tim's experiment

Well, well, the standard of political oratory has taken an interesting turn. Here is a paragraph from the Economic Journal’s English web-site: During a rally at Tamar Park in Admiralty on Sunday, Yuen Long district councillor Tsang Shu-wo said pro-independence activists should be “killed”, to which Ho added: “Without mercy!”

The Ho is the notorious Junius, an enthusiastic supporter of our current colonial masters and no stranger to controversy.

On Monday the fragrant Junius followed up with an interview on Commercial Radio in which he defended the idea of exterminating independence activists as appropriate and necessary.

On Tuesday, however, Mr Ho was deploying a smoke screen. The word for “kill” in Cantonese did not necessarily mean “kill”.   “Kill without mercy is not meant to incite people to kill someone but stands for ‘those who kill others deserve no mercy’,” Ho wrote.

The post ended with “Come on and sue me for intimidation, you idiot”. Mr Ho is not a soothing person.

The matter has apparently been reported to the police, who referred it to an interesting and previously unpublicised body called the Regional Public Order Event Investigation Team. The Chief Executive ducked questions on the matter, saying it was for the police and the Department of Justice. This brings us to Rimsky Yuen, who said the legal status of the words complained of might depend on whether the orator “meant it”.

This is a bit disappointing. Mr Yuen, after all, is a political appointee. This means that he is expected to consider such questions as whether a decision to prosecute, or not to prosecute, will be seen as an unwarranted expression of political preferences. In the light of recent cases his reluctance to call “kill them all” at least ostensibly illegal seems a mite prejudiced.

Surely, you would think, if inciting people to commit a public nuisance is a criminal offence (with which sundry Occupy persons have been charged) then inciting people to commit murder must also be one. Or as Albert Cheng put it, if “Now let’s go and reoccupy Civic Square” (the words complained of in Joshua Wong’s case) contain an implication of violence then “kill them all, without mercy” can hardly avoid the same problem.

I note that none of those present at the time had any difficulty in distinguishing what Messrs Tsang and Ho meant. The idea that he was actually expressing the view that killers should get no mercy seems to have been an afterthought.

Anyway, with all due respect to Mr Yuen, what the speaker meant is not the legal issue. On this point Mr Yuen may find some assistance in the judgement of the House of Lords in Cassidy v Daily Mirror Newspapers Ltd, which included the helpful observation that “The rule is well settled that the true intention of any writer of a document … is that which is apparent in the ordinary and natural meaning of the written words.” I suppose speeches should be considered in the same way.

Of course Mr Ho may have other defences. He might say he was merely quoting the Bible, which has a rather similar observation in Deuteronomy 7:2, and a virtual word-for-word repetition in Ezekiel 9:5. In both cases the instruction to kill them all and show no mercy is attributed to God, who seems to have been rather bloodthirsty in those days.

Or he might claim he was quoting the Evil Queen in a recent television version of Snow White, who uses exactly the same words, leading to the extermination of a whole village.

Or he could try temporary insanity. My only quarrel with that is that it hardly does justice to Mr Ho, who seems to be a bit nuts all the time.

Readers might suppose that when ten heads of local universities got together to announce a joint view of the thorny topic of Hong Kong independence and its presence on university notice boards, then the resulting document would reflect the learning of the people producing it, and some care and study in the preparation.

Cynics like me, on the other hand, would just expect a higher class of bullshit. Many years ago I was told by the then Senior Tutor of an Oxford College that it was a serious mistake to suppose that academics who could write with impeccable logic about their studies would be equally rational in dealing with other matters. On such matters they were likely to be as casual and prejudiced as the rest of the population. Modern psychologists would say that the ability to think rationally from factual premises has to be learned, and is domain-specific.

