tim's experiment

Well, President Xi Jinping’s report to the National People’s Congress clearly ticks one important box: it has given pleasure to a lot of people.

Some of the responses in Hong Kong bordered on ecstatic: Secretary for Culture, Sports and Tourism Kevin Yeung was “thrilled” that the speech had pointed out the need for the country to “adhere to the development path of socialist culture with Chinese characteristics.” DAB chair Starry Lee saw the Congress as a “historic milestone”. Chief Executive John Lee thought “We should learn from the spirit of the 20th National Congress. We should unite in our fights and struggles to better integrate into the country’s development and contribute to the great rejuvenation of the Chinese nation!”

Reports of the actual speech suggest that there was nothing new. Xi’s reference to Hong Kong was in Partyspeak, a language which wraps reality in illusion: “In the face of turbulent developments in Hong Kong, the central government exercised overall jurisdiction over the special administrative region as prescribed by China’s constitution and the Basic Law of the Hong Kong Special Administrative Region, and ensured Hong Kong is administered by patriots,” he said, adding that Hong Kong had gone from “chaos to governance.”

We know what the “turbulent developments” were. The next bit is a long-winded but polite way of saying “you thought you were getting a high degree of autonomy? Welcome to reality, suckers.” Ensuring Hong Kong is administered by patriots means replacing more or less genuine elections with more or less fixed ones.

The official narrative, which Mr Lee also trotted out, is that Hong Kong was rescued from perdition by the benevolent intervention of Mother, and the imposition of the National Security Law took us from, as Mr Xi put it, “chaos to governance”.

This is an abuse of history. “Chaos” was ended partly by frustration and exhaustion, but mainly by the arrival of the COVID virus, which enabled the government to ban, on public health grounds, any public gathering of more than four people.

The vast majority of those arrested during the “chaos” were charged under existing laws with existing offences and dealt with in the regular courts. The contribution of the National Security Law to the proceedings was to destroy Hong Kong’s flourishing civil society, before the ensuing changes to the election system destroyed its political life.

Mother’s contribution to “governance” was to put Hong Kong affairs into the hands of two seasoned apparatchiks who were experienced and comfortable with the idea of suppressing inconvenient opinions by imprisoning anyone expressing them, preferably without the prior formality of a trial.

Mr Xi hailed the “strong vitality” of the One Country Two Systems concept – “a great innovation of socialism with Chinese characteristics”. But it is still not entirely clear whether this great innovation means anything more than Deng Xiaoping’s reassuring observation that we could “still have dancing and horseracing.”

It is difficult to reconcile with the way the Hong Kong government is behaving, which seems to involve reducing any differences between the SAR and the mainland as quickly as possible. If that is what they want it seems to be working, in a way. International comparisons of human rights and press freedom have Hong Kong converging rapidly with China, down at the bottom of the table with paradises like Belarus and Cuba.

Consider, for example, recent changes to the junior secondary school curriculum. Out go such trivia as “the values and attitudes that underpin the local society, including rights and responsibilities, freedom, rule of law, social justice, democracy.” In comes “China’s constitution, the meaning of national security and the importance of the national security law, as well as developing a sense of national identity.”

What is going on here? The highest objective of education used to be to help students to identify and pursue goodness, truth and beauty. This is replaced by the objective of spreading lies about an ugly and brutal system. Many local teachers have already had second thoughts about their career choices. They will not be the last.

If political integration is a questionable pleasure, what of the economic kind, or, as Mr Lee puts it, better integrating with the country’s development? The potential problem with this is that, as with the new political arrangements, it makes Hong Kong’s future entirely dependent on decisions made in Beijing.

And the decision made in Beijing these days seems to be that the Party knows best about everything and will accordingly run the economy by issuing instructions on whatever takes its fancy. But we have seen this movie before.

If the history of the 20^th century teaches us anything it is that unbridled capitalism produces great wealth and great inequality, and unbridled economic dictatorship by party or person produces great equality … and poverty, usually with a side dish of stagnation and corruption.

There is a danger that we shall be dragged into a doomed replication of an experiment which has already been tried elsewhere with catastrophic results. The message of the 20^th congress seems to be that “we have done wealth; now we can do socialism.” That is not, I fear, the way these things work.

Some time ago a Hong Kong judge threatened to install closed circuit TV cameras in his courtroom, so that he could keep an eye on what happened in his absence.

At the time I wrote that this was an unnecessary and legally unjustified proposition, and had the reprehensible feature that it might discourage members of the public from attending court cases, which they are perfectly entitled to do.

However it seems that this judge’s remark was merely the tip of an iceberg of judicial paranoia, which has now blossomed (if an iceberg can blossom) in plans for whole court buildings to be subject to electronic surveillance, a pre-trial recording warning court-goers of the powers which judges can wield over them, and screening for court visitors.

This is all rather implausibly justified as necessary for “security”, although there has been no sign that security as such might be a problem.

Judges are strange creatures. Some of them are sweet and nice people. But the job can go to their heads. Judges bullying the inhabitants of their courtrooms have now become such a problem in England and Wales that a hotline has been set up on which people can report abuse anonymously.

