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?

State of the unions

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.

There is something a little desperate about Hong Kong’s senior officials insisting that we still have an independent judiciary. It seems that other civic amenities have been written off.

We no longer have a vaguely democratic legislature, an accountable police force, or an elected executive. We have shredded the right to trial by jury, to bail, even to a trial in the jurisdiction where you committed the alleged offence.  Our elections are fixed and our laws are made in Beijing. But by God we still have an independent judiciary. Isn’t that wonderful?

Last week two New York newspapers printed letters from Hong Kong officials defending the judiciary against accusations of bias. Nice timing. These epistles were closely followed by the case elegantly headlined in The Guardian “Court jails three on rioting charge despite no evidence of rioting”.

Well the charge of judicial bias is, as Lord Justice Hale famously said of rape “easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.”

There is, to put it gently, some unease among practitioners. This is partly just because Hong Kong is a small place. It is difficult for judges to avoid social pressure entirely. It is partly, also, because unlike their counterparts in some other jurisdictions Hong Kong judges climb a promotion pole – district judges can become High Court judges, and so onwards and upwards. It is difficult to believe that upward progress is easy for those who fail to lend a sympathetic ear to counsel for the HKSAR.

Then there is an interesting link between the Department of Justice and some groups of barristers – or chambers as they call it. Though the department can call on the services of a large body of purpose-built prosecutors it still farms out a lot of cases.

These go out on a “gig economy” basis, rather like a Uber for lawyers. The arrangement is cloaked, like Gibbon’s licentious passages, in the “decent obscurity of a learned language”. It is known as “prosecuting on a fiat”.

It is quite understandable that the department should favour people who have done a good job for it. The relationship blossoms and the department quite naturally supports the applications of those members of this charmed circle who wish to become judges. So, many judges are very experienced prosecutors. Few are very experienced defenders.

I hesitate to say that this produces bias, or at least any more bias than you get in other jurisdictions from the unavoidable fact that most judges are rich old men and have the predilections which go with that background. It may, though, explain why our judges are so gullible when offered dubious legal innovations by the Department of Justice.

My favourite example was the abuse of the law on dishonest access to a computer. I railed against this for years. Every lawyer I ran into said consolingly that he entirely agreed: the law was not supposed to criminalise use of your own computer or, worse, your own mobile phone, however scurrilous the purpose to which you put them.

Nevertheless numerous charges were brought and convictions obtained in defiance of the clear meaning of the relevant law, until someone with the time and money to appeal took the matter to the High Court.

A good recent example is, of course, the jailings on rioting charges “despite no evidence of rioting”. Presiding judge Ernest Lin was referred, I do not doubt, to a recent opinion of the Court of Appeal. That court was asked whether absence from the scene meant automatic acquittal. In a rather rambling and loosely worded decision the court said it did not. This should have surprised nobody.

In fact the appeal was thoroughly pointless. In the original case the judge had decided that since the defendants were not at the scene of the riot they could hardly be convicted of participating in it. This seems a fairly common sense view to take.

The Justice wallahs decided that they wished to establish (they are not allowed to appeal against an acquittal so this was a purely consolation-seeking exercise) that absence from the scene would not necessarily be a defence. Since that was the only question before the Court of Appeal its other musings were mere commentary. 

It is of course true that you can be convicted of a crime if you share a “common purpose” with the perpetrator, even if your part of the proceedings can be done in absentia. As Vanessa Place briskly puts it, “If I agree to help you rob the liquor store, I am liable if you cap the clerk, as that is the sort of thing which might naturally happen during a stick-up.”

If I may digress for a moment, Ms Place is one of those writers who leaves me feeling like Salieri in the presence of Mozart, a considerable achievement because the only work of hers with which I am familiar is a disquisition on the treatment of penniless sex offenders in the California justice system.

The common purpose idea is known in Hong Kong as “joint enterprise”. Internationally it is regarded as a tricky area because it is notoriously open to abuse. Note what the Court of Appeal did not say. It did not say that in the absence of proof of rioting you were guilty. It said that if you were absent from the scene the prosecution could still seek to associate you with the crime if you had been jointly engaged in the riot in some other capacity.