So here we have ten vice chancellors opining that notices advertising Hong Kong independence are “unconstitutional”. Which is nonsense. Constitutional law, as I used to put it when I was teaching this stuff, “regulates the activity of the government and legislature”. Or in the dictionary: “Constitutional law is the body of law which defines the role, powers, and structure of different entities within a state.” As the Chinese U democracy board is neither the government, the legislature or any other “entity within the state” nothing that appears on such a board is either constitutional or unconstitutional. Wrong law-book.

Actually the only part of the Basic Law which is relevant to the Vice Chancellors’ problem is the one which states that Hong Kong people enjoy freedom of speech. This includes the freedom to expound ideas with which “all our universities disagree”.

That ought to be that. But as the SCMPeoples Daily managed to find an academic in Beijing who claimed that advocating independence was a crime for which the perpetrators should be prosecuted forthwith, we had better visit that possibility as well.

The relevant legal principle here is another of those little pieces of Latin (sorry) which goes “Nullum crimen sine lege”. This mains literally “never a crime without a law”, or to put it the other way round, if there is no law against something then it cannot be a crime. Clearly the fact that something is stated in the preamble of the Basic Law – like “Hong Kong is an inalienable part of China” – cannot by itself make arguing for an alternative point of view a crime. Not only is there no definition of the offence. There is no help on important practical points like which court the offence be tried in, is a jury available as an option, or required, and what is the maximum punishment?

We then move on to the famous Article 23, which is short enough to be given in full: “The Hong Kong SAR shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets.”

Two problems immediately arise. The first one is that the Hong Kong SAR has not yet actually got round to enacting the law concerned. Things do not become crimes just because the government is going to legislate against them at some point in the future. The second point is that the laws, when they arrive, will criminalise acts. Putting up a notice or expressing an opinion is not an act of secession or anything else. It is a piece of self-expression.

Then we are offered section 9 of the Crimes Ordinance, which includes an elaborate and comprehensive definition of sedition. But it also includes this:

2) An act, speech or publication is not seditious by reason only that it intends—

(a) to show that HM has been misled or mistaken in any of her measures.

(b) to point out errors or defects in the government or constitution of HK 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 HM’s subjects or inhabitants of HK to attempt to procure by lawful means the alteration of any matter in HK 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 emnity between different classes of the population of HK.

Clearly discussion of independence would be covered by exception (c), and probably by (b) as well. So the Polytechnic University’s defence of censorship, that it is designed to protect students from legal trouble, is based on a misconception.

If you feel that these legal arguments do not really get to the nub of the problem, and anyway I am not a lawyer, consider something else. Senior government officials from Her Ladyship down have been extremely critical of advocates of independence. But words are chosen more carefully in the upper reaches of government than they are in the upper reaches of universities: none of the complaining bigwigs has suggested that the controversial notices were criminal.

Also, the Department of Justice, and for that matter other departments, have been extremely resourceful and persistent in finding ways of persecuting political groups with independence on their programmes. But nobody has actually been prosecuted for advocating independence. Government lawyers have clearly come to the same conclusion as me: such a prosecution would fail. I suppose this may also explain Junius Ho’s alternative suggestion that advocates of independence should be murdered. Saves court time.

Of course the fact that talking about independence is legal does not necessarily mean that it is a good idea. But I fear Lord Patten has misunderstood the situation after hearing his complaint that the pursuit of independence was a distraction from the pursuit of democracy. After 20 years of lies, evasions and postponements many Hong Kong people have concluded that they will never get democracy if it has to come as a gift from Beijing. Independence is not an alternative target to democracy; it is an essential precondition for it. Promises to the contrary are worthless. But His Lordship sold us this lemon. It is understandable that he would like us to believe there is still some juice in it.

When I was still at school my father still nurtured some hopes (later dashed, alas) of me eventually wishing to succeed him in charge of the family firm. As a result I was often treated to discussions of the various issues which crop up in the running of a Small or Medium Enterprise, and among these was the question of what to do about bad debts.

