tim's experiment

Some of our imperial rulers seem to have overlooked a rather important point about Hong Kong’s future role.

We all understand that we have now abandoned the ambition to be “Asia’s World City”, a competitor for New York and London as a magnet for creative and enterprising individuals from all over the world, offering a lively, inviting and above all free environment for residents and visitors.

Now we are apparently going to be more specialised. We shall concentrate on being an international financial centre, which has the twin advantages of being easily achieved, because we are pretty much there already, and fulfilling our most important function in the eyes of Beijing bigwigs, which is to provide a conduit through which they can get their swag out of reach of the Party’s financial sleuths.

It is true that an international financial centre does not need to be famous for its observation of human rights and other civic furbelows. International finance is driven by greed, so the only requirement for such a centre is the presence of large amounts of money which financiers can hope to shake off the tree.

It may be that the government is a bit on the unsavoury side. It may execute adulterers in public, cut the hands off thieves, punish rape victims for not choosing death before dishonour, shut its eyes to honour killings, jail its critics, cheat in its elections and have inconvenient journalists dismembered in overseas embassies.

This will not discourage the international finance people, as long as there is money there in large quantities. Avarice trumps humanitarian considerations every time.

Still, there are some requirements for a financial centre. The first one is a basic recognition that the owner of money has the right to do what he likes with it, and that contracts will be honoured and if necessary enforced. Without this important bit of infrastructure the financial fish will swim elsewhere. Money is mobile, and will migrate to where it is appreciated.

There have been several signs recently that this important and indeed fundamental requirement is being forgotten.

One was a “forum” the other day at which several mainland performers stressed the importance of the judiciary getting on-side, as it were, with the Party’s preferences. The head of Beijing’s national security office in Hong Kong, for example, said that “judiciary staff” had the obligation to safeguard national security. 

Yang Wanming, who is the vice president of the supreme people’s court, called for more cooperation and exchanges so that between the mainland and Hong Kong there would not be “a big discrepancy in terms of legal understanding”.

But there is a big discrepancy in terms of legal understanding. If Hong Kong judges are expected to support government policies and operate on the same lines as their mainland counterparts we will clearly no longer be able to advertise an independent judiciary, a line which is already straining some people’s credulity.

If judges are not allowed to handle national security cases fairly and in accordance with legal principles, then the more finicky ones will depart the bench, leaving it populated with time-servers who are willing to do the Party’s bidding and serve its perceived interests, in political and non-political cases alike.

Then we have the idea which, according to The Standard last week, is “gaining traction”, and this is that civil servants’ pensions should be made conditional on good behaviour. Those who criticise the government, suggested a union official, should be deprived of the pension.

This idea was warmly welcomed by the chairman of the Senior Government Officers Association. The chairman, Peter Wong Hyo, suggested that the annual declaration required of civil servants should be amended to include a version of the oath to observe the national security law.

The legal implications of this seem to have passed Mr Wong by. The payment of the pension is a contractual obligation dating from the time when the pensioner was appointed. This is why it is still paid to those retired civil servants who were taken on before the government decided that all future recruits should be thrown to the MPF sharks.

The current “annual declaration” has nothing to do with the civil servants’ conduct or political activities. It merely confirms that he or she is still alive. Making the payment of the pension conditional on some definition of “good behaviour” would be a flagrant violation of the contracts of the pensioners concerned.    

Mr Wong, who clearly has a vivid imagination, said that introducing such a requirement would not violate freedom of speech because “Hongkongers still enjoy freedom of speech under the National Security Law”.

Well this is just an idea which, traction or no traction, may come to nothing. Our next example is already in action.

Hongkongers who migrate to the UK, a perfectly legal thing to do, are being refused access to their accumulated MPF funds. Details here. This is a clear breach of the rules. You are entitled to withdraw your MPF funds if you move permanently out of the territory … in any direction.

The problem is that many of those moving to the UK do so under the BNO passport scheme, as this is the cheapest and easiest route. The Hong Kong and China governments, in a fit of pique over the UK’s offer to admit BNO holders to citizenship, refuses to recognise the BNO passport as an identity or travel document.

But, as David Webb was first to point out, this is not really relevant. The governments of China and its colonies have a perfect right to recognise or not recognise any document for the purposes of interactions with their border controls or policemen. The question whether someone has permanently moved overseas, on the other hand, is a factual matter, and the mover has a perfect right, if asked if he has the right of abode in another country, to produce a BNO passport, which for these purposes means whatever the UK government decides it means.

It seems that examples are piling up of people who were told that because their migrant status in the UK was embodied in a BNO they would not be able to withdraw their MPF funds. Some of them now wonder if, even more scandalously, they might not be able to do so when reaching the age of 65. This just will not do. The funds which people have deposited in the MPF are still their funds. They have a right to withdraw them under stipulated circumstances, which include permanent departure from Hongkong.

The odd wrinkle in this is that the refusal does not come from the Hongkong government, it comes from the international financial firm which runs the fund which the MPF owner has chosen for his savings. HSBC, Manulife and AIA have been mentioned, though it appears that they are following instructions from the MPF Authority.

So far none of the people who were refused their money has sued the company concerned. This state of affairs will not last for ever. True, without access to their MPF funds many of them are very short of money and the law is an expensive pursuit. But in the UK, unlike Hongkong, it is not an offence to pay someone else’s legal expenses. So sooner or later someone will sue.

The most likely outcome, I suppose, is that he or she will win. But even if the finance firm wins, it will be a PR catastrophe on the scale of the MacDonalds libel case. The idea that people deposited their savings with one of these financial mammoths and then were told they could not get them back will go down very badly with potential customers elsewhere.

The fact is that morally, and probably legally as well, these people are being robbed at the behest of the Hong Kong government via the MPF Authority. This means that if your wealth is managed in Hong Kong it is subject to confiscation at any time without the slightest legal pretext.

Some months ago I asked the gentleman who manages my savings on my behalf if any of the investments concerned were domiciled in Hong Kong. He assured me that they were not. I imagine this is going to become a rather popular question.

