tim's experiment

I do not go through life looking for opportunities to give Hong Kong judges a hard time. But someone has to do it.

This week we had the judgment of Mr Justice Andrew Chan in the matter of five men accused of criminal contempt by obstructing bailiffs enforcing a court order.

They were convicted. The offences, which could be described as having a whiff of politics about them, took place four years ago during the clearance of the Mong Kok part of Occupy. The law’s delays, as Hamlet observed, are one of the things we all have to put up with.

Ploughing through Chan J’s 17-page judgment, the Hong Kong Free Press’s diligent reporter came across a fine self-contained gobbet of horse manure. I quote: “Regarding Yung, Chan wrote that the slogan on the back of his T‑shirt – which said ‘rather die for speaking out, than to live and be silent’ – ‘indicated his intention and described his involvement beyond doubt.’”

So young Mr Yung was convicted, it seems, on the evidence of his tee-shirt. This is very disturbing.

To start with, the slogan concerned seems a very fragile peg on which to hang the conclusion that the wearer set out to obstruct the bailiffs. The offending shirt did not say “Occupy Mong Kok for ever,” or “Who cares what some old fart in the High Court thinks?” The slogan concerns speech, not occupation.

And there is nothing particularly unusual or ambitious about it. It is descended from Pasionaria’s “Better to die on your feet than to live on your knees”, which dates from the 1930s and in turn perhaps owed some inspiration to Patrick Henry’s “Give me liberty or give me death”, which was orated in 1775.

Even if you think, as a conservative and elderly judge might, that this is so subversive in its implications that the wearer must be a rabid revolutionary, before hastening to judgement there are some further possibilities to consider.

We have all seen people wearing tee-shirts which said incongruous things. This seems a particular problem in Japan, where people wear tee-shirts with English slogans which either don’t make sense at all or mean something which the wearer would be embarrassed by if she knew what it was.

Such accidents are not unknown in Hong Kong. Generally people who buy cheap tees from factory outlets and such are tempted mainly by the low prices. If it happens to say “I’m too pretty to do housework”, or “Good girls are better liars”, they do not mind, but they do not mean it either.

When I worked in Blackpool there was still a traditional vogue for hats which said “Kiss me quick”. Passers-by did not take this invitation literally.

I do not criticise. I have a tee-shirt I bought in Japan with a lot of writing on it. I am assured by a colleague who reads the language that it is a recipe for cooking fish. This is a relief because I cannot read it myself. It only occurred to me when it was too late that my shirt might say something unfortunate like “Hands off the Diaoyus”, or “Yasukune Shrine Supporters’ Club”.

We should all, I think, deny vigorously the suggestion that the wording on our tee-shirts is evidence of our “intentions and involvement” in anything. A person whose tee reads “Vote for Guy Fawkes, the only man to enter parliament with honest intentions”, may have poor political taste, but he is not going to blow anything up.

A person whose tee-shirt says “Eat the rich” is not prone to cannibalism, and a picture of Adolf Hitler is not necessarily evidence of Fascism. It sometimes comes with a small caption underneath saying “My picture of Che Guevara is in the wash”.

As far as I can tell from some hasty Googling the international consensus is that nothing written on a tee-shirt should be taken too seriously. The only exception I could find was an American lady who was refused boarding on a booked flight because she was wearing a (I presume) feminist effort which went “If I wanted the government in my womb I would fuck a senator.”

If Hong Kong judges are going to jump to conclusions on the basis of tee-shirt slogans we are all going to have to examine our collections closely. Would there be objections to “Free Tibet”, and would these objections be withdrawn if it was followed, as it sometimes is, by “with a purchase of another Tibet of equal or greater value”?

Will the long-awaited Article 23 legislation bar us from wearing “Property is theft” (Proudhon) or “The urge to destroy is also a creative urge” (Bakunin)?

Perhaps someone could  commission a tee-shirt for Mr Chan, with the useful phrase “Aucupia verborum sunt judice indigna”, which means “Catching at words is unworthy of a Judge.” It is a quote from one of Mr Chan’s colleagues, albeit one who was working in 1616. Before tee-shirts became evidence.

From time to time some official, or a sympathetic commentator, laments the dearth of constructive suggestions among the criticisms which tend to greet any new government policy. On the other hand, when one comes along it doesn’t get a very warm reception.

This thought was prompted by a recent announcement from a group called the Real Property Federation, which was responding to the government’s request for opinions and suggestions about the shortage of land for housing.

Never heard of the Real Property Federation? Me neither. Apparently it comprises developers, real estate agents and professionals like architects and surveyors. A gathering of rich participants in the real estate racket, then.

This may justify a certain suspicion, but good ideas can crop up in unlikely places. Some of the federation’s proposals had a whiff of special pleading about them. They did not approve of developing the Fan Ling golf course. They did approve of reclamation as a long term measure. They wanted public-private partnerships to develop agricultural land owned by developers.

So far, so rather boring and predictable. Their short-term proposals were more interesting. One was to nearly double the plot ratio on public housing sites. This would mean a lot more flats on each plot. I am not sure about this one. Some of the recent public housing estates are quite crowded enough already. But it’s a quick fix.

Another one was to “revitalise” industrial buildings for use as temporary housing. This would no doubt give some pleasure to owners of moribund industrial buildings, but it could house a lot of people.

The most interesting suggestion, eagerly seized by the Hong Kong Standard, which seems to have been the only English medium covering this particular event, was that the government should moor some large boats in the Kai Tak Nullah to provide temporary homes for people who were waiting for public housing.

This is not on the government’s official list of suggestions, which doesn’t go far out of the box, or off the wall. But it is something new, constructive, and surely worth considering.

