tim's experiment

Well the Department of Justice has plumbed a new low. Not content with failure to enforce the rules on contempt of court, the department is now ignoring them itself.

Some years ago the then editor of the South China Morning Post heard that an interesting document had been tabled as part of a court case. Wishing to be sure that this would be reportable he wrote to the presiding judge urging that the document concerned should be read out in court. This would make it part of the proceedings, and reports would then be immune from libel actions.

He received a very irate reply from the judge, pointing out that it was contempt of court for anyone to communicate with the judge in a case with a view to influencing his conduct of it. Judges are supposed to consider entirely and only the material offered by the parties to the case in court. The judge did not seek a prosecution of the editor only because neither his motives nor the effect of his action had any serious implications for the matter in dispute.

OK, so have we all got that? If you are a spectator or a litigant, the judge is only supposed to hear from you in submitted documents and oral arguments in court. This has the advantage that justice is seen to be done, and that the opposition has a fair chance of countering your efforts.

Now to Thursday night and Friday morning. On Thursday night the government received official word from Beijing that the Standing Committee of the National People’s Congress would consider the possibility of handing down an interpretation of Basic Law Article 140, the one which concerns oath-taking. Note that the word said they would consider the matter. It did not say what the decision would be, or what, if an interpretation was decided on, the interpretation would say.

On Friday morning we were officially told, in a government press release duly broadcast on RTHK and all channels, that the Department of Justice had “informed the court” about this message.

Well never mind about “informed the court”. The court, after all, is just a room. What they meant was that they had written, emailed, telephoned, messaged by pigeon or in some other way communicated with the judge hearing the government’s application for judicial review of the Legco chairman’s recent decisions on oath-taking.

This does not admit of an innocent explanation. The Department of Justice and the government via Mr C.Y.Leung are litigants in the case. They are not allowed private intercourse with the judge hearing it. This is unfair to the other participants and a violation of the principle that the matter should be dealt with in public.

What is the effect of telling the judge that the NPC Standing Committee may change the law while he is working on the case? Clearly this is an attempt to intimidate, to add to the pressure of a high-profile case, to suggest to the judge that a decision unpalatable to the government will, or at least may be, instantly overthrown by a Higher Power.

At best this is an attempt to distract the judge from his proper business, which is to decide the matter before him on the basis of the law as it is now. The Standing Committee of the NPC is, for the time being, an unknown quantity. The interpretation may not materialize at all. It may not be relevant to the case at hand. It is also possible that the judge will decide, as he was urged to by some of the parties to the case, that he has no jurisdiction over Legislative Council procedure, so the application before him must fail whatever its merits as a criticism of the rules applied by the Legco chairman.

The fact is that we don’t know, and the government doesn’t know, what the NPC will decide or how it will affect the bid for judicial review. What we do know is that the government is cheating. Wake up, gentlemen. The Rule of Law is supposed to apply to you too.

Last week’s effort disappeared, as usual, into cyberspace with no sign that anyone who mattered had actually read it. However there is nothing to stop other people who have considered the same question coming to the same conclusion. So I was interested to see (and you had to look quite closely to see it, because the few newspapers that covered it did not make much of the story) the outcome of an application for judicial review of another matter, which came up last week.

The case was brought by a villager in Kwun Tong who wished to challenge a decision by the Legco Finance Committee to approve funding for development in the North East New Territories. I take it that the Kwun Tong concerned in this matter is not the same as the one with the MTR station of that name, which is a long way from the New Territories.

It seems that the chairman of the Finance Committee was asked to exclude a member of the committee because he had a vested interest in the matter. The chairman refused, and proceeded to put the matter to a vote, in which it was carried. The applicant for judicial review wanted this decision to be reconsidered.

The judge’s response (and in case anyone thinks I am shading this in a desired direction I quote from the China Daily here) was as follows: “Judge Au Hing-cheung said that whether or not the chairman dealt with the motion is within the scope of internal operations of LegCo and that the court should not intervene.”

Well quite. The lawyer for Legco also noted that “if the court accepts the judicial review of [the case] there will be many subsequent judicial review applications on details of Legco’s operation for the court to handle”.

Judge Au reserved his decision on whether to allow the judicial review to proceed or not. In the meantime it seems that at least in his court the situation is rather as I thought it was – the courts will not consider the internal workings of Legco, for the highly practical reason that if they did there would be an avalanche of attempts to overthrow particular decisions, and this would be bad news.

Quite how this expresses itself in legal detail remains an interesting question. According to the SCMP’s account of the attempt to protect Kwun Tong, the lawyer for Legco said that the courts should only intervene if Legco could be shown to have infringed the Basic Law.

The interesting thing about this is that the Legco lawyers presumably told the council’s new chairman the same thing. This would suggest that he should ignore the CE’s attempt to overrule his decision that members who fail in their first effort to take the oath should be given a second chance. The application for judicial review is based on the Oaths and Declarations Ordinance, which is not part of the Basic Law.

But looking at the Basic Law is a dangerous pursuit. We are all supposed to admire and obey the Basic Law. But reading it suggests, in many places, that it was compiled by a bunch of eager amateurs who had no idea what they were doing. This is not too surprising, of course. What mainland “legal expert” in the late 80s would have had any experience of reading, let along drafting, a democratic constitution?

Consider, for example, the matter of parliamentary privilege – that is to say the immunity of the legislature as a whole and its members individually from legal hazards. Article 77 says that “Members of the Legislative Council of the Hong Kong Special Administrative Region shall be immune from legal action in respect of their statements at meetings of the Council.” This is a clumsy and perhaps unnecessary way of saying that you cannot sue a member for libel as long as he or she demolishes your reputation as part of the proceedings.

