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Call me a glutton for punishment, but when it appeared on the Judiciary website I read the judgment of Mr Justice Au in the legislators’ oaths cases. This was not fun. At the end I felt as if I had been beaten repeatedly over the head with a volume of the old hardback Laws of Hong Kong.

Mr Au is apparently not inspired by the observation of the then Master of the Rolls, Lord Denning, that judgments should be written in a way which allows them to be understood by the lay clients involved in the case. Nor, alas, does he have that lucidity which makes some quite technical judgments a pleasure to read.

These are not complaints. Writing legal documents is a difficult and highly specialised art. The results are not meant to be entertaining, even to legal groupies like me. Sometimes we are lucky. And sometimes we’re not.  I understand that on non-legal matters Mr Au is regarded as a bit of a humourist. A well-concealed trait, in working hours.

This is not a preliminary warm-up for a complaint about the result. Clearly the “interpretation” of the relevant Basic Law was intended to provide a legal reason for the exclusion of some members from the Legislative Council. As that was its purpose it would have been surprising if it had not worked.

Once the Court of Appeal had given the nod to the idea that the interpretation was automatically backdated to 1997 Mr Au really had no choice but to proceed with the flagrantly unfair notion that what had been acceptable for 20 years was now grounds for instant defenestration from Legco, and had been such grounds even before it was thought of by our imperial masters.

Students of legal thought will find some interesting by-products of this process. The interpretation says that the taking of the Legco Oath must be done “accurately, solemnly and sincerely”.

Now “accurately”, if I understand the situation correctly, has been expanded a bit to include the notion that the swearer must utter the oath, the whole oath, and nothing but the oath. Say anything before or after and you are no longer accurate. It is not enough to read the words on the card. You must not say anything else. A careless “so help me God” could be very expensive.

Solemnly, you would think, presents few problems. Did the swearer giggle, wear a red nose, insert a joke? Well this also has expanded a bit. Its most interesting feat has been to take over the space formerly occupied by sincerely.

Here I smell a small rat. Because the law, apparently, is that the court will decide on an objective basis whether the oath was solemn. Which is easy enough. These days there will be video. But owing to the conflation of the two concepts the court is also, it seems, deciding whether the vote was sincere.

Indeed Mr Au at one point explicitly states that the standard of solemnity is that a reasonably man would suppose the oath taker to mean what he or she is saying.

The problem with this is that I can believe a judge – who is presumably used to making difficult decisions – may be able to decide objectively whether an oath-taking is solemn or not. And most reasonable people would agree with his decision in most cases. The objective judgment of sincerity is quite another matter.

Sincerity is an entirely internal matter which happens inside the person’s brain. This is not a problem in the mainland legal system, where the contents of the suspect’s brain can be extracted by pushing toothpicks under his fingernails or threatening to shoot his wife. I do wonder whether it can be reliably detected by a Hong Kong judge watching a video.

After all most of us accept civic obligations to the SAR and China as arising out of the current constitutional situation. Looking at the sort of time-servers and sycophants who occupy the pro-government side of Legco we must suspect that if by some awful international error Hong Kong had been returned in 1997 to Russia instead of China, they would now be willing to swear undying loyalty to the Soviet Socialist Republic of Hong Kong. Like, whatever.

Mr Au avoided this potential problem by treating solemnity and sincerity as the same thing. I do not think that produced any injustice in the instant cases. Clearly if a swearer has tripped over the accuracy and solemnity requirement it does not matter too much whether we also diagnose insincerity or not.

Will there, though, be future cases in which the newly minted legislator has taken the oath with all the accuracy and solemnity that a reasonably law can require, but is still not the sort of person the Liaison Office wishes to see in Legco? I do not look forward happily to the spectacle of a government lawyer arguing that a legislator should be disqualified because “he took the oath but he can’t have meant it because look what he said last year”.

Curiously absent from the proceedings is the one group of people who are the losers in all this, and who happen to include me. The purpose of electing legislators is not to provide high quality advice to the government or to provide a stimulating and fulfilling career to aspiring young politicians. It is to ensure that the population of Legco reflects in its views the preferences of the electorate.

