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Substandard flats are ‘targeted for eradication’ … and their occupants?

January 8, 2025 by timhamlett

The government has put out some details about its plan to eliminate substandard miniflats. But a question remains.

According to a newspaper contribution by the relevant minister there are believed to be 110,000 sub-divided flats – where an already miniature flat is further split up for multiple occupation – in Hong Kong.

It is estimated that 220,000 people live in them. This is a suspiciously round number. It appears that it is the consequence of a finding (wild guess?) that the number of people living in each tiny flatlet is on average two.

No doubt this is a difficult area and two seems a plausible number for a very small space. On the other hand before the public housing system really got under way there were similar estimates for the number of people per squatter hut. And they turned out to be much too low.

Never mind. Let us go along with the official numbers. There are 110,000 miniflats accommodating 220,000 people. It is further supposed that about 80,000 of these little homes will be able, with some work, to conform to official standards in the matter of space, windows, plumbing and such like.

The other 30,000 or so will, in the Housing Secretary’s rather chilling phrase, be “targeted for eradication.” She supposes that this will leave 77,000 units still on the market after mandated improvements.

This also seems a bit optimistic. If you are the owner of a sub-divided flat facing a large bill to bring your sub-units up to official standards, there are alternatives. One obvious one is to dismantle the subdivisions and sell or rent the flat in its original intended form. Or you can unload the whole arrangement to some hardened criminal who will regard the remote possibility of a large fine with equanimity.

Still, again, let us go along with the official figures. We now come to the unanswered question. There are 30,000 flats to be “eradicated”. They will be home to 60,000 people. Where are all these people supposed to go?

We have already been told that they will not be going to public housing, unless they arrive at the front of the queue just in time. Officials are apparently worried that there may be a rush to occupy really squalid spaces in the hope that inhabitants will be wafted swiftly into public housing.

Well whatever the merits of that theory, only 40 percent of miniflat dwellers have even applied for public housing. So we have 36,000 people for whom the government apparently has no plans at all.

There is an ironic history here. During the 1980s and 90s the government took a great pride in the number of overseas housing people who came to Hong Kong to look at local public housing efforts and learn from them.

But the big attraction was not the multi-story tower blocks which were then growing like mushrooms all over the New Territories. Lots of places had experimented with public housing in tower blocks, with mixed results.

The big attraction was an innovation called a Temporary Housing Area. The idea behind these places (pic here) was that the government provided a floor and roof for a single-story structure and the occupants put in the walls. Water, showers and toilets were provided centrally and residents cooked on bottled gas.

This was an outstandingly cheap solution and had obvious attractions for places which had more space than we do. Hong Kong being Hong Kong there were recurring reports of local bandits monopolising the wall-building, but apart from that the only drawback was that the area was always only temporarily available. The government had other plans for it, usually but not always for housing.

This was nobody’s idea of paradise but it met a need. The nearest thing to it now seems to be what officials call “transitional housing”. Web site here. It is usually run by NGOs apparently. However only 3,000 units are currently under construction so those 36,000 people will have to wait.

I am sure the government’s intentions in sorting out the sub-divided flat situation are good. It would be nice, though, if the people running housing policy tried harder to look as if they recognised that the occupants are people, whose happiness is the objective of the exercise.

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A constitutional innovation: Never mind the Basic Law, consider the context

