to be free. It should come as no surprise that this is not a wildly popular innovation.

Apparently similar schemes have been introduced in other places and accepted without protest, or at least without enough protests to discourage imitation.

This brings us to a point which will probably not feature prominently in the public discussion of the charging scheme, which is that whether a painful but necessary innovation is accepted depends on a lot of extraneous factors, besides whether there is a real need and the charge is reasonable.

The most important of these outside matters is the relationship between the government and governed, and here there is perhaps room for some soul searching.

Hong Kong people do not, I fear, believe they get a great deal from their government. Defence is not our business. Public education and health care are provided, but those who can afford it prefer private alternatives which are better, or at least less crowded. The enterprises which run transport and utilities are perhaps admired, but they are not allowed to set their own fares and charges. Increases in fares and charges require government approval. So good service is credited to the providing companies but increased expense is blamed on the government.

Then there is the no doubt misleading but potent impression that the main preoccupation of our leaders these days is national security. There is more to this than putting popular people in jail, out of business or both, but that is the part which makes the headlines, and offends.

So we have an interesting paradox. All formal opposition to the government has been crushed. But it does not have enough confidence in public trust to attempt controversial reforms. It is simultaneously irresistible and weak, a giant with the courage of a gazelle. This may be fixable, but by them, not by us.

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A national security sentence is longer than you think

Posted in Uncategorized, tagged , , on April 25, 2024| Leave a Comment »

It is a commonplace political observation that carelessly passed legislation often has unintended – and maybe ridiculous – effects. Our newly minted local legislators seem to have neglected this important warning.

We are all, these days, eager to secure national security. Attempts to achieve this by jailing those convicted of national security offences for long periods have reached a curious position.

Readers will recall that under the national security law bestowed on us by Beijing, national security offences come, like Pacific Coffee, in three sizes: small, medium and large. Those convicted must be imprisoned (there is no room for the usual alternatives; they do not mess around in Beijing) for terms ranging up to five years, from five to ten years or from ten to 15 respectively.

It has already become clear that five is going to be a hot number. In the present climate nobody, or at least nobody in the Department of Justice, is going to risk classifying a nat sec offence as anything which could be mistaken for “trivial”. So the popular classification among prosecutors is the medium one.

When the case finds its way to the sentencing judge, however, some comparison is inevitable with sentences commonly imposed in less political cases, and a five-year stretch is usually reserved for cases involving the violent separation of a victim from his health or property, or large quantities of drugs.

So five years is likely to seem enough for nat sec cases, most of which involve the holding and expression of inconvenient opinions. Note, though, one curiosity which will become relevant later: the Court of Appeal has decided that the five years is not a guideline, like the conventional suggestions on sentencing which it dispenses. Five years is a solid minimum, so the usual discount for pleading guilty is not available.

Traditionally, if you pleaded guilty, you got a third knocked off what would otherwise have been the sentence. Recently local judges have followed an odious innovation from the UK and replaced the one third discount with a sliding scale. You get one third off if you plead guilty at the earliest opportunity. After that the scale of the discount declines, reaching 20 percent at the trial kick-off and ten percent later.

The objection to this is that it encourages prisoners to admit offences before taking legal advice, which in complicated cases may mean they admit a charge to which they have a good defence. Never mind.

Now we come to the local contribution to the punishment regime, which is that nat sec prisoners will not be eligible for any of the usual early release schemes, unless the Commissioner for Correctional Services is satisfied that they will not infringe again.

Given the difficulty of proving a negative and the degree of nat sec paranoia expected of senior officials these days this looks like a plausible way of ensuring that nat sec offenders are going to be enjoying the correctional M and Ms for a long time. No doubt that is its intention.

And this gives rise to a curious situation. Let us take two prisoners, who were arrested on the same day and kept in custody thereafter. One of them is an Ordinary Decent Criminal (a term coined in Belfast for miscreants motivated by greed rather than politics) and the other is a nat sec offender.

The ODC has committed armed robbery. The judge takes as his starting point in sentencing the guideline supplied by the Court of Appeal for this offence (provided no firearm is used) which is five years. The ODC has pleaded guilty at the first opportunity so he gets the full one third discount and is sentenced to three years and four months in jail. The nat sec offender, whether he has pleaded guilty or not, gets the grande five-year minimum.