My constituency is supposed to have seven representatives. We now have only five. The one I voted for last time is out. The one I voted for the time before is out. The one I voted for in the by-election in between was not even allowed to run.

As an elector I am I think entitled to feel that I have been stiffed by the system. Of course I can if I feel strongly take legal action to compel the government to get on with a by-election or two. Why should I be deterred by the thought that the Department of Justice will claim several million bucks in costs if it wins? And if I win all I get is an election. Sorry. I have an invalid dog to support.

 

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Generally we are urged to welcome new technology. Indeed this sometimes seems a bit indiscriminate. After all some technologies in the end don’t make it. Anyone who bought a digital radio in Hong Kong in the last few years, for example, wasted his money. However there is one exception to this rule: new forms of fun, and especially new forms of fun involving sex.

There is already a Foundation for Responsible Robotics, which published a “consultation paper” in May (no doubt the Hong Kong newspapers had more urgent things to worry about) warning that “sex robots could increase the objectification of women, alter perceptions of consent and be used to satisfy desires that would otherwise be illegal.” Why the last one is considered a problem I am not sure.

But the foundation is just warming up for its part in the prohibition campaign. There is also already a Campaign against Sex Robots, led by a lady anthropologist at De Montfort University (no I didn’t know either – it used to be Leicester Poly) who is a Senior Research Fellow in the Ethics of Robotics.

The only thing there isn’t yet is an actual sex robot. For a video survey of the current technology look here: https://www.theguardian.com/technology/video/2017/apr/27/rise-of-the-sex-robots-video

A little history may be in order. People have always found artificial substitutes if they did not for some reason have access to willing partners of the opposite, or the same, sex. Many years ago I reviewed a history book called “Sex and Empire” about the sexual aspects of the empire on which the sun never set. One thing in the book, I noted, had puzzled me – a saying current in the 19th century Indian civil service which went “women for duty, boys for pleasure, melons for sheer delight”. How, I wondered, did you achieve “sheer delight” with a piece of fruit.

The only local response was from a retired civil servant, who wrote to the newspaper in which this piece was published saying that in his youth he had been treated to a longer version of the “women, boys, melons” trilogy, which also included a tribute to the erotic possibilities of goats. However I also sent a copy of my piece to the author, thinking that his cutting service, if he had one, probably did not cover Hong Kong. And in due course I got a polite reply, including an extract from another book explaining the melon matter. Apparently you take your melon, dig a hole in it approximately the dimensions of a … banana, prop it up (some people build a special tripod for this purpose) and give it all you’ve got, as it were. It is also possible to use other fruits. In the French Foreign Legion they do it with cacti. Well, they’re tough guys.

When I was a student “love dolls” occasionally appeared as props in rag floats and such like. These were inflatable women, or if you prefer woman-shaped balloons. They were always dressed, at least in the bikini bottom area, presumably to conceal the comparatively elaborate tailoring between the legs. The rest of the doll was not convincing at all.

The modern version has abandoned the inflatable technology. You now get a metal frame covered in silicon. The leading US version is called a Realdoll and it is eye-wateringly expensive: https://www.realdoll.com/. Cheaper version made in China here: http://mxdolls.com/. There are several Japanese manufacturers. Here is one: http://www.japaneserealdoll.com/.

As you can see they are quite realistic, if you are comparing them with a balloon. If you are comparing them with a real person, the chest to waist ratio is a bit implausible. They are dolls, meaning that they only move if you move them. Some people are working on movement. Apparently walking is out of the question because it takes so much battery power, but I suppose in a sex doll walking is not the kind of movement you want. You can now get a talking head for your Realdoll, for the price of a small flat. But nobody is going to mistake the result for a real woman.

That is not necessarily a problem. According to the Daily Telegraph, “Doll brothels already operate in South Korea, Japan and Spain, while the first robotic oral sex coffee shop opened in Paddington, west London, last year.” The mind boggles.