The idea is to put pre-fabricated container homes on barges, which would be moored, presumably next to a dock constructed for the purpose. The word “barge” is here used in the technical sense of a vessel which is not expected to propel itself. Actually the boats would apparently be big – the federation proposes about 400 container homes on each barge.

The idea has been roughly costed. Apparently a suitable barge could be built from scratch for $60 million, though it might be cheaper to buy a second-hand ship and adapt it. Another $80 million would be needed for containers, services, etc. Each barge could accommodate about 2,000 people.

Now I am prepared to believe that the authors of this scheme may have overlooked some hidden drawback, or been a bit optimistic in their costings. On the other hand compared with the competing suggestions floated this is quick, cheap and doesn’t require displacing any current land users. So you might think it would stir up a certain amount of interest.

Not at all. The Standard’s intrepid reporter managed to collect two reactions.

One came from a Marine Department spokesperson. She said that nobody was allowed to live on a boat in Hong Kong unless it was licensed for the purpose. And “no new licence for a dwelling vessel will be issued,” she said firmly.

According to the Marine Department there were only four licensed dwelling vessels in Hong Kong last year. This comes as a surprise because a swift search for houseboats or “live-aboards” for sale in Hong Kong finds 28 on offer at just one yacht broker.

Now this may come as news to the Marine Department, but it is not the absolute monarch of all Hong Kong’s wet parts. If the government decides that it would be in the public interest for large numbers of people to live on barges specially constructed for the purpose then the Marine Department’s policy on this matter will have to change. It is a government-made rule and the government can remove it.

Actually if the Greenland icecap succumbs to global warming and slithers into the sea next year we may need a lot of floating homes round here.

The other reaction came from legislator Andrew Wan Siu-kin, who by a convenient coincidence is also a member of the Housing Authority. It was kind of Mr Wan to offer a comment on this proposal since he was clearly unencumbered by any relevant knowledge.

The proposal, he said, was “impractical and weird”. He went on, “it won’t be fun to live on the fifth level when there are waves, and people living on land can’t get accustomed to it, as they get seasick even on ships as stable as ocean liners…”

What is weird is that Mr Wan apparently doesn’t know that thousands of people used to live on boats in Hong Kong. Some of them, according to legend, never went ashore. Some of them, according to undisputed fact, only went ashore in emergencies because they were mainland women married to Hong Kong fishermen and were for some reason not eligible for ID cards.

People can get used to all sorts of things. Actually a barge in a backwater like the Kai Tak nullah is not going to encounter large waves, even in a typhoon. A big boat, tethered, will not move that much.

Besides, we should remember, what counts as unattractive housing depends on where you are now. If the alternatives are sleeping in a cage, or McDonalds, or a subdivided firetrap, then a container home on a barge may look quite attractive. In fact if the long-awaited offer of public housing is a flat in distant and sorrowful Tin Sui Wai I imagine quite a lot of occupants would be reluctant to move out.

I fear I will vomit if I have to read one more newspaper column claiming that someone of whom the writer disapproves is mistaken in the belief that freedom of speech is an absolute right. Nobody believes that freedom of speech is an absolute right.

As an American judge once said, you are not free to shout “Fire” in a crowded theatre. There must be some restrictions. This means that in any particular case you have to consider the circumstances and the reasons advanced for curtailing freedom, in the light of the permitted exceptions.

This is of course more trouble than simply dubbing anyone defending freedom of speech a deluded ignoramus who thinks the right to freedom of expression is absolute. But it should be a prerequisite for anyone who wishes his views to be taken seriously.

Freedom of expression is enshrined in the PRC constitution, an inspiring work of fiction.

It is also enshrined in the Basic Law, which says at Article 27 that “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

This is promising, but so sweeping as to be unhelpful. Freedom of expression is not an absolute human right like the right not to be tortured or enslaved. To answer the question what restrictions are acceptable we must look elsewhere.

Help will be found in Article 39, which states that “The provisions of the International Covenant on Civil and Political Rights … as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.”

This gives us to two tests to be applied: is a restriction prescribed by law, and does it meet the requirements of the International Covenant, which by a convenient coincidence is incorporated in the Laws of Hong Kong as the Bill of Rights Ordinance.

Article 16 is the one which concerns “freedom of opinion and expression”. As well-drafted constitutions do it sets out the right and then goes into the permitted exceptions to it.

So (1) Everyone shall have the right to hold opinions without interference, and
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The third item states that there may be “certain restrictions” and lays out their limits. They must be “provided by law” again, and “necessary” for one of four purposes: respect of the rights or reputations of others; or for the protection of national security or of public order (ordre public), or of public health or morals.

These exceptions are generally assumed to justify the law of libel (reputation) contempt of court (public order) obscenity (morals), and so on. Public order is interpreted in the French way (which is why the French translation is inserted) and so includes rather more than the absence of violence in the street.

We are now in a position to consider properly whether any particular restriction on freedom of expression is justified. Let us take the advocacy of independence. Is a ban on this “provided by law”? Not at all. Even the famous “sedition” section of the Crimes Ordinance preserves the right to:

“(b) point out errors or defects in the government or constitution of Hong Kong as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or

(c) to persuade Her Majesty’s subjects or inhabitants of Hong Kong to attempt to procure by lawful means the alteration of any matter in Hong Kong as by law established; or

(d) to point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill-will and enmity between different classes of the population of Hong Kong.”

Clearly attempts to use the Societies Ordinance, or the ownership of Victoria Park, or such influence as the government can exert on a private club which is its tenant, to prevent the expression of views which are not prohibited by law is a violation of the freedom offered by the Basic Law and the Bill of Rights Ordinance. Andy Chan is not breaking the law. The government is.

