tim's experiment

Sometimes, as Joni Mitchell sang many years ago, you don’t know what you’ve got till it’s gone. Writing comments about public affairs only makes sense if there is a conversation to which you are contributing. But if one participant in the group erupts into angry shouting whenever criticised, you can’t have a conversation.

We are, of course, in dangerous times for people who do not share our government’s high opinion of itself. But the need to tiptoe through a legal minefield is only part of the problem.

There used to be a dialogue in which the government expressed its views through various channels and accepted that other views would be expressed through other channels, or indeed in the more broad-minded media in the same channels.

In order for this to be at all meaningful, though, it is necessary for both parties to entertain at least as an extraordinary and remote thought the possibility that they are wrong and the other people are at least partially right.

Nowadays the government has its own facts and its own version of history. Any expression which does not actively subscribe to both is to be contested and condemned. Or as the Secretary for Security put it in a recent speech, “You can’t use misleading accusations to vilify the government … the government must speak up, clarify and condemn… and give the citizens the right to know.” This is not the context in which “the public right to know” usually comes up.

Still, it sounds very nice in theory but the practice is that comparatively harmless cartoonists and writers face a constant flow of official abuse, or as the Hong Kong Journalists Association put it when Ming Pao axed a long-running cartoon this week, “Backed by abundant resources and public power, the SAR government repeatedly targeted a mere [cartoonist], reflecting that Hong Kong cannot tolerate critical voices.”

I awaited with confidence an official clarification and condemnation of the JA’s many sins and errors, culminating in the claim that the government “welcomes criticism”, though in the light of recent and forthcoming electoral reforms criticism is likely to be in short supply. And here it is.

It is difficult to explain how the SAR government turned into such an intolerant creature. Was it encouraged by the local representatives of the motherland to dial up the Wolf Warrior domesticity? Or is this the result of the whole government adopting the approach of our historically prickly police force?

Legal intimidation through other channels also continues unchecked. This week Transit Jam, a website devoted entirely to the consideration of transport and planning matters, hastily closed after being attacked by one of the Liaison Office’s poodle papers.

Another straw in the wind: Baptist University effectively banned its student union because the latest leadership team had allegedly included “exaggerated, unfounded and biased” descriptions of past events in its annual work plan, election platform and budget published online.

I do not blame BU. Local universities are clearly no longer expected to have student unions. The only surviving one is now at Chinese U, and if I were its president I would be investing in a flak jacket.

But the person who complained (namelessly) to BU was clearly in tune with the times: there is an official version of history and deviations from it are not to be tolerated. Also last week a reporter was scolded in a press conference for referring to “the 2019 protests”. Apparently the only acceptable phrase now is “black violence”.

The conclusion to be drawn from all this is that there is no longer any point in writing about local politics. We still have politics, of course. Everyone has politics. Even North Korea has politics. But our politics are no longer conducted in public, so it is a disservice to your readers to write about the pantomime provided in its place.

Also the risks seem to be increasing. There were, to quote another old song, “Ten green bottles hanging on the wall” and they have been falling one by one. I do not aspire to be the last one. I am still up for new experiences but the inside of a Hong Kong police cell is not on my bucket list.

So no more politics. This will please (or perhaps disappoint) the readers who from time to time express surprise that I am still at large. I will try to find less stressful things to write about.

Tanya Chan, former legislator and former barrister, has been censured by the disciplinary committee of the Bar Association for “bringing the profession into disrepute” in two speeches made in 2014 to Umbrella protesters. That is a long time ago. Over the proceedings hangs a familiar smell.

Many will find it surprising that the Bar Association seems to have overlooked a worrying possibility: that any harm to the profession’s repute accruing from Ms Chan’s oratorical indiscretions will be outweighed by the harm caused by the appearance that this is a voluntary contribution to the government’s efforts to throw any legal brick it can get its hands on at anyone who – in the dim and distant days when Hongkongers thought they could say what they liked – called for more democracy.

We all understand that legal proceedings — especially those involving any kind of prosecution – move very slowly. Consequently it may well be that lawyers have a different sense of time from the rest of us. Even so the anonymous complainant in this case seems to have been extremely dilatory.

The speeches complained of were made in 2014. No prosecution ensued until 2017. In the meantime a complaint could have been made, and was not. Ms Chan and others were then charged with variations on incitement to commit a public nuisance. The matter thus became sub judice so a complaint would no doubt have been postponed anyway. In 2019 however verdicts were returned and the matter became discussable again, although Ms Chan was not sentenced until the following year for medical reasons.

There ensued another three years in which the complainant could have come to the rescue of the profession’s reputation. In 2021 Ms Chan emigrated to Taiwan, which you might think would render the proceedings pointless.

On the other hand in January 2022 a new regime took over at the Bar Association after bitter complaints from government supporters about its predecessors. The new regime promised “no politics”, which usually means politics of a different kind. The complaint was filed the following August.

In short the complainant, we are asked to believe, waited eight years, in six of which a complaint could have been dealt with promptly, before the urge to protect the profession’s reputation became overwhelming.

We are not told who the complainant was; the prosecution was on behalf of the Bar Council. At best, it appears that the complainant waited until he or she thought the political winds had changed and a complaint might be more warmly received. At worst this looks like a deliberate bid to test whether the new leadership of the Bar has got the drift of the times.

I note with amazement that one of the counts against Ms Chan was that she “did nothing to warn the audience of their potential legal liabilities”, which must surely be the first time a lawyer has been punished by her colleagues for not giving legal advice for which she had not been paid. As it happens none of the audience was prosecuted so the potential legal liabilities remain – well, potential.