The only controversy about the existing dolls concerns a Japanese version. Japanese sex dolls tend to be small, both because Japanese people live in small flats and because Japanese ladies are generally quite small also. One version is explicitly juvenile. The manufacturer says that possession of one of his creations has enabled him to satisfy urges which would otherwise be illegal, and he recommends them for this purpose to other pedophiles.

This is a hard sell in western countries, where pedophiles occupy the niche once reserved at different periods for Jews, Gipsies, heretics or witches. They allow guilt-free hatred. So anything that helps them tends to get a frosty reception.

Aside from this, though, all the learned attention being devoted to this topic comes from people who don’t know what they are talking about. Because so far, there is nothing to talk about. There are no sex robots and the estimated time frame for something which might fool a pleasure-seeking drunk in the dark is 15-20 years. Some of the authorities, indeed, say that there will never be a sex robot you could mistake for a real person, because this would feel too creepy. So there will always be a sort of deliberate mistake. The Realdoll guy believes this is a non-issue. A doll is a doll, a robot is a robot and a person is a person. Users will know.

The objections to sex robots, which I suppose are also objections to sex dolls, and perhaps to modified melons, come in three categories. The first is that people who have tried it with a robot will lose interest in the real thing. The second, somewhat contradictory argument, is that if people do with robots things which would be illegal with humans they may get used to the idea and more likely to do the real thing. The third is that female robots will change some men’s views of female people.

These are no doubt serious arguments. What bothers me is the willingness of some people to leap from the suspicion that the future may contain some dark possibility to the idea that there should be an immediate ban, or failing that. “Maybe people who want to buy sex robots need to present the agreement of a couple of doctors, before they are judged emotionally restricted enough to need to retreat to such an inhuman fantasy.”

One of the advances painfully achieved in the second half of the 20th century was the general acceptance of the idea that what people get up to in their own bedrooms, alone or with consenting adults, is their own business. This is a good idea. I have no personal interest in dolls, robots, inflatables, melons or cacti as an aid to play. But if people want to explore technological variations on the traditional paths to pleasure that is their right.

And I am a bit suspicious about the motives of professors sounding off in this area. If you are tired of labouring in the obscurity of anthropology,  ethics or robotics, do not despair. You too can become a public figure by saying something provocative and opinionated about sex.

 

 

 

This one came up last month. A lady called Sze Chu-ming appealed against her conviction by a magistrate for assault. The appeal succeeded. So far so routine. As is customary these days the proceedings had taken a long time. The alleged offence took place in 2015. Justice delayed is justice denied. Don’t hold your breath.

Now some odd things about this one. The alleged victim, one Cheung Lai-ching, is a member of a mysterious organisation called the Hong Kong Youth Care Association. This association does not seem to spend a great deal of time on youth, or indeed on care. Its main activity is to set up banners and loudspeakers in selected spots to disrupt efforts by members and supporters of the Falun Gong to put their views before the public. The association was established in 2012, apparently for this specific purpose.

Readers in distant countries may need to be reminded that the Falun Gong is a therapeutic meditation practice which is banned in China. Falun Gong supporters claim that those of its members who are still in China are abused by the authorities. This is plausible, in the light of the way the authorities treat other people they disapprove of. It is and has always been legal in Hong Kong, without giving rise to any harms or complaints, so claims that the Falun Gong is an “evil cult” appear without foundation.

Visitors to Hong Kong will from time to time be greeted in busy areas by displays and playlets illustrating the persecution of Falun Gong practitioners on the mainland. Nearby, indeed as close as possible, they will often also find the Youth Care Association people displaying hostile banners and trying to make so much noise that nobody can hear anything. On some occasions, the resulting situation gets tense. This has happened before. A few years ago there was a major row about a schoolteacher who was filmed scolding the police in fruity terms for protecting the Youth Carers from indignant passers-by who wanted them to shut up.

However the case of the SAR v Sze shone a new light on this ongoing public order problem. Ms Cheung, the alleged victim, had featured, the court was told, in 92 police reports in the last three years. In 38 of those cases Ms Cheung was the person who called the police. Records of most of the cases had been destroyed, presumably because they did not come to anything. Of the six survivors, five were complaints against Falun Gong members alleging nuisance, street obstruction and criminal damage.