The basic principle here is that there is no point in pursuing people vigorously if, for whatever reason, they have no money. Various homely metaphors about the flogging of dead horses and the impossibility of getting blood out of a stone were deployed in this connection. I must admit that my father occasionally made exceptions for people he thought had deliberately incurred debts which they had no hope of paying. But generally the reason why the courts are not clogged up with business people pursuing money from small debtors is that there is no point in pursuing something which is not there.

This point has apparently not made its way to the Legco Commission, an administrative body with a majority of the People’s puppets, which is proposing to sue two disqualified legislators for, in round numbers, a million dollars each. This is the sum in wages and legitimate expenses which the pair received while they, and the Legco secretariat, thought that having been elected they were in fact councillors.

Now let me beg the reader to disregard, for a change, the question whether he approves of the politics of the two individuals concerned, or their variations on the loyalty oath, or the “interpretation” of the relevant parts of the Basic Law.

Consider, for a moment, what you would do if you had employed someone, and paid them, supposing that you had a legitimate contract to that effect, only to be told after a few months by a judge that the contract was void for some reason and you could not legally employ that person. Would you expect the person concerned to pay back the entire total of wages which you had paid, and he or she had accepted, on the assumption that the payment was legitimate? Let us go a bit further. If you were aware that your former employee had no hope of repaying the money, having spent it on the usual family expenses as one does with one’s wages, would you sue him for the money anyway?

I think most people would answer “no” to these questions. And even if they didn’t, we should also consider that the pursuit of a debt which is not going to be repaid is not costless. The Legco Commission is, apparently, willing to blow quite a lot of cash in legal expenses in a vain pursuit which will, no doubt, be presented to the public as an attempt to save their money. As if councillors, having thrown billions of dollars into various infrastructural extravaganzas, had the habit of being concerned about a million or two.

The two councillors, Baggio Leung and Yau wai-ching, were duly elected and accepted the council’s money in good faith. There is no suggestion that they spent it on anything inappropriate. Unlike, perhaps, the vast majority of councillors they do not, I suppose, have the faintest hope of coming up with a million bucks at short notice. Fund-raising for the purpose of giving the Legco Commission its pound of flesh is unlikely to be a great success. The Commission might also consider the effect on its reputation of a display of politically-motivated vindictiveness.

Actually, if it matters, the current fashion for having elected legislators disqualified by judges is going to save Legco quite a lot of money. We now have six vacant seats. The Chief Executive has promised that there will be no manipulation of the by-elections to produce particular results, but she also said that organising them would take some time – like six months. This means that the council will save $3.6 million in wages and medical allowances alone. Come on people. You can afford to be generous.

Dear me, do you remember those distant days when Carrie Lam aspired to heal the wounds in a divided society, and thought that the hardest part of this would be to get in touch with the feelings of Hong Kong’s young people.

Well, that was then and now is now. Ms Lam’s latest statement violated a principle which we occasionally have to remind Chief Executives about, and indeed which we occasionally had to remind colonial Chief Secretaries about, which is that these jobs do not turn you into a sort of local Pope who can speak authoritatively about ethics. Oddly enough Governors generally were not prone to this illusion.

The job of a chief executive is to make the trains run on time, keep the Liaison Office at bay as far as possible, and tackle such long-term problems — like housing or an increasingly aged population — as the office-holder thinks are amenable to government remedies. We neither want nor need his or her advice on how to conduct our own lives.

Ms Lam said last week that “the whole community are shocked, grieved, and enraged” by the appearance of a reprehensible message on a student-run notice board at the Hong Kong University of Education. I do not defend the message. But some people may be “shocked, grieved and enraged” to find Ms Lam setting herself up as a public spokesperson on moral matters.

She went on, just to ensure the complete alienation of younger listeners, to rail against the appearance of posters advocating Hong Kong independence. This concluded with the interesting phrase: “The continued appearance of such remarks on university campuses … is in violation of our country’s sovereignty, territorial integrity and development interests.”