A financial centre depends on trust, a commodity which is now being squandered.

Why, asked one of my colleagues, do you not write about politics any more? I had not noticed this, but it is true. The increasing frequency of legal comments is partly due to the disappearance of politics. There is no shortage of legal nonsense; the political nonsense has gone underground.

The proceedings of the Legislative Council have become a mere formality. Officials announce what they have already announced in a recent press conference. There is no debate, no criticism. Some of the more odious pro-government mediocrities take the chance to appear more royalist then the King by calling for something outrageous. Nobody cares; nobody listens.

The situation outside the council is not much better. Critical voices have been jailed or intimidated. Commentators are inhibited by the vagueness of the crimes now being discovered under the national security legislation and the newly exhumed sedition section of the Crimes Ordinance.

Discussion of policy seems pointless because it is no longer clear who decides anything, and on important matters it appears that the decisions are not made by Hong Kong officials or indeed in Hong Kong at all. Writers are of course used to being ignored. But it seems there is no longer a public conversation in which you can join. So why bother?

Meanwhile the deterioration in the legal situation has one saving grace for scribes with itchy pens: it is all still public.

Let us start our tour of the morgue with a visit to the court of magistrate Arthur Lam Hei-wei, presiding over a case in which a member of the public was accused of assaulting a policeman. The defence was, among other things, that the defendant did not know the alleged victim was a cop. Details here.

The interesting public point is Mr Lam’s explanation for his verdict of guilty: “Magistrate Arthur Lam Hei-wei said he was not convinced Bickett did not know Yu was a police officer”. And so another legal landmark goes down the drain.

It is not, in the old tradition, up to the defendant in a criminal case to prove anything. The burden of proof is on the prosecution. If the defence is that the defendant did not know something, then it is up to the prosecution to prove beyond reasonable doubt that he did. If magistrate Lam had any doubts on this point then the defence was entitled to the benefit of them, and an acquittal.

The defendant will no doubt appeal (he is a lawyer) but in the meantime was remanded in custody. This will give him some peaceful days to ponder the question which this case raises: was Mr Lam having an off-day, or is it now a general rule that, in magistrates courts at least, the defendant is presumed to be guilty?

For a more intricate and technical problem we can turn to the case of Mr Tong Ying-kit, who is accused of driving a motorcycle while flying a flag saying “Free Hong Kong, revolution of our times”, or words to that effect. He eventually collided with three policemen.

Of course Mr Tong’s guilt or innocence is entirely a matter for the jury – I beg your pardon for the three selected national security judges – hearing the case. The curious point about the prosecution’s case is the way they approached an undoubted problem: what exactly does “free Hong Kong, revolution of our times” mean?

The meaning of this term has already been announced by the Chief Executive and sundry persons among her minions and the law and order industry. But their opinions are not evidence. The Liaison Office has also condemned the phrase as “implying secession”. But you can’t call them as a witness either.

So it appears, judging by the lavish stream of quotations in the prosecutor’s opening address, that the prosecution is going to rely on expert testimony from Associate Professor Lau Chi-pang, who plies the Powerpoint in the History Department at Lingnan University.

And the thing which bothers me about this arrangement is this: can we regard Professor Lau as – in the legal meaning of the term – an expert?

To start with he is only an Associate Prof, a perfectly respectable rank whose modest altitude can be inferred from the fact that I used to be one. Also he is a historian. There is nothing about the study of history (in which I also have a degree) which qualifies a historian to pronounce with authority on the meaning of words in contemporary politics.

The historian may have an opinion, a well-informed opinion even, but it is no better than that of any diligent newspaper reader of normal intelligence.

The academic study of the meaning of words is conducted by linguists and philologists. If the prosecution could not find a friendly one to perform on its behalf this could be because to the learned eye the meaning of words like “free” and “revolution” is always nebulous and subjective. Words do not have “official” meanings outside of Stalinist states.

It appears also that Prof Chau is not only not an expert, but also not an independent expert. He has been a member of numerous bodies to which the government appoints its friends and supporters. He is a Justice of the Peace, which in Hong Kong is a duty-free honorific to reward faithful “small horses”, and the holder of a Bronze Bauhinia Star, of which you could say much the same.

He has been an invited member of the Heung Yee Kuk, which suggests an allegiance not so much to blue ribbons as to white tee-shirts. He is also a non-executive director of a mainland marble mining company.

Clearly Prof Lau is a respectable pillar of the community and the man to turn to if you want learned advice on the origins of local place names. As an authority on what Mr Tong intended by “Free Hong Kong, revolution of our times”, though, he leaves much to be desired.

If the Department of Justice cannot recruit a real expert then fishing a bogus one out of the government’s list of “friends who can be trusted” is not a good look.

No politically interesting event in Hong Kong is complete without an outburst of venomous fantasies from CY Leung, and the latest assault on Apple Daily was no exception.

It is difficult to know what metaphor suits Mr Leung. When he looks in the mirror, I suspect, he sees a De Gaulle-like figure waiting in Colombey-les-deux-Peak-palaces for the call of destiny. For the Liaison Office, as least in its more soothing moments, he is the mad aunt in the attic who one hopes will not come downstairs while the vicar is visiting.

For many Hong Kong people he is that buoyant bit you sometimes see floating in your toilet after you have flushed it. After one term of office Mr Leung’s brand was too toxic even for his mainland handlers, but hope springs eternal in the patriotic breast. After all, so much of the political opposition has been silenced…

When four Apple Daily executives were arrested there was, of course, a chorus of approval from the usual people. However as reported, at least, they carefully avoided comments on the merits of the individual case. We did not perhaps need to be reminded that the National Security Law applies to everyone, or that freedom of the press does not allow media to break the law. But these general comments are not actually prejudicial to the upcoming trial.

No such inhibitions hampered the muse of Mr Leung, who cheerily trumpeted on Facebook the view that Apple Daily was “the shame of Hong Kong” and “the shame of the journalism industry around the world”. Well it is not for me to speak for Hong Kong, but I will venture a wild guess that the journalism industry around the world does not wish a poisonous political failure to speak for it, and is very far from regarding Apple Daily as a source of shame.