Where there is no evidence of you participating, though, that leaves the prosecution with the burden of proving that you were engaging in a joint enterprise. Mr Lin’s comment on this point was that “the presence of the three defendants had encouraged protesters who were confronting police officers”.

But this will not do at all. After all it is a frequent complaint in the law and order business that the presence of the media encourages riotous behaviour, and I have no doubt that during this particular protest the usual crowd was there. This does not make reporters guilty of rioting. Indeed for anyone to be guilty of rioting the prosecution must establish not just presence, but intention.

The Court of Appeal’s decision, as the court should perhaps have realised would happen, can easily be interpreted by prosecutors as abrogating the presumption of innocence altogether if the defendant was on the same street as a riot. It is a pity the judgement, while including some headline-catching phrases like “you could be guilty for clicking a like button” did not delineate more clearly the requirements that “joint enterprise” requires of prosecutors.

Let us now turn to another interesting innovation. During the siege of the Polytechnic University said university was surrounded by policemen, who said that everyone inside should emerge and would then be arrested.

Some of the people inside the university explored various means of escape. Some of them successfully left through the sewage system, although this route did not work for everyone who tried it. A short-lived alternative was to abseil down a rope from the Poly footbridge to the road below, where friendly supporters provided lifts out of the area by car or motorcycle.

Some of the cars containing protesters were stopped in Homantin. Last week their drivers appeared in court charged with “perverting the course of justice”. Really?

Generally the essence of this offence is to disturb the smooth flow of legal procedure by such things as interfering with witnesses or publishing prejudicial material. This means that you cannot generally commit the crime until the machinery of justice has swung into action.

Unless the greyhound Procedure has set off from the trap in pursuit of the elusive electric hare Justice, there is nothing to prejudice or pervert. However in Hong Kong the offence is given a rather broad interpretation. “Case law suggests,”  according to a useful website, “that it is sufficient if such proceedings are imminent, probable or even possible at the time of the alleged wrongful act or conduct.”

So as well as the case of “Moon Bear” (who tried to discourage an ICAC investigation by dropping the name of Mr C.
Y. Leung) we also have the case of Nicholas Tse (who persuaded someone else to take the rap for a traffic accident by masquerading as the driver when the police turned up).

How is this going to work with the Poly U siege?  I suppose the prosecution is going to say that anyone who was inside the university was a putative criminal. But it seems none of the escapees was prosecuted.

Actually it is beyond the powers of a policeman to make staying in a particular place a crime in itself. Oddly enough I discovered this many years ago when the London School of Economics, having been occupied by its student body for a weekend, decided to beef up its security with some steel gates. Some radical students then removed the gates.

The police, thinking erroneously that the culprits might be enjoying a post-vandalism celebration in the Student Union bar, surrounded it and refused to let anyone out. Some more or less sober law students were then deployed, and the senior policeman concerned admitted that he did not have the legal power to detain us all, so people could leave.

I infer that the threat to arrest everybody was not a judicial proceeding in embryo, but an abuse of power. Arrests should only be made on reasonable suspicion of a crime being committed. At the time the threat to arrest everyone was made the police did not actually know who was in the university or how many people there were. Clearly some of the “occupiers” had broken the law. Equally clearly there were many who had not. 

At the time we had all been treated to livestreams of arrests which involved the liberal application of boots and batons, sometimes followed by rendition to a mysterious site in the New Territories where access to lawyers or medical help was refused or delayed. Reluctance to be arrested was entirely understandable, and can hardly be interpreted as an admission of guilt. If the courts can assume people are innocent until proven guilty, surely the rest of us can do the same?  

What is it about our government and domestic helpers? Quite the most disgraceful moment of the COVID epidemic so far was the suggestion that it would be a good public health measure to cancel their days off. Now we have – in response to one case (ONE CASE!) an order that the entire overseas domestic helper population must get tested by next Sunday.

Predictably this meant in many cases that the helper must get a test on her day off. The resulting rush led to distressing scenes of ladies spending up to seven hours of their supposed holiday queueing in the open air.

Clearly this is partly a result of our government’s scorn for the interests of poor people. If it became necessary to test all property developers, or all senior civil servants, we can assume, I think, that more humane and convenient arrangements would have been made.