Note that the permitted exceptions are subject to the condition that they are specified by law. A speech which is not prohibited by law does not become unlawful just because in some people’s view – or indeed in everyone’s view – it might harm a personal reputation, national security, public order or whatever. The “provided by law” comes first and if it is not satisfied then the exception is not allowed.

Of course it is nonsense to suggest, in any case, that China’s national security can be endangered by anything said in Hong Kong. The real objection to independence advocacy is that it was specifically forbidden by President Xi, whose speeches, inconveniently, do not have the force of law in our system.

China’s habit, alas, is simply to change the language if it suggests an inconvenient obstacle to the Party’s progress.

There was a good example of this last week in a charming story about trout. There is a shortage of salmon in China, I suppose for simple geographical reasons. Some restaurants had taken to serving rainbow trout, which apparently when skinned and cooked looks pretty salmon-like. However the rainbow trout is a fresh-water fish, and as the water in China’s rivers tends to be anything but fresh some diners were not pleased.

The government’s solution to this problem was to reclassify the rainbow trout, which is now officially a salmon.

The problem with this sort of thought control is that it doesn’t work so well in places where people can make their own minds up. Mr Chan is not really expecting Hong Kong to become independent, and the reporter who castigated him for not having a plan for this process was a simpleton.

What the Hong Kong National Party does is to demonstrate in a very practical way the true nature of Hong Kong’s situation. We are not an autonomous region, we do not have the rights and freedoms we are supposed to have, and our distinctive culture and language are under attack.

Insisting that this isn’t so is not working too well in Hong Kong. Of course it works even less well overseas. It is an entertaining paradox, if viewed from a safe distance, that China wants the world to pretend that Taiwan is not a separate country, which it manifestly is, but also wishes it to pretend that Hong Kong is a separate country, which it clearly is not.

I don’t know what the conditions are for WTO membership but how much longer will we be able to justify our separate Olympic team?

Browsing through a very old collection of newspaper columns the other week (half price from Swindons) I came across an interesting piece by Michael Kinsley, addressed to people who were considering employing a domestic servant.

This was intended for American purposes and much of it is not relevant here. Also it is addressed to people who grew up in the 60s and might find the idea of domestic servants a bit of a political problem. Solution: “People work because they need the money, and denying them that opportunity in the name of equality is doing them no favour.”

The piece did spark the thought that people entering into this relationship in Hong Kong get very little helpful advice. There is the contract, which like all contracts leaves a great deal unsaid. Then there are the “notes to the contract”, which have little of interest except the repeated warnings that the Four Horsemen of the Apocalypse will rampage through your living room if you allow your helper, as part of her duties, to drive your car.

This is not much help. So in the hope that with some prompting the government will wish to provide helpful advice to people embarking on the servant scene, I have drafted a few paragraphs. If this seems like a good idea, dear bureaucrats, please help yourselves. Here we go:

Dear future Employer, welcome to the wonderful world of domestic help. Let us be clear at the outset that what you make of this is entirely up to you. The government has neither the means nor the will to keep an eye on what you get up to. The Labour Tribunal is a notorious waste of time and the police will only be interested if someone is physically injured. So it is up to you whether you want to be nice or nasty. These notes will help you in that choice.

1. The relationship. Please remember that you are purchasing a service, not buying a person. Your domestic helper has her own rights and needs. You are not in the position of a parent and there are no circumstances in which you may legally inflict corporal punishment — or for that matter fines — on your helper. If you have trouble communicating with each other in English bear in mind that the problem may be with your English, not hers. And just because she can’t poach an egg the way your grandmother did does not mean she is stupid.
2. Hours. You are required to give your helper a day off lasting 24 hours once a week. Unless your family circumstances impose a compelling need for help on Sundays, that day off should be Sunday. Exiles like to meet their friends and compatriots occasionally. Note also that the entitlement to 24 hours off does not mean that you should require the poor lady to work all the hours God sends in the rest of the week. Six 16-hour days comes to a 96-hour week. Would you work those hours? Organisations taking an interest in this area suggest that you should give your helper a couple of hours to herself before she goes to bed, and also some time for meals. This might get the daily working hours down to 12, which is enough in all conscience. Filling her time with work is not “getting your money’s worth”. It is ruthlessly exploiting your position of power.  There may be a need for periods when she is “on call” but not working, which is fair enough. Try to be reasonable. Your car’s paintwork will last longer if it is waxed professionally once a week than if it is hosed every morning.
3. Accommodation. This is a problem not of your making. The government requires that the helper live in your home. Given the average size of flats in Hong Kong this is a big ask. Still. your helper is entitled to a space of her own, however small, with a door on which you should knock before entering. Not acceptable: a tent on the balcony, a tent anywhere else, plank on top of the fridge, a plank on top of some other domestic appliance, a toilet, cupboard, shared bed with your kids, dog, or racehorse, use of living room after everyone else has gone to bed.
4. Food. Under the contract you are required to feed your helper. This obligation continues if you yourself are eating out. You are NOT entitled to make a deduction from her pay to compensate for this. Which brings us to:
5. Pay. Your obligation is to pay the sum stipulated in the contract. Under the Labour Ordinance (this is one of the few points on which the “notes to the contract” are rather good) it is a CRIME to deduct anything from your employee’s wages unless she has not turned up, or having turned up has refused to work. You may not make deductions for food, clothing, accommodation, bedding, use of your WiFi or to compensate for possibly lost teaspoons.
6. Work. There are some restrictions on what you may require of your helper. She must not drive your car, which for some reason the official mind finds deeply offensive. She may not clean the outside of your windows unless she can do so without sticking no more than her arm out of said window. This rule is not much publicised except when it is broken and cases of actual punishment are rare. But if your helper joins the choir invisible by attempting impromptu wingless flight while precariously perched outside your living room window, you will get some seriously bad publicity.
7. Uniforms. There used to be a requirement that you either provide a uniform or a clothing allowance. This has quietly disappeared from the standard contract. Your helper can wear her own clothes. This does not absolve you from the obligation to provide gloves, apron or whatever protective gear may be appropriate. If your dog is bigger than the helper a choke collar (for the dog) is a good idea.
8. Address. A tricky area. Mr Kinsley suggests that nobody outside the disciplined services should expect to be addressed as “sir” or “ma’am”. But Hong Kong helpers seem to be quite happy with this. It saves them the trouble of memorising a lot of names. It also brings a bit of formality to a relationship which otherwise may be misunderstood, especially by the man of the house.
9. Agencies. Much unhappiness is caused by the system under which helpers are recruited in overseas countries by agents who charge them a large fee for the service. The helpers are expected to repay this from their earnings in Hong Kong and their passports are typically detained to ensure that payments — at usurious rates of interest — are kept up. This is all against the rules, but it happens. This is not your fault. You can, however, solve the problem by using an agent who will charge you the usual fee but not charge the helper at all. There are such agents. One can be found at http://www.fairagency.org.