This rang a distant bell. Sovereignty and territorial integrity are standard platitudes in contexts of this kind. But where did “development interests” come from? The only time I had seen it before was in an op ed piece by Regina Ip some months ago when Ms Ip still had dreams of becoming Chief Executive herself. Surely these ladies were not sharing a speech writer?

Well in a way they were. I stumbled across the original quote by accident in the snappily named “Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Special Administrative Region in the Year 2016,” published in 2014.

This document, among other things, defends the bogus election scheme (later rejected by Legco) by reference to “the actual need to maintain long-term prosperity and stability of Hong Kong and uphold the sovereignty, security and development interests of the country.”

Ms Lam was, it seems, channeling the Standing Committee. Why the appearance of a few posters on local university notice boards had any possible effect on the “development interests” of anything, we were not told.

She expressed hope that different sectors of society would join forces to “rectify such abuse of the freedom of speech” to safeguard core values of a civic society and defend the moral standard in Hong Kong. This sounds ominously like an invitation to the local vigilantes who occasionally take it upon themselves to bully local institutions which are not, in their view, defending moral standards with sufficient enthusiasm.

Well, more learned pens than mine will no doubt sort out Ms Lam‘s curious personal variation on what freedom of speech and academic autonomy might entail. As a mere wordsmith, though, I would like to correct the increasingly common error of supposing that there is any sense in complaining that something has “over-stepped the bottom line of society”.

The bottom line is not a line over which you can step. It is the line at the bottom of a profit and loss account, which traditionally records whether the result of the year as a whole was in fact a profit or a loss. Hence a “concern for the bottom line” started life as a polite euphemism for corporate greed. This line is not, in the usual sense, a line, any more than the last line in a song or a sonnet is a line that you can step over.

There are other possibilities. The “dead line” used to be a line inside the perimeter of a prison, and if you stepped over it you would be shot. This would perhaps capture Ms Lam’s intentions quite well, but deadline has over the years been adopted by journalists (sorry) to mean the time by which something must be finished.

Then there is the “line in the sand”. Unfortunately this is ambiguous. In British English the phrase, which can be traced back to incidents in Roman and Peruvian history, means a line which you should not cross. American English on the other hand tends to trace the idea to an incident in the siege of the Alamo, in which men who did not wish to surrender were invited to cross the line, indicating willingness to fight to the death. So if you cross the line you’re a hero.

Ms Lam could perhaps take a hint from her boss. Mr Xi recently talked of a “red line” which cannot be crossed. This is a rarity, possibly because its origin was rather disreputable. The original “red line” was drawn on the map by an Armenian businessman and marked the territories allocated to different international oil companies in the disintegrating Ottoman empire. The drawback of the “red line” is that it may be confused with the “thin red line”, which is a military phrase meaning something quite different.

This drawback is avoided in French, where for some reason this line is usually referred to as a “yellow line”, but it still cannot be crossed. The “yellow line” might work better in a Hong Kong context, because it appears on station platforms and you are not supposed to cross it, at least until the train has arrived.

Ms Lam could of course avoid these difficult choices by leaving the provision of moral guidance to more plausible authorities. Few people will want ethical advice from someone who has taken a lucrative job in the employ of a murderous dictatorship, even if she thinks she did so on instructions from God.

An obscure but interesting question, perched painfully on the border between law and morality, has come up recently: what may we say about judges?

This question seems to have bothered the Department of Justice much in recent months.

During the controversy over the jailing of the seven cops who beat up a trussed protestor, the department pleaded for restraint and deployed the classical quote of Lord Atkins: “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and the respectful even though outspoken comments of ordinary men.” But this is hardly a ringing endorsement of freedom to comment, particularly if you start your reading of His Lordship’s oration a bit earlier with “The path of criticism is a public way; the wrong-headed are permitted to err therein, provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice.”