Mr Leung proceeded to perpetrate an obvious error: “Calling on other countries to impose sanctions on their own country is regarded as treason all around the world.” No it isn’t. The meaning of treason varies from place to place, but is usually reserved for two crimes: 

Calling on other countries to impose sanctions appears on nobody’s list, and indeed in countries enjoying freedom of speech it would be surprising if it did. I have no doubt that in the US and Europe people are defending China’s retaliatory sanctions against American and European organisations and individuals as entirely justified. And these people are not being arrested.

Mr Leung went on to ask darkly “Do you know the penalty for treason?” Readers are evidently expected to infer that the penalty for treason is death, so those accused in Hong Kong who are merely being subjected to imprisonment without trial should consider themselves lucky. But this is far from true. Countries which have abandoned capital punishment for other purposes have abandoned it for treason as well, preferring a maximum of life imprisonment.

That is just the maximum of course. Two Norwegian teenagers who committed treason by throwing a cake at the King were subjected to small fines.

It is almost a relief when Mr Leung reverts to the usual platitudes: nobody is above the law, and press freedom does not confer immunity. Well of course we would like to think that nobody is above the law, but recent events have rather suggested that some people and newspapers are in fact less submerged by the law than others.

I am frankly getting fed up with this line that press freedom does not mean you are above the law. Of course it doesn’t. Nobody in Hong Kong has suggested at any time that press freedom required media organisations to be above the law.

The recognition of this important principle, though, does not mean that any law which the Hong Kong and Macau Affairs Office can dream up will not be a threat to press freedom. Some laws are compatible with press freedom and some are not.

It is quite clear that just as the laws governing politics and government are being used to promote a particular result, some parts of the national security legislation are being used to remodel the media along lines desired by our imperial rulers.

I would not wish it to be said, when they come for me, that I was silent when other people were being muzzled. The campaign against Apple Daily is clearly motivated by the desire to put a dissenting voice out of business. The law is merely a means to a political end, deployed by a regime which likes to praise the rule of law but scorns to practice it.

The Liaison Office has repeatedly said “Hong Kong is a city under the rule of law and everyone is equal before the law.” 

Methinks, as the Queen said, the lady doth protest too much

Hello, what is this? Headline in the Hong Kong Standard: “Age of young offenders not most critical factor, magistrates told”.

The ensuing story relates that magistrates were told at a workshop that “providing an opportunity to rehabilitate does not mean that a defendant’s age can override other sentencing principles,” and so on for several paragraphs, to the effect that offenders who have committed public order offences should be sent to jail, age notwithstanding.

The workshop was organised by the Hong Kong Judicial Institute, a small off-shoot of the Hong Kong government. It nestles in the Judiciary, and is shy, but not secretive. Agile Googlers will find that the institute has the quaint old-fashioned habit of providing a directory of the phone numbers of all its staff. This comprises two directors (which seems a bit generous) three “counsel” and several secretarial people. It is presided over by a judge, I suppose as a public spirited part-time supplement to his usual duties.

The institute’s main activity is running lectures and seminars on legal topics for magistrates and judges. Many of them are uncontroversial and indeed — if you like that sort of thing — interesting. Among them is the occasional “sentencing workshop”.

Now I approach this particular workshop with some diffidence, because this comment comes at the end of a game of (no offence intended) Chinese whispers. The person who was actually speaking seems to have impressed one of the class sufficiently for him to pass the tale to a reporter for Sing Tao. From him it made its way (perfectly legally; they are sister papers) to the Standard, where because it was a “copy and translate” sort of job it was attributed to the man for all seasons, Staff Reporter.

So it is quite certain that several journalistic hands have tinkered with the story, which may also have been translated, possibly twice.

So I shall not linger over some infelicitous phrases, like ”Even though [protesters] mentioned freedom of speech and freedom of assembly in mitigation, the court should not take them seriously”.

One suspects that the organiser of this happy event might usefully have given more thought to what it would look like to outsiders. Justice is supposed to be public. Informing magistrates about recent cases is one thing, advising them in advance to disregard particular arguments is another.

Defendants are entitled to suppose that the magistrate dealing with their case is not implementing some rule which was propounded in a private workshop but has never been aired in public.

Another point which he seems to have overlooked is that much of sentencing is an art, not a science, and many areas are legitimately a matter of taste and opinion. Counsel for the defence will remind the magistrate that the politically-motivated wretch cringing before him in the dock was not motivated by avarice or lust, as most of his regular customers are. Politics may be a dubious game but at least it it not one of the seven deadly sins. 

Learned men, and indeed unlearned ones, can argue the point. The question of the defendant’s age is a different matter. This is not left to the whim of judges. There is relevant legislation.

The Juvenile Offenders Ordinance states that “No young person shall be sentenced to imprisonment if he can be suitably dealt with in any other way.” A young person, in this context, is aged 14-16.

The Criminal Procedure Ordinance states (clause 109A) “No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.”

This is not a trivial matter. This provision fulfils Hong Kong’s obligations to the UN Convention on the Rights of the Child, of which both Hong Kong and China are signatories. It states (Article 3)  “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Child, in this context, means up to 18 years old.

Those attending the workshop were told, apparently, about the case of a 15-year-old who threw Molotov cocktails and was originally placed on probation. After the Department of Justice appealed (aren’t they wonderful?) this was replaced with a detention centre order.

This was, I suppose, pursuant to the sentencing guidelines laid down by the Court of Appeal in the case of Joshua Wong and two others, who were accused and convicted of public order offences arising from the attempted “liberation” in 2014 of the former protest space outside Legco, which C.Y. Leung’s administration — in one of those soothing moments which made it so memorable — had fenced off.

Unfortunately there is one problem with relying on the Court of Appeal. Mr Wong and his two partners in crime appealed  to the Court of Final Appeal. The CFA recognised the right of the Court of Appeal to set sentencing guidelines, but overturned the prison sentences imposed on the trio on the grounds that guidelines should not be applied to cases which took place before they were promulgated.