In closing, another quote from Mr Kinsley: “If you’re still feeling a bit squeamish, try paying a bit more.”

I am reminded by one of our legal readers that Hong Kong has so far refused to sign up to the Forced Labour Convention.

This is a well-intentioned antique – it was first agreed in 1930 – by which signatory states agreed to ban or phase out “forced or compulsory labour”.

Almost everyone has signed up for this by now. The list of exceptions is interesting: Afghanistan, Brunei, China, North Korea, Marshall Islands, Pelau, Tonga, Tuvalu, and … the USA.

I suppose there is nothing to stop Hong Kong signing up. Before 1997 we were covered by the UK’s signature. Basic Law Article 151 allows the SAR government on its own to “conclude and implement agreements with foreign states and regions and relevant international organizations in … appropriate fields.”

Article 153 says that “International agreements to which the People’s Republic of China is not a party but which are implemented in Hong Kong may continue to be implemented in the Hong Kong Special Administrative Region.”

It is difficult to see why Hong Kong has not signed up for this, because the government would certainly say that it was already in compliance with the Convention, as there is no forced or compulsory labour in the territory.

Not so fast. So it appeared until the latest developments in the Great MTR Construction Scandal. The news that funny things have been going on in the building of the Shatin to Central Link should surprise nobody. All the relevant officials and executives have been bestowing their attention on the equally expensive and late, but politically very salient Express Rail Link. The Shatin to Central line, which will merely serve the travelling needs of the Hong Kong public, was a neglected child.

When the cat is not looking the mice will play.

Still, this little scandal has highlighted the need to do something about forced or compulsory labour because that is, it seems, being inflicted on the MTRC’s luckless chairman Mr Frederick Ma.

I quote: “Board chair Frederick Ma said he had tried to resign from his position twice, but the government did not accept his requests.” Mr Ma is, it seems, being compelled to soldier on against his own wishes, which might be to try something easier than running a politicised railway.

It is possible that Mr Ma’s idea of a resignation is a bit wobbly. “Do you want me to resign?” is not an attempted resignation, nor is “Will you sack me if I don’t resign?” or “Do you mind if I resign?” These invite the answers “no” “no” and “yes” respectively.

But let us suppose that the conversation went “I resign”, “No, that’s not accepted.”

This is deplorable. Mr Ma is not a slave. He has the right, like the rest of us, to choose his employment. The idea that you can only resign with your employer’s consent is not applied to the rest of us. If you really want to resign, mate, try harder.

Mr Ma is, at least, considerably more sensitive to the matter of accountability than his boss, Secretary for Transport and Housing Frank Chan. At his press conference the question of resignation also came up, and the answer was this: “The government has immediately followed up on the problems as soon as they surfaced. You can judge for yourself the government’s performance.”

Now this will not do at all. Any dumb bunny can “follow up problems as soon as they surface”. No doubt the builders of the Tay Bridge or the Titanic would happily have expressed willingness to do the same thing. Nor is the “government’s performance” relevant. The important point is Mr Chan’s personal accountability as the responsible secretary.

The whole point of the “accountability” system is that secretaries are responsible for the segments of the government over which they preside. We cannot be expected to ferret through the entrails of the latest disaster to ascertain personal liability. Someone has to carry the responsibility of ensuring that disaster is averted.

We do not expect the government or its members to achieve perfection. But it is up to each secretary to ensure that the machinery over which he presides will deliver acceptable outcomes.

If we are insecure we are entitled to blame the Secretary for Security, if we see injustice done we are entitled to blame the Secretary for Justice, if we are poisoned by our food we are entitled to blame the Secretary for Food and Health, not because we foolishly suppose that those three people personally made the fatal error, but because it is up to them to arrange error-free service.

If major error occurs they have failed. Mr Chan has failed. A flagship project has run aground on his watch. Whether he was aware of the approaching sandbank is neither here nor there. A secretary who is not aware of a problem until it “surfaces” in the press has been asleep at the wheel.

At moments like this there is a temptation to quote Oliver Cromwell: “You have been sat too long here for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go!”

But that might be a bit extreme in the circumstances. Better perhaps that lovely World War 1 ditty “We don’t want to lose you but we think you ought to go.”

In one respect Mr Chan can be considered unlucky. Housing and Transport used to be separate portfolios and putting them together produced an unmanageable juggernaut. His successors should be given one each.