Then we get to Article 78, which goes: “Members of the Legislative Council of the Hong Kong Special Administrative Region shall not be subjected to arrest when attending or on their way to a meeting of the Council.” This is enthrallingly ambiguous. Does it apply only to formal arrest by police, with application of handcuffs, warning by judges’ rules and a short trip to the nearest police station? This does not seem very helpful to members.

Does it mean that members once duly elected may not be prevented from attending – even if, presumably, they have not been sworn in yet – which would make efforts to exclude elected but unsworn young inspirers unlawful? Does it (actually this would make more sense but it is not what the article says) mean that they cannot be arrested for any action done in the chamber? The attraction of this interpretation is that it would be consistent with the situation in other Common Law jurisdictions. The disadvantage, from the government’s point of view, is that it would make the prosecution of “Mad Dog” unlawful.

Counsel for Lego seems to have had in mind the second half (the first half concerns the quorum) of Article 75  which says that “The rules of procedure of the Legislative Council shall be made by the Council on its own, provided that they do not contravene this Law.”  This may have been intended to limit the power of the courts to consider Legco decisions. If so it was not very well written. It appears to protect from judicial oversight only the rules, not the way in which they are applied in particular cases.

On the other hand protectors of legislative autonomy can still rely on Article 8: “The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.” The later section on the Legislative Council does not preserve the legislature from interference, but it does not authorise interference either.

Where does all this get us? Well it would be nice if Legco and its chairman were pushing a consistent line. If they wish to be immune to pressure from New Territories villagers then they should wish to be immune to pressure from the Chief Executive as well. Principles are principles and the law is the law. Different parts of the constitutional machinery have different functions. It is not rebellious or subversive to defend your patch.

I do not believe it is feasible, given the documents many deficiencies, to insist that people swearing to obey the Basic Law should believe this document to be incapable of improvement. After all it is a constitution written by people who did not really believe in constitutions. For a while we were treated to the services of four elderly former drafters in Beijing, who would occasionally announce what the drafters really intended when ambiguities surfaced. They are now all dead so we are on our own. China’s history and culture have many admirable features. Unfortunately a record of successful constitution-writing is not among them.

Spokesmen and apologists for the Hong Kong government have gone to great lengths to establish that Hong Kong does not have, and never had, separation of powers. This is a red herring. The idea that the English constitution in the 18th century separated the powers of the executive, legislature and judiciary was promulgated by a French political theorist, the Baron de Montesquieu. As far as England is concerned, this was not true then, and it is not true now. The idea was nevertheless influential. It is to some extent, though not completely, a feature of the American constitution. One must in fairness to the Baron note that at the time he was comparing the English arrangements with those found in the rest of Europe, which with a few exceptions involved absolute monarchy.

The reason why this has come up is the application for judicial review of the chairman of Legco’s decision to ask people whose first attempt to take the oath was not to his satisfaction to have another go. The application should have been summarily rejected. Hong Kong courts do not have, and have never had, the power to consider and adjudicate on the proceedings of the legislature, not because of the separation of powers, but because of parliamentary privilege.

Before we get into English legal history, let us start with the Basic Law of the Hong Kong SAR, a favourite spot for opponents of Youngspiration. Article 87 of this masterpiece states that “In criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained.” I take this to mean that, unless otherwise stated elsewhere in the Basic Law, we are all where we were before 1997. This applies to Legco as well as to the rest of us. And Legco, under English law, enjoyed the absolute right to regulate its own proceedings, free from judicial oversight.

This can be traced, if you enjoy such things, back to the historic occasion in 1642 when King Charles I turned up in the House of Commons and asked the Speaker (the chairman of the House) to point out five members he wished to arrest. The then Speaker, one William Lenthall, replied that, “I have neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here.” More helpfully we can refer to the Bill of Rights – the first one, passed in 1689 – which stated that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” Note the use of the word proceedings.

This is an important principle, because it means that however objectionable you find a law, you cannot appeal to the courts to over-rule it because of some procedural deficiency in its passage through the legislature. Because of the practical importance of this principle it has been preserved to this day. The UK Government’s White Paper on Parliamentary Privilege, published in 2012, says that, “Parliamentary privilege is an essential part of our parliamentary democracy. It ensures that Members of Parliament are able to speak freely in debates, and protects Parliament’s internal affairs from interference from the courts.”

This phrase occurrs quite often in the White Paper. Further on it notes the “exclusive cognisance of each House of Parliament (sometimes referred to as “exclusive jurisdiction”) – which broadly translates as the right of each House to regulate its own proceedings without interference from the courts.” And later “As with freedom of speech, the Government believes that it continues to be an important manifestation of parliamentary sovereignty that the two Houses are free to determine and enforce their own procedures without reference to the courts; and that this necessarily includes the regulation of conduct in those proceedings.”

For the historical roots of this aversion to judicial oversight we can turn to the judgement of the Court of Queens Bench in Bradlaugh v. Gossett, which was decided way back in 1884. The then Chief Justice said, “What is said and done within the walls of Parliament cannot be inquired into in a court of law… The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive.” Stephen J, concurring, quoted other judges in a previous case: Lord Denman had said “Whatever is done within the walls of either assembly must pass without question in any other place”, and sundry other judges had made the same point in rather more words. They were in turn following Blackstone, an 18th century authority, who wrote: “The whole of the law and custom of Parliament has its original from this one maxim, ‘that whatever matter arises concerning either House of Parliament ought to be examined, discussed and adjudged in that House to which it relates, and not elsewhere.’”