The CFA also had some words about the fact that Mr Wong was a juvenile, which the Court of Appeal had disregarded. The CFA said “The age of an offender, whether youth or advanced age, is always a relevant mitigating factor in sentencing.” Got that? Always.

Turning to the actual case of Mr Wong, it went on to say: “There may be cases where the requirements of section 109A can properly be departed from since the circumstances will be such that it will be clear without the need to obtain further information that the only appropriate sentence is imprisonment. In the circumstances of the present offence of taking part in an unlawful assembly, this was certainly not one of those cases and the Court of Appeal erred in not following the requirements of section 109A.”

Accordingly it is not helpful to tell magistrates to disregard the age of the defendant in a category of cases. This is not the law. Only in the most serious cases will it be proper to disregard section 109A. In fact it would have saved everyone a lot of trouble if the magistrates had been told that any case of such seriousness would not be heard in a magistrate’s court anyway.

So calls for judicial child abuse can be disregarded.

The Secretary for Justice proposes that lawyers in her department should be able to become senior counsel, even if they are not junior counsel, the change of title to last only as long as they remain in the department’s employ. Cue disturbed noises from lawyers. What is going on here?

To understand what appears to be a rather arcane dispute, though of some potential public interest, we need to undertake a quick tour of the legal personnel scenery.

Lawyers come in two categories: solicitors and barristers. You must not describe a solicitor as soliciting, because that is the legal euphemism for offering sexual services in the street.

Solicitors are the lawyers you are most likely to meet. They are the first port of call for citizens needing legal help and usually the only one. You need a solicitor, for example, to complete a property transaction. This is a fairly lengthy and expensive procedure; many of them do little else.

Your solicitor will also appear with you or on your behalf in the more humble courts. For the more prestigious venues he will call on the services of a barrister. The relationship between solicitors and barristers is rather like the relationship between medical GPs and specialists – although if you try to see a specialist he is not obliged to send you away to see a GP first.

Barristers, on the other hand, can only be hired by solicitors. Some exceptions to this rule have recently been introduced in England, which is where all this nonsense comes from, but in principle you have to get a solicitor first.

Barristers’ speciality is arguing in court on your behalf. Lawyers call this “advocacy”, an upmarket way of saying that they need the gift of the gab, which is not usually necessary for solicitors. Barristers also tend to have rotundly up-market accents, which I suppose go down well with judges.

Because barristers are in close contact with ongoing legal arguments they are also regarded as the go-to source for authoritative advice on whatever legal problem is bothering you. For this purpose you still have to employ a solicitor first.

Barristers are in turn divided into two categories: the ordinary, or “junior” version and the more prestigious “senior” version, known in colonial times as “’Queen’s Counsel” (there is no plural for counsel) and now as Senior Counsel, or SC.

Hong Kong has 105 of these, including those who have retired. And 93 of them are men. No comment.

Becoming a Senior Counsel is intentionally difficult. You have to have ten years of experience and also to display proficiency, legal knowledge and a reasonably unblemished reputation. Appointment is by the Chief Justice. Not every lawyer goes in for this. When you become an SC you become more expensive, you will look embarrassingly out of place in the lower courts, and convention requires the client to hire a “junior” to do your donkey work.

So some lawyers prefer to remain “junior” and put up with the fact that if an interesting case goes to appeal the solicitor will quite possibly recruit a heavyweight with SC after his name to take over. If you get the SC there is no going back. If it doesn’t work out you just have to become a judge.

You may think this intricate structure is an interesting way of spreading the hapless client’s money liberally around the legal landscape. The Bar Association’s website maintains that despite having a “split profession” which requires litigants to hire at least two lawyers, the costs remain the same. A happy thought if you believe it.

Let us pause briefly here to recall that according to legend there was once a statue outside a courthouse in Ireland. This consisted of a cow with one man pulling it forward by the head, another pulling it back by the tail, and a lawyer milking it.

But to return to Hong Kong, there is one further wrinkle we need to visit, and this is the Higher Rights Assessment Board, which appeared in 2012. The function of this interesting creature is to consider applications from solicitors for the right to argue cases in the High Court and the Court of Final Appeal. Those who pass the board’s scrutiny become ”solicitor advocates” and there are currently 52 of them.

Most of these solicitor advocates are, it appears, in the Department of Justice. The department recruits people qualified as solicitors or as barristers, but it is slightly easier for the solicitors because the department cannot supply a “pupillage” – a year’s work under supervision required of barristers.

The department’s lawyers, of whom there are more than 400, have their own career track, which runs on typical government lines through Government Counsel,  Senior Government Counsel, Assistant Principal Government Counsel, Deputy Principal Government Counsel, and Principal Government Counsel to Law Officer.

And this brings us to the problem as the Secretary for Justice perceives it. A Law Officer, as defined in the previous paragraph, is a person of substance and considerable experience. He has loyally worked his way up the ladder, doing all the things which Government Counsel do, like opposing bail for 17-year-olds accused of penning seditious leaflets, or prosecuting buskers for playing “Glory to Hong Kong”, and he has reached the peak of his profession.

Yet when he appears before the Court of Appeal it is immediately obvious from his dress that he is not an SC or even a barrister. Ms Cheng chose the unfortunate example of a Law Officer appearing before the Court of Final Appeal, but this is not so much a problem because the Court of Final Appeal (like its predecessor in London, the Judicial Committee of the Privy Council) skips the mediaeval costumes and everyone just wears suits.

Whichever court is involved, though, it is difficult to believe that judges are influenced one way or the other. Indeed if a Law Officer was also an SC and wore the appropriate fancy dress (the SC robe is a swish silk affair and there is also, of course, the wig) the judges would still know who he was and where he came from.

This is not, however, the thing which bothers barristers, whose objection – judging from a recent radio performance by a former chairman of the Bar Association – goes like this: becoming a Senior Counsel is not just a matter of status; it involves a certification of legal learning and personal quality. The government’s Law Officers miss out on some aspects of barrister life – they only work for one client and they may be very specialised – and in some respects their personal qualities have not been tested. 