I must congratulate the Yau Tsim Mong District Board on its success in making Hong Kong an international laughing stock. Wherever planners and traffic engineers gather together, recent events in Sai Yeung Choi Street will occasion incredulity and hilarity.

“They had a pedestrianised street which was heaving with people, attracting visitors from far and wide … and they unpedestrianised it… no seriously I’m not kidding. The local council wanted the cars back.” There won’t be, as they used to say, a dry leg in the house.

This is not rocket science. The key to a clean, pleasant and attractive urban environment is to separate cars from people. Part of this is achieved by building by-passes and such so that traffic is not forced through town centres by want of alternative routes.

And the other part of it, having ensured that alternative routes are available, is banning traffic from places where lots of people want to walk, shop, and enjoy themselves.

I imagine the majority of European cities now have pedestrianised parts in their centres, and many towns likewise. This is a successful recipe not just for architectural jewels like Prague and Salamanca, whose mediaeval street plans are hopelessly unsuitable for cars anyway, but also for gritty capitals of the industrial revolution like Glasgow and Newcastle-upon-Tyne.

Residents of these cities will be baffled by the explanation given by Hong Kong officials – that the pedestrianised street was a problem because the buskers made so much noise.

There are a variety of way of regulating busking. You can license the buskers themselves, thereby controlling the numbers and also perhaps introducing a measure of quality control.

When I first visited San Francisco they had just introduced a licensing scheme for buskers. The number of applications was overwhelming so there were competitive auditions. The resulting busking was excellent. It seemed that most of the people who won licences were either music students paying their way through college, or music graduates who had found no other job which used their expensively-acquired skills.

If this is too complicated you can have a number of permitted pitches a suitable distance apart, and open them to public booking, like public squash courts. You can ban busking in sensitive spots, and encourage it in neglected ones.

The problem in Sai Yeung Choi Street did not, apparently, become acute until local shopkeepers (presumably not the same ones who are now complaining about the noise) started allowing people to run power cables out of their shops into the street.

Previously musicians had to use comparatively feeble battery-powered amplifiers and speakers. With mains power all limits were off and an arms race ensued.

The noise level produced by buskers is another thing which can be controlled in a variety of ways. In some places you are not allowed electric speakers at all, as is the case in Hong Kong parks. In Paris, I think, the rule is that passers-by must still be able to conduct a conversation in normal voices. You can have a limit in decibels or a less formal approach. In the London Underground busking is explicitly banned, but performers who are moderate in volume and reasonably melodious are in practice not disturbed.

In most of Hong Kong the police will come and intervene if anyone complains to them about noise. I speak from experience. Before my bagpipe band performs we will wish, however carefully we have rehearsed, to have a little warm-up warble out of hearing of the audience.

When we do this outdoors it often produces a visit from the police, usually at about the time we have finished. And indeed official spokesmen do occasionally claim that there is sufficient legislation in Hong Kong to regulate people who produce excessive noise or other nuisances in public places. But not in Mong Kok, apparently.

The decision to depedestrianise Sai Yeung Choi Street produced a little flood of interviews with people who had performed there. Only two of them said they had encountered any form of regulation.

One group who turned up expecting to perform in the street were told that there were “regulations” and they could not simply turn up and play without the permission of those who “run the street”.

A man who was actually performing there was approached by a civilian with a large and musical family. This person said that his sister wished to use that spot and his brothers would be very upset if she was not allowed to do so. The performer moved along.

So it seems someone was in charge, it just wasn’t the people who you expect.

After the street reverted to traffic one official said that the government would now wait for the public to decide how it wanted buskers to be regulated. I fear the government is doomed to disappointment.

Regulating buskers is one of those matters like street lighting or rubbish collection on which the public’s preferences are for a particular outcome. The nuts and bolts of how it is achieved are of no interest. In any case it appeared, as the media spotlight swung onto buskers generally, that the present system worked quite well … except in Mong Kok.

We cannot at this point avoid one of Hong Kong’s dirty little secrets, which is that in certain parts of the territory there was for a long time a tacit modus vivendi: underworld figures could continue with their “business” as long as they stuck to the sort of activities which involved catering for more or less satisfied “customers”: like vice, dope, gambling, contraband and “protection”. No mass brawls, no drive-by shootings, no horse’s heads in law-abiding citizens’ beds, and so on.

As a result, when I was a volunteer helper in the clinic of the late Mrs Elsie Tu, there were places where it was considered a waste of time to complain about criminal activity to the police. This was a long time ago and the other places may have changed. It appears that Mong Kok has not.

This became fairly obvious in the Occupy period, when occupiers were harassed and occasionally assaulted by mysterious male civilians who were not policemen but seemed to be on cooperative terms with them.

It was observed towards the end of the Sai Yeung Choi Street pedestrianisation period that busking in the usual sense had largely been displaced by a sort of rent-a-mike karaoke run out of some of the shops, no doubt to somebody’s profit.

This is why we shall not see an inquiry into the “fishball revolution”. It might find (or at least it might be told – some things fall on deaf ears on these occasions) that the original trigger of the violence was not a localist plot, but resistance by the entirely non-political figures who usually “run the street” to a group of traffic cops violating the usual understandings.

If that was the case it would not, I stress, in any way excuse the violence by other people later. And you are free to dismiss it as speculation anyway. Unless you work for the Hong Kong Government, in which case you can shut up. Those who could find the truth and will not seek it must expect the rest of us to speculate about their reasons.

It is becoming increasingly easy to believe that judges of the Court of Appeal are beamed down to us from another planet, where they spend the early part of their lives completely insulated from life as most people live it in Hong Kong.

Consider the judgement of their lordships in the recent case of Mr Donald Tsang’s appeal against his conviction for misconduct in high office.