Also on the financial front, Ms Chan will not be much inconvenienced by a formal censure, since she is neither practising nor living in Hong Kong. However connoisseurs of legal costs will cherish a fine specimen of comprehensive billing: Ms Chan was ordered to pay $140,000 costs of the action to the Bar Council.

This seems rather a lot for a case in which the defendant effectively pleaded guilty and the facts could be lifted from the previous court case over the same matter. This is after all not a major complaint: there is no aggrieved client, no denunciation of incompetence from a disgusted judge, no missing money. I would not personally blame Ms Chan if from the safety of Taiwan she told the Bar Council their cheque was in the post and was likely to remain there for a long time.

Anyway, there we are. The question which then arises is how long and how far the effort by the government and its fans to dig up legal brickbats they can throw at retired democratic politicians will go.

Are we going to follow in the footsteps of Pope Stephen VI, who in 897 had the body of his deceased predecessor dug up and put on trial, with a hapless Deacon conscripted to the role of defence counsel to a silent and presumably rather smelly client?

Will there be international snatch squads, like those who roamed Europe on behalf of Charles II, hunting for the people who had signed his father’s death warrant?

The rule of law is not just a matter of whether you have the people and machinery. It is also a matter of the uses to which they are put. Contemplating the rise of the dictators in Europe in the 30s, the American judge Richard Posner noted the “extraordinary plasticity of legal rhetoric, which enables a clever judge to find a plausible form of words to clothe virtually any decision, however barbarous.”

Of course that is not the kind of thing that could happen here. Is it?

The doings of our new legislature continue to provoke riveting – well at least copious – coverage in the sycophant press. Generally this is not very interesting reading, but for those who are prepared to dig through the chaff, wheat occasionally emerges.

The Legislative Council’s latest masterpiece was a four-day tour of near-by cities. No less than 83 councillors made the trip. No doubt the remaining seven who declined the honour will be appropriately chastised in private. Also on the bus were five government officials and Chief Executive John Lee.

Mr Lee was reported as saying that the trip had achieved “three results and three understandings”. Diligently scanning the report I was unable to locate the “three understandings”, but the “results” were “legislators and officials achieving unity, showed Hong Kong’s attitude to integrating into the Greater Bay Area, and reaching consensus with GBA cities to develop unity”.

No doubt this sounded better in Chinese.

“Hong Kong and the GBA cities,” he said, “also established a consensus to work jointly to promote the development of the GBA to a higher level, to achieve twice the result with half the effort.” One does not wish to discourage worthy ambitions, but this is not the way the mathematical relationship between effort and result usually works.

Mr Lee also promised to take “patriots administering Hong Kong to a new level”. Quite what that might involve is a puzzle. Has the purge of non-patriots not been comprehensive enough? Perhaps this is just a euphemism for the up-coming unveiling of election-free district councils.

Anyway this is all quite routine stuff. Large group of people get four days of VIP treatment in return for spending a great deal of time sitting in traditional Chinese furniture drinking tea and listening to speeches in PTH. Mr Lee seems increasingly fluent in mainland officialspeak, which is no doubt a necessity in his job.

There was, though, a surprise. Mr Lee said that the delegation had “pleasant communication with each other” and the trip was “full of laughter”, something which (in the Standard’s summary) was missing before the electoral system was reformed. No wonder they had to change it.

This is nice for defenders of our new reformed electoral system. It may not be as democratic or as exciting as the old one, but look on the bright side: for the new legislators it is a laugh a minute. Actually this is a risky look on the mainland. Officials there tend to take themselves very seriously. Giggle at your peril.

On the other hand it would be perfectly safe and satisfactory it this talent for entertainment were to be displayed in local Legislative Council meetings, where funny moments have generally been rather thin on the ground.

Mr Lee did not, alas, provide any specimens of the jests which had our representatives rolling on the floor laughing, but aspiring stand-up comics in the territory may be able to make something of the last stop on the trip, which was in Guangzhou.

Here they were treated to a visit to a subterranean treat called the Lijiao Wastewater Treatment Plant, which is sited 17 metres underground. This is what we used to call a Sewage Farm, where excrement is magically separated into drinkable water and sludgy fertiliser.

Elizabeth Quat Ph D (Phoney Degree) thought this was something Hong Kong could learn from.

Insert your own joke here. All my ideas are too seditious to print.

During what I now think of as a fallow period between university and journalism I lived in Lancaster, and several of my fellow drop-outs worked at the docks in the nearby town of Heysham

The port at Heysham is very small, and in those days still worked on a recruitment system which the big docks had recently abandoned. Every morning would-be workers would gather at the gate, and at 9.00 the boss would emerge and choose his team for the day. This was known technically as the “casual” system.

Effectively you were hired – or not as the case may be – on a daily basis. This system had been defended for years as necessary because of the wild fluctuations in the amount of work to be done on any one day, depending on the number of ships, types of cargo, state of tides and so on.

Even its defenders conceded that the arrangement had many disadvantages for both sides. For the workers it meant a permanent state of insecurity; those who were not favoured by the selector unless he was desperate might struggle to assemble a wage they could live on.

From the employers’ point of view the workers could not be expected to display any enthusiasm or commitment to the work. They had an incentive to make it last as long as possible and could not be prevented from pilfering vigorously from the cargoes in their care.