It is also of a piece with the blatant racial discrimination against overseas domestic workers, which results in them not qualifying for residence however long they stay here, in marked contrast to the treatment of overseas workers in more prestigious occupations.

These points have been made very eloquently by my fellow columnist Sharon Yam, so I shall not dwell on them at length here.

A subsequent story which bothered me concerned the reaction to this debacle from the chairman of the Equal Opportunities Commission, Ricky Chu Man-kin. His first reaction was that the requirement was not a violation of the Disability Discrimination Ordinance because it was “reasonable”.

However he conceded that a policy which landed heavily on one race might be against the Race Discrimination Ordinance. But requiring overseas domestic helpers to get tested did not target a race because it “targets an occupation, so it is not against the ordinance”.

Come off it, Mr Chu. The policy would be targeting an occupation if it required all domestic helpers to get tested. There are after all local domestic helpers. I used to employ one myself.

The word “overseas” is the give-away. We know what it means in this context. It means the new requirement applies to a domestic helper if, and only if, she was imported from the Philippines or Indonesia. 

Clearly a policy which applies to two races can be just as objectionably racist as one which applies only to one race. 

This is disappointing. Generally we find that people who are appointed to head commissions quickly become enthusiastic – sometimes excessively enthusiastic – about the topic they are supposed to be working on.So the Privacy Commissioner becomes a privacy fanatic, the Tourism Commissioner becomes immoderately keen on tourism and so on. 

It would be nice to see a similar level of passionate commitment in the Equal Opportunities Commissioner.

One recalls, rather worryingly, that American presidents have a habit of gelding government agencies they disapprove of by appointing as their heads people who do not agree with the objectives of the agency. So President Trump’s Consumer Safety Commissioner was demonstrably uninterested in consumer safety, his head of the Environment Protection Agency was a vociferous supporter of polluting industries, and so on.

I have no idea why Mr Chu was selected for his present post. And indeed, even if the selectors thought he would be a soft touch for the government, such expectations are sometimes disappointed, as Henry II found with Thomas Becket. 

Mr Chu has been willing to talk the talk on discrimination, which is good. But it is also not enough. Upon discovering that he spent five years as the Secretary General of the Independent Police Complaints Council one has to wonder if he has perhaps had more practice at rejecting complaints than any man needs.

What ’s this? We have a little rash of stories warning that, as one headline put it, “UK move ‘won’t make your kids happy’, expert warns”. This is supposed, perhaps, to be a reproof to parents contemplating a BNO move to the UK “for the sake of the children”.

This all started with a Letter from Hong Kong. This is an RTHK radio programme which, for many years, occasionally featured me. The performer talks  — for I think it was 12 minutes — on any topic of his or her choice. No doubt the performers are chosen rather carefully these days.

Last week’s star was Prof Ho Lok-sang, a retired economist. I have serious misgivings about economists studying happiness, an elusive and less quantifiable thing than their usual prey. But Prof Lo has worked in the area before and in 2015 actually published a piece in the usual academic circles on an Annual Happiness Index in Hong Kong, which would make interesting reading now.

However the news hook to which Prof Ho hung his comments was a report by the Boys and Girls Association of Hong Kong, which said that happiness among Hong Kong youngsters had fallen to its lowest level in five years. It also found, though this did not feature so prominently in media reports, that about 10 per cent of Hong Kong youngsters thought they would emigrate in the near future.

Well as a matter of common sense, leaving the economics out of it, I must say I rather agree with Prof Ho that emigrating is not in itself going to make the kids happy. My parents moved a lot when I was very small – we lived in Germany for a while, a daring choice in the late 1940s – and as long as the family was together it just seemed a minor background thing that we lived like gypsies.

Emigration is stressful. On the other hand staying in Hong Kong is likely to be stressful as well, under present circumstances. Prof Ho’s advice that we should all “nurture a mind which is at ease with ourselves” is good, but perhaps a bit beside the point. Stone walls do not a prison make, nor iron bars a cage, sang the poet, but the thought of being consigned to the hospitality of the Correctional Services for opining that voting in the new system would be a waste of time is still off-putting.

Having disposed of the common sense point, I must say I thought the statistical evidence very questionable. Measuring people’s happiness is inherently tricky. Small changes in the circumstances in which the question is asked can produce drastic changes in the answers. And questions like “How happy are you with your life these days” involve cultural influences which comparisons of the GDP figures do not have to worry about.