Also, being an SC has hitherto been a change for life. Mr Martin Lee, for example, despite being well past any plausible retirement age, still heads the list. The idea that a person might be an SC, and then relinquish this status on leaving the Legal Department, is unprecedented and disruptive.

It looks, in fact, rather as if the Department of Justice wishes to borrow the title for its own purposes and then give it back.

There are other, less public explanations for what is going on. One theory is that the department has found it very difficult in recent years to recruit SCs who were already SCs, which it used to do quite often, and many SCs have left, sometimes quite early, leaving a shortage. 

As a result the department often finds itself deploying Law Officers to argue cases which used to require an SC. Easy solution: make the Law Officer an SC.

A more entertaining suggestion is that this is part of the Liaison Office’s on-going war with the Bar Association, which the office regards as a subversive organisation currently headed by an “anti-China politician”. If Law Officers become SCs they will also become members of the Bar Association. It’s a small association. The arrival of a few “patriots“ could make all the difference. 

This is probably too conspiratorial to be taken seriously. The basic situation is more prosaic. Senior lawyers are reluctant to join or to stay with the Department of Justice. Is that surprising?

As they sink slowly down the international rankings our local universities seem to have increasing problems with their student unions. This is suspicious.

I had better declare a sort of interest here. Many years ago when I was the head of a Department in a local university it became known that I planned to appoint a particular person as a teacher. One of my colleagues came into my office looking very worried. “Did you realise,” he asked, “that she used to be a student union president.”

“Yes, I know she was a student union president,” I replied, “and so was I.” Which sorted out that objection easily enough.

So it is not surprising, perhaps, that I think universities ought to have student unions, should try – I realise this will not always be easy – to be on good terms with them, and should recognise that students have the right to a collective voice in decisions that affect them.

Clearly this is no longer the universal view among local university administrators. In February the Chinese University withdrew administrative support and the right to borrow venues from its student union, claiming that the union had made false allegations about the university and used the campus for political propaganda.

In May Hong Kong U stopped collecting subscriptions for its student union, with a similar complaint. This week Ling Nan University barred its student union from mass emailing students and threatened further action because a circular on the system had mentioned “Wuhan pneumonia” in the Chinese version of a circular about COVID. 

All three universities complained that their student unions had become “more” or “highly” politicised in recent years. This could be considered rather unsurprising. What did they expect?

I realise there are some local peculiarities here. Unlike the general run of UK student unions, where candidates for office run as individuals, student union elections in Hong Kong usually feature teams who seek election as a group. This means that in times of political excitement they are likely to have a coherent view and feel they have a “mandate” to push it on behalf of their fellow students.

Also, most UK university student unions have a building of their own which contains a bar (indispensable) and such other rooms – dancehalls, debating chambers, offices etc – as they have space and inclination for.

This means that the election of student leaders is not a purely political matter. The ability to run a boozer efficiently is also important.

Even if this function is performed elsewhere the union is responsible for distributing funds to student societies and sporting groups. Any sign that this important function is being sacrificed to politics results in the sort of “mass meetings” which agitators commonly dominate suddenly being overwhelmed by an influx of irate sportspeople. So there are limits.

Still, there are some universal features here. Students are adults. They are entitled to political opinions. They are also entitled to a role in the running of those aspects of the university which cannot plausibly be described as requiring the attention of a PhD. 

Like other groups in the university community, students may obstinately cling to views which seem to academics or administrators to be stupid, naive or dysfunctional. Mature members of the university should accept the obligation to try to resolve the resulting conflicts in a way which preserves the sense of a community of scholars in which differences of opinion are allowed and respected.

And it is no good complaining that the unions are more political. They are more political because students are more political. And students are more political because they realise they have been deceived. 

We old cynics may always have suspected that “one country two systems”, “a high degree of autonomy”, “gradual progress towards universal suffrage” and “50 years of no change” were mere baubles intended to distract us while one set of colonial shackles was exchanged for another one. Young people grew up with these promises.

If university leaders want to keep politics off their campuses they should start by looking in the mirror. You  cannot claim to be a sanctuary from politics while purging your staff. And why was it necessary for university heads, or most of them. to express an opinion on the merits of the national security law?

None of them are lawyers. Their opinions on the matter are no more knowledgable or interesting than those of the manager of a bank or a brothel.

Public displays of affection for Big Brother are unnecessary, and incompatible with the autonomy which universities legitimately claim.  

We are urged by the Chief Justice not to level personal attacks on judges who make decisions we disagree with, a request with which I have no quarrel. His Lordship also points out, correctly, that many complaints about judges come from people who disagree with the result in a particular case.

Well sometimes the results in particular cases call for complaints, in my opinion, but it is certainly true that there is plenty of blame to go round and there is no reason why judges should be the sole recipients of it.

Let us consider the Department of Justice. It is the department’s role to prosecute people, which is fair enough. Is it also the department’s role to fill our prisons with as many people as possible?

There are still 40-odd people in prison awaiting trial over the “pan-democratic primary” held last July. When the question of bail comes up judges are routinely referred to the bit of the national security law on the subject, which says that the accused should not be admitted to bail unless the judge is satisfied that they will not “continue” to infringe the national security law.

It seems to me, and this must perhaps be an amateur error because none of the lawyers involved has tried it yet, that the use of the word “continue” means that the judge must not allow bail if the accused is likely to go on doing the thing of which he or she is accused.

The interpretation offered by the Department of Justice is that the judge must be satisfied that the accused will not commit any national security offence, fruit to nuts, from plotting the assassination of President Xi to putting bubble gum in MTR stored value card slots.

The primary election crowd are evidently not going to continue with their plan to put a large group of members into Legco committed to using the procedure provided in the Basic Law to oust the Chief Executive. The election has been postponed and the rules changed.