Let us suppose they share a cell. You may think that the ODC, lucky chap, will be leaving a year and a half or so before his neighbour, but that is not so. He can apply for release under supervision after serving half of his sentence, which would be just 20 months, or a little over a year and a half. If he does not fancy being supervised by the Correctional Services he can wait a bit longer and, if he behaves himself, get the discount for good conduct which is one third of your sentence. This would get him out after just over two years, on the streets and unsupervised.

At this point his cellmate still has virtually three years to serve. This is likely to strike both of them as rather unfair.

You can look at it another way. What would the sentence have to be if a judge wished to ensure that an ODC would actually, like our nat sec offender, be off the streets for five years, even if he qualified for the guilty plea discount and early release. The answer is 15 years.

This weird situation is a predictable result of the system of sentencing and imprisonment which has been around a long time. You might hope that legislators who were proposing to tinker with it would have first studied it in sufficient detail to avoid constructing obvious new anomalies. You would hope in vain, apparently.

The purpose of the guilty plea discount is to encourage early pleas, which save the time and expense of a contested trial. It appears that if you are accused of a nat sec offence you might as well try your luck in court. You won’t get the discount anyway. At least it will give you a few chances to wave at your mother.

Similarly the purpose of releasing prisoners early if they behave themselves is to encourage conformity to prison rules and sincere participation in rehabilitative activities. If these are desirable objectives you might think they would be equally desirable for all prisoners.

National security is an important objective of the law and order industry. So is fairness.

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Civil service numbers suggest our happiness may have been exaggerated

Posted in Uncategorized, tagged , , on April 16, 2024| Leave a Comment »

The finer points of civil servant staffing are not usually a hot news topic. But the latest grim update from the Civil Service Bureau was eagerly covered by both English-language newspapers. This may have been an effort to avoid the alternative story offered the same day about civil service dismissals.

But it was not surprising that different reporters made different choices. The “source” was the Civil Service Bureau’s written replies to questions from legislators in response to the budget speech. These were all published on the same day, involved a great deal of repetition and ran to no less than 362 pages.

Having browsed in this heap of information I think I would have gone for the dismissals as being more interesting. The leading reasons for dismissal from the civil service in the last five years were:

  • Failure to get a COVID vaccination (21 cases)
  • Absence/lateness (20)
  • Shoplifting/theft (18)
  • Sex-related offences (14)

Offences against public order and other protest-related peccadilloes only amounted to six. My personal favourite category was “Others (e.g. illegal gambling, perverting the course of justice, computer-related offences, murder etc)”. It is nice to know that murder is grounds for dismissal, though other punishments are probably more salient to the criminal concerned.

However, to the grim news. This was that, as the Standard put it, “The bureau said on Friday that the number of departures in the civil service increased from over 8,500 people in the year 2018-2019 to over 10,100 people in the year 2022-2023. Among them, nearly 1,000 people were under 30, and almost 3,000 had less than ten years of service.”

This might lead the careless reader to think that civil servants were heading for the nearest exit in droves. Hong Kong has about 160,000 civil servants and the normal length of service for a graduate entrant would be something over 30 years. So you would in normal circumstances expect about 5,000 people a year to leave simply because they have reached the retirement age.

And unless I have completely misunderstood the Civil Service bureau’s tables, that is roughly what happens. More than half of the 10,000 “departures” were because of “retirement” (5,918 out of 10,126 in 2022-3). The category which we should be worrying about is “resignation”, which is much lower but rising (1,863 in 2020-21, 3,863 in 2022-23).

And the worrying thing about this is that if you look at the departures broken down by age groups the figures for 20-50 total 3,479, nearly half of whom are in the 30-40 bracket. There must be at least a suspicion that many of these comparatively young professionals are not just leaving the civil service, but Hong Kong as well.

This in turn suggests that official estimates of the level of happiness produced by recent changes have been somewhat exaggerated.

This is rather born out by the figures for individual departments. The two which are particularly beset by a large number of unfilled vacancies are RTHK and the Police Force.

RTHK had the highest vacancy rate of any government department, at 24 per cent. No wonder they have robots reading the weather bulletin. Indeed, looking at their news output there is clearly a wider role for Artificial Intelligence. Even a dumb computer can rewrite government press releases, which seem to be the favoured news source these days.

The highest absolute number of vacancies is in the police force. The force had 1,180 resignations last year which, looking on the bright side, was lower than the record high of 1,802 recorded in 2019-20.