Large docks were neither efficient nor clear of corruption. When my father collected a consignment from the docks in London he used to take with him a bag of half crowns (the most valuable coin then available, worth maybe HK$20 in modern money) to grease the various palms which would be held out on the way to his crate.

So it was a bad system which the employers eventually abandoned, ironically just before the arrival of containerisation made all the traditional docks obsolete, putting both the employers and dockers out of business.

The norm, at least for a while, became less carnivorous. Employment might be ill-paid or unpleasant but it was at least expected to be reasonably secure. Victories of this kind are always temporary. There is a permanent clash of interests between employers, who want to adjust their workforce constantly, and employees, who want job security so that they can plan for the future.

It seems to me that the casual arrangement is now making a come-back, although we don’t call it that. “Zero-hours contracts” mean that workers do not know from day to day whether their services are required. Delivery and taxi apps which pay by the job mean that drivers are effectively unemployed whenever work is scarce.

A similar economy has now been discovered by local universities, which recruit many teachers on a one-term-at-a-time basis. This means the hapless teacher has no idea whether he or she has any long-term prospects, and in the meantime does not get paid at all in non-teaching weeks, of which there are quite a lot.

Attitudes to “down-sizing” – or whichever euphemism for mass sackings you prefer – vary from place to place. In America it is seen as a sign of corporate machismo, commonly saluted by a rise in the relevant share price. In Japan, at the other extreme, it is regarded as shameful and large employers don’t do it at all.

The Covid outbreak presented an interesting dilemma for employers. Did one, at some expense, try to preserve a relationship with the staff you would need when the epidemic subsided? Or did you panic, sack everyone and leave the future to fend for itself?

Reports from the UK and US suggest that most employers panicked, with some notable exceptions. Ryanair is an outstandingly cheap airline famous for its brusque treatment of its passengers, but in the epidemic it stood by its staff, while providing a lot of unpaid leave, and as a result was able to get back up and running while competitors were complaining that they needed months to train new people.

And this brings us to Hong Kong, where those lucky local employers who grind the faces of the poor, water the workers’ beer and employ many of us, are lavishly represented in our new politics-free Legislative Council.

It is a curiosity of local journalism that publications which have stopped court reporting, even of the “trial of the century”, are happy to devote column inches – indeed column feet – to entirely meaningless debates in Legco.

So last week we were treated to a string of complaints about the “labour shortage”. Some speakers were tactless enough to blame this on the “emigration wave”, which I thought we were not supposed to be talking about. Others blamed the aging population, though it is difficult to believe that the population has aged that much in two or three years.

Strictly speaking there can be no such thing as a labour shortage, because the inexorable laws of supply and demand, so beloved of businessmen when they want to be left alone, will solve shortages automatically. The price of items in demand will rise, curbing the demand, until the market “clears”, at least in theory, with a price satisfactory to the surviving buyers and sellers.

At the level of the firm we all understand how this works. If you are having trouble hiring winkle-pickers the only recourse is to offer higher pay. Aging winkle-pickers will postpone their retirement; middle-aged ladies who left their jobs to raise babies will return to the workforce; restless young men will abandon plans to join the French Foreign Legion, and your workforce will expand.

Of course we must not suppose that economic theory is always on the side of higher wages. You may decide that the best course is to mechanise the whole operation and import a winkle-picking machine from Dusseldorf – or the less effective but much cheaper intellectual property violation from nearer to home – which will reduce your labour requirements to a few machine minders.

The general rule, though, is that industries which are short of labour are not paying the market rate. But our business councillors were of one mind: the solution to their problem was for the government to import labour. Adam Smith wrote that “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.” He should perhaps have added that some contrivance to lower wages is also a popular topic.

What nobody in Legco pointed out was that the employers who are now complaining about a shortage of labour had had every opportunity, during the last couple of years, to prepare for life after Covid. Neither the age structure of the population nor the emigration wave are recent developments. Now they are surprised: they walk out of the dockyard gate and there is nobody there. This was entirely predictable. The government is being asked to rescue foolish virgins from the consequences of their folly.

Not to worry. Secretary for Labour and Welfare Chris Sun Yuk-han promised that the government would “allow imported workers to be introduced moderately,” which seems to leave him a lot of room for manoeuvre. This will put the government in the interesting position of importing workers at the same time as it is urging young Hong Kongers to explore the exciting opportunities north of the boundary. Are our opportunities not exciting enough?

A last word from Mr Smith: “Our merchants and masters complain much of the bad effects of high wages in raising the price and lessening the sale of goods. They say nothing concerning the bad effects of high profits. They are silent with regard to the pernicious effects of their own gains. They complain only of those of other people.”

As we approach Hong Kong’s National Security Education Day it behoves us all to do our bit. So I propose to offer a warning: it is not only ice hockey players who need to be careful when roaming the internet looking for music.

We are all aware, I trust, of the dangers of Googling “Hong Kong National Anthem”. There is a serious possibility that you will arrive not at “the March of the Volunteers” (which is ours because it is China’s, as we are) but at the Ditty which Dare not Speak its Name, at least in the respectful newspapers.

Just so you will know what to avoid here is a particularly shameless version of “Glory to Hong Kong”, performed by an orchestra dressed in what Hong Kong judges now regard as rioter uniforms. The lyrics, in their English version at least, seem to be mainly concerned with freedom, which is more than you can say for the judges.

Another trap for the unwary is “Do you hear the people sing”. This is from a musical tribute to the French Revolution, and the sentiments expressed are very generic:

Do you hear the people sing?
Singing the song of angry men?
It is the music of the people
Who will not be slaves again!
When the beating of your heart
Echoes the beating of the drums
There is a life about to start
When tomorrow comes!