In other words, criticism is erroneous but OK as long as it keeps off some topics. A similar message can be found in the less colourful prose of Rimsky Yuen, in his recent apologia – printed in all the sympathetic media verbatim – “the public has a right to discuss judicial decisions, but no discussion should seek to undermine the integrity or impartiality of the Judiciary.“ On the face of it this is nonsense. A discussion is not an actor which can seek to do anything. What he means presumably, is that discussion, like Atkins’s criticism, should keep off the grass. No discussion can “undermine the integrity or impartiality of the judiciary”. Some discussants, on the other hand, might question whether these qualities were reflected in particular decisions. This, Mr Yuen fears, might undermine confidence in our judiciary. This is rather like blaming the failure of a play on bad reviews.

It is, though, a popular line among judges. A pioneer was the 18^th century judge Lord Kenyon, who opined in 1793, “The character of the Judges is public property, and if they have done anything amiss, they ought to be censured. But if not, their characters ought to be respected; otherwise the most mischievous consequences will arise to the public.”

It appears that in the view, at least, of many judges, belief in their infallibility is not required, but belief in their essential righteousness is. And this is not a matter of fact, it is a moral obligation, even though a moral obligation to believe something generally only comes up in religious contexts. Indeed, judges do not themselves believe things as a matter of obligation, at least according to an American judge, Jed Rakoff, apparently not much read in our Court of Appeal, who said: “An application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous. If its deployment does not rest on facts – cold, hard, solid facts, established either by admissions or by trials – it serves no lawful or moral purpose and is simply an engine of oppression.”

I have nothing against judges. I have met several socially and one or two became good friends. I was once introduced to Lord Goddard, who seemed harmless enough in the flesh, though Lord Denning later commented that people who said Goddard was the worst Chief Justice since Jeffries were being unfair to Jeffries. An American judge once observed that in the vast majority of cases the law was quite clear and the judge had no choices to make. On the other hand it is also clear that the law on some points leaves a great deal up to the judge, particularly in the matter of sentencing, where there is usually a maximum, occasionally a minimum, and not much else. Judges like to pretend that the filling in of this gap leaves them few choices, but there may be an element of self-deception here. If your job consists of passing sentences which will wreck people’s lives you will feel much more comfortable if you can convince yourself that the process is automatic.

Now, consider this passage from the currently (and rightly) fashionable book “Thinking, fast and slow”, by Daniel Kahneman:

A disturbing demonstration of depletion effects in judgment was recently reported in the Proceedings of the National Academy of Sciences. The unwitting participants in the study were eight parole judges in Israel. They spend entire days reviewing applications for parole. The cases are presented in random order, and the judges spend little time on each one, an average of six minutes. The default decision is denial of parole; only 35% of requests are approved. The exact time of each decision is recorded, and the times of the judges’ three breaks – morning, lunch and afternoon – are recorded as well. The authors of the study plotted the proportion of approved requests against the time since the last food break. The proportion spikes after each meal, when about 65% of requests are granted. During the two hours or so until the judges’ next feeding, the approval rate drops steadily to about zero just before the next meal. As you might expect this was an unwelcome result and the authors carefully checked many alternative explanations. The best possible account of the data provides bad news: tired and hungry judges tend to fall back on the easier default position of denying requests…”

We seem to have two different worlds here. In one of them decisions are made on the basis of proven facts. In the other your chances of freedom depend on when the judge last had a biscuit. Clearly judges have a long way to go to achieve what psychologists would now regard as a realistic view of their own mental processes.

This may to some extent be a professional requirement. The lay reader of some judicial decisions has to admire the way in which the law is persuaded to favour what is obviously the only fair decision. That this is to some extent a two-part process can be gleaned from a famous piece of advice offered by Lord Mansfield to a non-lawyer who had been appointed to a judgeship in a distant part of the Empire: “Give your judgments,” said Lord Mansfield, “but give no reasons. As you are a man of integrity, sound sense, and information, it is more than an even chance that your judgments will be right; but as you are ignorant of the law, it is ten to one that your reasons will be wrong.” This is a feature of Common Law systems: the law is whatever judges say it is. This explains H.L. Mencken’s jibe that “A judge is a law student who grades his own papers”.