Prof Ho offers for comparison three sets of figures. The first is the Boys and Girls one. The second is an annual exercise called the Good Childhood Report, conducted by something called the Children’s Society, which is an offshoot of the Church of England.

The report says that the level of happiness of British children has declined for five years in a row. I am not sure that that comes as a great surprise, in view of events in the UK over the period.

More contentiously it goes on to cite a survey conducted in 2018 which found that British children were in some respects among the least happy in Europe. Actually this is a partial result of the PISA survey of education systems, and only applies to 15-year-olds. The Children’s Society tweaked it a bit but it is true that on this measure the Brits were quite gloomy.

Now I think we need to be a bit careful with the Children’s Society. It is a charity, and like most charities it needs a good cause which will attract donations. It thrives on bad news and those who thrive on bad news can usually find it somewhere.

I also believe that the comparison with Europe is no doubt very relevant for potential British donors to children’s needs, but quite unfair if put to Prof Ho’s purpose, which is to imply that kids in the UK are less happy than those in Hong Kong, so moving there will make your offspring miserable.

Concentrating on Europe means setting a very high standard. The big global survey of happiness among adults is the World Happiness Report, which covers more than 100 countries. The top places are invariably filled by Scandinavian countries, followed by other European democracies. The latest figure has Finland as the world’s happiest country, the UK at number 18 (Taiwan at 19 is the top Asian … euphemism) China at 52 and Hong Kong at 66.

Over the three years 2018-20 the top three were Finland, Denmark and Switzerland, with UK 17, Hong Kong 77 and China 84. These results are fairly stable. The previous three years: Finland 1, Denmark 2, Norway 3, UK 15, Hong Kong 76, China 93.  

Another way of looking at it is to ignore the rankings and look at the actual figures from the PISA questions. True, the Brit results were depressing when compared with some others, but 64 per cent of the respondents were satisfied with their lives, 93 per cent reported a high level of happiness generally, 40 per cent said they were rarely or never sad and 57 per cent had no complaints about their sense of the purpose of life. 

If you wanted to risk a visit from the Nat Sec police you could tentatively draw from all of the above that becoming more like China will make Hong Kong a bit less happy and moving to the UK will make anyone more happy, though not as happy as if they moved to Finland. This is probably drawing more from the statistics than is justified.

Actually whatever the factors in society which produce these national differences, they will be quite overwhelmed in the case of individual people and families by more immediate events: the exam goes badly, the dog dies, the parents divorce, an expected promotion does not materialise, the house falls down…

It is right that people contemplating emigration anywhere should be warned that they are not diving into a bed of roses. The UK is no exception. You will not like the climate and some of the people are prejudiced. On the other hand you can say what you like and you will never have to listen to the March of the Volunteers again. Your choice. 

We must all be grateful to former legislator Ted Hui, for publishing his correspondence with the police complaints system.

There is plenty of evidence at the macro level, of thousands of complaints received and a number you could count on the fingers of one hand accepted and acted on, usually in a painless way for the policeman concerned.

We also have the Independent Police Complaints Council’s report on the 2019 disturbances, which paints a clear picture of an organisation desperate to avoid finding that the police did anything wrong, and when that becomes unavoidable wrapping it up in the sort of woolly language which confuses more than it illuminates.

But we do not often see an individual complaint in detail, working its way through the system to the usual destination: rejection.

The incident of which Mr Hui complained occurred at a protest on January 1 last year. Unusually, this one had a Letter of No Objection from the Commissioner of Police. It was, however, cut short by police at the scene, apparently because someone had vandalised a branch of the Hongkong and Shanghai Bank.

Nobody seems to have noticed that this is a rather questionable procedure. The Public Order Ordinance says that people planning a demonstration need a Letter of No Objection from the Commissioner. It does not say that this can be revoked at any time by a junior officer. 

One would have thought, or hoped, that once the LONO was issued the protest would be entitled to protection as a legitimate exercise of free speech rights. The right to protest is enshrined in relevant ordinances and international instruments. It is not a favour bestowed by the police on condition of good behaviour by everyone present.