Some of our new measures will no doubt be justified on the basis of experience elsewhere. I understand that people arriving at UK courts these days are routinely asked to open their bags. This did not happen when I was a reporter and it did not happen in colonial Hong Kong either. Times have, no doubt, changed.

It is reported, on the other hand, that people will no longer be allowed to carry water. Why on earth not? The Wanchai District Court is not an aeroplane which can be destroyed by a cunning mixture of liquids detonated in a toilet. Water is harmless.

There appears to be a general failure to appreciate the danger of appearing like one of those paranoid despotic regimes which sees a subversive behind every bush. Every citizen is a suspect and every bag a potential bomb.

Video cameras in courtrooms bring other perils. To start with there is the danger that judges will inflate their powers to an unjustified and indeed unlawful degree. The powers they exercise over events in their own courtrooms extend as far as is necessary to permit the orderly conduct of court proceedings. And no further.

If the judge is not in the room then no proceedings are in progress and the judge has no more powers over the waiting audience than any other citizen. Similarly once the case is over the law reverts to its everyday form, as a judge in Liverpool discovered when, after discharging a prisoner who had been acquitted, he told the miscreant he had been lucky in his jury. This was not part of the proceedings, the defendant threatened to sue, and the judge was constrained to make a grovelling apology in open court.

The purpose of the cameras is apparently to curb disorderly behaviour in the public gallery. This is an extremely expensive solution to a minor problem. Most cases attract no public interest at all. During the three years when I was a regular court reporter I do not remember the number of people in the gallery ever exceeding five. Usually there was nobody.

A tiny number of recent cases in Hong Kong have attracted much larger numbers. People whose friends are enduring long periods of imprisonment without trial for nakedly political offences do tend to turn up and offer moral support.

Occasionally this take the form of waving, or even talking, during pauses in the progress of the legal juggernaut. On other occasions speeches of explanation or mitigation have been greeted with applause, which is improper but hardly a major disruption of the proceedings.

Most of the interaction between public and prisoner takes place during the interval – commonly quite long – between the time when everyone is ready for the kick-off and the time when the judge arrives and takes the field. There is another obvious opportunity at the end when his or her lordship disappears and there is a pause while the correctional van is lined up.

So when Big Brother is watching he is, I fear, going to see a lot of conduct of which he disapproves but to which there is strictly speaking no legal objection. Why then, are we pursuing a “deterrent effect”? Well of course it depends what you wish to deter.

It is painfully offensive to some people in the national security industry that people charged with national security offences do, during their long periods of imprisonment without trial, receive the moral support of their friends and sympathisers. One of the ways in which this support is provided is by turning up for court appearances.

We cannot ban this, alas. Court hearings are supposed to be public. We can however discourage it by assuring said supporters that their attendance and activity are being recorded and the resulting evidence may be used against them in another court later.

An interesting legal milestone was passed recently when two people were charged with “sedition” on the basis of their behaviour in a courtroom public gallery. Be careful what you clap for.

We do not enjoy the rule of law; we enjoy the rule of selected laws. Consider the District Councils Ordinance. This is an admirably clear effort. The relevant parts go like this:

If a vacancy arises in the office of an elected member, the Designated Officer must, by notice published in the Gazette, declare the existence of the vacancy within 21 days after becoming aware of the vacancy. S32 (1)

District Councils Ordinance S32 (1)

Following this:

The Electoral Affairs Commission must, in accordance with regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541), arrange for a by-election to be held in the following circumstances… (a) on the making of a declaration as to the existence of a vacancy in the membership of a District Council under section 32.

Same Ordinance S33 (2)

Notice that, unlike regular District Council elections, there is no role for the Chief Executive in the timing of this process, which is entirely automatic. However since July 2021 there have been some 200 vacancies on District Councils, none of which have been filled.

The government, dissatisfied with the results of the elections the previous year, persuaded most of the winners to resign by circulating baseless threats that anyone who was disqualified for a dearth of patriotic enthusiasm would be presented with a bill for $1million.

At that time we were provided with an entirely unsatisfactory and unlawful explanation for the absence of by-elections by the then Chief Executive, Carrie Lam: the government was too busy. She cited the then upcoming elections to the election committee, the Legislative Council and for her replacement.

These turned out to be less strenuous than expected. Most of the electorate did not bother with the Legco election and there was only one candidate for Chief Executive. This did not, however, produce a return to the paths of by-election righteousness. We were left only with Ms Lam’s last word on the subject, which was that “We do not feel there is sufficient room and time for another set of by-elections, especially of this magnitude, because of the number of seats involved. So I could say that it will be almost impossible for us to mount a by-election of any district council vacancies between now and the end of this term – that is the Government’s term between now and June.”

That was, of course, the following June, which was June 2022. Which was three months ago. The new regime has not had to run any election of any kind. Yet still, no sign of by-elections.

What has the Electoral Affairs Commission to say about all this? Nothing. It is apparently happy to follow orders. It is frustrating to find an organisation headed by a retired judge which is happy to ignore the laws which are supposed to govern its activities, which ironically include:

The Commission shall not be regarded as a servant or agent of the Government.