Well we have wandered a bit from the point here. Clearly judges are in the category of people to whom our default attitude, as law-abiding citizens, is respect, even admiration. We may be beholding a retired lawyer in “the monstrous wig which makes the English judges look like rats peeping through bunches of oakum,” as Thomas Jefferson put it, but the doing of justice, however imperfectly, is an important social service.

I am not sure, though, that this implies the restrictions on comment which judges and other lawyers appear to expect. It appears that if, faced with a hypothetical judgement of the Court of Appeal which included the observation that “In recent years, an unhealthy wind has been blowing in Hong Kong” we are free to comment that some people might feel the unhealthy wind more as a welcome breeze. We are also free to refer the Vice President of the Court of Appeal to the observations of Mr Rakoff, above. At some risk we may wonder whether it is conducive to respect for the rule of law to have a Vice President who thinks he is a weather cock. But we must not under any circumstances draw attention to the curious similarities between the Vice President’s meteorological observations and the opinions expressed by senior Chinese officials, leader writers in the poodle press, and other unlikely sources of judicial inspiration. That would never do. Perish the thought.

Reading the Court of Appeal’s comments on its latest jailings of juvenile dissidents, I was struck by a sudden sense of deja vu. Surely there was something familiar here. Then I got it. In the drama which has been entertaining Hong Kong for the last few years, the judges have chosen their role. They are going to be the two old geezers in the Muppet Show who sit in a box next to the stage and make caustic comments on the performers.

I now regret criticising judges for wrapping their opinions in legal terminology. Because when they speak in something approaching plain English the result is pretty terrifying. Judge Jeremy Poon sensibly wrapped in the usual cotton wool his innovative approach to the law covering demonstrations, which is that a protest is like an armed robbery – participants should have expected violence so they are all to blame.

But what are we to make of “If we don’t defend public order, society will easily fall into a state of anarchy”? Public order is a funny thing. People do not obey the law because they are frightened of punishment – they obey it because it embodies the society’s consensus on what is acceptable. If that consensus has been eroded or never existed, then people do what they can get away with and the only crime is to be caught. The rule of law is not an on-off switch; it is a matter of degree. Even in North Korea you cannot get away with murder unless you are very well connected. Even in Hong Kong, where transgressors are regularly punished by bloodthirsty judges, rich people ignore the rules on parking. Indeed, even as the learned judges were wheeling out the platitude generator, Hong Kong’s establishment was turning out in force for the funeral of Lau Wong-fat, called to his Maker after decades of unpunished misdeeds.

For judicial indiscretion on a large scale, though, we have to turn — again — to Mr Justice Wally Yeung. Wally is wasted on the law; he should be writing opinion pieces. Indeed he is writing opinion pieces. Like this:

“There has been an unhealthy trend in Hong Kong society in recent years, in that there are those [who?] use pursuing ideals or their freedom to exercise rights granted by the law as an excuse to engage in illegal activity. Some people, including academics, promote slogans such as ‘disobey the law to achieve justice’, to encourage others to break the law.”

“These people publicly express contempt of the law, [and] not only do they refuse to admit that their illegal activity is wrong, but they even view it as honourable or proud acts. These arrogant, self-righteous thoughts, unfortunately have an impact on some young people, causing them to casually commit acts which destroy public order and peace during gatherings or demonstrations… This case is a perfect example of this unhealthy trend.”

Clearly there was no evidence before the court on “unhealthy trends in Hong Kong society”. The “academics”, whoever they are, were not on trial. There is no suggestion that young people had been impacted in court while the judges were watching. How does Wally know about these things? Did he read about them in the newspapers, talk about them in the club? Is this the sort of thing you want to be going through the judge’s head as he ponders your future in the correctional paradise? Bit rich accusing other people of “arrogant, self-righteous thoughts” under the circumstances. If you heard someone saying all this in a pub you would think it was just another disgruntled old man parading his prejudices. Does sticking a wig on it make it feel better?