I conclude that the English courts have never had, and never sought, jurisdiction over what happened in the legislature. It must follow that Hong Kong courts never had such jurisdiction either. The application for judicial review meets a fundamental obstacle. What happens “within the walls” of Legco has always been beyond the jurisdiction of the courts. We must of course bear in mind that in the last analysis the law is whatever the latest judge to consider the matter decides. So it is not impossible that 500 years of legal history will be quietly disregarded and some judge or judges will decide that he or they can consider and adjudicate upon rulings of the Legco chairman. But if I were a judge, I would be quite happy to discover that I was not required, indeed was actually prohibited by precedent, from dabbling in what is fundamentally a political dispute, not a legal one. We’ll see.

So much going on lately that I expect you missed, as I did, a meeting organised by the Commission on Poverty to analyze the situation of the local poor. I still don’t know what they got up to, but one of the media responses was quite stunning.

Here we have Raymond So, Dean of the School of Continuing Education at Hong Kong Baptist University, writing in the China Daily’s English version: “In Hong Kong, the poverty line is defined as half of the median household income. This definition was published by the commission in 2013, using the concept of ‘relative poverty’. Under this definition of poverty, no matter how hard the government is working on fighting poverty, there is always a class of people who will live in poverty because, by definition, there will always be people earning half the median household income.”

Readers who suspect at this point that Mr So is going to take a soothing, not to say complacent, view of the matter, will not be disappointed. From an academic point of view, he says in the next paragraph, poverty is “an inevitable thing”. I am not sure that being in charge of BU’s money-making machine qualifies Mr So to announce the “academic point of view” on anything. I must say though that, unaccustomed as I am to defending the Hong Kong Government or its off-shoots, his attack on the official definition of poverty is, with respect, nonsense.

Let us briefly consider what the median is. The usual way of summing up a lot of figures is the average, which academics, for some reason, prefer to call the mean. Add up the total income, say, and divide by the number of people in the group. This is useful for a lot of purposes but is occasionally misleading. Let us say we have ten people in a bar and their average monthly income is $10,000. Then Mr Li Ka-shing walks in. The average income in the bar has now shot up to several billion, but this figure is clearly meaningless from the point of view of most of the patrons, or from that of a Commission on Poverty looking for an idea of what income a person needs to get by. The median is obtained by ranking everyone in the bar in order of income, and then looking for the person who is in the middle of the list. In our bar we now have 11 people, so the median income will be that of number six, who has five people below him and five people above. It will probably be about $10,000, so this tells us a good deal more about the population in general than the mean or average does.

To return to Mr So’s opening paragraph, clearly “by definition” half the population will be earning less than the median, because that is what the median is. But there is nothing in that definition to justify his suggestion that there must always be people earning half the median. Let us return to our imaginary bar and suppose that the poorest of the drinkers – who is not Mr Li – earns only $4,000 a month. Clearly he is earning less than half the median. But there is nothing compulsory about this. If a benevolent government takes $2,000 a month from Mr Li and gives it to the needy patron he will now have a total income of $6,000 a month, which is more than half the median income, while the median income remains the same.

In short there is nothing statistically Sisyphian about the government’s target. The difficulties are certainly enormous but they are practical, not statistical. We have it on good authority that, in the King James version, “ye have the poor always with you”. But this quotation is commonly abused as an excuse for complacency or despair. Mr Christ’s audience would have picked up immediately that this was a reference to a passage in the Old Testament, which goes “Since there will never cease to be some in need on the earth, I therefore command you, open your hand to the poor and needy neighbour in your land.” We may have to accept that the complete elimination of poverty, however defined, is probably unattainable. There will always be some people who slip through the cracks and find themselves unable to achieve what most of us would regard as an acceptable standard of life. But that is no reason for not trying.

There is nothing wrong with recognising that poverty is a relative thing. This is a commonplace observation of behavioural economics, and for that matter of sociological journalism. If all your neighbours have a television, then not being able to afford one feels like poverty. I do not believe that having a relative target is a serious obstacle in itself to the Commission on Poverty achieving successful poverty reduction. A more serious problem is that in order to give poor people money you first have to take it from rich people, something our leaders find painfully difficult. Planting spurious statistical obstacles in the path to action is not helpful.

One of my favourite movies is “A man for all seasons”. Although this was made in the 60s it has lasted well – all the costumes are 16th century. It can be viewed – with commercial interruptions alas – here: https://www.youtube.com/watch?v=lmzoD5MZstU

The interesting thing about this film is that it is not about love, power, revenge or any of the other usual themes. It is about the downfall of Thomas More. Sir Thomas, as he then was, was Chancellor when Henry VIII decided to divorce his first wife. As the Pope refused to go along with this Henry appointed himself Supreme Head of the Church of England and the English Parliament duly passed a statute to this effect. This is how England stopped being a Catholic country. All office-holders were required to swear an oath indicating their support for the new arrangement. More then resigned. Unfortunately this did not suffice – he was a public intellectual of international importance and his refusal to support the new arrangement was a problem. So he was pressed to subscribe to the new oath anyway, and still refused. Eventually he was subjected to a blatantly fixed trial and executed for treason.  So the basic theme is a thoroughly unmodern one: a man who would rather die than swear an oath of support for something he does not believe in.

This is such an alien and interesting concept that I often show the last 30 minutes of the film to my students, on the rather flimsy pretext that it shows the basic structure of a trial in the common law tradition – prosecution, witness, cross-examination, defendant, verdict, sentence and such. But of course one of the reasons why this is an alien and interesting concept is that we no longer feel the same way about oaths. More says that an oath is “a promise you make to God”, and believes that if you make a false promise to God you will go to Hell. Even in America, where God is still a popular figure whose assistance is sought by oath-takers (“so help me God”) that would probably be a minority view now.