Judges nevertheless continue to be urged to refuse bail on the grounds that these people are likely to infringe the national security law in some unspecified way. The defendants have tried a variety of ways to dispel this impression. Some have resigned from their elected posts, their chosen parties and any office they hold in them. Individuals have offered to refrain from politics, writing for publication or giving interviews.

So far to no avail. The department continues to object to bail and continues to provide evidence for its view that some unspecified infringement is still in the offing. 

Consider the case of Ms Claudia Mo. Look, said counsel for the refusal of bail, she exchanges Whatsapp messages with reporters from international news organisations! Quite why it was considered necessary to forage in Ms Mo’s messages he did not say. It certainly wasn’t to find evidence about the primary, which could hardly have been more public.

But what, in any case, is wrong with exchanging messages with reporters from foreign news organisations? Ms Mo used to be one herself – she worked for AFP – and is married to a foreign correspondent. She is a member of the club.

Was it the content that was the problem? There were accusations of “desperation and loss of human rights and freedom”. So it is an infringement of the national security law to be desperate, or to believe that Hong Kong rights and freedoms have diminished. 

Or is it just an infringement to mention these opinions, which are shared by the majority of the population, to foreigners?

The new security law, said one message, and the spate of arrests “have worked as a scare tactic, probably fairly successfully – at sending a persistent political chill around the city”.

Well perhaps this is the government’s idea of false news. Actually, as we all know, the passing of the national security law provoked the most riotous celebrations in Hong Kong since the Japanese surrender. People danced in the streets, crowds gathered outside Government House to cheer the Chief Executive, and total strangers copulated in doorways. Don’t know how I missed it all.

Then we have the case of Ben Chung, who did not run in the primary but was one of the organisers. The prosecutor said that Mr Chung was in charge of financing. and that some of the arrangements followed a typical pattern of “layering” found in cases of money laundering. But Mr Chung is not charged with money laundering, which is in any case not a national security offence.

The prosecutor cited a Youtube video as showing that Mr Chung had a “determined and resolute attitude”. But not determined enough, apparently, to fulfil his avowed intention if freed to drop out of politics and spend more time with his family.

It does not seem to have crossed the department’s mind that this eagerness to keep people behind bars does not make it look strong and patriotic. It makes it look vindictive. The department is not obliged to oppose bail. It does it because it can.

The fact is that the legal case against the primary organisers is shaky. Even some pro-government lawyers did not believe the primary was illegal. The result may come out one way of the other. Quite possibly whoever loses will appeal and the whole circus will finish in the Court of Final Appeal. This could, assuming the proceedings continue at the usual speed, take a couple of years.

And if, at the end of those two years, the defendants having been detained for all that time are acquitted, what then? Will they get compensation? No. Will anyone resign? Also no. Just another triumph for the rule of law with Chinese characteristics.

Let us now turn to another problem for those of us who would like to think well of the local legal system. When it was announced that there would be a special list of judges for Nat Sec cases the general expectation was that in practice the usual list would be pruned of foreigners and the rest of the judges would take their turns in the usual way.

What actually happens is that the approved judge appears only on the day of the trial. It seems that this provision is used to justify the prosecution in effect choosing the judge it wants for each case.

Well I know all judges are supposed to be equal and the selectors are looking only for learning and such like qualities. But this is hardly the way it appears to the lay observer, who is bound to entertain the suspicion that the selectors are looking for candidates who will willingly channel the late unlamented Lord Goddard, or better still the earlier but even less lamented George Jeffreys.

And having the same judge doing the same kind of case time after time does not inspire confidence that all arguments are being carefully considered by a fresh mind. Indeed if the same defendants are coming up on similar charges there may be a suspicion that the presumption of innocence is being eroded.

More variety would be an improvement. Mesdames Woodcock and Toh may be wonderful judges but I think the person who decides these things should consider that they are in danger of getting into a bit of a rut.   

The current frenzy over the health of K, the woman first aider who was shot in the eye on August 11 two years ago during  a protest outside the Tsim Sha Tsui police station, has been quite nauseating.

It started, apparently, with a piece in the Oriental Daily — an exclusive, no less — saying that she had been spotted at the airport last September leaving for Taiwan, and being seen off by friends and family. Her right eye, the OD’s opthalmically alert reporter noted, was not bandaged, and she looked at her mobile phone. So maybe she wasn’t blinded after all.

This snippet was taken up by a columnist in Sing Tao. He recalled that at the time of K’s injury it had been a big thing for a while for protesters to wear bandages over one eye. Had the injury been exaggerated for political purposes? Should the national security police not be investigating? He also accused the Hospital Authority of participating in a heinous cover-up by not telling everyone that the controversial eyeball was still intact.

This in turn produced a long anonymous briefing from a nameless police person, reported in the Standard. “The medical report showed that the injury sustained by the woman in her 20s was not very serious. Her eyeball did not burst and was not even hurt. She only sustained injuries on areas surrounding her right eye.” said the nameless police person.

But the report did not say what caused the injury, leaving the sources to try to breathe life into a cock and bull story that the projectile was fired by a protestor.

The sources (could our Secretary for Security, so ready to denounce cowardice among reluctant defendants, do something about this nameless habit among his underlings?) went on to say that K “is now being investigated by police whether she is involved in rioting and she will be wanted if police gather sufficient evidence…”

The Standard went on to say that “lawmakers” – which turned out to mean Elizabeth Quat – wanted the police to find out the cause of the woman’s injury and investigate whether she took part in illegal assemblies.

The following day we were treated to the appearance on the scene of 803.com, a website founded by Leung Chun-ying which offers rewards for people who inform on rioters. The site is now offering a million dollars for anyone who will tell them who K (the abbreviation she used for privacy during litigation over police access to her medical records) really is.

This offer was apparently approved by Leung in person, because he said on Facebook that the reward had been increased (previously it was $400,000) because “more information had become available about her whereabouts.”

The police spokescoward was in action again, quoting from the medical report – “her eyeball was not ruptured” – and went on to say that police were “continuing their probe into whether her injury was used to incite hatred”.