It is difficult to overstate the degree to which judges are insulated from the concerns and problems of ordinary people. The estate on which most of them live has a design so dedicated to sociological apartheid that the domestic helpers not only have their own bathrooms but their own lifts. The judges are chauffeured to the court building, where they have their own exclusive territory, populated by themselves and their small horses, from which they emerge to be addressed by people who for good professional reasons are desperately keen to please. That disposes of work and rest. As for play, a few years ago there was a near-crisis in the judiciary because it appeared that a case might come up which concerned the Hong Kong Jockey Club, and no judge could be found who was not among the horse-followers.

How can you expect sympathy for the concerns and hopes of the student generation from people whose only contact with the young is the occasional encounter with waiters and the lads who open the door for you at the more expensive hotels?

Respect for the law, indeed respect generally, is not offered automatically these days. It has to be earned. Each generation will come to its own view of the matter, in the light of the way in which the law works, or doesn’t work, for them. We hope the law will protect the weak from the strong, the poor from the rich, the people from governments, which are all despotic  in their dreams. Instead we have a system in which people who have been convicted and had their punishment are wheeled into court and punished again, which is not the way the law is supposed to work, in most places.

King James I’s judges were described (albeit by one of their number) as “lions under the throne”. What have we here? Rimsky’s rotweilers?

The figure of justice is traditionally depicted with a sword in one hand – to punish – a scales in the other – to weigh evidence – and a blindfold, indicating that she does not consider irrelevant matters. So I was a bit disconcerted the other day to hear Mr Justice Wally Yeung complain that an argument put forward by a lawyer before him was “blinding the court”. Isn’t the court supposed to be blind?

This came up in the hearing in the Court of Appeal which culminated in the jailing of 13 people who had been convicted of “forcible entry” arising from a protest in June 2014. Barrister Douglas Kwok, defending some of the accused, said that the prosecution had overstepped the limits of an appeal against sentencing. “Appeals against sentencing have to abide by the factual rulings made by the lower court. Otherwise it would be no different from a retrial.” Yeung J rejected this on the basis that it was basically “blinding the court”. In other words, in Mr Yeung’s view, the Court of Appeal is free to consider, and the prosecution is free to offer, versions of the facts which were not accepted by the judge in the original trial.

There are some problems with this. There are of course limits on the powers of the Court of Appeal, as there are on any body operating under the rule of law. If the Court of Appeal exceeds those powers, as on occasions it has done, the matter has to be rectified by the Court of Final Appeal. It may well be, indeed it ought to be, that when considering appeals for a heavier sentence the Court of Appeal is expected to abide by rulings of fact made in the court where the case was first heard. After all from a common sense point of view the judge or magistrate who made those findings had one advantage which the learned judges in the Court of Appeal do not enjoy – he or she has heard the evidence.

Readers who prefer to consider the matters of legal principle involved will recall that in the English legal system a person is presumed to be innocent until proven guilty. After that he remains innocent of any crimes of which he has not been proven guilty. The original hearing is not some sort of elaborate preliminary to the real decision, to be made by the Court of Appeal. Its purpose is to determine what the accused can be proven to have done. They are entitled to be regarded as innocent of anything which they have not been proven to have done.

We can of course look at it another way. What is the evidence which Mr Yeung is so keen to hear that obstructing it would be “blinding the court”. The Court of Appeal does not hear witnesses, visit the scene of the crime, or view videos. All it has before it are the findings of the lower court and the arguments of counsel for each side. So what is it that Mr Yeung wants the court to “see”. The newspapers? I hope not. I have always cherished the wise words of Mr Justice Salmon, who said that “no judge of the High Court would be influenced by what was in the newspapers. If he was he would not be fit to be a judge”. There is no news on television worth speaking of these days and we can I think exclude the possibility that one or two judges of the Court of Appeal were present at the scene of the crime.