In China, God has been abolished. Marxism is atheistic. That is not necessarily a criticism. Some people would say that it was one of Marxism’s few points of contact with reality. But with no God and no Hell the significance of oaths is unavoidably much eroded, and you rather wonder why they bother. Well we know why they bother with the Legco oath: because it was already there. Suitably amended, it is the oath people used to take when working on the old colonial Legco. When they were all appointed the oath was in a way quite unnecessary – no Governor would appoint a non-supporter. And indeed there is no sign of the new one being intended to have any very serious purpose, still less to act as a barrier to people with inconvenient political views, as it is being used now.  The mainstream interpretation used to be the one offered by Philip Bowring some time ago – the oath amounts to no more than a promise to uphold the law while it is the law. It does not preclude the desire for changes.

This has been turned into a centre of political contention by the Liaison Office stooges, on whose behalf a four-point plan to put obstacles in the way of independent-minded candidates was outlined weeks ago in the China Daily. So far this has not gone too well. Disqualifying candidates merely resulted in their equally unwelcome replacements being elected. The electors were not helpful. Still to come we have a procedure by which a member can be excluded by a two-thirds vote of the other members. If the pro-government camp does not command a two-thirds majority – as it won’t if all those elected are actually seated – then this is not going to work either. So for some people the oath is the last chance to follow orders and see that nobody is allowed in Legco who speaks, thinks or even dreams about an independent Hongkong.

The result has been an intermittently entertaining squabble in which a few clear points can be determined. One is that neutrals want to keep out of this. The Legco Secretariat is supposed to be the impartial servant of all members, not a branch of the government. It seems the complaint that the Secretariat “betrayed” a democrat and then cosseted a pro-establishment replacement in the chair is now being diluted somewhat. So we can perhaps put this down to a misunderstanding or a genuine change of view after second thoughts. It is difficult to be so forgiving about reports that the secretary-general rejected some oaths on the grounds that the oath-takers “did not seem to understand” the oath. This is none of his business. The gentleman concerned needs to confine himself to his proper functions.

This brings me to the second landmark, which is that the oath is a legal requirement, not a political one. This means that what the oath taker understands or intends by it is not relevant. That is a matter for the member and his electors. The only requirement is that he or she should read the words on the card. There are no grounds for censoring the oath-takers’ clothing, however offensive the wording printed on it, or their accents. There may be room for argument about extreme slow motion, or about the interesting mispronunciations of Ms Yau Wai-ching, who seems to be trying to do for Hong Kong politics what Gordon Ramsay did for television  cookery programmes. But the requirement is that the member reads the words. What he or she says before or afterwards is also not relevant.

I understand the reluctance of some new members to engage in what looks suspiciously like a kow tow to a regime they disapprove of. But you knew you were going to have to do this if you won. So get on with it.

Was CY Leung reduced to tears by the difficulty of finding land for public housing? He should get down to the Shatin District Land Office. To understand why, let us take a short walk. We start at the top of Sui Wo Road, where observant visitors will have spotted one of those maps with a little roof over it which indicate the entrance to a country park, and one of those striped poles which indicates the entrance to a road which the Water Supplies Department regards as its own exclusive property.

Walk down the WSD’s road (which they don’t mind as long as you are not driving) with a steep cut slope on your right and the back view of Greenwood Terrace on your left. Shortly you come to a turning round place. But the path which continues in roughly the same direction has been widened to take cars so there is still plenty of room. Follow this for maybe a quarter of a mile. This is easy walking because it keeps more or less level. Later you will hear a stream to your left. Eventually you come to an open space. There is a small turning round place for vehicles, a flight of steps down, a rain shelter, and a bridge over the stream. Over the bridge you go up a flight of steps and there is a choice. You can go ahead, up further flights of steps and after much walking you will reach the Maclehose trail. Alternatively you can turn right, onto a small path which parallels the stream.

At this point you are entering a rather charming and very quiet little valley. At one time it had a farm in it, but this was abandoned long ago. Later it enjoyed some notoriety as a place where illegal immigrants hoping to “touch base” could take a rest before trying the last dash into the urban area and safety. There were still some informal shelters from that era when I first explored the valley in the 90s. In those days there was a network of paths, but these have been much neglected. Substantial official-looking bridges have collapsed; trails have disappeared. Never mind. The path you are on, though neglected, is still usable. Carry on with the stream on your right for a couple of minutes. You may now think you are as far from civilization as a person can reasonably expect to get in Hong Kong. But look through the trees to the right. There is a sign. A rather luxurious signboard on four feet firmly planted in concrete foundations. What is it doing here? The headline says “Government Land”. The text goes on to say that any use of government land is prohibited, and persons engaging in that use will be prosecuted. And the message is signed District Land Office Shatin, with a telephone number for inquiries. The whole story is then repeated in Chinese.  Nearby there is another copy of the same sign in case you are approaching from up the valley. How did this happen?

Behind the sign you can see a more or less flat patch with no substantial trees on it. Although nature is now reclaiming it you can see it was cultivated once. In fact back in the 1990s it was cultivated by the Shatin Junior Police Call. The JPC is a well-intentioned youth organisation run by policemen in the hope that young people can develop a warm relationship with their local Force before they reach the stop and search age group. In those days the Shatin JPC was teaching its members farming. The field now reverting to jungle was then a beautifully organised vegetable patch, with long rows of prosperous looking crops. It was impressive. I never met the leader of this enterprise because my walking hours did not coincide with his presence, but some of my colleagues met him (the Baptist University staff quarters are just down the road) and reported that he was impressive too. The JPC farm was surrounded by a chain-link fence, and access was over a rather informal looking bridge over the stream, and a gate.