This was a popular number during Hong Kong’s restless period, which is enough to condemn it by association. It is banned in nearby places.

While we are on the French Revolution you should also be wary of “Ca Ira”, a French song of the period here sung by one of my idols, Edith Piaf. The problem with this is its enduring call for “Les aristocrats a la lanterne”, which can be roughly translated as “The aristocrats should be hanged from the lampposts”. This could be classified as terrorism.

Dangers lurk in the most surprising places. The “Internationale”, for example, was at one time used as China’s national anthem, albeit between 1931 and 1937 when the party controlled only the liberated areas or Chinese Soviet Republic. This now seems a throwback to the days when the Communist Party was a revolution, not an establishment. Time has caught up with this passage from verse 3:

The state is false, the law mockery, and exploitation bows us down;
The rich man flaunts without a duty,and the poor man’s rights are none.

Or we can take that stalwart of Labour Party conferences, “The Red Flag”. It is a commonplace observation in English Labour circles that nobody knows the words, except for the chorus, which goes like this:

Then raise the scarlet standard high.
Within its shade we’ll live and die,
Though cowards flinch and traitors sneer,
We’ll keep the red flag flying here.

Now I suppose, possibly erroneously, that there could be no possible objection to this on National Security grounds, as the official flags of both Hong Kong and China are mostly red. But consider this disastrous passage from verse 2:

Look ’round, the Frenchman loves its blaze,
The sturdy German chants its praise,
In Moscow’s vaults its hymns are sung
Chicago swells the surging throng.

This is the sort of international connection against which Article 23 of the Basic Law warns us.

Another trap for the unwary is sedition, which includes conduct which tends “to promote feelings of ill-will and enmity between different classes of the population of Hong Kong”. This could be held to cover works like that music hall classic “They’re moving Father’s grave to build a sewer”, which includes lines like:

They’re moving his remains, to lay down
nine-inch drains
To irrigate some rich bloke’s residence

Rich people are entitled to the protection of the law, from things like “She was poor but she was honest” – blatantly subversive chorus:

It’s the same the whole world over,
It’s the poor what gets the blame,
It’s the rich what gets the pleasure,
Ain’t it all a blooming shame?

Then there are disrespectful and disparaging diatribes about our elders and betters like this. Or the Gendarmes Duet (which hails, believe it or not, from an operetta by Offenbach. Sensitive police people should not listen to the last verse.

My most surprising horror find was a song by the Dubliners. This was surprising because the Dubliners were an Irish group whose oeuvre comprised mostly songs about the pleasures of booze, interspersed with occasional visits to ancient heroes like Roddy MacCorley or Kelly the Boy From Killane, whose political proclivities are safely obscured by the mists of time.

However they also did a song called “Free the People”, whose title should perhaps have been a warning — freedom is a dangerous aspiration these days — which has two verses stunningly reminiscent of the slanderous things that so-called committees put in their so-called reports on the Hong Kong legal system:

The dismal dawn was breaking
When they took her man away
Not knowing what was his crime
Just what was he guilty of
Not one of them could say
But they’ll think of something in time
He says goodbye and remembers
We shall overcome

Comforting her children
Softly crying in the night
She tried very hard to explain
You know your daddy never did a thing
That wasn’t right
So soon he’s bound to be home again
He is a good man
And we shall overcome

To end on a happier note, there are also pleasant surprises. Consider, for example, a prescient tribute to the gentleman we are now expected to refer to as Our President, recorded by Charles Aznavour in 1974. Sample, with seven verses to follow:

Xi may be the face I can’t forget
A trace of pleasure or regret
May be my treasure or the price I have to pay.

I understand why Hong Kong officials feel the need to respond to every adverse or critical report or comment on their doings from overseas bodies. Silence may be misinterpreted as indicating agreement. Or at least indifference. We do though need to be more aware of the perils of this approach, especially if the refutation goes into detail.

Firstly it may attract widespread attention to allegations which might otherwise have fallen with a soundless plop into the deep well of public indifference. Secondly the refutation may do more harm than the original charge. Consider the recent efforts of the Secretary for Security, Paul Lam, to defend Hong Kong’s national security legislation, much criticised by the UN Human Rights Committee.

According to RTHK, “Lam said with fewer than 30 people convicted since the legislation was introduced nearly three years ago, everyone would agree that the law affects only an extremely small number of people, when compared to the local population of seven million.”

No they would not. Indeed even Mr Lam did not put it quite that way; RTHK were trying too hard. It is clear from the fuller report provided elsewhere that Mr Lam realised the law had also “affected” the “less than 250” people who had been arrested (a curious way of putting it – the figure is 249).

He also accepted that the new law had also had some impact on the victims of his department’s enthusiasm for sedition charges under the Crimes Ordinance. As well he might; they are treated to the National Security Law’s procedural provisions, which means they get a judge selected by the prosecution and are usually refused bail. But still: “Hong Kong has a population of seven million. Comparatively, I think everyone would… agree that only a very small number of people have actually been affected,” Lam added.

It does not seem to have crossed Mr Lam’s mind that a situation in which 249 people have been arrested and less than 30 have had their cases disposed of might be considered evidence of some deficiency in the legal system. Two possibilities spring immediately to mind. One is that some, or many, of these arrests were unjustified, caused by incompetence or the desire to intimidate. The other is that Mr Lam’s department works at a pace which would shame a reasonably fit snail.