It appears, unsurprisingly, that life in the force since 2019 has changed, and the arrival of national security and peaceful streets has produced further different changes, leaving quite a lot of police folk feeling that the new lifestyle is not what they signed up for.

In particular the force is, alas, no longer held in the high levels of public esteem to which it believed itself to be accustomed and entitled. It has a large and efficient public relations organisation. But expecting adroit reputation management to obliterate painful real-world memories involving tear gas and pepper spray is to ask more than public relations can deliver.

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On the ethics of the Octopus button

Posted in Uncategorized, tagged , , , , on April 8, 2024| 2 Comments »

An interesting ethical dilemma cropped up on my local green minibus the other day. Of course this is unusual; discussions of moral philosophy are not common on the 69K, but there it was.

To understand the issue at stake we must briefly explain that there are three ways in which your Octopus card in the special elderly version, now known as Joyyou, works on public transport. On the MTR your entry and exit are recorded. The machinery knocks $2 off your Octopus and bills the government for the rest of what the journey would have cost.

On big buses the situation is different. Your Octopus is read when you get on, but not when you get off. So the charge assumes that you travel to the end of the line. Of course the fare drops as the end of the line gets closer, but if you get off early that is the government’s tough luck. You still pay $2 but the government is charged for the whole trip, including the part you weren’t on the bus for.

This wrinkle in the system is the source of some anguish among transport officials, because they suspect that some people are avoiding queues or ensuring a seat by getting on unpopular long route buses for short trips.

Minibuses feature a system of their own. There is a button on the Octopus reader. If you press it the default setting – the fare to the end of the line – is replaced. The machine cycles through the possible fares, and if you plan to get off early you can choose the appropriate one.

We Joyyous elderly folk do not have to worry about this, which is perhaps just as well. Our other local green minibus route, the 811, is notorious for the grumpiness of its drivers. This is because it has a complex range of fares, so the drivers are constantly asked which one is applicable by baffled passengers.

Well, on my rare minibus excursions I simply dab the Octopus, which costs me $2. But this, according to our local street philosophers, may be wrong. If I am traveling to the end of the line the government is charged the rest of the fare, which means currently about five bucks. If I am getting off earlier I can push the fare change button and the government will accordingly cough up only the lower fare, minus my $2.

The person who raised this issue suggested that those of us who were not adjusting the government’s contribution according to the length of our trips (I must admit that in my case it had not crossed my mind that this was possible, but still …) were increasing the government’s already considerable financial problems and were accordingly guilty of antisocial behaviour.

This view did not go unchallenged. Some passengers thought that as the government’s money was our money there was no reason why we should not decide to use some of it to support our local minibus company, an important and unsubsidised public service.

Pessimists noted that the passenger getting a $2 trip had nothing to gain by pushing the button, and the driver had nothing to gain by encouraging it. So it was not very realistic to expect people to take the trouble. Underlying these arguments, perhaps, is the changing relationship between Hong Kong people and their government in recent years.

This point seems lost on local lawmakers, some of whom have been dangerously keen to abolish or curtail the whole $2 ride scheme. Be careful, gentlemen. It is the public’s general suspicion that some legislators are there to help the people, and some to help themselves. Cutting benefits to which you are not entitled could put you in the second category.

Admittedly the scheme is expensive. It is expected to cost a total of about $6 billion this year. The introduction of a senile card with a picture of the holder is expected to curtail fraud considerably.

But everyone knows why the costs have gone through the roof: it was Carrie Lam’s foolish decision to lower the age of eligibility to 60. Most people aged 60 are still working, officially or unofficially. Someone who is still commuting five days a week could easily make 20 subsidised trips a week, before he starts on leisure or shopping trips. After the change was made the number of subsidised trips a day almost doubled, from 480,000 a day in March 2022 to 890,000 in March last year.

But withdrawing or curtailing benefits of this kind has problems of its own. It is a commonplace of behavioural economics that losses produce more pain than the pleasure produced by gains of similar size. This means that if you give the public something, and then take it away, we do not all return to where we started. We are all pissed off.

So we have here an interesting dilemma for the Financial Secretary. Still, looking on the bright side, Hong Kong is well placed to weather the coming increase in the proportion of elderly people in the population. This is because, compared with many other advanced societies, it is extremely sparing in providing pensions.