I have no quarrel with the rejection of his appeal against conviction. It is a nice irony that the man who vandalised our public housing system should be brought low by a penthouse flat for his own use. Let them eat subdivided apartments, as Marie Antoinette might have said.

Nor can there be any quarrel, I suppose, with the reduction of his sentence to one year. A year is a long time. It would be nice to see more awareness of this in the cases of poor and non-famous people who are jailed for decades at the urging of the same judges.

What had me choking on my port (I was on holiday in Portugal when this came out) was the way their lordships dealt with the matter of costs, which went like this:

On the reduction of legal fees, the judges said although Tsang and his wife had around HK$50 million in their bank accounts, their savings must have been significantly reduced after hiring top lawyers in three trials. They said Tsang is unlikely to start another career and can only resort to what is left of his savings and pension.“Financially, the Costs Order may have a crippling effect on the applicant,” the judges said.

The judges seem at this point to be assuming rather a lot. I have some difficulty in believing that Mr Tsang, who in his well-publicised socialising with millionaires must have received a good deal of financial advice, has kept the entirety of his savings in bank accounts.

One has to wonder about the possibility of other assets which can be monetised without too much trouble. Are there really no Ming vases, no gold bricks, no shares in the British Virgin Islands or in Virgin Islands of other nationalities?

Clearly at Mr Tsang’s age there can be no question of another career in the usual sense, but does that really mean no hope of other income?

Well let us follow the judges in assuming that there will be no paid motivational speeches, no directorships in the gift of Mr Tsang’s former friends, no book contracts and no advisory posts.

The question we are left with is this. Is someone aged 73 to be regarded as “financially crippled” if his financial reserves are reduced from $50 million to $45 million by an order to pay $5 million in legal costs?

Let us suppose that one of the Tsangs can be expected to live to 100. This means that the $45 million has to last for 27 years. We will ignore for the purposes of this calculation the year or so Mr Tsang may spend in a rather Spartan hotel at our expense. So the Tsangs, or the surviving Tsang, will have to get by on $1.6 million a year or $138,000 a month. This may usefully be compared with the average monthly salary in Hong Kong, which is – according to the relevant department — $15,897.

The Tsangs will also, of course, qualify for two lots of fruit money (bringing their monthly income up another $6,000 or so) cheap trips on public transport, medical vouchers and other goodies showered on us old folk by our generous leaders.

Alternatively they might wish to invest their remaining $45 million and live on the proceeds, which would come, at a modest 4 per cent yield, to $1.8 million a year or $150,000 a month. Another possibility would be an annuity along the lines of the government’s recently announced HKMC Annuity Plan. The plan itself, actually, is clearly intended for people even more financially crippled than the Tsangs, because the upper limit is only $1 million.

Assuming, though, that a private sector version of equal generosity could be found with no upper limit on the amount purchased, the Tsangs’ nest-egg would earn a guaranteed lifetime monthly income of $278,000 (if the life concerned is Mrs Tsang’s) or $316,000 if we decide Donald is a better bet.

The details are, in any case, not too important. Suffice it to say that the Tsangs will clearly not be reduced to collecting cardboard boxes for a living. The incidence of legal costs frequently results in unfairness. This is generally treated as an unavoidable deficiency in the system which cannot be remedied without greatly reducing the income of lawyers, and hence cannot be remedied at all.

It would be nice to think that from now on litigants who would be financially crippled by an order for costs will be spared the full rigour of the system. But this case was not, perhaps, a good place to start this new arrangement.

You have to wonder how these things happen. China has never been a democracy. Its citizens have been subjected to a stream of propaganda for decades expounding the merits of communism in its current form, whatever that may be at the time.

And yet, last week, a nameless young woman – name for Twitter purposes @feefeefly – posted a video of herself splashing ink on a “Chinese dream” poster of president Xi Jinping. She then turns towards the camera and says “I oppose Xi Jinping’s tyranny.”

Later the same day she posted pictures of police officers apparently taken through a door peep-hole. “Right now there are a group of people wearing uniforms outside my door. I’ll go out after I change my clothes. I did not commit a crime. The people and groups that hurt me are the ones who are guilty,” she said.

And the rest, probably, is silence. A short discussion in the office concluded that this story, label on Twitter the Ink Girl, would probably not yield further installments. Professional detachment is obligatory in these conversations. But some speculation about future updates is allowed.

Was this lady, we wondered, perhaps – as we used to say before mental illness became an acceptable item for the media menu – one or two sandwiches short of a picnic?

Did she have a dissident boyfriend she wished to impress? Or knowing the likely consequences, was she suffering from some secret sorrow and indulging in a sort of state-assisted suicide?

Privately, I thought it was a pity nobody was around at the ink-splashing site to take her quietly on one side and say “Go home, pet. It’s not worth it.” And then I thought, with some misgivings, that probably people had thought much the same sort of things about Sophie Scholl.

Ms Scholl is fondly remembered in Germany as one of a group of students who started distributing leaflets denouncing Hitler and his party in 1942. Early in the following year she was caught doing this in Munich University, where she was a student.

She was accused of treason, tried, convicted (isn’t the Rule of Law wonderful?) and executed by guillotine on the same day. Among her last recorded words are a note to her mother, which concludes: “How can we expect righteousness to prevail when there is hardly anyone willing to give himself up individually to a righteous cause? Such a fine, sunny day, and I have to go, but what does my death matter, if through us, thousands of people are awakened and stirred to action?”

Of course the parallels are not exact. The Ink Girl, as far as we know, was not part of a group. President Xi, though he has a fine collection of concentration camps, has not embarked on mass gassings, as far as we know. I decided after some thought not to put “yet” anywhere in that last sentence, but as Lord Acton said, “absolute power corrupts absolutely” so things could still get worse.