Eventually the police farming enthusiast was, I suppose, transferred to other duties or places. The Shatin JPC turned to other ways of amusing potential delinquents and the farm was abandoned. Someone removed the gate, but two plastic watchmen’s huts remained. One had been the toolshed and one the toilet. There ensued a long period in which the field was virtually deserted. It was visited by the odd dog walker (me) and I suppose by some of the wargames enthusiasts, because their little white pellets could be seen around the place.

A few years ago it attracted the attention of some amateur farmers. Attempts at long rows of vegetables appeared, along with some rather elaborate water arrangements and some climbing frames for beans and such. This did nobody any harm. Indeed the number of people who knew it was happening could probably be counted on the fingers of one hand. Somehow, though, word of these goings-on reached the Shatin District Land Office. And suddenly, action! One day I turned up with the dog to find that everything had changed. The farm had been ploughed up, the water holes had been filled in, the huts had been removed, as had the bridge. And instead there were the two signs.

This does not, in my opinion, reflect much credit on Shatin’s district administration. They do not cut grass, they do not up-keep paths, they do not fix bridges and they do not organise any constructive use of the countryside. But let someone start a small farm on an obscure and unused piece of government land, and officials will trek into the middle of nowhere to vandalize the installation and install, at unimaginable expense, large signs announcing that there is a dog in this manger.

Still, if you want to see government land being used for public purposes rather than private ones, it is nice to know that officials are empowered to remove unauthorised structures and if necessary prosecute those who installed them. The question which this raises is why the legal position is apparently different in Yuen Long. Government attitudes to illegal land use in Wang Chau village seem to be disappointingly limp compared with the robust approach to such matters exhibited in Shatin. I realize that there are legal obstacles to preventing farmers from vandalizing their fields and turning to anti-social crops like empty shipping containers or construction machinery resting between engagements. But there is no legal obstacle to dealing with such activities on government land. Why were the nameless farmers in my valley not offered “soft lobbying” of the kind bestowed on trespassers with political connections? Rule of law, anyone?

Another small magazine dies. Cue the usual mourning. I liked HK Magazine as a good read, and also as a place which kindly accommodated generations of journalism students as interns. Survivors in the media business have been a little unsure as to which of the usual stories this might be. Is it “China-linked conglomerate buys up independent voice and stifles it”? Heard that one often enough. Is it “devious SCM Post buys and closes a rival to its own boring lifestyle-and-listings efforts, which do not feature any edgy real news stuff”? Is it “Megabucks Corp buys spunky little outfit and clumsily hugs it to death”? Or is it just the trend of the times: the twilight of the Print Gods?

There is probably something in all these explanations. When it was independent HK Magazine certainly ran the sort of stories which would not have gone down well as part of the Alibaba Empire. I am sure there are some people in the Liaison Office who devoutly wish the SCM Post was the only English-media game in town, and encourage any move in that direction. But we do not need a conspiracy theory to explain this death. It is a commonplace of journalistic life that working for Megabucks Corp is lucrative but working for Precarious Underdog Limited is more fun. As a result the attitudes of the staff are rather different. Reporters for Precarious work crazy hours, will walk through fire to get a story and often forget their expenses. Reporters for Megabucks are not crusaders, they are staff. In the days when the SCM Post was the most lucrative newspaper in the world and the Standard was the number two who tried harder it was a commonplace observation that moving from the Standard to the Post would double your salary. In fact moving almost anywhere from the Standard would double your salary. But the Standard was a meaningful and fun place to work; those who departed often wept at their own leaving parties. The Post did not inspire that sort of feeling.

It is also my experience that Megabucks Corp usually insists on a level of overhead at the freshly-landed Precarious which means that closure is only a matter of time. At Precarious we have a few journalists and one non-journalist who fills the roles of the secretary, accountant, human resources person and general dogsbody. The office is a squalid hole in Western. This will not do for Megabucks, which expects people to specialise. It also expects them to have nice offices, which are not found in Precarious journalism. I remember visiting Asiaweek soon after it was taken over by an American company. The offices were stunning. Very elegant and luxurious. I did not think a small magazine could survive on this basis, and nor did it. I knew HK Business was for the high jump when they introduced me to the office wine-cooler.

This brings us to the twilight theory, and of course there is something in this as well. Whatever your job is these days, the microchip is coming to get you. My first job in journalism was on a newspaper which was still printed by a beautiful piece of machinery which, in its youth, was probably powered by steam. It could only print four pages at a time (two each side of a sheet) so a large crowd of ladies would come in on Tuesday evenings and spend the night folding and collating the paper ready for distribution the next morning. After a few months the management decided to switch to computerised type-setting and a new press which would spit out our 30,000 circulation in a few screaming minutes. Because the print unions were a power in the land in those days the only people actually made redundant by this change were the Tuesday-night ladies’ team. And having survived it I was an easily recruitable candidate for people contemplating the same switch.  I moved often as a sort of roving ambassador for computerised type-setting and web-offset lithography (which is what modern printing is called). Once the unions had been emasculated this became a programme for massive cuts in newspaper production staff. We were always promised that the new technology would bring more editions, later deadlines, more exciting reporting opportunities. And what it brought was massive economies for the proprietors. The qualitative improvements somehow never materialised. This was a tragedy for the men (ladies were not admitted) who had type-set, composed and proof-read newspapers. They had followed the good advice offered to young working class men: learn a trade, lad. The apprenticeship for journalists was three years – two if you had a degree. The apprenticeship for printers was seven years. And this painfully acquired skill became worthless when any teenager could do the same thing on an Apple Macintosh.