Electoral Affairs Ordinance S 15

All this is not just a matter of legal pedantry, although it must surely take a certain gall for a government to preach about the rule of law while ignoring its own constitution. District Councils have functions and those functions are not being performed. They used to advise District administrators and government departments about what people wanted and did not want.

Government departments are now free to improvise and I do not doubt that in many places they are doing this is ways which do not go down well with the people they are supposed to serve.

We have a very fine example just down the road from my home.

A bit of background: Sui Wo Road is a long snake-like affair which climbs up the hills north of Shatin in a series of long bends. The Home Ownership estate of the same name is near the bottom and has a bus station. The rest of us – six housing estates, two schools (Caritas for special needs, ESF for prosperous parents) a few very expensive solo houses and the HKBU staff quarters – depend on green minibuses.

It is a curious feature of the arrangements for bus stops that as you get towards the top of the road there are no bus shelters for people queueing to go down, but shelters are provided for people waiting to go up, of whom there will in the normal way of things be very few.

This tide in the affairs of bus stops recently arrived at Greenwood Terrace, the last of the large estates and very near the end of the road. There is one more estate, the very small one (40 odd terraced houses) where I live. We have neither a bus stop nor a shelter but the minibuses stop outside the gate anyway.

Arrangements at Greenwood Terrace have been roughly the same for 30 years. The minibuses going up stop across the road from the entrance to the estate. Those going down stop at the entrance, or just before it so as not to obstruct the drive.

However there is no end to traffic titivation in Sui Wo Road. A few weeks ago work finished on a bus shelter opposite the drive entrance. This is the stop for minibuses going up and it is safe to say that nobody will ever wait for a minibus there, because it is only about 200 metres from the end of the road, and there is nowhere to go except chez moi.

After some cogitation a popular theory is that this shelter is provided for Greenwood residents who find it raining unexpectedly. They can shelter from the rain while they summon a servant with an umbrella to take them home.

The opposite side of the road has an informal rain shelter provided not by the government but by the estate management, which a few years ago hit on the idea of planting one of those big garden umbrellas just inside the entrance to the estate, so that it shelters the bus stop queue.

This arrangement has now been sabotaged by the people who decide where bus stops should be put. They have moved the Greenwood Terrace downhill stop 30 yards up the road so there is no longer any shelter next to it.

This is very inconvenient. Regular users are up in arms. A petition has been raised. Protests will be voiced. This is the sort of thing which was avoided when we had functional district councils. People were asked if they wanted something and if you said “no” loud enough you didn’t get it.

The District Councils now have no role in the election of the Chief Executive or anyone else. But that was not their main purpose anyway. They were there to give people a voice in the local matters which affected them. We are now back to the old colonial system as practised in 1980. You get what you are given.

Do not expect gratitude.

Dr Chuang Shuk-kwan, who for more than two years was the Government’s leading voice on daily COVID matters, has achieved the extraordinary feat of combining the roles of official government spokesperson and popular public figure.

This has no doubt made some people jealous, and not only colleagues. Her last press conference (the daily ritual has been abandoned, thank goodness, as the disease subsides) was greeted by an astonishingly ungenerous and carping editorial in the Hong Kong Standard, over the name of Mary Ma.

Ms Ma (we will come to the question of who she is later) wrote that it was “most unfortunate that Dr Chuang … has become a COVID icon.” Noting that Dr Chuang had said she hoped it would be the last time she met the press the writer continued “And so do I.”

There follows a long burst of bitching: there was not enough on the science, there was not enough of a “human touch”, there were too many details of individual patients, there were not enough details about officials who had caught COVID, the media were “unable to obtain additional information…”

There seems to be a fundamental confusion at work here. An official press conference is an opportunity to get the official line on the situation and the actions which the government is taking to deal with it. It is not supposed to provide a complete kit for daily COVID coverage; media organisations which wish to provide scientific background or human interest stories have to do their own digging. A press conference is an opportunity to be informed, not spoonfed.

I cheerfully admit that when the epidemic was still a growing and largely mysterious threat Dr Chuang’s daily performances were faithfully watched in the Hamlett household. Even if you didn’t understand a lot of the proceedings it was reassuring.

Dr Chuang has a soft and melodious voice which makes even plain statements of fact in Cantonese sound like a song in the making. She also has the valuable medical habit of transmitting in a wordless way the idea that the situation is serious but under control, your physician understands what is ailing you and is going to fix it.

This is no doubt sometimes a bit optimistic. But hope is a helpful medicine.

Having sat through plenty of press conferences I was impressed by the way she also navigated skillfully round the pitfalls. If the didn’t have an answer to a particular point she said so. If the question should have been addressed to another department she politely declined to trespass. If the information was available but not to hand she promised to produce it.

When the question answered in Cantonese was repeated in English she answered without complaining, as a press spokesman should. The English media want your words in your voice. Repeating your answer in English is a way of avoiding the hazards of translation, subtitles or reportorial paraphrasing.

If the question seemed to be a criticism or a preparation for one, she answered it in the same calm way, and did not take it personally – a trick which some of our leaders have yet to master.

Press conference performers need to grasp the fact that reporters will seek their reaction to criticisms and comments made by other people, whether the reporter agrees with them or not. This is not an attempt to embarrass you, it is an attempt to be fair by giving you the right to reply to the things other people are saying to reporters.