The only non-mean-tested benefit is the fruit money, which is paltry. The other benefits, which are less paltry, are only for those who can prove their poverty. So must of us dinosaurs do not get much for our years of dutiful taxpaying. Cheap rides are welcome. If the government wants to reduce the costs of the scheme without offending beneficiaries in the 60-65 age range, it might consider switching the concession off during rush hours.

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Surely the national security loopholes were not as big as this?

Posted in Uncategorized, tagged , on April 1, 2024| Leave a Comment »

It seems to be a rule nowadays that no criticism from overseas of our local national security arrangements can be allowed to pass unchallenged, or indeed uncondemned. This is fair enough, although no doubt it would be fairer if local criticism were still allowed.

No doubt there are many matters in this area on which intelligent people might politely disagree. We are all entitled to our opinions. But, as a great editor of the Guardian once put it, comments are free but facts are sacred. I do not wish to express any opinion on the merits of recent legislation. Its defenders, though, should be discouraged from rewriting history.

This brings us to Mr Ambrose Lam San-keung, who recently penned a piece for the China Daily defending the latest legal changes against criticism from the International Bar Association’s Human Rights Institute. The institute, said Mr Lam, has made “unsubstantiated claims” about the Safeguarding National Security Ordinance.

Mr Lam then canters through the usual whataboutisms – some Western countries provide no protection for whistleblowers, some limit the right to choose counsel, and so on. And then we come to this:

“No country would allow any seditious speech or publication that incites mutiny, disaffection, hatred, violent acts, or disobeying laws. No country would allow any association to provide training in using offensive weapons or military exercises without the government’s permission. No country would accept any assembly that aimed at sabotaging public infrastructure.

Surprisingly, before the enactment of the Ordinance, Hong Kong enjoyed “freedom” of incitement, sedition, unlawful military training, and sabotage of public infrastructure. As a result, riots broke out in 2014, 2016 and 2019.”

China Daily, April 1

I take this to mean that, in Mr Lam’s view, Hong Kong had no laws against incitement, sedition, unlawful military training or sabotage of public infrastructure, and this absence caused the riots in 2014 (sic), 2016 and 2019. This is an “unsubstantiated claim”.

Leaving aside the questionable matter of cause and effect – I do not recall any rioter explaining his malfeasance as a protest against the absence of relevant laws – the matter of large legal absences is easily dealt with:

  • Incitement and sedition were first criminalised by the Seditious Publications Ordinance of 1913. The ban was extended to acts by the Sedition Ordinance of 1938 and the whole matter was wrapped up in the Crimes Ordinance in 1971, at which point inspiring disaffection or mutiny in the disciplined forces was added. We may note in passing that the sedition offence was abolished in the UK in 2009 as archaic, infringing valuable freedoms and “used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom.” Present company excepted, of course.
  • Sabotage of public infrastructure was covered by the law on criminal damage, which resides in the Crimes Ordinance Section 60. It includes: “A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage it or being reckless as to whether it would be destroyed or damaged is liable to imprisonment for 10 years. If a person destroys or damages any property … intending to endanger the life of another or being reckless as to whether the life of another would be thereby endangered is also guilty of this offence and is liable to imprisonment for life.”
  • The law on unlawful military training is also in the Crimes Ordinance, at Section 18, under which it is an offence if a person “trains or drills any other person in the use of arms or the practice of military exercises or evolutions” without the permission of the Governor or the Commissioner of Police.”

Mr Lam is an educated member of a learned profession so we must accept that when he writes rubbish he really believes what he says, and is not merely spouting propaganda “being reckless as to whether” it is true or not.

Disturbingly, he is also a member of the Legislative Council. His latest writings give rise to some doubt as to whether all members of that body had even a superficial knowledge of the existing law when they agreed to substantial amendments of it.

More disturbingly still, Mr Lam sits in the council on behalf of the legal functional constituency. He is in fact a lawyer. You might think that other members would expect learned and accurate advice from him about upcoming and existing legislation, and that opinions on these matters which fall from his lips would be particularly influential for non-legal members.

In his defence, I suppose, Mr Lam might blame the copy editor who worked on his offering, which will cut no ice with me because I used to be one. Or he could say that he did not mean what he appeared to mean and I have perversely insisted on using a literal meaning which was not what he intended.

Legislators – and lawyers – should be careful in their choice of words.