But there is a more fundamental objection to his argument. You cannot judge the “effect” of a piece of legislation by the number of people convicted under it. I know of nobody who has been convicted of accepting a free plastic bag from a supermarket in defiance of the new law on the subject, and if any supermarket has been prosecuted for issuing such a bag the case passed by unreported. Yet we have all been “affected” by the bag ban.

More seriously only 60 people were convicted of homicide (murder, manslaughter etc) last year. But we all depend on the fact that killing people is illegal, so we do not have to worry that if we get an argument with a stranger we will be in danger of our lives. A recent case suggests that a certain wariness may still be needed if the stranger is a retired policeman, but generally we go about our daily lives without fear.

Well you can argue that long-standing laws of this kind are obeyed for a variety of reasons, and most of us do not need a legal deterrent to discourage us from killing people. With the national security law, though, the effects on people who have not been arrested are clearly visible.

Since the passage of the law about half of the population has been deprived of the media of its choice because the organisations concerned closed, either because their staff and/or owners had been arrested or because they thought they would be next. More than 60 non-government organisations have folded. Independent trade unions have disappeared, Respected opinion leaders are barred from writing by bail conditions. Books have been banned from schools and libraries. These may be worthwhile sacrifices that we all have to make on the altar of national security but to claim that very few people have been affected is obvious nonsense.

Indeed Mr Lam’s colleagues seem to be quite willing to extend the “effect” of the national security law by using it as a threat to silence critics of the police.

Consider the reaction of Secretary for Security Chris Tang to criticism of the requirement that demonstrators in street processions should wear number plates: “… unfortunately some people stirred up other’s emotions and smeared the government on purpose,” he said. “I believe some of those people aim to incite discontent and hatred against the government, in a bid to endanger national security and make Hong Kong no longer peaceful.”

I do not doubt that Mr Tang is well aware that parts of this read like a direct quote from the sedition part of the Crimes Ordinance, and that many people would regard the mention of national security as an open threat.

There is no question of a smear here. Protesters were required to wear number plates and whether you regard that as a reasonable public order measure or an intolerable imposition is a matter of opinion and evaluation. On this matter Mr Tang can hardly be regarded as an impartial judge. Retired policemen should be less pugnacious.

Citizens have the right to criticise the actions which government departments take for their benefit. We may criticise the way the Transport Department sites bus stops, the way the Drainage Services Department disposes of sewage, and the way the Information Services Department creates it. It is the job of the Police Force to regulate demonstrations and to preserve the right to participate in them. How the force discharges this duty is a legitimate topic for public discussion.

Our police commissioner has no sense of irony. Remember the long-running struggle, during the 2019 disturbances, to persuade the police to obey the law which requires them to display an identifying number when on duty in uniform?

As far as I remember this ended in a non-legal, if not illegal, compromise in which the police argued that while their riot gear did not display the unique number issued to each police person, the helmet worn with it did have another number with which the identity of the wearer might be pursued, at least by connoisseurs.

Numbers are, however, now compulsory – not for police, but for demonstrators.

This emerged on Monday, following a weekend micro-march by residents of part of Tseung Kwan O. This was hailed in the media as the first “political” march since Covid, but it wasn’t very political.

The marchers were voicing their opposition to a government plan to put a reclamation in front of their homes, decorated with a cement plant and other items of the kind which we all know are necessary and we all hope will not be put in our front gardens.

The required letter of no objection was issued by the Commissioner of Police. It came with a long list of conditions. Numbers were capped at 100, which we may suppose was in the region of the organiser’s predictions, as 80 people in fact turned up. Reports differed on whether they were actually outnumbered by the police people present, so I suppose it was at least close.

There was no room for the usual disputes over how many people marched, because they were all required to wear a numbered tag. Marshals were also required to march carrying a big circle of what netizens tend to call “crime scene tape”. This circle designated a “protest zone” which moved along as the march progressed.

After the march started nobody was allowed into the zone – tough if you were late – which also excluded reporters. If the tape drooped marchers were instructed to pick it up.

All posters, banners and website material were vetted in advance by police. Marchers were forbidden to wear black clothes, or yellow raincoats. Shouted slogans should not include matter violating the law or endangering national security. Face masks could be worn only by marchers who could produce a medical certificate.

The number plates seem to have been regarded as particularly controversial. HKFP quoted a retired civil servant as saying that “I am here to join a march, not a shame parade.” Another protester described the restrictions as “ridiculous”.

The organiser said the arrangements were “strict”, but “better than being banned from expressing our views.” He did not say whether he had, like other recent organisers, been warned that if any condition was breached the letter of no objection would be summarily and instantaneously cancelled, and the whole event would become an unlawful assembly.

Also currently customary is a warning to organisers that they may be criminally liable if anyone breaks the law during their event. This is legally implausible.

So to Tuesday, when Chief Executive John Lee was asked if the number plate requirement for demonstrations was now a permanent feature. Demonstrations, he said, must be conducted “orderly, peacefully and in accordance with the law”. (Note from our grammar pedantry department: “orderly” is not an adverb).

The Commissioner of Police, he continued, had a duty to ensure that such events were held in an “orderly, safe and lawful manner”. (Grammar pedant: Yes!).

This is no doubt true. But it does not exhaust the police chief’s obligations in this area. Also on Tuesday Mary Ma – the pseudonym passed round the Standard’s office to whoever is writing the editorial of the day – pointed out that the obligations of the police chief in matters of this kind had been extensively explored by the Court of Final Appeal in a 2005 case: Leung Kwok-hung and others v HKSAR.