Actually for a long time it seemed to many of us that Dr Chuang’s press conference performances were the only part of the government’s COVID campaign which was going well. By now she has racked up more than 700 of them – which would be two years if there were no days off.

Sometimes there were in fact very few days off. At one point she had notched up 72 continuous days. A reporter suggested she could consider a holiday, which she found amusing.

This formidable workload was borne under a burden of private grief. Her husband died at the end of 2020 after a long illness.

In short for many of us Dr Chuang is an authentic Hong Kong heroine. She is a shining exception to a generally unloved leadership. She has a Facebook fan page with more than 20,000 followers. The government could do a lot worse than make her an official role model for press handlers.

Now as to Mary Ma, Mary does not exist. The column is written by different people on different occasions and is supposed to replace the editorial. This would be a perfectly acceptable arrangement on one condition: that the writers used the pronoun “we” to describe themselves. Using “I” is dishonest and deceptive.

Personally I think the particular “I” who penned this piece needs to give some serious consideration to what he is doing. Writing editorials for newspapers is an honourable pursuit. I used to do it myself. It is an opportunity to write thoughtfully about the issues of the day. It is not an opportunity to publish snarky put-downs of popular public figures anonymously.

While the world was watching the Royal funeral and the Hong Kong police were advancing the fight against subversive harmonica music, one comment caught my attention. The author wondered why the media were paying so much attention to the death of Queen Elizabeth and so little to the pending death of the planet, which was announced at roughly the same time.

Well there was a whiff of republicanism about this – the author was Australian – and I am not sure that the coverage of the expired Queen was excessive. If you are going to have a King or Queen – which I certainly accept is optional and possibly not a good idea – you might as well recognise an outstanding performance in the role.

Also the funeral may have seemed a bit over the top, but it was a mere vestige of the ceremonies with which hereditary monarchs used to buttress their authority when they really had some.

Hapsburg Emperors, for example, had very elaborate funerary rites because they were buried in three different Vienna churches: the body in the crypt of the Capuchin church on New Market Square, the heart in the Augustinian Church next to the Hofburg Palace, and their guts in copper canisters under Saint Stephens Cathedral, where visitors of a ghoulish disposition can still see them.

So I do not begrudge the dear lady her parade. The point about the planet, though, is a good one.

It seems we are approaching, with no signs of serious braking, several points at which current climate problems – floods, fires, droughts – will be joined by much more serious manifestations of planetary indisposition.

Any day now, for example, the Greenland ice cap may slither bodily off the top of Greenland into the North Atlantic, producing an instant and drastic reduction in the amount of dry land available. Good news for some, bad for others. Residents in first floor Tsim Sha Tsui flats will be able to step directly from their windows into their Uber gondolas. The shops below will be submerged.

This sort of thing ought to be occupying a lot of media space and it is worth wondering why it isn’t.

Clearly part of the problem is the way the news business works. Thoughtful journalists have known for a long time that there is a bias in favour of stories which fit the “news treatment”, which meant in the old days that they could be boiled down to 12 crisp paragraphs and now means that they will make the sort of splash on the internet usually reserved for appealing cat videos.

It is a commonplace these days that the news consumer is a fickle creature, who if not grabbed firmly by the first five seconds of your report/stream/video will wander elsewhere in search of more excitement. But it was always thus. The disproportionate attention lavished on the headline and the first paragraph of the printed news story was motivated by the fear that the reader who had not been hooked by them would swim away.

In search of things which work when presented in this breathless way the news business prefers events over processes, single events over developing ones, named individuals – preferably already known to our consumers – over abstract crowds like “mankind” or “the future”.

Climate change was not put on most people’s mental map by the Intergovernmental Panel on Climate Change – a voice crying in the wilderness for decades – but by Greta Thunberg. And yet most of us still sit paralysed: rabbits in the headlights of an oncoming catastrophe.

Of course we make changes. We fiddle with thermostats, switch on the “Eco” option which most cars seem to offer these days, experiment with meatless meat and fishless fish, recycle what can be recycled and reuse what can be reused … and then we blow the savings by flying to Europe.

But I think the key to public apathy is that the danger is too big for individual efforts, heartwarming though they may be to those who make them. If scientists discover that onions are bad for you we can give up onions and look forward to longer, healthier lives. Giving up beef because it is climatically catastrophic seems like an empty gesture: the cow industry is a juggernaut which will roll on whatever an individual consumer does.

Saving the planet, in short, is a collective problem which requires collective action. So the important question we have to ask is: what is Hong Kong as a territory with some control over its environmental impact doing to reduce it?

And the short answer, alas, is not very much, or at least not very much in proportion to the magnitude of the threat, which could in a decade or two make Hong Kong uninhabitable, at least in the summer, even if most of it has not been submerged.

Climate change did not feature conspicuously in the Chief Executive’s election campaign and it doesn’t seem to have been much on his mind since. Legco seems to be drifting towards a bigger plastic bag levy. We are going to be charged for rubbish collection, but that owes more to a shortage of landfill than to a desire to reduce waste.

Hong Kong Electric has had a toy windmill on its building in Wanchai for years, and seems to have concluded from the experience that Hong Kong wind is not suitable for power generation.