On to the Post’s effort, which had the Hospital Authority denying any wrong-doing: patient’s records were confidential but were produced for police if they had a warrant, as the law required. Elizabeth Quat reappeared, saying that the case showed the need for a law against false news. 

The report also quoted Raymond Yeung, who lost 95 per cent of the vision in one eye when it was hit by another mystery projectile during a disturbance, as saying that it was really difficult to tell how well an eye was functioning just by looking at it. A good point.

I take no pleasure in criticising the people who now till the field in which I worked with much pleasure and satisfaction for many years, but there seems to be a lot of junk journalism here.

We do not generally report things that happened six months ago, and even by tabloid standards to make a story of it by offering an instant amateur diagnosis of K’s eye was pathetic. It was hardly to be expected that more than a year after the injury the eye would still be bandaged. People with injured eyes do not, these days, wear a piratical patch over it, any more than people with a leg missing will sport a pegleg, a crutch and a parrot. Times have changed.

And this may come as news to the Oriental Daily but it is perfectly possible to see and operate a mobile phone with one eye. During my cataract period I did it all the time.

Next point: clearly the police hoped that the medical report they obtained would show that the injury was caused by something other than a police projectile. Fat hope.

If two groups, A and B, are throwing or shooting things at each other and an object hits someone in group B, the default explanation is that it came from group A. Of course in real wars there are occasional examples of what is confusingly known as “friendly fire” in journalistic circles. The official term is a “blue on blue incident”; in the ranks it is known as an “own goal”.

Most of these rather rare events occur when people are using long-range weapons which do not afford the luxury of a good view of what you are shooting at.

As far as events in 2019 are concerned we know of at least three incidents in which people were hit in the face by police projectiles, and the IPCC’s report accepted, with some reluctance, that on at least one occasion rubber bullets were fired at heads, which is not supposed to happen.

I also recall, in reports of K’s injury, a picture of a pair of goggles lying in a pool of blood, with a police projectile still embedded in the right lens. It is time for police fans to accept that she was shot by your heroes. It may have been an accident in the sense that the shooter did not know she was a first aider, did not know she was a woman, or indeed did not aim at her but had his elbow jogged at the crucial moment. But the sling shot story does not wash, and we can I think exclude the possibility that she hit herself in the face with a brick in an effort to discredit the force.

Another point: there was a judicial review case over K’s medical records because she did not wish them to be shown to the police. Medical records are supposed to be confidential. Police access to them is for the purpose of law enforcement, not to allow anonymous briefings casting aspersions on the victim’s innocence, or implying that owing to the skill and humanity of police shooters they can hit people in the face without bursting an eyeball.

It is curious to compare the police attitude to reporters getting the Transport Department to tell them who owns a particular car – unlawful because the information is not intended for that purpose – and their attitude to the use of confidential medical information for the purposes of anonymous propaganda briefings.

Now we come to Mr Leung’s “reward for information” website. The purpose of this, it says, is to produce information so that people who have not been detected can be investigated and charged by the police. In other words, if you know your next door neighbour was a rioter but has not yet been arrested, you can tip off the cops and collect some of Mr Leung’s dosh.

But in the case of K this is not necessary. The police already know who she is. Otherwise they could not have asked to see her medical records. The only people who do not know who she is are the general public. This is normal. We all have the right to privacy. She has not, so far, been accused of anything. The only effect of Mr Leung’s megabucks will be to violate this lady’s right to privacy and expose her to the usual panoply of on-line abuse, death threats etc. which accrue these days to anyone who is doxxed by the pro-government press.

It is interesting to compare Mr Leung’s action with the legal and political storm which would erupt if I offered a million dollars for anyone who could tell me the name of the policeman who shot K.

This lady has already been shot and injured. I do not doubt that if she returns from Taiwan she will be subjected to further violations of one kind or another. The rule of law in Hong Kong is like Elizabeth Quat’s doctorate. Decorative but bogus. 

It has been interesting to watch the early coverage of the “Chief Executive race” to succeed Carrie Lam, whose term expires in July next year.

If the election was really an election, this would involved considering the appeal of the various possible candidates, who of course may include Ms Lam herself, to the various sectors of the Election Committee. The rest of us, of course, have no say in the matter.

But this is not the way the matter is put, even in the most obsequious pro-government media. It is accepted that the choice will be made in some mysterious and majestic way by the Liaison Office, the Hong Kong and Macau Affairs Office in Beijing or both, possibly with input, if he is interested, from President Xi.

This presents us with a problem which will be familiar to regular players of the horses. The form is no help at all. We need to know who is trying to win, who is not trying to win, and who is trying not to win. Stock pickers in Hong Kong face a similar problem. What matters is not the value of a stock but the things other people are trying to do to the price. In short, the election is totally unpredictable.

This may explain why the suggestions made publicly so far have been extremely unenterprising. It has been suggested that Ms Lam might go for another term. It has also been suggested that her rival for the vacancy might be Mr Leung Chun Ying, her predecessor as Chief Executive.

This is a very depressing prospect. I realise that the whole enterprise is quite uninfluenced by the desire to please the people, but there is no need to slap them in the collective face.

Ms Lam has been the most unpopular Chief Executive since records began. The previous holder of this title was Mr Leung. The choice between them, if I may borrow a simile from the National Security Police, is like going into an unlicensed massage parlour and being asked if you would prefer gonorrhoea or syphilis with your happy ending.

Ms Lam, to be fair, has been sensibly quiet about the question. She knows how the game is played. She will be told whether she is running when the time is ripe.

Mr Leung, on the other hand, has been noisy enough to suggest a burning ambition. His enthusiasm for public housing knows no bounds. It certainly does not stop at the edges of country parks. I have always thought he had a bit of a nerve pushing this line. The public housing programme was gutted during the administration of Mr Donald Tsang. Mr Leung was not a passive spectator of this process: he was then the convenor of the Executive Council.

The other week Mr Leung appeared in a new guise, expressing anxiety about the prospects of minority shareholders in Next Media when so many of the shares – those owned by Jimmy Lai – had been frozen. Well we can all sympathise with the minority shareholders, although anyone who didn’t notice that this particular company faced a high level of political risk should not have been allowed near the stock market.