The CFA said that the right to demonstrate was a fundamental right, and one of those which lay at the foundations of a democratic society. Like freedom of expression it could be curtailed for a number of important purposes, which included public order.

However any restrictions imposed should, the court said, be “necessary in a democratic society” and “proportionate” to the danger being averted.

Ms Ma carefully avoided expressing an opinion on whether the restrictions imposed on Sunday’s event were proportionate. Marathon runners did not mind wearing numbers, she pointed out whimsically, but prison inmates no doubt did. She forbore from mentioning that police people also seem to be rather reluctant.

Mr Lee sounds as if he is working on the basis that the 2019 disorders were the result of lawbreakers turning up at peaceful demonstrations and turning them into something else, which is not the way everyone remembers that bit of history. But surely this tiny minority of troublemakers has been much depleted by jailings and emigration?

I suppose the police could argue that the CFA’s views on the matter are now out of date, since Hong Kong no longer aspires to be a “democratic society”. We have elections designed by people who don’t like elections, why not also have demonstrations regulated by people who don’t like demonstrations? That, in fact, seems to be what we’ve got.

Chui Chun-man, who was sentenced to ten months in prison last Monday for sedition, must be among the least likely convicts to attract sympathy.

Mr Chui, who was a policeman himself at the time, greeted the death of a marine police colleague with some thoroughly ill-chosen words, including the suggestion that the victim “deserved to die” and that “it’s not enough to see only one dog official dead.” There may have been other equally objectionable stuff; news stories were understandably sparing with quotes.

Mr Chui, who did not help himself by explaining to the magistrate that he was “grumpy” at the time and did not really believe what he wrote, will I fear have an interesting time in prison, avoiding people who disapprove of his former job (he has resigned from the police force) and other people who disapprove of his offence.

However, it is an old axiom that official abuse of the law always starts with the least sympathetic victims, and spreads to the rest of us later. Accordingly though we may feel Mr Chui is now where he belongs, we may still feel some misgivings about how he got there.

The law on sedition forbids attempts to “bring into hatred or contempt or to excite disaffection against” the Hong Kong government. Disaffection is a rather technical word which does not mean the opposite of affection. As we can see from the separate section of the Crimes Ordinance on “incitement to disaffection” it means attempting to persuade someone who owes a duty of obedience to the government – soldiers, policemen and such – to repudiate their allegiance.

We lay people are left with hatred and contempt. Further down the ordinance we also have to avoid encouraging social change by illegal means, encouraging violence or law-breaking generally. The administration of justice has had special protection since 1970.

Mr Chui’s remarks, deplorable though they may be, look difficult to fit into this framework. The learned magistrate thought there was a danger of them inspiring violence against police people, which is a bit of a stretch. The law is supposed to protect the reputation of the government in general, not parts of it. The Police Force, wonderful though it may be, is not the government. Or is it?

As a practical matter, anyway, it seems that potential enemies of the force are unlikely to be much influenced by a serving member thereof. And somebody who was trying to start a violent insurrection would hardly raise his first flag on the Police Facebook page, which is where Mr Chui put his literary efforts.

It does appear, though that sedition cases – for decades unheard of – are suddenly being produced in large quantities. This sits uncomfortably with another part of the relevant law, which goes like this:

Legal proceeding (1) No prosecution for an offence under section 10 shall be begun except within 6 months after the offence is committed (2) No prosecution for an offence under section 10 shall be instituted without the written consent of the Secretary for Justice. 

Very little discussion has been reported of what these items were intended for – they are rarely found in other ordinances – or what they tell us about the intentions of this part of the law.

The time limit has on the whole been observed. In one case the prosecution introduced evidence of offences before the six month limit, and claimed when this was queried that the items concerned were not part of the charge; they were merely introduced as evidence of the defendant’s state of mind. Once a rebel, always a rebel, apparently.

The bit about the Secretary for Justice came up in one case, and was roundly dismissed by the presiding judge as “meaningless” because all prosecutions are brought by the secretary or people acting on his direction and behalf.

This particular judge is not one of the brightest candles in our local judicial chandelier and this observation was well down to his usual standards.

The drafters of this piece of legislation were well aware of the role of the Secretary for Justice (or the Attorney General, as he then was) in running his department, deciding its prosecution policies and lending his title to some case names, which appear in the calendar with him as the prosecuting party. So why would they stipulate that he must approve prosecutions personally?

This condition is rare, but not unique. It is inserted when prosecutions will need to be evaluated on a broader basis than the traditional test, which is whether there is a reasonable chance of success.

The Secretary for Justice is not a purely legal figure. He also has one foot on the political side of the fence. He participates in policy deliberations and has regular contact with senior political figures. He is called upon to authorise prosecutions when non-legal considerations are legitimately entertained.

So in sedition cases the secretary can ask himself whether the proposed defendant, if convicted, will be widely regarded as a miscreant or a martyr. Will the practical consequences of a conviction be worth the reputational risks if the government appears to be using the law to suppress criticism of itself? Does the risk to public order justify trampling on a cherished freedom? Does prosecuting people for possession of a book bring back some unhappy memories?

The intention of the “legal proceedings” section, it seems to me, is to ensure that although the law is expansively drafted prosecutions will be rare and only undertaken in cases where there is a serious danger of immediate trouble.

This would bring it more or less into line with international standards. Most common law countries have either abolished sedition altogether or restrict it to advocacy of violence. Observers in those countries are unlikely to be impressed by the number of cases now cropping up in Hong Kong, or the rather imaginative connection with violence involved in some of them.