After all we did not know, and indeed still do not know, who vandalised the bank. It could have been protesters, it could have been some thrill-seekers with no particular political thoughts in mind, it could have been agents provocateur who opposed the protest. It could, we must reluctantly include, have been plain clothes policemen who wanted a bit of fun.

If protest organisers are at the mercy of any passing stranger who breaks the law then the right to protest is not being protected. In view of events since January 2020 this is perhaps not surprising.

Anyway Mr Hui’s complaint did not pursue this point at all. He complained that while he was standing on the pavement, in apparent accord with police instructions, a policeman tore his goggles off and pepper-sprayed him at close range, and did this twice.

He also complained that the officer concerned was not wearing an identification number, but was wearing a badge which is not part of the approved uniform – saying “Police bad-ass” apparently – in violation of police rules.

Immediately after the incident there was, as there usually is, a police spokesman to explain that nothing untoward had occurred. Mr Hui had refused to disperse and was therefor to be “dispersed” with pepper spray.

This was not a happy inspiration. Police are not supplied with non-lethal weapons so that they can “disperse“ anyone who is not being cooperative. The weapons are supplied for the protection of officers. If Mr Hui was obstructing police operations he should have been arrested and appropriately charged.

There is nothing in the law which authorises police officers to administer summary punishment for disobedience.

It also transpired that in the video – these days there is always video – Mr Hui was in fact on the pavement where he should have been.

This detail was quietly ignored in the subsequent investigation of Mr Hui’s complaint by the Complaints Against Police Office, which produced this verdict: “On January 1, 2020 at around 8pm on Hennessy Road… the police were conducting a crowd-dispersing operation and had given you and other demonstrators multiple verbal warnings and displayed warning flags,” the letter read. “At the time, the police were facing a large volume of violent demonstrators and had no other option but to use the minimum level of force – that is, to spray pepper spray at you and other demonstrators. Therefore, we classify this allegation as ‘without fault.’”

The letter added that this conclusion had been endorsed by the IPCC. Clearly they had not viewed all the video, in which there is a startling dearth of violent demonstrators and a surplus of police officers pepper-spraying anything which took their fancy, including the reporter doing the video, which can be seen here.

However people who have read the IPCC’s full length whitewash will not be surprised to find that in their view any place which the police wish to clear is a free fire zone. The report mentions in passing that a reporter was shot in the eye with a rubber bullet and its only comment on this incident is that she was “standing on a footbridge which the public had been asked to leave”.

Contemplating the work of the IPCC I am often reminded of Wittgenstein’s warning that when you measure a table with a ruler you are also measuring the ruler with the table. The IPCC’s work tells us very little about how policing is or should be conducted. It tells us a lot about the IPCC.

Still, perhaps Mr Hui’s spraying was part of an exciting scene and could perhaps pass as a forgivable result of law enforcement frustration.

What surprises is what became of the other complaints. The letter said that the officer wearing a “bad-ass” badge “did not affect the force’s image or its effectiveness”.

Really? Is it the Complaints Against Police Office’s view that the force image is now so bad that the spectacle of officers violating their own rules is shrugged off by observers as no more than they expect?

The objection to freelance badge selection has nothing to do with the possible effect of the words displayed on public opinion, or on the effectiveness of the force. The objection is that those authorised and empowered to enforce the rules should themselves obey them. If the police force thinks it is a worthwhile boost to morale for officers to adorn their uniforms with personal mottos then it should change the rules.

And the matter of not wearing identification numbers was a clear violation, not only of police rules but of the law. In November last year the High Court ruled that the failure to ensure that officers on duty wear a unique identification number was a violation of the Bill of Rights Ordinance.

The court also held that “The Government of the HKSAR is under a duty, pursuant to Article 3 of the Hong Kong Bill of Rights, to establish and maintain an independent mechanism capable of conducting effective investigation into complaints of suspected ill-treatment by police officers in contravention of Article 3 of the Hong Kong Bill of Rights, and that the existing complaints mechanism involving the Complaints Against the Police Office, with oversight by the Independent Police Complaints Council, is inadequate to discharge this obligation.”

And yet, it seems, nothing has changed and nothing is going to change. Isn’t the Rule of Law wonderful?