The judge also noted that in previous trials his brother judges has found Ms Cheung an “unreliable witness” motivated by hostility to the Falun Gong. Unreliable witness is the courteous legal term for “liar”.

So justice was served in the end. I am left, though, with a lot of questions. The first one, of course, is how did all this get past the original magistrate. Maybe some of the points raised on appeal were not put before him, but still. The judge hearing the appeal found that the evidence was insufficient. It used to be said that it was better 100 guilty people should go free than one innocent person should be convicted. This quote is not much honoured in local magistrates’ courts, I fear.

One also wonders what was going through the mind of the person who decided this prosecution should go ahead. The alleged injury was trivial, the evidence was flaky, and the situation was one of those public confrontations which often end in huffing, puffing and jostling. I take it from the mass disappearance of Ms Cheung’s police records that most of her complaints came to nothing. Why was this one singled out?

Then there is the matter of Ms Cheung’s enthusiasm for the emergency services. I think there should be some way of discouraging people from engaging in provocative behaviour and then calling the police with spurious complaints as a way of giving their adversaries a hard time. Wasting police time is an offence and some people would regard 38 calls to the 999 desk in three years as a good example of it. This last weekend we have seen protests summarily banned on the grounds that they might provoke a violent response from bystanders. Are we perhaps encouraging violent bystanders too much, and doing too little to protect non-violent speakers? Or are we now enjoying freedom of speech with Chinese characteristics?

This question has lately become so mainstream that social scientists and politicians are weighing in. Unfortunately much of the discussion has been along rather crude lines. The matter in dispute is whether Hong Kong youngsters consider their identity to be Chinese, and if not, is this a problem?

Mr C Y Leung’s offering on the subject was, like so much that falls from that particular pair of lips, difficult to square with reality. Governments, he said, would regard you as Chinese if you had a Chinese name and face, whatever passport you held. This is, to put it politely, not the way it usually works. A passport is an official document issued by a government, and governments are of all possibilities the one most likely to take it seriously. Indeed those comfortable countries whose passports are regarded as most attractive often make a point of disregarding the ethnic origin of their citizens, and many of them have laws against discrimination on that basis. I wondered, actually, if Mr Leung’s remarks had been distorted in translation and he had actually meant “the government”, rather than governments in general. For there is one government of which Mr Leung’s observation is palpably true: the PRC regards all ethnic Chinese as subject to its control, wherever they may be and whatever passport they carry. Such people can be kidnapped in foreign countries and carted back to the People’s Paradise, to face charges relating to “crimes” which were not offences in the place where they were committed. In the eyes of their government Chinese people are not served, they are owned.

Possibly sensing that his master’s voice had been enjoying one of its less lucid moments, Michael Chugani repeated the point, but with a subtle difference. In Mr Chugani’s version it was not governments which would refuse to recognise a different national identity from that of your face, but “other people”. Apparently Mr Chugani’s fellow-Americans often insist that he is “really” Indian because he looks that way. This seemed rather a poor argument for recognising yourself as Chinese rather than a Hong Konger. After all many Americans are lamentably misinformed about “abroad”. One gets used to explaining that Hong Kong is not in Japan. Also it is generally considered that the main determinant of a person’s identity should be that person’s choice, and other people’s failure to recognise that choice should be resisted rather than appeased.

But this is all rather unsubtle. It assumes that identity is something unitary, logically consistent and permanent. This seems rather unlikely. In tolerant countries, after all, one person does not have one identity. He or she has a variety of identities in different contexts. Someone who is born and raised in London, and spent most of his life there, will certainly identify himself as a Londoner. That does not mean he is a traitor or a seeker of independence. In the World Cup he supports England, in the Olympics he supports Great Britain, and in the Ryder Cup he supports Europe. Besides this geographical onion, she may have other loyalties or memberships. Some of these are within national boundaries, like the National Trust or the Boy Scouts of America, while some of them cross it, like the Catholic Church or the Freemasons. In Hong Kong this is still allowed. It is an arrangement we rarely think about. We have multiple identities which are not mutually exclusive. Someone who thinks he is a Hong Konger may also consider himself Chinese, Muslim, and a member of Amnesty International. Asking people which identity they prefer is asking for trouble. The answer depends on the time and the context. Consequently we should not draw too many conclusions from it. A young Hong Konger who considers Hong Kong her most important identity is not necessarily rejecting all the alternatives out of hand.