Every year or two we get another story about an electric bus which a bus company is experimenting with. Somehow these buses all come … and go. Electric taxis? Don’t hold your breath.

Or do hold your breath – the air pollution was so bad last week that on some days you could not see Ma On Shan from Fotan.

Our priorities do not seem to fit the circumstances. What is required, I submit, is some variation on panic. “Security” is all very well. But if your house is on fire then the danger of burglary should not be your first concern.

The case of Kwok Wai-yin was a tragic one. The wife he had been married to for more than 30 years fell prey to a fatal and painful form of cancer. Eventually, with her consent, Mr Kwok helped her end the struggle by burning charcoal in the bedroom.

Two and a half years of remand in custody ensued before he finally came before a judge for sentencing last week. He then became the first person – and the way things are going he will not be the last – to spend a long time in prison on remand, only to receive a non-custodial sentence.

The judge did say, in sentencing Mr Kwok to probation, that he took into consideration the fact that the defendant had already in effect served two and a half years. Which might have been a reasonable sentence, I suppose, for manslaughter with extenuating circumstances.

Media coverage of this tragedy concentrated, quite understandably, on the mercy killing aspect. Judge Albert Wong solved a difficult problem with dignity and humanity. Other defendants may not be so lucky. We must also wait to see whether Mr Justice Wong’s solution will provoke an appeal from the part of the Department of Justice which mass produces appeals against lenient sentences.

But the delay is also noteworthy. Obviously we cannot know what would have happened if Mr Kwok’s case had come up within a reasonable time, which in many Common Law jurisdictions would be something less than six months.

The despair-inducing thing about this case is that none of the usual excuses – detective work, assembly of evidence, sharing it with defence, need to timetable a long trial – is operable at all. On the same day he helped his wife into the afterlife Mr Kwok walked into a police station and told the officers therein what he had done.

Preparation? The prosecution barely even needed a lawyer. And yet the legal machinery still managed to keep Mr Kwok waiting for two and a half years. A spell in prison this long can ruin a person’s life.

The right to a speedy trial is recognised in all the international human rights instruments. It also features in the Department of Justice’s guidelines for prosecutors. Yet even when the defendant flings himself unresisting into the gaping maw of the legal system it still can’t manage a decently swift process.

No doubt there are excuses – the backlog of riot cases, the epidemic – but these will not wash. If the system is under strain for some reason then there must be priorities. And the first of these should be to resolve the cases of people who are in prison awaiting trial.

Oddly enough Mr Kwok appeared in court on the same day as the speech therapists convicted of publishing seditious children’s books which, according to Judge Kwok Wai-kin, led young readers to “not to trust the administration of justice in Hong Kong.”

We’re supposed to trust the administration of justice in Hong Kong, are we? Also on the same day Judge Kwok Kai-on (as far as I know none of the Kwoks in this piece are related) convicted a 46-year-old woman of rioting (nearly three years ago, normal service) because “a first aider can also be a rioter and cannot rule out the possibility that she participated in the riot.”

Cannot rule out the possibility? Can also be a rioter? Could one of those mysterious “workshops” at which judges are told what is expected of them perhaps be devoted to the implications of this quote from a famous lawyer:

The possibility of guilt is not enough. Suspicion is not enough. Probability is not enough; likelihood is not. A criminal matter is not a matter of balancing probabilities and deciding in favour of a probability. If the accusation is not proved beyond reasonable doubt against the man accused in the dock then by law he is entitled to be acquitted, because that is the way our rules work. It is not a concession to give him the benefit of the doubt. He is entitled by law to a verdict of not guilty.

Trust cannot be enforced. It must be earned.

The Hong Kong government’s rather complicated relationship with the rule of law rarely provides amusing moments, so we must make the most of what comes along.

Readers of the Standard (everyone else appears to have missed it) were treated the other day to a story headed “Mooncake raid at Democratic Party workshop”. This concerned a raid by representatives of three government departments on what seems to have been a mooncake shop in Tai Wai.

Actually the place is not a Democratic Party workshop. It is owned by a former Shatin district councillor, Kodama Ng Ting-lam, who was disqualified during the government purge of district councils last year.

It was being used by an organisation called Staymunity, whose main current activity is to raise funds to support Lam Cheuk-ting, formerly one of the more frisky pro-dem lawmakers and now a remand prisoner awaiting trial, along with almost every democratic politician you have heard of, and a few you probably haven’t. They have all been in jail for 18 months. I infer that both Ms Ng and Mr Lam can safely be regarded as politically hors de combat.

Accordingly the shop, or workshop, is neither owned nor run by the Democratic Party and it would be interesting to know who stuck this label on it. I am uneasily aware that it may have been a sub editor. But being labelled “democratic” these days is dangerous, as we shall shortly see.

The government departments concerned managed to be a bit confused about what had actually happened. The only thing that they agreed on was that it was not a “joint operation”. Perhaps someone was embarrassed.

According to the police they received reports of illegal employment at the workshop, and sent a team to investigate. Reports? I am getting a bit sceptical about these mysterious complaints that trigger police descents on places or people labelled “democratic”. Is someone churning out politically motivated “reports”. Or do some of them exist only in the Force’s fertile imagination?