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New National Security law is open to abuse; lawmakers should fix it

Posted in Uncategorized, tagged , , , on March 11, 2024| 2 Comments »

The thing that worries me about the proposed local national security legislation is that it seems to have been drafted with scant consideration of the likely consequences in practice. After all our judges and prosecutors have already had national security legislation to play with for three years, and some things have become obvious.

For example, the arrangement for bail in national security cases is in theory that the magistrate must be satisfied that the defendant is not going to commit another national security offence if released pending trial.

As the organised opposition, or even the organised criticism, has been trampled into the dust and the revised constitution no longer offers a role for dissident politicians you would think this was a fairly easy condition to satisfy. In practice the prosecution invariably opposes bail and in the vast majority of cases bail is refused.

Similarly under the existing national security law the Secretary for Justice may – but does not have to – ask for a juryless trial before three national security judges. On every occasion so far when a jury trial might have been appropriate the prosecution has in fact opted for a juryless trial. It is difficult to believe that this is entirely unconnected with the pleasures of having three judges of your own choice deciding on the success of your prosecution. Accordingly it seems likely that this is now a routine practice and there will never be a national security trial before a jury.

Turning to the new proposed “Article 23” version we can see number of areas where something similar may be expected to happen.

Consider for example the proposed exemption from the rule that a suspect in custody must be charged or released within two days. This will be replaced by an arrangement under which a senior police person can ask for 14 days of uncharged custody to allow inquiries to proceed, with the possibility of further renewals for seven days at a time.

In other jurisdictions this is a rarely used option which comes up in cases where the prosecution would have to rely on, and disclose in open court, evidence obtained clandestinely or from an overseas source. It was introduced in a panic after a raft of terrorism cases, and it was and is clearly understood that it would be used seldom, in cases where there was a real concern about what the arrested person might get up to if released.

No such condition is incorporated in the proposed law here. In the light of practice so far you have to be very optimistic to dismiss the possibility that arrested suspects will be subjected to an ordeal practically undistinguishable from indefinite detention without trial or charge. The police will always find it convenient to have the suspect to themselves for two weeks. They will also find it easy.

The limit on detention is of course a limit on police powers, and it is intentionally so. It is an important protection for suspects who, in the end, may not be charged at all, and if charged may in the end be acquitted. We can all think of cases in which it would be necessary and desirable that a suspect should be detained for more than the stipulated couple of days without charge. In practice, though, that is likely to become a rule, rather than an exception.

I have similar misgivings about the proposed restrictions on suspects’ right to choose their own lawyers. Once again we can all think of scenarios in which this might be a useful power, and might be used to prevent a serious breach of public order. Once again we have to wonder whether it will be used as rarely as these unusual scenarios imply.

Or there is the curious proposed arrangement under which national security prisoners would not be eligible for early release on the same terms as other prisoners. This is curious because we must supposed that the existing arrangements for early release include an assessment of the inmate’s chances of reoffending if returned to the outside world.

Asking the Commissioner for Correctional Services to certify in addition that the prisoner will not reoffend against the national security legislation places a civil servant with no relevant expertise in a hot seat, from which the most comfortable exit will be to refuse to release the person concerned. Which is perhaps the intention.

Then there is the question of “absconders”. An absconder, properly understood, is someone who has been charged with an offence and flees the city to avoid trial. On the other hand Hong Kong people have the right to emigrate if they wish to do so and there is nothing in law or morality to suggest that they have a duty to return to Hong Kong if the authorities later decide to charge them with an offence.

As before we can all think of rare occasions when a more flexible interpretation of this would be useful, and there would be some legitimate purpose in the proposed laws against people having anything to do with an “absconder”. We can also see scenarios in which a sensitive government, stung by criticism in an overseas country from a Hong Kong exile, would charge him with an offence, issue an arrest warrant and classify him as an “absconder” on the basis of actions or words which were perfectly legal in the place where the actor or speaker did or spoke them.

Of course defenders of the proposed legislation will say that we should trust officials to do the right thing and not abuse powers which are clearly open to abuse. But our government has form in this area.

The rule of law requires that the powers conferred on officials should be used in good faith for the purposes for which they were intended, as Lord Bingham put it in an important book on the subject. But this is not what we see in Hong Kong. Here we see opposition coffee shops submerged in an avalanche of sanitary inspections, inconvenient bookshops driven out of business by a similar sort of bureaucratic persecution, and huge tax bills landing mysteriously in the letterboxes of organisations that have had the temerity to ignore calls for their dissolution in the government’s poodle press.