Totalitarian regimes are different, alas. Multiple loyalties are not allowed. We are supposed to have “Ein Volk, Ein Reich, Ein Fuhrer” as one unhappy precedent had it. One people, one country, one leader. And this trinity, like its religious counterpart, is not supposed to be divisible. It has to be swallowed whole. If you do not admire the leader you are also betraying the country and the people. The difference between Hong Kong and China on this point was not covered in the Basic Law. I suppose the drafters thought that having provided for a high degree of autonomy and capitalism continuing for 50 years they had dealt with the matter. Clearly Mr Leung has had the necessary brain surgery to meet the standards of devotion required. The prospect of the rest of us having to go the same way may explain some of the disillusionment among young people contemplating a future here.

In fairness to Messrs Leung and Chugani we should perhaps note that ethnic identities have a unique characteristic: they are the first thing people see. When you meet a stranger, before either of you says anything, and without conscious effort on either side, you have an initial impression of gender, age, ethnicity and perhaps other superficial things. People I meet in lifts occasionally comment on my height. If you met President Obama in the street the first thing that would register would be that he is black, more or less. A man interviewing potential students is deceiving himself if he thinks he does not notice that some of the ladies are pretty. This initial impression quickly fades into the background as you get to know other things about the person concerned. Your first unconscious thought may be “This kid is Chinese”. But once you have discovered that he is a gay vegetarian anarchist who supports Manchester United the ethnic classification is overwhelmed. Of course there are people for whom it remains a problem. No matter how well they know the person the ethnic category still obliterates everything else. This is known as racism and it should be opposed, not accepted as an unavoidable fact of life.

Sometimes two decisions, made separately by different people but trying to apply the same rules, come out with disturbingly different results.

Consider two announcements which both came out last week, about the aftermath of unexpected collapses of part of buildings. One of these concerned the collapse of one wall of the Police Married Inspectors Quarters Building, which is part of the old Central Police Station. In fact it is among the oldest parts; construction started in 1862. The wall collapsed on May 29 last year.

The other case which came to fruition at the same time concerned the roof of the Chan Tai Ho Multi-purpose Hall, which is part of a sports centre at the City University. The whole roof fell down on May 28 last year. The hall was practically brand new.

Both these cases had been the subject of inquiries, the conclusions of which were in due course transmitted to the Department of Justice. And the department has decided, it announced last week, that the contractor who was in charge of the married quarters work will be prosecuted. The first charge will be carrying out building works in a manner “likely to cause a risk of injury to any person.” On the other hand, the Justice people have decided that in the City U case “no prosecution was warranted”, according to the Standard.

And where, you wonder, is the justice in that? It may be that there are further nuances in the Married Quarters matter which will emerge in court. But on the face of it the contractor seems to have been rather unlucky. Dismantling or renovating a building more than 150 years old is always going to be tricky. There are probably no plans, and if there are plans the building will have been modified, and it was certainly not designed with a century and a half in mind.

Certainly the falling wall presented a risk of injury, but this was not entirely surprising. The risks involved were known and resulted in precautions not found in City U sports halls – the public were not admitted, workers were expected to wear hard hats, and so on.

The City U situation is rather different. The sports centre was in use while the university decided to add a lawn to the roof. Students played underneath it oblivious of the risk to which they were exposed. Indeed the university was in a sense lucky. If it had not been for the alertness and initiative of a security guard who organised an evacuation just in time, there would have been many people under the roof when it succumbed to Sir Isaac Newton’s great invention and tried to merge with the floor. If the roof had chosen another time to demote itself the casualties could have been in three figures.