Anyway officers did not, according to the Force, find illegal employment activities. Did the story then proceed in the usual way: “Sorry to have troubled you, Miss, it seems we were fed a bum lead”? Not at all.

Readers who were surprised at the police interest in illegal employment – usually a matter for Immigration or Labour, depending on the violation suspected – can prepare for another surprise. The case was “referred to other departments given the workshop was suspected to be used as a food manufacturing plant”.

Enter the Food and Environmental Hygiene troops, who know the food regulations. To the disappointment of all concerned, I fear, this also failed to disclose anything illegal. The moooncakes are made perfectly legally in properly licensed premises elsewhere, and all that happens in the workshop is the addition of a wrapper, presumably with a picture of Mr Lam on it.

Or perhaps not. These days, support for Mr Lam may not be something you want to advertise.

The Government’s uniformed minions had not run out of inspiration yet, though. “Officers from the Customs Department later arrived to see if there was any violation of the Trades Descriptions Ordinance.” The Standard’s intrepid reporters did not establish exactly whose idea that was.

Anyway the mooncake workshop finally achieved a complete legal triumph. “No one was arrested and no evidence was seized,” as the Standard put it delicately. What, did nobody think of inviting the Buildings Ordinance people to check for illegal extensions?

I would like to believe that politics had nothing to do with this story, but I am not that stupid. Do you think, if I made a spurious report that cocaine was being smoked in a local DAB office, there would be such a diligent search for something – anything – which could be used to give the operator a hard time?

This story has its bright side. We can relish the thought of the one female worker who was present when the troops arrived greeting a succession of official requests and questions, eventually to see the bloodhounds depart with tails between legs. No less than ten officials turned up. It’s not quite the Captain of Kopenick; we mustn’t be greedy.

But there is also an important principle involved here. The rule of law requires more than just a legal system and a police force. It requires, if I may quote the late Lord Bingham’s work on the subject, that “public officials at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred.”

Instead, we see a system where the government selects a target and then throws at it anything which might stick, so crowd-funding becomes money-laundering, a breach of lease conditions becomes fraud, clapping in court becomes sedition, and so on. Laws which have been dead letters for decades are exhumed and if that fails there is always the national security law, which can mean whatever you like.

Is it any wonder that low-level functionaries visiting vaguely democratic premises think their job is to find something the Director of Public Prosecutions can work with, even if their original inspiration turns out to be a duff one.

There may well be some nasty subversives out there somewhere who would really like to discredit the legal system. It is difficult to see how they could out-do those who are supposed to be guarding it.

The hazards of comparing statistics from different times and places are well known. But not, apparently, in Hong Kong public health circles, where COVID figures are looking distinctly shaky.

In the early days of the epidemic anyone who thought they had COVID rushed immediately to the nearest doctor – or if they couldn’t afford a doctor to the nearest Accident and Emergency Department. Doctors and hospitals were required to report cases of COVID to the authorities. So if we were told there were 1,000 new COVID cases yesterday this was probably – give or take the odd case with no symptoms and the odd false positive – the actual figure.

Thursday morning’s newspapers said we now had a daily total of over 10,800, passing the 10,000 level for the first time since the springtime spasm when it threatened on a couple of occasions to reach 80,000. In fact the daily figure given was 10,856, implying that no sparrow coughs without its ailment being recorded by the Centre for Health Protection. Which is, alas, not true.

I have heard of numerous friends, acquaintances, friends of friends and acquaintances of acquaintances, plus the odd relative, who have had COVID. None of them resorted to the official health care system. The standard way of dealing with COVID, at least for otherwise healthy adults, has become a matter of self-treatment. The victim takes some pills and retires to bed, keeping as much separation from friends and family as his or her living arrangements allow.

Some amusement was caused on the estate where I live when the management sent round a circular saying that we had a case on the premises. Public areas would be disinfected, U-bends watered, and security staff reminded to wear face masks, sensible measures which we were urged to copy.

The funny thing about this is that we all knew about previous cases which had not become official. There was some doubt whether the latest one was our fourth or fifth case, but nobody supposed it was actually the first.

Hong Kong people are traditionally self-reliant. The consensus is now that your ordinarily healthy citizen who has had four jabs of the good stuff will either not get COVID or get the harmless version. The ailment is no longer a public problem. We can handle it ourselves.

I am not suggesting the the rate of reported to unreported cases is as high as my local experience might suggest. Houses with multiple bedrooms offer more amateur quarantine possibilities than your standard Hong Kong flat, let alone your standard Hong Kong subdivided flat, bedspace or whatever.

Indeed the Penny’s Bay quarantine accommodation, regarded with some dread among inhabitants of comfortable upmarket homes, may well seem an attractive prospect to people whose living arrangements are more basic. They’re coming to take me away, as the old song had it, hooray.

On the other hand, though, being in quarantine implies not being at work. This is a financial problem for some people, who will no doubt be tempted to regard their minor symptoms as being no bar to attending the usual day’s toil, even if that means breathing on strangers.