Legislators should approach proposed legislation on the basis that if a power can be abused it will be abused, and adjust it accordingly. Critics condemn the new patriotic legislature as a puppet parliament, a congress of complacency full of people who have never seen a government proposal they didn’t like. The new national security bill is a chance for legislators to prove the critics wrong. Or not.

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Diet or die! Do we really need a World Obesity Day?

Posted in Uncategorized, tagged , , , on March 7, 2024| 1 Comment »

It was, as I am sure you noticed, World Obesity Day last Monday. World Days are surprisingly common. The United Nations has about 200 of them, starting with World Braille Day on January 4 and finishing the year with the International Day of Epidemic Preparedness on December 27.

But World Obesity Day is not one of the UN ones, it is an unofficial, or less official, offering from the World Obesity Federation. No, I had never heard of it either.

In fact it is a bit of a mystery why World Obesity Day qualified for a decent third of a page feature in the Standard from the agile pen of Adelyn Lau. There was no recognition in the paper of World Wildlife Day, which was the day before. Well all right they don’t print on a Sunday, but March 1 passed with no mention of the fact that it was in fact two Days: World Seagrass Day and Zero Discrimination Day.

Similarly, Tuesday’s International Day for Disarmament and Non-proliferation Awareness passed unremarked, as far as I could see. Perhaps tomorrow will attract some coverage; it’s International Women’s Day.

Personally I found the idea of a World Obesity Day somewhat confusing. Presumably on World Seagrass Day one consumes, or cultivates seagrass. According to the government website there are some seagrass beds in Hong Kong “but they are generally small and sporadic”.

And I suppose on World Press Freedom day one pursues or cultivates press freedom, which is also, in Hong Kong, a bit small and sporadic these days.

In the light of these thoughts it is tempting to suppose that the appropriate way for a conscientious citizen to mark World Obesity Day would be to go out for a double cheeseburger with extra fries. But of course this is wrong. Some World Days are about things you should avoid, like Violent Extremism as and when Conducive to Terrorism (February 12) or Illegal, Unregulated or Unreported Fishing (June 5).

Anyway, to return to obesity, I did notice a certain lack of balance in Ms Lau’s otherwise fluent feature. Those interviewed all turned out to be officials, or the founder, of the Hong Kong branch of the World Obesity Federation. A picture showed all these sources together, looking admirably trim. Unsurprisingly they all had different way of saying the same thing: that obesity should be avoided at all costs.

It is no doubt true that obesity has been “associated” with up to 224 diseases, and the overweight are likely to be over also in measurements of blood pressure, cholesterol and blood sugar. Clearly people who are very overweight have a problem.

And yet… Is it really true, as the Department of Health data says, that 55 per cent of the population of Hong Kong are either overweight or obese? That is more than half. I am sure I am not the only person who does not, in ordinary everyday encounters with Hongkongers, find that more than half of the people I meet are overweight or, as we used to say before euphemisms became compulsory, fat.

One also wonders, with all due respect to the pure motives of the local obesity fan club, whether stirring up anxiety about people’s weight is really such a good idea. It risks tossing many people with a minor, or no, problem into the slavering maw of a large and greedy industry, which makes its money out of people’s desire to lose weight.

As Stuart Richie points out (in “Science Fictions”) it is really hard to draw firm conclusions from research into the effects of diets, and vested interests are happy to push dodgy conclusions out to unsuspecting consumers.

It seems also that medical opinion is increasingly sceptical about the value of badgering people to lose weight. Dr Joshua Wolrich (in “Food isn’t Medicine”) argues that people’s ‘natural weight’ varies enormously and simple formulae used to measure whether you are overweight are not actually very helpful.

People who really eat more than they need, he suggests, are responding to personal or medical problems; the over-eating is a symptom and the cure is to solve the underlying problem.

Meanwhile it is important to foster in everyone a ‘healthy attitude to food’. Otherwise, for every middle-aged man saved from heart disease by dedicated dieting there will be an adolescent, probably but not invariably female, tipped into eating disorders by over-anxiety about the effect of food on her health and appearance.

Well no doubt there are no easy answers to these questions. In my experience losing weight is hard, but not impossible. One does not get much help from the environment, which constantly offers delicious but fattening temptations. It is perhaps time for the United Nations to consider critically the existence of its International Day of Potato (May 30).

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