Thinking about these things puts the problems of Hong Kong’s opposition in perspective. People with inconvenient principles may lose their jobs and have occasional encounters with thugs in the street. But as long as you steer clear of the Public Order Ordinance politics is not a blood sport. Yet.

Times were hard for political dissidents in 1943. Very few of the group of resisting students survived the war, and at the time it seemed that their gesture was scarcely audible amid the catastrophe which was engulfing Europe.

Yet today Ms Scholl is regarded as a national hero – indeed among the younger generation as the national hero. Streets and schools are named after her.

I do not know what will become of those local leaders who now happily work for our new imperial masters, content with their five-figure salaries and free housing, loyally spouting the latest variation on “four legs good, two legs bad”. But I fancy they will not get many roads named after them.

And meanwhile, on the same day, it was announced that China wishes to have Chairman Mao’s Mausoleum added to the UNESCO Cultural Heritage list. What a pity they can’t put Adolf and Uncle Joe in there as well and have an internationally famous collection of stuffed mass murderers.

We all know the government does not look forward to the July 1 march as one of its happy days. The march is generally summarised as “for democracy” though it often attracts a wide variety of interests and causes.

Most famously, many years ago, the march swelled to a monstrous size and concentrated on opposition to proposed national security legislation, which was dropped soon after. This was a rare success. Calls for democracy remain unanswered.

Recently the government has taken to putting obstacles in the way of the march, with quibbles over routes and fund-raising stalls, not to mention the Victoria Park football pitch problem.

The pitches in the park (which are tarmac, not grass) were the traditional assembly point of the march. For the last two years they have been occupied on the relevant day by a “charity” which is clearly one of those sprouts which the Liaison Office produces in local flower beds when it reproduces vegetatively, under ground, like a potato plant.

But this year, a first. After the march we were told that the government had put out an official statement complaining about the slogans people were shouting on it. The relevant paragraph went like this: “The spokesman reiterated that chanting slogans which disrespect ‘one country’ and disregard the constitutional order or which are sensational and misleading was not in line with Hong Kong’s overall interests and would undermine its development.”

This was widely reported as a comment on slogans which had been shouted, and which the government disagreed with. This interpretation was encouraged by the headline supplied, which went “Government responds to July 1 procession”.

The thing which puzzled me was how the government, or “a spokesperson”, heard slogans, interpreted them, and evaluated their importance. I presume that one maverick protester shouting “Xi out” would not produce the predicted effect on Hong Kong’s interests.

On the other hand a constitution which can be changed – and frequently is – must surely imply a right for the common citizen to have and express an opinion on what further changes would be desirable. This is not in itself disrespectful. As Michael Kinsey put it in a rather different context “We honour our friends by challenging them when we think they are wrong. It shows that we take them seriously.”

What would the government consider a sensational shout? What would it consider a misleading one? And how does the harm to Hong Kong’s interests ensue? I suppose that 364 days of the year nothing people shout in Victoria Park affects Hong Kong’s interests one way or the other. Why should July 1 be different? How many people does it take to reach the “harm” threshold, and who counts them?

It is of course possible that in the hearing of the government spokesman, but outside that of the numerous reporters covering the event, someone committed some terrible verbal offence by referring to the Chief Executive as a “feckless c***” or President Xi as Winnie the Pooh, which he apparently dislikes violently.

But the only shouts I could find reported were “end one-party dictatorship,” “Hong Kong people, keep going,” and “reject the deterioration of Hong Kong.” Clearly the first and last of these were not expressions with which the government would agree. But they hardly seem worthy of a whole press release.

And at this point I looked at the press release concerned. This can be found here: http://www.info.gov.hk/gia/general/201807/01/P2018070100546.htm, and is mostly concerned with providing a barrage of good news, incorporating all the current Liaison office hot items: Belt and Road, Pearl Delta, etc., and all the official feel-good titbits.

The paragraph about slogans comes right at the end of a release that runs to something over 400 words and could easily be mistaken for an extended grovel to our new colonial masters. The early part is not new, though the government’s own news website, which knows a political minefield when it sees one, prudently chose the headline “Gov’t says Hong Kong is stable, prosperous”. This accurately reflects the overall content of the release, though perhaps lacking what sub-editors used to call the “read me” ingredient.

The thing which struck me as suspicious about the whole enterprise came right at the end. It said “Ends/Sunday, July 1, 2018. Issued at HKT 17:33”

Wait a minute. This is a government which to put a lift on a pedestrian footbridge takes the sort of time in which any self-respecting pharaoh could erect a small pyramid. It takes six months to hold a by-election, two years to decide whether to raise a tunnel toll.

The march started at 3.00. Are we to believe that the spokesman was in attendance then, heard horrifying slogans, sped to government HQ (Central) or the Information Services Department (Sheung Wan), spoke, someone else then wrote the release, submitted it to the usual seniors whose approval is required, some of whom are not the sort of people you can find in their offices on Sunday, and whacked it on the wires, all in two and a half hours?

I realise that “respond” is an ambiguous word. If you are lucky enough to attend a church which still uses the old Book of Common Prayer you will come to parts of the service which go like this:

Priest: O God, make speed to save us.
Answer: O Lord, make haste to help us.

The answer is given by the congregation and this is technically known as a “response”. Of course it is not a response to what the priest has just said. It is planned in advance and was in fact written in 1552.

It seems to me that the government press release was also planned in advance and written, at the latest, the previous day. We must not be distracted by the “spokesman”. This is just a literary device that sounds more approachable than saying “the government said in a statement” or some such verbiage.