My point is not that the official figure is too low. My point is that it is worthless. It could be too high, though that seems unlikely, or it could be too low. COVID has ceased to be a disease which is routinely reported, so we have no reliable way of knowing how prevalent it now is.

Yet we are still being told that if the official figure passes some threshold, up or down, there will be consequences – respectively more restrictions on gatherings and travel, or less.

Clearly it would be foolish to suppose that I am the only person who has noticed that policy is now being made on the basis of fictitious statistics. The danger is not just that erroneous fears or hopes could lead to misguided policies. The danger is that people will entirely lose faith in the government’s public health efforts.

These are already in bad odour in some quarters. They seem to be out of step with the rest of the world, bewilderingly changeable, and prone to political pollution. There is no Chinese medicine, traditional or otherwise, that has any demonstrable effect on COVID. The limits on gatherings – 500 for marathons, eight for dinners, four for political protests – make no sense. Too many top, and not-so-top, people seem to be exempt from all restrictions.

From a long-term point of view this looks worrying. We must all hope that we can trust the learned prophet who announced last week that the current epidemic will finish next summer because epidemics usually subside after three years, though one does wonder. Perhaps this one will be different?

With more certainty we can say that sooner or later there will be another epidemic. When that day comes it would be useful if Hong Kong people trusted their government.

Our Chief Executive. Mr John Lee, urged young people in a recent speech to “tell the world a good story about Hong Kong whenever possible.” Which is no doubt something much to be desired.

But Hong Kong’s problem with the world is not so much a shortage of good stories as a surplus of bad ones. I realise that it is hard for a Chief Executive, buffeted by events, “advised” by Mother and besieged by people who think their interests coincide entirely with those of the SAR, to do much about this.

But there are some things which are still under the government’s control and could reduce the flow of bad stories.

Let us start with a bad story which goes back 800 years. In 1215 the then King of England – another John by coincidence – was cornered by a bunch of rebellious barons and persuaded to sign a charter promising improvements in government.

Of course John repudiated it soon afterwards as having been extorted under duress, but it had his signature and seal on it so lawyers treated it as part of the law anyway. Most of the improvements concerned the rights and obligations of feudal vassals but a few fragments are still law.

One of them is the famous paragraph 39, which goes (translated from the Latin) “No free man shall be seized, imprisoned, dispossessed, outlawed, exiled or ruined in any way, nor in any way proceeded against, except by the lawful judgement of his peers and the law of the land.”

And from this arose the rule that a man or woman accused of a serious offence was entitled to a trial by jury. The other landmark – a case of unlawful assembly oddly enough – came in 1670. In what is known as Bushel’s case the jury acquitted the two defendants and the judge sent them to jail with orders to change their verdict. Mr Bushel, who was one of the jurors, appealed to a higher court and established that the jury has the exclusive right to return whatever verdict it thinks proper, regardless of the opinions of the judge.

There is rarely much discussion of jury decisions – it is actually illegal to interview a juror about what happened in the jury room – and while there are sometimes verdicts which appear a little inexplicable most lawyers regard juries as no more eccentric in their decision-making than judges, though in different ways.

It is known that juries are somewhat more likely to acquit defendants than judges sitting alone (the usual alternative in England) but this does not mean they are prone to error. Judges who hear a lot of criminal cases often develop a certain cynicism about the usual defences.

The right to a jury trial was duly exported to Hong Kong and was among those rights commonly supposed to be secured by the Basic Law. Under the National Security law it is no longer a right. If you are accused of a serious Nat Sec offence the government has the option of dispensing with the usual jury and replacing it with three judges of its own choosing.

In all the cases of this kind so far the jury has in fact been replaced in this way. This is the sort of story which “the world” tends to take rather badly. If a jury trial is good enough for your common or garden burglar, rapist, murderer or whatever, it is not a good look to rule it out for one category of defendant. And the picked judges bit looks a bit… shall we say Hungarian?

And this is not necessary. The Nat Sec law allows the jury to be replaced but it does not require it. The Secretary for Justice would no doubt be willing to heed a plea from his boss that this unlovely innovation should be sheathed for the time being. It may be that juries wil be reluctant to convict in cases with a political flavour and we shall have to think again. But a few surprising acquittals would look better than setting a new global standard for kangaroo courts.

We can also consider another of King John’s promises, which goes like this: “To no one will we sell, to no one will we deny or delay right or justice.” Now justice is not yet for sale, and you can argue about whether it is denied, but what cannot be disputed is that it is now delayed. Another avoidable “bad story” involves political figures – sometimes aged or ill or both – with no previous criminal record being remanded in custody for months, even years, awaiting trial.

This again is enabled, but not required, by the Nat Sec law. The presumption that defendants will have bail is reversed. There is however no requirement that the prosecution should on every possible occasion oppose the granting of bail, as it does. Nor is there a requirement that the prosecution should take its sweet time in preparing its case.

Prosecutors in the UK are strenuously discouraged from keeping defendants in custody for more than six months. In Egypt, hardly a human rights haven, a prosecution which has not begun after two years is summarily dismissed, which counts as an acquittal.

This is a matter of policy and priorities, not law. Keeping people on ice for years awaiting trial is another “bad story” which does not go down well in “the world”. Prosecutors in other countries manage to work at higher speeds. They should be emulated.