The painful collision with the microchip has now reached the journalists. The print model is on its last legs. The on-line model clearly does not need the same large number of people. Just as the 50 people who used to produce the Morecambe Visitor have now been reduced to half a dozen who run the press, so the 50-odd people contributing to a substantial newspaper will, when it goes on-line and drops the print edition, rapidly shrink. This will be resisted vigorously by everyone concerned, but will be enforced eventually by a drastic reduction in income. In this situation the advantages of new news web-sites are elementary. They can take on staff until they have enough, and then stop. Enough is likely to be a quite small number. Unlike their print predecessors, websites do not need to provide visitors with an hour of entertainment to keep them awake on the commute to or from work. This function is now performed by the mobile phone. The dirty secret about news is that there isn’t actually that much of it. The few readers who care about foreign news can read it on foreign websites. The local stuff is sporadic. The BBC is said on one occasion in the 1930s to have opened its evening news bulletin with “There is no news tonight so I am going to play a record.” This was commendably honest but was not repeated.

The curious thing about the decline in demand for editorial personpower is that it has coincided with a huge leap in the number of journalism teaching programmes in Hong Kong. In the days when I used to go to journalism conferences in Australia I often asked how universities could justify producing 2-300 journalism graduates in provincial capitals where the number of vacancies available for would-be journalists averaged about 12 a year. This disparity was a source of continuing embarrassment and led one gentleman at the University of Queensland to suggest that they should drop the idea of a journalism degree as a professional preparation, and treat it as a general education in current affairs and crisp writing. I could complain about these things because at that time Hong Kong had no such imbalance. This was partly because local employers had a business model heavily dependent on fresh graduates, who would be disposed of and replaced when they looked like becoming expensive. Consequently turn-over was brisk. But it was also because there were not that many people offering courses in the area. Shue Yan College, as it then was, turned out large number of diploma holders who filled vacancies in the parsimonious press. Baptist College, as it then was, catered for a more up-market sector. Chinese U aimed for the upper crust. And that was it. Nowadays Shue Yan and Baptist are both universities, and other people have joined in. Hong Kong U recruits geeks, Chu Hai College is handy for rural residents, Hang Seng Management College specialises in business, and all the Associate Degree merchants have an offering in the area. Everyone with University on their nameplate also flogs master’s programmes to mainlanders. I do not know where all the graduates of these programmes are going to work but it will assuredly not be in journalism.

The distressing thing about this plethora is that the ideas being perpetrated in all these courses are wrong. The conventional wisdom among journalism academics is that journalists are like mediaeval priests: they do not have to appeal to an audience because punters will be propelled into the pews by the fear of eternal damnation. Consuming media is a moral obligation and the content should accordingly be serious, informative and uplifting. This theory has now collided painfully with the technology which tells the owners of websites exactly how many people are reading any item at any time. I recognize that this piece would do much better on social media if it was a good cat video. This does not mean serious journalism is a waste of time. But we all need to think again about what people are looking for in media, and how we can combine that usefully with things which people are not looking for, but perhaps ought to know.

Nice of Apple Daily to publish in full the letter it received from C.Y.Leung’s lawyers. Very interesting reading. If you have just come in, what is going on here is that Apple Daily, a racy Hong Kong tabloid with pro-democracy inclinations, published an editorial urging newly elected legislators to investigate a deal under which Mr Leung was paid a large sum of money by an Australian company called UGL. One of the reasons why this was a good idea, the newspaper thought, was because it might avoid the prospect, which many Hong Kong people find appalling, of Mr Leung running for another term in his present post.

As it happens I am something of a connoisseur of threatening letters from lawyers. Many years ago, when I was running an investigative team for the Hong Kong Standard, it was decided that I should deal with all legal matters which came up, on the (as it turned out) pessimistic assumption that our investigative work would be responsible for most of them. There are several peculiar features to Mr Leung’s lawyers’ letter.

The first one is that it comes from Messrs Sit, Fung, Kwok and Shum. I presume they are a respectable firm, though not perhaps very experienced in this line of work. But Mr Leung does not need to resort to private lawyers, respectable or otherwise. Senior government officials who wish to sue for libel have to ask for permission (which in the case of Mr Leung I suppose he can give himself) and having obtained permission get the free services of the Department of Justice. Well we know Mr Leung is not short of a bob or two. But one does wonder why this particular chore was outsourced. Was the DoJ consulted, and discouraging?

The second unusual feature of the letter is that it runs to seven pages. The law of libel is very clear on one point. It is not up to the person defamed to prove that the article complained of is wrong. If the article damages someone’s reputation then it is up to the author/publisher to prove that it was justified (which means true in lawyerspeak), or an expression of opinion protected by freedom of speech. Consequently letters complaining of defamation are commonly quite short. They identify the item complained of, point out that it is defamatory, and ask for a correction, apology, and money according to taste. Now observe the letter re Leung, which masochists can find here: https://www.hongkongfp.com/2016/09/30/legal-letter-full-hk-chief-exec-cy-leung-threatens-sue-apple-daily/

Normally I would expect the writer, having identified the item complained of and the meaning to which he objects, which is taken care of by the bottom of page 1, to proceed directly to the paragraph at the bottom of page 6, which begins “Mr Leung requires you to take the following steps immediately …” Instead we get four pages of argument, buttressed by quotes from newspapers and Carrie Lam, apparently intended to convince the reader of Mr Leung’s transcendent innocence. Admittedly quite a lot of space is accounted for by the need to provide translations of some things, but even so this generosity is puzzling. Mr Leung, as I pointed out above, does not have to prove his innocence. The law assumes that. And printing this much material brings other hazards.