December 27, 2024 by timhamlett

Well I don’t suppose that it has anything to do with me, but we now have a response to the idea that planning to veto the government’s budget was not a crime, but a legitimate constitutional recourse outlined in the Basic Law.
This comes in a China Daily piece by one Richard Cullen, an adjunct professor (part-time – don’t call us, we’ll call you) in the HKU Faculty of Law.
Mr Cullen concedes that the idea that articles 50-52 authorise refusal to pass the budget as a way to secure the resignation of the Chief Executive is “accurate, as far as it goes.” But, he goes on to say, this ignores the “wider contextual considerations”. It is “methodically literal”, and seeks to establish a “legalistic, rarified zone” for interpretation of the law.
In my experience “legalistic” is a word used for legal arguments which lead to destinations the user does not like. A “rarified zone”? The law is often described as an artificial system of reasoning intended for the particular purpose of resolving disputes between citizens and between citizens and the state, in which the pursuit of fairness and justice has to compete with the need for predictability and consistency. The interpretation of statutes is a suburb of legal reasoning and has its own rules, in which the “wider contextual considerations” do not feature very much.
We must, though, note that Mr Cullen seems to spend more time writing for the China Daily than he does teaching law, and he clearly has no problem avoiding legalistic formal language in his usual output, which comprises rousing denunciations of American foreign policy.
His exploration of the context leads to some strange places. Lawyers in the common law system have, he says, often ignored context, with sad results. We then explore the history of labour and factory legislation in the US and UK.
This was often, Mr Cullen says, and I agree, drafted with scant realistic consideration of the context. Legislators tended to treat labour relations as a voluntary contract between two equal parties, and ignored the reality that the employer’s need for another worker was usually less pressing than the applicant’s need for a job. Bad law and injustice resulted.
But this does not help Mr Cullen’s case with regard to interpretation of the Basic Law at all. The ignorance of context was in the original labour legislation. Judges interpreted it as it came to them. Historically judges have often lamented that the effect of the legislation they were enforcing was unjust in some, or even most cases. But changing it was a matter for parliament, not something to be done in court in the name of “context”.
Mr Cullen observes, correctly, that the Basic Law does not authorise the full “Laam gau” programme, and also – less relevantly – that Yash Ghai, writing in 1999, thought the budget veto procedure might be used to resolve disputes over taxation or public spending, not to seek major changes in government policy.
This last prediction betrays a curious lack of imagination. After all the budget veto procedure would be a major step into unknowable territory, involving serious hazards for both sides. Legislators first have to risk their seats; the risks to the Chief Executive come later but are as serious. The spectacle of a legislature and executive at loggerheads would be unbecoming. This is the nuclear option of political conflict. It would be surprising if it were used for anything other than major disputes over policy.
Mr Cullen thinks that the procedure was not intended to allow a “very powerful indirect means of coercing radical policy changes.” What else could it be for?
We then move on to the context in detail, and here I have to say that I begin to wonder if Mr Cullen is a person from whom I would wish to buy a used car. Because he says, “the LegCo was rendered inoperable because of massive, riot-driven vandalism for about three months from July 1, 2019”. And that is not true.
In the first place, a legislature cannot be rendered “inoperable” just because its usual meeting place is closed, for whatever reason. A council meeting is not like a heart transplant or a Catholic wedding, which can only take place in a building designed and dedicated for the purpose.
In 1789 the French National Assembly famously responded to a Royal eviction by meeting in a tennis court. In 1941 the British House of Commons had its usual home vandalised by the Luftwaffe. Politics continued in alternative venues until the building had been restored, which took until 1950.
In the second place, the Legco was not rendered inoperable for three months because it customarily takes a long break in the summer whether its chamber is usable or not. After July 1 the chairman simply cancelled the last meeting of the session and everyone went on holiday.
If Mr Cullen is unreliable on the fiddly detail he is not much better on the big picture. The events of 2019 were an “insurrection”, he says, and adds with approval a quote from Henry Litton dubbing it an “insurgency”. This is a gross abuse of language and also rather insensitive.
Insurrections and insurgencies involve the use of lethal force to overthrow the regime. It is not a happy experience and usually involves the shedding of much blood, most of it innocent. It is the sort of thing now being endured in Sudan, Burma and San Salvador. Highjacking the word to describe our street scuffles is an insult to the sufferings of people in such places.

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Political appointments have become a failed effort to meet discarded objectives

December 21, 2024 by timhamlett

Did you notice the odd thing about the two latest appointments to the upper ranks of the government? Both the two women appointed to secretarial posts were career civil servants, who were recruited to the Administrative Officer ranks in (coincidentally) 1989.

This is not quite the way these things were supposed to work. Before 2002 all secretaries (that is, heads of bureaus, not word processors) were career civil servants who had worked their way up the bureaucratic pyramid.