Then there is the matter of political pollution in police work. Typical “bad story” this week. A man was busking in the Tung Chung bus station. Police turned up. He was playing an erhu, which is not everyone’s cup of tea. There had apparently been a complaint.

In due course he was arrested and charged with playing an instrument “in a public street or road save under or in accordance with the conditions of a permit from the Commissioner of Police.” This is apparently an offence under the Summary Offences Ordinance and I have committed it more times than I can remember. Who would have thunk it?

Wandering around Hong Kong you see buskers all the time. I have never heard of any of them being prosecuted. The bagpipe is an outdoor instrument often practised in the street. Likewise no interest from law enforcement. Occasionally a practising group will produce a noise complaint and we are just politely asked to desist and move on, which we do.

So why, you wonder was 68-year-old retiree Li Jiexin introduced to the obscure corners of the Summary Offences Ordinance? Well magistrate Felix Tam (who acquitted Mr Li on the grounds that the prosecution had called no evidence of the absence of a permit, an essential ingredient of the offence) stressed that politics had nothing to do with justice and refused to allow any evidence of what tune Mr Li was playing.

Very good. Still it seems that the thing which distinguished Mr Li from other ordinary buskers unworthy of the attention of the police force is that he was playing the tune of Glory to Hong Kong, a popular protest song.

The weaponisation of obscure laws to suppress expression the government disapproves of is another “bad story” which allows critics to depict Hong Kong as a place where the law is a tool of tyranny, not a protection for the public. Once again this is an option, not a requirement. Tell your boys to behave themselves.

This is the sort of thing which puts you off teaching media law in Hong Kong. In March last year when the 47 National Security group defendants first appeared in a magistrate’s court, there was some discussion in court as to whether reporting was allowed.

Reporting of committal proceedings – basically all the hearings before the start of the actual trial – is restricted to bare details of names, charges and decisions on bail. But the restrictions can be lifted under some circumstances.

Magistrate Victor So, one of our – or rather their – national security specialists, supposed he had complete discretion in the matter and announced that the usual restrictions on reporting would remain.

This was an error, and I wrote a piece to this effect a few days later. This is not an obscure or controversial matter. The law is of considerable antiquity and it is quite clear. If the defendant – or if there is more than one defendant any one of them – wishes to have the reporting restrictions lifted then they must be lifted. But of course national security judges should not be swayed by the scribblings of a non-lawyer like me, and nor were they.

All subsequent applications for reporting restrictions to be lifted were refused, most recently by another national security star, Principal Magistrate Peter Law. This is a small personal embarrassment, because I taught this stuff for years, and always included the bit about restrictions being lifted if the accused person wished it.

However one recent victim of the new policy, barrister Tonyee Chow Hang-tung, took the matter to the High Court by seeking judicial review of the decision. It appears that Ms Chow, unlike many of our learned magistrates, can read the Magistrates Ordinance and has done so.

The application was a complete success. Judge Alex Lee ruled that the magistrate had exceeded his authority by refusing to lift the restrictions. “The magistrate has no discretion but to lift the reporting restrictions at the instance of the accused,” said the judge, adding that the magistrate’s approach to the matter was “totally in opposition to the principles of open justice.”

Disgracefully, the magistrate’s arbitrary action was defended by counsel for the Secretary for Justice, who contended that “lifting the restrictions would frustrate the ultimate aim of doing justice.”

It seems that both Mr Law and the Department of Justice were under the impression, shared by The Standard’s reporter, that the restrictions on reporting are intended for the protection of prosecution witnesses. This is not the case.

The purpose of the restrictions is to protect the defendant. In the old days the prosecution evidence was given in great detail during committal proceedings, while for tactical reasons the defence said little. The unintended but inevitable result of this arrangement was that reports of the proceedings were heavily biassed against the defence.

So the idea of the restriction is to prevent the defendant from being disadvantaged at his trial. You can actually report all the committal proceedings after the trial has taken place, which is occasionally useful if the defendant pleads guilty and the prosecution evidence is not needed at the full trial.

Clearly this arrangement conflicts with the principle that justice should be public. So the defendant is given the choice. He or she may – if convinced that this will help, or not harm, the defence – ask for the committal hearing to be reportable as other hearings are. There are a variety of reasons why the defence might think publicity helpful, though discouraging prosecution witnesses is not usually given as one of them.

But the court has no discretion in the matter, however dubious the defendant’s decision may be. In one notorious English case a defendant was paid by an eager newspaper to get the restrictions lifted. And they were.

Actually in Hong Kong these days the restrictions on reporting of committal proceedings have become pointless. The prosecution submits its case on paper and witnesses are not heard.

Moreover the defendant has often already been prejudiced because soon after his arrest the police generally outline what is effect going to be the prosecution case in a press briefing. This used to be harmless, at least in theory, because names or other identifying details of those arrested were not included. Times have changed.

So all this is not going to make a great deal of difference. It does mean we shall be able to read reports of the prosecution’s limp excuses for not being ready for trial months or years after the date of the alleged offence.

I gather from a recent speech by the new Secretary for Justice that his department now recognises that this is a problem. This enlightenment also has been much delayed.