This leaves us with new statements of fact made by counsel for the Director of Public Prosecutions, which are subject to no tests of their weight, no requirement that they should be backed up by evidence and no opportunities for the defence to cross-examine their source, supposing that they have one outside the vivid imagination of counsel and the leader page of the China Daily. I conclude that there are some things to which the court should be “blind”, if that is the way Mr Yeung wants to put it. Another way of putting it would be that the Court of Appeal should be fair to those appearing before it. In June 2014 Hong Kong had not had a riot for decades and the excitement of Occupy was still in the future. The promotion of “riot” to a four-letter word was even further in the future. It should not be backdated.

Well this may be a rude question, but the arrival of a new train for the new Express Rail Link/white elephant/co-location catastrophe had me wondering. Why are we paying for the trains? According to Global Rail News, which takes an interest in these things, the one which arrived the other week was actually the third. The first two arrived before the rails were ready so they came by sea. Why they could not wait was not mentioned. There will in due course, apparently, be another six, bringing the grand total to nine.

Now let us assume that the official figure for a trip to Guangzhou — 48 minutes — is accurate. Allow a few hours a day for maintenance, cleaning and such we can hope to see each train do maybe 10 return trips. This means with nine trains, assuming journeys go all the way to Guangzhou, which of course they may not, “our” trains can manage about 90 trips. According to a leaked document published in Mind Pao recently there will be 190 trains a day in our extravagant new station. This is an interesting figure. It appears actually that planning has proceeded on the basis that about half of the trains which are going to visit Kowloon should be paid for by the Hong Kong taxpayer, even though four fifths of the line between here and Guangzhou is in China. This was very accommodating of us. Shenzhen officials have been complaining for years that their part of the line is losing money, a deficiency which they fondly hope will be remedied when travellers can carry on to Hong Kong. Why can the existing trains not just extend their journeys another 30 km? It is difficult to believe that having us as the new end of the line is going to double the existing traffic.

By coincidence my last holiday included a trip by train from London to Edinburgh. Nowadays this takes a little over four hours. The distance is about 400 miles so the train averages about 100 miles an hour. Top speed is about 120, same as our tunnel. This is not considered worth making a fuss about. The train runs on the same rails that the old steam trains used. In fact it passes a small memorial on one stretch of track reporting that at that spot a steam locomotive named Mallard did 125 mph in 1938. This was, and still is, the record for steam propulsion. We really haven’t come very far.

And as far as the Express Rail Link is concerned we are not going to be going very fast either. According to Ming Pao, of the 190 trains a day in the planning document, only seven will skip the first new station on the line – Futian in Shenzhen – and only one (one!) will actually go non-stop to Guangzhou. Michael Tien Puk-sun, chairman of LegCo’s Panel on Transport, reportedly told Ming Pao that the arrangement was appropriate as most passengers’ destinations were Futian or Shenzhen North, and Guangzhou South was only an interchange station to other mainland cities, so if trains did not stop at other stations the service would not be sustainable. But this is not what we were told when we were invited to pony up 80 megabucks for the new line. It was not supposed to provide a faster link to Shenzhen. If Guangzhou South is only an interchange station for other Chinese cities we are going to pay through the nose for an alternative to air travel which will only appeal to very nervous fliers.

High Speed Rail technology is totally unsuitable for providing local services. According to Dr Jean-Paul Rodrigue (whose book The Geography of Transport Systems can be perused here: https://people.hofstra.edu/geotrans/eng/ch3en/appl3en/ch3a1en.html) “A distance of 50 km is often considered a minimum, leaving enough for trains to accelerate and reach cruising speed. Servicing too many stations undermines the rationale of high speed systems…” This is an interesting view in the light of the distance between Hong Kong and Shenzhen (29 km). There is another 100 km to go to Guangzhou, but the latest maps show four intermediate stations on that part of the trip, so we may suppose them to be on average about 20 km apart. Politics, I fear, have trumped technology. Prepare for an expensive experience.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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