In that year the then Chief Executive, Tung Chee-hwa, introduced what was then called the Principal Officials Accountability System, under which heads of bureaus would be appointed, not by the existing promotion mechanism from within the civil service, but instead by him, from outside it.

These people would fill Exco (which roughly corresponds to the Cabinet, in the US system), and would be answerable to the CE who appointed them. They would not be on civil service terms and their appointments would expire at the end of the CE’s term of office.

There was little public discussion before this brainwave was launched on us, so there remains a good deal of ambiguity about what it was intended to achieve. What you might call the “realist” interpretation was that Mr Tung believed the traditional civil service was not responding to his wishes and instructions as enthusiastically as he might wish.

There may have been something in this. Mr Tung’s background as the patriarch of a family shipping company was perhaps a poor preparation for dealing with civil servants who were used to being given a task and then being left to sort out the implementation by themselves.

The “idealist” interpretation was that the new system would subject the administration of Hong Kong to more critical appraisal and monitoring. The new secretaries would be ostensibly political creatures who could deal with Legco, explain the policies they were pursuing in public, and could be dismissed if they erred.

Even in its earliest incarnation this system did not live up to expectations, whether realist or idealistic. Having an obedient Exco did not help Mr Tung’s problems in government, and three years later he resigned with diplomatic health problems.

The new secretaries proved not unlike their predecessors. Even in the first batch there were five civil servants. The government’s relations with Legco became more contentious as it aligned itself explicitly with the DAB and Civic Party against the others.

“Accountability” did not ensue. The CE was reluctant to admit an appointment was a mistake and appointees were reluctant to resign. Secretaries who had committed egregious blunders were hounded from office by public opinion, more or less as they always had been.

In 2008 the system was renamed and extended by the next Chief Executive, Donald Tsang. Under the new “Political Appointments System” the existing secretaries were reinforced with undersecretaries and assistants. Launching the innovation the then Secretary for Constitutional and Mainland stuff said the existing secretaries would continue to study and design government policies in conjunction with the Permanent Secretary (senior mainstream civil servant) of their bureaus. The new deputies would liaise with legislators and provide policy input. The assistants would help bureau chiefs to reach out to the community.

Officials also said the new system would preserve a “permanent, professional and politically neutral civil service”, while nurturing talent which would be needed for the introduction of universal suffrage, then considered a likely future prospect.

The two new layers of appointees, with the associated fleets of drivers and personal secretaries, would cost $60 million a year.

Which brings us to the outstanding question. Now that this scheme has demonstrably failed, and many of the objectives which motivated it have been abandoned, would it not be a good idea to save a lot of money by abandoning the whole thing?

The system has not succeeded in introducing a wave of talented outsiders to the top of the administration. There are now 15 secretaries, of whom nine are career civil servants. Three of the others came from government-funded hospital or school backgrounds and one is an apparatchik of the FTU, the pro-government simulated trade union. There are only two genuine outsiders.

Since we no longer aspire to political pluralism the idea of a politically neutral civil service has become meaningless, and indeed civil servants are no longer expected, according to the latest version of their code, to be impartial and objective. Chief Executives have many problems, but passive resistance from the civil service is clearly not one of them.

The system has not nurtured any conspicuous political talents, and indeed the selectors now appear to prefer to seek candidates for office in the upper ranks of the police. There is no need for an extensive herd of specialists to liaise with Legco, which is expected to do as it is told, as indeed is the general public.

In these straitened times the Political Appointment System is, at best, an unaffordable luxury. At worst, an expensive attempt to put lipstick on a political pig?

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Please Ms Law, stay out of show business

December 13, 2024 by timhamlett

What, I wonder, is a mega event? This question arises from a Legco answer provided by our newly minted Secretary for Culture, Sports and Tourism, Ms Rosanna Law.

Ms Law gave a glowing report on her branch’s efforts to boost tourism. You might even wonder, reading her update on the situation, what her predecessor did wrong.

According to Ms Law, as reported in the China Daily, there were 110 mega events in the first half of this year. I do not remember hearing or reading about 110 events worthy of the “mega” label, which according to the Cambridge Dictionary means “very good or very big”.