It is no good our government complaining that overseas writers or officials are “scandalising” our judicial system if its conduct is by their standards scandalous.

And while we are on the subject of Hong Kong reactions to overseas criticism could the writer concerned please note that there is no point in claiming that the SAR has no “secret police”. This may be true but it is also true that governments which do have secret police always deny their existence. If this was admitted then the force would no longer be secret.

A government denying it has secret police is like a millionaire denying he has a mistress. We realise that this may be true, but in the absence of further evidence…

Article 27 of the Basic Law of the Hong Kong SAR states that: “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

Some of these freedoms have been looking a bit battered of late. They are of course all subject to some restrictions in various circumstances, and the right to process and demonstrate has for some years effectively been suspended in the interests of combating COVID.

Some suspicious observers will have detected symptoms of a limited affection for this particular freedom in the fact that the government’s endless tinkering with its COVID precautions had one resounding exception: the limit of four people on outdoor gatherings.

This looked a bit suspicious when the limits on indoor gatherings reached three digits. But no doubt it helped to keep us all healthy.

However this excuse – I beg your pardon requirement – is no longer relevant. So the question which now arises is whether the “freedom of assembly, of procession and of demonstration” will now come back to life or whether during the pause for the plague years it was quietly euthanised.

So far the diagnosis does not look good. The pioneering effort earlier this month was a march to be organised by the Hong Kong Women Workers Association, on the Sunday before International Women’s Day, which inconveniently fell on a Wednesday.

The rights of women workers are not a hot-button political issue in Hong Kong. Perhaps they should be. Nothing overtly subversive or rebellious was in the offing.

As various non-political events – New Year celebrations, fundraising walks and such like – had been approved without problems the women workers had reason to hope that their march would get the green light, and so it did. On the Thursday before, after what the police described as an “assessment” the required letter of no objection was duly issued.

Then on Saturday, the eve of the planned march, the women workers called it off. The announcement was made on their Facebook page and offered no explanation.

We were however treated to a police press conference, the main purpose of which appeared to be to warn anyone who might still have itchy feet that as the march had now been officially cancelled they would be participating in an illegal gathering.

The police orator, acting Senior Superintendent Cheng Wai-kin, offered the explanation that the “association had decided to cancel the event after considering the interests of all parties,” which does not help us very much. He also said that they had heard that “many people” were planning to attend the event, including some “violent groups.”

Alas we were not told who the violent groups were. One supposes that local triads would not be interested in demonstrating for women’s rights. I presume also that Mr Cheng was not referring to the chemical warfare department of his own Force.

It appears also that he was not referring to the League of Social Democrats, of which four members including the current chairman had been told on Friday – when the march was still legal – that they would be arrested immediately if they turned up.

Some hint as to what put the organisers off can be gleaned from the letter permitting the march, which according to HKFP included:

According to the conditions set out by the police, the association would have to ensure that the demonstration would be in compliance with laws including the Beijing-imposed national security law. The organiser also had to ensure that the protest and rally “would not be contrary to the interests of national security,” according to the police document.

This was a theme also taken up by our Chief Executive John Lee in an interview quoted by Radio Free Asia:

Hong Kong Chief Executive and former police chief John Lee said the organizers of public events have a legal responsibility to ensure it doesn’t break the law. “Anyone who is not confident, is incompetent, or is worried about whether they can do this should not organize public activities, because they have to bear the legal responsibility,” he warned.

What are we to make of all this?

Firstly, it seems to me a flagrant abuse of police power to threaten specific individuals with instant arrest if they seek to exercise a freedom which the law confers upon us all. Members of political parties which the government or the police dislike have the same rights as the rest of us as long as they conform to the relevant law.

Secondly I do not believe that China’s national security is so fragile that it needs to come up whenever a political gathering is in the offing. All fish can swim, but not all animals that swim are fishes. Similarly we may hope that all acts which endanger national security are illegal under the national security law; it does not follow that all acts which can be regarded as illegal under that law do actually threaten China’s national security.

What are we afraid of here? Will people wave five fingers, chant “Hong Kong add oil”, hum the tune of Glory to Hong Kong? Would the state’s foundations crumble of somebody raised a yellow umbrella?

Thirdly it seems to me that, with all due respect to the Chief Executive’s extensive experience in extending the law to areas it did not previously reach, it is quite wrong in law to imply that the organisers of a march or protest are responsible for everything which happens while it is in progress.

The job of the organisers is to comply with all reasonably imposed conditions and encourage fellow marchers to do the same. The march should start where it is supposed to start, follow the approved route and finish at the previously agreed time and place, so far as that is within the organisers’ power. If large numbers of people are expected the organisers may be required to arrange marshals to ensure that participants know where they are supposed to go.

But at an event where anyone is free to turn up, it is neither a practical possibility nor a legal requirement that the organisers should control the activities and expressions of other participants. Keeping order on the streets during a protest is the job of … wait for it … the police! Just as it is the rest of the time.

Making organisers responsible for everything anyone does will simply make marches and processions impossible. Quite apart from the activities of over-zealous supporters, organisers will be vulnerable to deliberate attempts by opponents to sabotage the proceedings.

It would be deplorable if citizens were deterred from exercising their rights by legally imaginative bullying from the parts of the government which should be protecting our freedoms. We shall see.

“Constant vigilance is the price of freedom”, we are told, though apparently this remark did not originate with the American founding father, hero, slave owner and rapist Thomas Jefferson. Still, this orphan quotation is highly spoken of, so in that spirit I would like to note that the Hong Kong Court of Appeal has just come up with a really bad idea.