Now I realise that there are regular arguments in educational circles about whether and if so to what extent universities are in loco parentis – whether they have parental or pastoral obligations as well as academic ones. But I think everyone who has discussed this would agree that universities do at least have an obligation to provide premises in which the roofs stay where roofs should be, rather than descending on the defenceless heads of their students.

The inquiry into the City U roof collapse attributed it to three causes: “the screeding of the roof structure was thicker than the original design, laying of greenery cover on the roof, and localised water ponding on the greenery cover.” This is not very helpful. I presume that the heavier screeding was necessary to support the greenery. And once the lawn was up there it should not have been difficult to predict that it would get wet in wet weather and it would then weigh more than it did dry. In fact, to put the matter in plain English, it appears that the City U put a lawn on the roof without giving due consideration to whether the roof was strong enough to support it.

City U has a Campus Development Office – duties “providing comprehensive services covering campus master planning and space allocation, capital and renovation projects, repair and maintenance of building services and estates of the entire campus.” The office has seven sections, supervising 17 “units” which in turn overlook 18 teams. Plenty of relevant talent there, then.

The university also has a Department of Physics and Materials Science, and a Division of Building Science and Technology. So the roof in question was surrounded by a great many people who knew, or should have known, that putting a roof on your garden is much easier than putting a garden on your roof.

It appears from the comments supplied by Edward Yiu, who represents the relevant functional constituency in Legco, that the decision not to prosecute arises from a “grey area as to whether green roofs are building works that require plans to be submitted to the Buildings Department.” But if this explains the Department of Justice’s action, or non-action, then the department is surely taking too legalistic a view of the matter.

The question is not whether sabotaging your own building requires the approval of the Buildings Department, but whether it is legal to turn a boring hall roof into an exciting death trap waiting for a Black rainstorm to spring it. If the government cannot be bothered to consider this, why are harmless householders all over Hong Kong routinely threatened with prosecution for minor changes to their buildings which – if they threaten anyone – threaten only themselves?

The City U students were lucky this time. Nobody was under the roof when it came down. But the way we prevent serious accidents is by taking narrow escapes seriously. I do not doubt that if a few students had been squashed the Department of Justice would have found a way to swing into action and prosecute someone for something. So as traditional school reports used to put it, they “could do better if they tried.”

 

Mr Hoo, whose interesting version of the problem presented by the need for customers on the new Express Link to go through mainland customs and immigration inspired my last outburst, now claims that he was misquoted in press reports of what he said. This is, if true, a pity, because what he now says he said is even funnier.

In a letter to the South China Pravda Mr Hoo now says that what he said was that Hong Kong “asked to be plugged into the high-speed railway network of the mainland.” This is an interesting way of putting it. Some Hongkongers might prefer to say that this expensive political erection was rammed down their reluctant throats by an unelected government. Given that we have asked for it, though, Mr Hoo says that “it is agreed” — he does not say by whom — that this can only be done by having all the immigration and customs clearance done at the West Kowloon terminus. If the train stopped in Shenzhen for this purpose then “This would mean the Shenzhen-Hong Kong journey was no longer high speed and that the money spent building the high-speed tunnel had been wasted.”

A few words are in order here about the technicalities of high-speed railways. Trains with a high maximum speed do not depart the station like a Saturn rocket in a burst of skull-bursting acceleration. This would be bad for the passengers and require an unnecessarily vigorous power plant. Similarly it takes them a long time to stop.  So our part of the express link will never be a high-speed tunnel. The trains leaving Kowloon will still be accelerating when they reach the border and the arriving ones will be slowing down before they get to Shenzhen. Second point: the purpose of a railway is to provide convenience to the passengers, not to provide an exciting life for the train driver. The passengers will have to go through customs and immigration somewhere. The time this takes, unless it is done on the moving train, will be added to the time taken actually moving on the journey. The timetabled time will be shorter if the clearance is done in Kowloon, but the journey time will be the same because passengers will have to reach the station earlier.