But Mr Leung has not been a David Webb-like watchdog of market shenanigans in the past. Why the sudden interest? I look forward to further commentaries on the vagaries of Hong Kong’s listed companies from Mr Leung. If they are not forthcoming we might suspect that his interest in Next Media had less to do with sympathy and more to do with a chance to gloat over the downfall of a critic.

Well there we are. Let us hope this is not going to be a two-horse race, and that if it is a two-horse race some new horses can be found.

Looking at the patriotic camp it is difficult to see where they are going to come from. Some plausible candidates have already ruled themselves out with sufficient vigour to suggest that they are not just being modest. They really don’t want the job. 

Indeed it is not clear why anyone would want it, under present circumstances. The area in which the Hong Kong government is allowed to make its own decisions seems to have shrunk to roughly the dimensions of the powers of the old Urban Council. It can redesign litter bins, build toilets and footbridges, license bars and provide entertainment — or if you prefer culture. Everything else will be decided by mainland officials.

Once we have eliminated the unpatriotic, the unqualified and the unwilling it is difficult to see any plausible prospects, and one has to suspect that the desire to hold a position with such an imbalance between prestige and power suggests either an excess of ambition or an excess of greed. Whatever you think of the job, it pays well.

This suggests that the selectors, who are all mainland officials, might do well to consider one of themselves. Of course this is not the way “one country two systems” was supposed to work, but it is the way it works now. Let us see the organ grinder, not the monkey.

Interesting interview last week with Mr Lo Kin-hei, who currently occupies the most perilous political post in Hong Kong – he is the chairman of the Democratic Party. In that capacity he spends a good deal of time visiting fellow-members in prison, and some of the rest contemplating the possibility that he will sooner or later be joining them.

Mr Lo is now considering a serious question for the party he leads: will it be worthwhile for them to contest elections under the new laws imposed on us during the last year.

In the next elections the construction of the legislative council will be fixed by a whole series of constitutional wrinkles clearly intended to ensure that no more than about ten democrats will make it to the newly enlarged 90-member legislature.

Those who wish to participate will have to undergo a long vetting process, including inquiries by the national security cops, assessment by a committee of the government’s senior uniformed flunkies, and a further consideration by a committee of the senior non-uniformed flunkies, all under the watchful eye of the Liaison Office.

Anyone who manages to make it onto the ballot will have to swear the oath of allegiance to China. Subsequent expression of a variety of widely held opinions could lead to local witch-hunters calling for a prosecution of the offending member for breaching the oath, with the prospect if convicted of disqualification and prison.

Clearly this presents Mr Lo’s party with a dilemma. Getting people elected is what parties do. But the present circumstances are discouraging. There is not much point in electing people who are jailed soon after their arrival. But then there is not much point in electing people who will be too intimidated to say anything interesting either.

Mr Lo says that even a minority voice is still a voice, and cites the experience of opposition parties in Taiwan and Czechoslovakia who participated in elections, against great odds, because it was a way of increasing their persuasive, if not political, power.

He notes also a concern that the electorate may not look kindly on politicians who participate in the new system, and suggests that his party should be given plenty of time to think about it.

Well they may not get it. The government intends to legislate against any attempt to encourage people to spoil ballots or boycott an election. This should not mean that the democratic party can be prosecuted for not participating. Though these days, who knows? But if they decide not to run the announcement will have to be phrased rather carefully.

Well the democratic party needs no advice from me, and in any case I am not a member. I wish them wisdom in their deliberations but I would like to consider a different and purely personal question: in the light of the new arrangements, am I likely to vote?

Generally I have been a compulsive voter. It is a short drive down the hill to our local polling station and the family routinely pops down together to cast our respective ballots. I think I have voted in every election since the government’s first “register as an elector” drive in the early 1990s. 

I am aware of the arguments that this is a waste of time. Economists routinely point out that voting is an example of extreme altruism because in most cases one vote makes no difference. Also many candidates are uninspiring. In my student rebel days I adorned my office with a poster urging people to “Vote for Guy Fawkes, the only man to enter parliament with honest intentions”.

On the other hand in Hong Kong voting was a welcome new thing – an opportunity to participate in replacing a colonial arrangement with something accountable to society. So I voted with a certain joy. Alas, my vote does not seem to have done some of the recipients much good. All the people I have ever voted for in Legislative Council elections won seats … and are now in prison or in exile.

I suppose in the next Legco election there will be some candidate claiming the “democratic” label, whether he is a member of Mr Lo’s party or not. And the question is whether it will be worth the trouble to get down there and vote for this person.

The winnowing process is elaborate and lengthy. Anyone who is allowed to put his name on the ballot has been closely examined for signs of witchcraft. So we can assume that this person did not participate to any public extent in Occupy, did not under any circumstances riot, did not express support for the five demands, did not call for commemoration of the Tienanmen Massacre or for a proper inquiry into the policing of the 2019 disturbances.

He or she did not participate in the pan-democratic primary which has now been turned into a criminal offence, did not participate in raising money for the cause – or money laundering, as it is now officially known – and has never expressed inconvenient opinions on Taiwan, Tibet, Xinjiang or the merits of having Mr Xi as President-for-ever.

And who knows – for no reasons will be given – what other peccadilloes will be regarded as disqualifying a candidate? Could it be a bad move to subscribe to Apple Daily, to have an overseas passport, or a ChickeeDuck VIP card?

I am left feeling like Groucho Marx, who said he would not join any club which was willing to have a person like him as a member. I do not think I want to vote for anyone who has met the requirements imposed by the electoral arrangements and the national security law on those who wish to run.

This is a purely personal matter which we will all have to decide for ourselves. I do not suggest that the example of one aged foreigner should have any general influence. Personally there are some things I simply will not do. I will not stand on street corners waving a little red flag for people I despise; I will not pipe for any organisation which uses the goose-step, and I will not participate in sham elections. As Sam Goldwyn may have said (he denied it) include me out.