The matter before their Lordships concerned two cases in which the presiding judge had ruled that the defence had no case to answer and aquitted the defendant off his or her own bat, as it were.

The appeal judges were asked by the Department of Justice to assess the correctness of these moves. This was not in the strict sense of the word an appeal because the verdicts were final. The successful defendants had in fact left the territory, which the judges seemed to feel was rather inconsiderate of them. But the accused were all from distant countries (both cases concerned drug smuggling) and one imagines that two years in remand custody in Hong Kong would cause in most people an acute case of homesickness.

Their lordships’ judgement is neither easy reading nor brief. Readers who survive the experience will have had a lengthy tour of the law on “no case to answer” in several jurisdictions and some decided local cases. Their conclusions may be summarised as: the two judges were wrong and the law is reasonably clear, but some recent statements of it were, no doubt unintentionally, ambiguous and confusing. Error was understandable.

The way this works is that in criminal cases the proceedings start with the presentation of the case for the prosecution. When the prosecution has done its stuff the lawyer for the defence may ask the judge or magistrate to rule that there is “no case to answer”. In other words the prosecution’s case is so weak that the defendant should be acquitted without further ado.

Judges who have brushed up on the latest from the Court of Appeal will only do this in two sets of circumstances. One is if the prosecution’s case incorporates a fatal error in law – if for example they have charged you under a statute which was not in force at the time of the offence. The other is if they have produced no evidence at all for some indispensable fact related to the case, that the white powder in your suitcase was actually a controlled drug, say.

Likewise, and even less often, the judge may decide after hearing the defence that the prosecution’s case has been so comprehensively demolished that there is no need to trouble the jury with it. If, for example, the alleged murder victim appears alive and kicking in the witness box, the presiding judge will conclude that this case is never going to fly and hoof it off the runway himself.

So far we have merely a restatement of what most people thought the law was anyway, more or less. Those of us who like to think of judges as human may wonder if the two judges concerned would have been less prone to error if they were not feeling some subconscious resistance to the local policy of sentencing the small potatoes of the international drugs trade to decades in prison, despite such sentences being both inhumane and demonstrably ineffective.

However the Court of Appeal did not stop at correcting error. It added the suggestion that if a defendant was acquitted under these circumstances the prosecution should be allowed to appeal against the ruling, as it can in England and Wales.

This is a reference to the Criminal Justice Act of 2003, which is a monument to the proposition that no principle can be too basic or ancient to be violated by a Labour government keen to present itself as “tough on crime”.

The principle concerned is that you cannot be tried for the same offence twice. An acquittal is final. This is so old that it is known by a squirt of Latin, not because mediaeval lawyers liked to display their linguistic skills but because it was actually a part of Roman law: “non bis in idem”. The equally incomprehensible mediaeval contribution is a “plea of autrefois acquit”.

Anyway you get the message. Once the case against you has been dismissed you can confess to the reporter on the courtroom steps with complete impunity. Well almost. Someone who did this recently was charged with perjury because of the evidence he had given in his own defence, but the original case was a dead parrot.

In the early 2000s the Blair government felt itself under pressure over two murder cases which had ended in acquittals. Both hit hot buttons with the tabloid-reading public, concerning respectively race and pedophilia. So 2000 years of legal history was binned and it was decided that in a range of the more serious cases the prosecution could appeal against an acquittal (whether by judge or jury) subject to the requirement that the Director of Public Prosecutions certifies that the appeal is in the public interest, and that there is “substantial and compelling new evidence”.

This was controversial at the time and has remained so, though actual cases have been extremely rare. While attention was concentrating on this innovation, though, the draftsmen also included a new procedure for cases in which some rulings were handed down which the prosecution might not welcome. The prosecution could, subject to stringent conditions as to speed, appeal the ruling – decisions that there was no case to answer were specifically included – to the next layer of courts up.

As far as I can discover very little use has been made of this. The Guidelines for Prosecutors in England and Wales (which are on the internet, like everything else) are explicitly discouraging. Prosecutors, after all, have many advantages already. If the case was so feeble as to attract a “no case to answer” ruling it is likely to end badly for the prosecution anyway.

And the question which then arises is whether this would be a good idea in Hong Kong, and my suspicion is that it would not. Hong Kong is a much smaller jurisdiction. Cases of interest would be rare. Is it worth abandoning the principle that an acquittal is an acquittal because of the fear that one or two miscreants may be freed in error?

The object of court trials is not just to punish the guilty; it is also to protect the innocent. Adding new facilities for the prosecution can appear as an attempt to nudge the scales of justice in a particular direction. In a jurisdiction where faith in the administration of justice is, to put it mildly, fragile, this is not a good look.

It must be said also that prosecution policies in the UK may feature a level of restraint that we do not find here these days. Many lawyers prosecuting cases in English courts also work as defence lawyers in other cases. They are attuned to the idea that the prosecutor is an officer of the court whose first loyalty is not to prosecutorial statistics but to enabling the achievement of justice.

The Department of Justice’s “leave no stone unthrown” approach to prosecution does not inspire confidence in any innovation sold on the basis that it will rarely be used in practice.

Local judges who would like to import some items from the UK should look elsewhere. Can we not, for example, have limits on the time people can be remanded in custody pending trial? There, they raised the “Custody Time Limit” from six to eight months temporarily during COVID. Here, a two-year wait for trial passes without comment.