In practice the media treat it as much the same thing. RTHK’s story from the same press release was headlined “Govt criticises calls for end of one party rule”.

The interesting thing about the spokesman is that he is said to have “reiterated” that he did not approve of chanting slogans. When was this, one wonders, and what does it do for the message to claim that the nameless and quite possibly fictitious orator was repeating it?

Whatever the answers to these questions the description of the whole affair as “responds to July 1 procession” was clearly misleading. It was taken to mean, as its authors should have expected and I fear must have intended, that the government had written the press release after hearing the slogans. Which was not true. That’s not PR, or spin, or propaganda; it’s deception.

A nasty moment watching the television the other night: I thought they said that a 34-year-old man had been sentenced to 39 years in prison after being caught in possession of a large quantity of drugs.

After much Googling I managed to track down a published version of the case and it seems either I or the reporter got the digits mixed up. The guy was 39 years old. The 34 years was his sentence. This seems rather a lot for what the judge described as a “minor role”.

What was really disturbing, though, was an interview after the case with a triumphant police person who thought “this heavy sentence would have a deterrent effect”.

Now we must not be too hard on this young man. No doubt there is no time at the Police College (as they now call it) for discussion of the finer points of sentencing policy. Nor, perhaps, should there be. Once the policeman has launched his suspect into the gaping maw of the legal machinery his job is done.

But the theory that crime is deterred by interminable sentences is of great antiquity. It is technically known as “general deterrence” theory and those who have studied it carefully agree that it is bilge.

The committee which ponders sentencing matters in New South Wales lamented the “legal fiction that imprisonment creates general deterrence,” and quoted with approval an academic study which concluded that “The reality is that general deterrence does not work… empirical research suggests that higher penalties do not act as disincentives to crime.”

The Institute of Criminology at Cambridge University, reviewing relevant research for the British Home Office, concluded that “…the studies reviewed do not provide a basis for inferring that increasing the severity of sentences generally is capable of enhancing deterrent effects.”

The Sentencing Project, in the US, noted that “existing evidence does not support any significant public safety benefit of the practice of increasing the severity of sentences by imposing longer prison terms. In fact, research findings imply that increasingly lengthy prison terms are counterproductive.”

The idea of deterrent sentences is also open to ethical objections. Ashworth, in Sentencing and Criminal Justice, says that “Exemplary sentences, by heaping an undeserved portion of punishment on one offender in the hope of deterring others, are objectionable in that they penalise an individual in order to achieve a social goal.”

In other words the judge, in sentencing some small potato of the dope distribution network, should really be expected to say “Prisoner at the bar, your crime deserves a sentence of ten years, but in order to discourage other people from imitating you I am going to give you 30. Enjoy!”

It seems that, despite the evidence, judges are very keen on general deterrence as an explanation for sentencing in drugs cases. In a way you can see why.

If you are a senior judge, most of your work involves civil disputes between rich people over large sums of money. Criminal cases will generally involve theft, violence or other abuses which attract general condemnation, and appear in the higher courts in their most serious forms.

But when you are obliged to ruin the life of the wretch in the dock for a crime which often comes down to not looking too closely at the parcel someone asked her to bring from Manila, then it helps if you can tell yourself that you are serving some higher social goal.

This is not an extreme example designed to arouse sympathy. The fact is that the overwhelming majority of drugs cases in Hong Kong concern people caught carrying. If the quantity is large, that means carrying for other people.

John Reading conducted a study of the 1,619 drug traffickers convicted in 2012-15, Of this miscreant multitude the organisers or gang members numbered only six. Not 60, not six per cent. Six. More than 90 per cent were couriers and the rest mostly “storekeepers” keeping the stuff in Hong Kong.

The law to which they were subjected is something of an international landmark. Of the 18 jurisdictions Reading surveyed, Hong Kong had the most severe sentences for trafficking. It was also one of the three jurisdictions in which the role or seniority of the offender was ignored in the sentencing process, and one of six which did not recognise previous good behaviour as a mitigating factor.

The average sentence in the survey period was nine years and nine months, the highest ran to more than three decades. There were 82 minors (people aged 16 can be tried in adult courts here) all but two of whom got prison sentences. One 16-year-old got 17 years.

Mr Reading, a Senior Counsel and former Deputy Director of Public Prosecutions, concluded that “The heavy sentences imposed for the offence in Hong Kong have not resulted in a significant reduction in drug trafficking cases over those years.”

Mr Reading goes no further and we must not put thoughts into his head. Interesting choice of post-retirement project, though.

I think we can conclude that the system is not doing any good. In fact it is doing a good deal of harm. It is unfair to the people caught, who are sentenced to disproportionate sentences which do no good to them or anyone else; it is unfair to the taxpayer, who stumps up for decades of expensive incarceration; it is unfair to prison staff, who can hardly be expected to produce reformative miracles on inmates who will not see the outside world until they have qualified for a green Octopus and Fruit Money.

This is also quite unnecessary. For a humane system which works try this BBC documentary on prison life in Norway: http://www.bbc.com/future/story/20180514-do-long-prison-sentences-deter-crime

Clearly the Hong Kong way of dealing with drugs cases, if you can call it that, has been operating for a long time. I do not see the slightest hope of changing it, which would require an implausible burst of enlightenment in either the Court of Appeal or the Legislative Council.

So the machinery continues to mangle individuals, like the luckless fellow last week. Your prayers, if you go in for that sort of thing, will not be wasted if you can direct a few in the direction of Mr Lui Wing-yip, who will be 70 when he comes out of prison, or perhaps, with the usual discount, 60. If you think sympathy is wasted on Mr Lui, he has a daughter aged eight, who is not going to see much of her Daddy for a long time.