It is, for example, far from surprising that the whole letter is now in the public domain. In the old print days a long letter might have been a deterrent to reproduction, because it would have taken space. But on the internet space is free. Moreover having instructed lawyers to send it on his behalf Mr Leung can hardly complain if the recipient shows it to other people. Unfortunately the way the general public look at these things is often not the way lawyers look at them. Mr Leung’s lawyers may feel they have established his innocence beyond any possible doubt. The lay person may wonder how so much smoke could be generated without a fire somewhere. He may recall Hamlet (“Methinks the lady doth protest too much”) or Mandy Rice Davis (“He would say that, wouldn’t he?”). Even if the layman comes to the undisputably correct conclusion that in the matter of corruption Mr Leung is as pure as the driven snow, his reading may leave him with misgivings about other aspects of Mr Leung’s ethics.

Consider the explanation quoted from Ms Carrie Lam. Ms Lam says that when Mr Leung resigned from the company (then called DTZ) in 2011 there was a “resignation agreement”. The gist of this was that UGL – whkich was buying DTZ – would pay Mr Leung large sums over two years in return for which Mr Leung “would not move to a competitor, set up or promote any business in competition with DTZ, or poach any people from DTZ.” and Ms Lam goes on to say that this was “standard business practice”. Really? You sell someone a business, and then you expect them to pay you extra for a promise not to compete or poach their staff? Well this may be perfectly legal. But is it nice?

Then there is the question of the timing. “Both Mr Leung’s resignation from DTZ and conclusion of the agreement with UGL took place before he was elected as the CE, and at the material time, he had already resigned from Exco,” says Ms Lam. So the full story, it seems, goes like this. Mr Leung resigns from Exco because he wants to run for CE. He then resigns from DTZ. He then extracts a large sum of money from the buyers of DTZ in return for a promise that he will not compete with them. And while this extraction is taking place he is doing his best to get a well-paid full-time job as CE, which will effectively preclude both competition and staff poaching. Did Mr Leung mention, while he was negotiating his resignation agreement, that he was contemplating a full-time career in public administration? Well we can perhaps allow some latitude at that stage. After all the result of the election was not certain. If Henry Tang’s basement had not surfaced I suppose Mr Leung might have had to go back to surveying for a living. But having been elected he was still receiving payments from the resignation deal, even though he was at this stage clearly in no position to either compete or poach. Does this count as honest in business circles?

Then we come to the question of declaring an interest. Ms Lam’s take on this is that “Mr Leung has not provided any service to UGL since signing the resignation agreement.” Ms Lam did not say in so many words that Mr Leung had declared, or not declared an interest, but apparently intended her listeners to infer from the fact that Mr Leung had not performed any service that there was no interest to declare. But this clearly will not do. As the Prevention of Bribery Ordinance makes clear, one may be paid to do something or one may be paid not to do something. It appears that during the first two years of his term Mr Leung was receiving money in consideration of his not competing with UGL or poaching its staff. I do not think anyone would suppose there was any serious danger of this affecting the discharge of his duties. But it was clearly an interest and if the rules really did not require its disclosure then the rules should be changed. In the meantime one must have doubts about Mr Leung’s judgement in the matter. If he had explained the whole thing years ago, before it became journalism fodder, it would have saved us all a lot of trouble.

Finally Mr Leung’s lawyers complain that the intention of the article complained of is to deprive him of “his fundamental right … to stand for the 2017 CE election”. This is an unfortunate inspiration. Mr Leung’s administration does not appear to believe in a fundamental right to stand for election, at least if you have views it disagrees with. Also this is based on a misunderstanding. The election is not an election. It is fixed. Consequently nothing that Apple Daily says about Mr Leung can affect his chances, which appear to be quite good, even though three quarters of the population spit at the mention of his name.

The hot issue of the day is the growing row over a housing project in Wang Chau, which is near Yuen Long in the north western New Territories. We need not go into this in great detail. Indeed anything I say about it will probably be out of date in a matter of days if not hours. But the story goes more or less like this. The government proposed to build a large public housing estate in Wang Chau, on a piece of land it already owns. Before proceeding with this there was a meeting of some kind with village heads, landowners and gangsters (three categories which overlap considerably in this corner of Hong Kong) and the plan was then changed to a small housing estate on a different piece of land which is currently occupied by three villages. Much suspicion, not to say ire, has been aroused by the discovery that one of the assembled heads, landowners and gangsters was illegally occupying a large section of the proposed housing site, on which he was running a lucrative business.

The government account of the crucial meeting is that it was engaged in “soft lobbying” in advance of the project, whose final shape had not been decided. And what, we may well wonder, is soft lobbying? Happily there is an answer available through Google, but it is not a very helpful one in this context. Lobbying we all understand. The word derives from the lobby of the House of Commons, which is the place where Members of Parliament meet visitors who are not members. Hence lobbying is the activity in which non-members try to persuade members to pass or not to pass legislation according to the non-members’ desire or interest. People who lobby are called lobbyists (as well as ruder things) and there are plenty of them. So far so simple – a lobbyist is one who seeks to persuade a legislator to use his power in a way pleasing to the lobbyist or his employer. “Soft lobbying”, at least in the US, apparently refers to an alternative procedure whereby the lobbyist supports and encourages a non-government organisation to exert pressure on his behalf. Lobbyit.com gives the example of a campaign to require food manufacturers to divulge the amount of corn syrup in their products. This was waged by a voluntary organisation called Citizens for Health. But the healthy citizens were heavily subsidised and much encouraged by the sugar industry, which regards corn syrup as a major threat to its prospects.