Mr Hoo also seems to have missed the numerous reports that the Shenzhen authorities are very keen to have all trains stop at their station because their express rail link is losing money — as ours no doubt will — and they would like the ongoing trains to be more full.

But Mr Hoo is more entertaining on legal matters.  He now says that there was no underground development in West Kowloon in 1997, but the basic law grants “implied rights” for underground development. He says that the new area underground raises “complicated questions of land sovereignty”. It must, he says, be recognised that “the autonomous area at West Kowloon under the Hong Kong SAR has not decreased because of the West Kowloon underground development, but increased.” He suggests that the SAR government should “not claim all of the underground development as its territory.”

Unaccustomed as I am to defending the Hong Kong government, this idea that new underground spaces are a sort of vertical reclamation, new territory which can be allocated as convenient to one jurisdiction or another, is based on a large legal error. The idea that the SAR government is being greedy by keeping all this new territory to itself is preposterous.

I am indebted to my mole in the legal profession for an alert to some matters which Mr Hoo has apparently forgotten since he left law school. The fundamental Common Law rule about structures over or under the ground is of great antiquity, and being of great antiquity it is embodied in a burst of Latin, which goes like this: Cuius est solum, eius est usque ad coelum et ad inferos. This may be roughly translated as “if you own the land you own the air above it up to heaven, and the ground beneath down to hell”.  It is usually ascribed to an Italian lawyer employed by the English King Edward I, who reigned between 1272 and 1307. The principle is confirmed by the 18th century textbook writer Blackstone: “Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards.” The principle still applies, though the indefinite extent has been somewhat pruned in modern times to accommodate civil aviation in the celestial direction and fracking in the infernal one. But it leaves no room for doubt that any underground railway development in West Kowloon, along with Henry Tang’s basement, the Lion Rock Tunnel, and the South Island Line, are in fact legally and without complication part of Hong Kong, and they do not increase the territory’s size. The SAR government is not “claiming” the space in the express rail station – it owns it, and cannot avoid owning it unless it positively gives it away.

This brings me to the part of Mr Hoo’s letter which needs to be taken seriously, because it tells us what to expect. Apparently there has been talk of a “Shenzhen model” under which the SAR would lease a piece of territory to the mainland security services, allowing it to come under mainland jurisdiction. This would cover, presumably, the relevant floor in the station basement and the trains. Mr Hoo thinks this is “constitutionally unviable”, though he does not say why. After all the Chinese government does not take its constitution very seriously.

The better approach, he says, would be for the State Council to designate part of the station as a “border defence area” and the tunnel as a “restricted zone”. This would mean that the areas so designated would become mainland territory. It would only apply in the identified part of the station “and the sealed tunnel”. I don’t know why Mr Hoo thinks the tunnel would be “sealed”. It will need maintenance, ventilation and emergency exits. Also if the tunnel is unusable for some reason the trains will be diverted to an emergency siding on the surface.

Personally I think the lease idea is the better one because a lease comes with conditions. The lease could specify who was to be stationed in the station and what powers they would exercise. If part of the station becomes effectively China then there are no restrictions at all.  This option would make it much easier to kidnap booksellers and other undesirables, which may be why some people like it. I fear, though, that this is the option we are going to get, and Mr Hoo is just doing his bit to soften us up for the bad news, and wrap it in a constitutional smokescreen.

The “co-location” debate, a euphemism for public disquiet at the mainland secret police having an office in the Express Rail Link station in Tsimshatui, took an interesting turn last week. One of the questionable features of the proposed arrangement, though not perhaps the most important one, is that it is a violation of the Basic Law, which stipulates that mainland law shall not be enforced in the Hong Kong SAR.

Mr Alan Hoo, who is a lawyer but perhaps more relevantly a warm supporter of the government, explained that the stationing of mainland officers, and the enforcement of mainland law, in the station basement would not be a violation of the Basic Law, because the basement was not in Hong Kong. You what? According to Mr Hoo the official map of the SAR, published in 1997, states that the SAR consists of its land and sea surfaces.