Clearly this can hardly be what the government spokesman intended when using “soft lobbying” to describe a group of officials trekking off to distant corners of the NT to persuade local bigwigs of the merits of a housing project. I suppose he was looking for a plausible alternative to “public consultation”, which would not do in this case because the public consulted consisted only of the aforementioned village heads, landowners and gangsters. Still the use of “lobbying” in this context is curious. Usually it means people without power, at least without legislative power, beseeching those with power to exercise it in a helpful way. Using it in this context seems to imply that any rural bigwig who is in illegal occupation of a large piece of government land must be cajoled and persuaded into giving it up by an otherwise helpless administration. And if he refuses they have to think of something else.

This is a rather timid posture for our government, and indeed a marked contrast with its attitude to unlawful activities in other contexts. If you unlawfully enter the space in front of the Legco building which was originally designed as a public open space, you may be prosecuted. If you demonstrate peacefully in the road you may be tear-gassed. If you throw rocks at policemen in Mong Kok they are allowed to throw them back. These phenomena demonstrate the government’s firm commitment to the rule of law. So what is demonstrated by allowing rural grandees to occupy government land for years, and then politely asking if they would please, if it’s not too much trouble, give it up for public purposes? And then taking “no” for an answer?

If I may make a practical suggestion, officials need to consider that where there is “soft lobbying” there should also be “hard lobbying”, and if the soft version fails it is their duty to move on to the more serious stuff. What would hard lobbying look like? Well, faced with an obdurate squatter on government land we could start by pointing out the legal ease with which we can not only throw him off it but also require payment of several years of unpaid rent. If that fails we could further point out to the recalcitrant individual that while the incidence of government inspections is random there are occasional coincidences, and he may find in the coming week that the Buildings Ordinance Office wishes to check his house for illegal alterations, the Food and Hygiene people would like a look at his kitchen, the Transport Department wishes to make sure his car has not been tweaked and the Agriculture and Fisheries Department wants to see his dog licence. And if that fails we can point out that in view of the complete frustration of government efforts to use land in the NT there will be an immediate comprehensive review of the law and regulations on the matter, and pending the results of this the Small House Policy will be suspended with immediate effect. His role in bringing this about will be emphasised.

This might solve the practical problem. It still leaves the question what they are going to put in future dictionaries. Presumably the American meaning will come first. Then will come “2: (in Hong Kong only) politely persuading criminals not to oppose government housing projects.”

Many years ago I read a science fiction story which for some reason stuck in my head. This did not happen often with science fiction stories and I have read very few of them for a long time. The story concerns an old man, running a small farm by himself, and painfully lonely since the death of his beloved wife. One day a small spaceship crashes on his plot. In it he finds a small furry alien creature. He takes it home, binds up its wounds, experiments until he finds something it will eat, and nurses it back to health. The alien then mimes an interest in the space craft, and he brings the wreckage in from an outhouse. The alien settles down to repairs, and eventually gets stuck. A particular material is needed. After many offerings it turns out to be gold. The old fellow, with some misgivings, digs out his life savings and melts them down. The repairs are a success. The alien prepares to leave. As a parting gift it gives the old man a small odd-shaped piece of metal. The effect of this is strange. When he holds it in his hand he no longer feels the aching loneliness to which he was used before his furry friend arrived. He feels instead a warm and companionable happiness. In the last paragraph the author, who has previously described everything from the point of view of the man, suddenly gets inside the alien’s head and produces a quote which (from memory) goes something like this: “It would be lonely in the wastes of inter-stellar space without the Comforter. But the earthling had been very kind, and those who travel far must travel light. There had been nothing else to give.”

Now when this story was written, which I suppose was in the 60s, the idea of the small odd-shaped piece of metal which you held in your hand to stave off loneliness was as outlandish as the spaceship. Nowadays I am not so sure. When you travel on public transport these days it seems that nine tenths of your fellow passengers are clutching a piece of metal. It is called a mobile phone, but this is a misleading convention because most of them are clearly not making phone calls. Nor do I believe that many of them are fielding peremptory emails from some distant boss. They play games, read messages, look at Facebook, or engage in other on-line pursuits, to avoid being left alone with themselves. Or so the current theory goes.

A recent book commented on the fact, not perhaps an original thought, that people currently in their middle age or later are a unique generation. They are part of the wired world, but they can remember what it was like before. “Digital natives” who got their first iPad before they could read have everything – except the memory of how people managed when a phone was just a piece of black plastic tethered to the wall over which you could have short conversations. There are certainly young people about who make no bones of the fact that they feel extremely uncomfortable, even depressed, if not connected. I am not convinced by the theory that this is rewiring brains, so that the victims are no longer capable of undertaking long demanding tasks which require concentrati0n. After all people still get degrees, still master difficult skills like playing an instrument really well, still read War and Peace – an achievement which has eluded me. I get fed up with that Russian arrangement under which everyone has three names and give up.

On behalf of us pre-digitals I must also admit that though I rarely look at my mobile phone when travelling, I do not sit there staring at the wall either. I either provide a treat for nostalgic fellow-travellers by reading a book, or baffle most of them by playing an electric bagpipe. This is not as anti-social as it sounds because it has earphones. I do not feel as if my brain has been rewired by looking at Youtube, and I never could finish Russian novels, which seems to be the accomplishment most in danger, according to writers like Nicholas Carr (“The Shallows”) or Neil Swidey (“The end of alone”). I also note that phone addiction is much less conspicuous in London, because the local counterpart of the MTR does not have Wi-Fi, and travellers do not look any less happy than they do in Hong Kong, where everyone has his own small screen.

Still some caution is in order. Steven Pinker, in his book The Better Angels of our Nature, suggests that the invention of printing changed human nature radically, and in particular the reading of novels led to a great increase in the willingness and ability to consider and sympathize with the feelings of other people. This is a major historic switch and suggests that we may be playing with fire here. If reading Moll Flanders could awake your inner angel, what is Facebook doing for you?