“Who does the underground belong to?” wondered Mr Hoo on an RTHK programme, “That’s a very complicated legal question. The earth is round. Why does the underground belong to [Hong Kong]? If we find oil beneath Hong Kong, [China] does not have to ask your permission before drilling it.”

Hoo employed a metaphor of a doctor inserting a tube into a patient: “The tube is inserted into your body, but it is the property of the Hospital Authority – not you – and it has administrative rights [over the tube].”

Now let us dispose of the medical metaphor first. The Express Rail Link is not the property of the mainland government. We are paying for it and it belongs to a company set up for the purpose. Property rights in the tube are not relevant here. If a mainland bus crosses the boundary into Hong Kong then it becomes subject to Hong Kong law, regardless of who owns it. Trains the same.

I also find the oil well comment rather unhelpful. Actually in most common law countries the ownership of land includes the ownership of any valuable deposits underneath it. The national government has no special status in the matter.  Nor is the roundness of the Earth an objection to this arrangement. Quite how this affects railway tunnels varies because the construction of a new line is usually preceded by a law specifically authorising the work and stating the conditions under which it must be carried out. In the early days of the London tube the companies were required to obtain permission from the owner of any property they tunneled under. To avoid the resulting endless paperwork the early tube lines were all built under existing streets, with occasionally odd results. In Hong Kong the situation is unusual: everyone who “owns” land actually holds it on a lease from the government — except, for historical reasons, the site of St Johns Cathedral. So if we strike oil the owner would presumably be the Hong Kong SAR government, not the unfortunate landowner who was going to get a drilling rig in his back garden. I see no reason to suppose that the mainland government would have a pre-emptive right to preside over the resulting well.

That leaves us with the most entertaining part of Mr Hoo’s argument, the idea that the SAR consists only of the land and sea surfaces, and consequently anything underground is still part of the mainland. The implications of this are quite mind-bending. If you are driving your pregnant wife to hospital and she delivers early in the Lion Rock tunnel, is your offspring entitled to a Chinese passport? If you are charged with a crime committed on the platform of the (very deep) Homantin MTR station can you avoid being charged by pointing out that the Hong Kong courts do not have jurisdiction because the underground is not part of the SAR? Travelling on the MTR, indeed, now acquires a whole new international dimension. The East Rail line is mostly in Hong Kong, but visits China when it goes under Lion Rock. The Kwun Tong line is mostly in China but visits Hong Kong when it surfaces between Diamond Hill and Choi Hung. Prepare to be asked for your passport.

The other direction also presents problems. If the SAR only comprises the surface, at what point in IFC2 do you leave the SAR and where are you then? Is someone who is required to leave the SAR before his visa can be renewed meeting the requirement if he travels on the Ocean Park cable car?

The most economical solution to these problems is to conclude that Mr Hoo was talking through his hat. Human beings are not lichens which can exist in a thin sheet on a “surface”. The SAR must be three-dimensional and we must suppose that the drafters of the official map intended this to be the case.

Whatever you think of this matter, though, you have to be a very legal person to suppose that finessing the Basic Law objection would produce general happiness with the proposed “co-location.” The objection to having the mainland Gestapo lurking in the bowels of West Kowloon are not just legal. You have to be very naive to believe that officials stationed there will be exclusively drawn from the mainland government departments dealing with customs and immigration. And you have to be very optimistic to suppose that the others, who are not primarily concerned with customs and immigration, will never emerge from their subterranean home and interfere with matters which should be no concern of theirs.

There is also the question of what happens if the mainland officials find someone on the train who in their view should not be in Hong Kong. Will this person be manacled, drugged, bagged and put in the luggage van? How long will it be before we see United Airlines-type scenes of reluctant and bleeding passengers being dragged on or off trains by thugs in uniform?

All this fuss is quite unnecessary. It is well established that all the trains are going to stop in Shenzhen anyway. Mainland officials can do their thing there. Some ingenuity may be required to find a way of doing this which avoids long delays. Solving this problem would be a more constructive contribution than developing new legal fantasies, however entertaining.