And the fact that these events are allegedly happening at a rate of about 18 a month, or roughly one every two days, suggests that the adjective has been devalued by overuse. This suspicion was not dispelled by the China Daily, which illustrated the happy news with a picture of the Hong Kong Sevens, and in the article mentioned only the Art Basel culture fest. Both these events have been staged annually for many years. They may be well be “mega”, but giving the credit to the current Culture, Sports and Tourism bureaucracy seems a bit of a stretch.

Ms Law said the mega events had attracted 550,000 tourists who spent $2.4 billion, and also contributed a “value add” of $1.4 billion, a mysterious extra benefit which she did not explain. These are big numbers, at least until you look at the official Tourism Board visitor figures for the same period, which run to about 3.5 million per month.

Well the show goes on. Ms Law said $100 million had been earmarked for the Mega Events Coordination Group’s work over the next three years. It is difficult to know what is happening here. We do not know which of these events are a result of official inspiration, and which are items which were going on anyway, but were happy to sport the “mega event” label in return for a chance to bid for some cash and get free publicity when the Tourism Board, in Ms Law’s mellifluous phrase, “leveraged its global network to carry out publicity in the Chinese mainland and overseas.”

Doubts arise. As a product of the post-war baby boom I witnessed years of arguments in the UK about which activities should be undertaken by government and which by the private sector. But even avid seekers of public control of the “commanding heights of the economy” recognised that arts and culture were best left to voluntary and commercial effort. If subsidies were provided this should be done in a way insulated from official control, like the money given to universities.

The reason for this is the general experience that officially devised entertainments will be either uninspiring, loss-making or both.

There is, to put it politely, no evidence that Hong Kong is exceptional in this matter. Money effortlessly disappears in the Magic Kingdom, Ocean Park and Water World. The West Kowloon Cultural District is looking for a life boat, probably involving the fine art of selling expensive flats.

I seem to have caused some confusion last week by mentioning the Capital Works Fund in the same column as the third runway, which was not financed that way. Besides milking passing passengers the airport took on $110 trillion of debt – which whatever the fine print says is effectively backed by the Hong Kong government.

My point was that having a huge pile of money which could only be spent on building encouraged a mindset in which any pyramid, sphinx or ziggurat could be erected free from financial concerns because the supply of money was apparently unlimited. This led to extravagant choices, of which the third runway was one.

The idea that events should be supported by an all-purpose body selecting items on the basis of their prospects as tourist attractions is another. How are meaningful comparisons to be made between – say – a golf tournament, a performance of Aida and a chance to be bored in a conference centre by the CEOs of several international companies?

Money will be spent, certainly, but much of it will be wasted on events which would have happened anyway, or events to which the “mega” label is a polite joke. What is to be done?

In the long run we need perhaps to consider that erecting a pyramid without considering the running costs is a recipe for unhappiness. Museums and theatres are not supposed to make money. They are supposed to be provided as a service to the public and this implies a willingness to provide continuing support.

We also need to consider that what is happening today is not always a reliable guide to what will happen tomorrow. Shit, as they say, happens. Since the handover Hong Kong has had to deal with an Asian financial crisis, two political upheavals, and two epidemics. Technologies and tastes have changed rapidly. The rosy scenario is not always the one we get.

More immediately, as the government is wallowing in a financial crisis, perhaps they could start by cancelling the Mega Events Coordination Group and saving $100 million. The government’s role in fostering mega events should be confined to ensuring there are suitable venues for them. Left to themselves, the relevant industries will produce a steady flow of conferences, festivals, shows, opportunities to buy expensive items or to watch Lionel Messi watch a football match. The SAR government can stay out of show business.

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Taking off with three runways … to go where?

December 6, 2024 by timhamlett

The third runway system, the latest expensive adornment to Hong Kong’s international airport, came into full-time operation this month. This should be distinguished from the third runway itself, which opened in 2022.

During the ensuing two years one of the older runways was closed for “maintenance”, which might arouse suspicions that the extra runway was perhaps not urgently needed.

Nevertheless the opening of the new system was greeted with unrestrained joy. “The three-runway system has been hailed as a ‘game-changer’ for the city to enhance its status as an international aviation hub,” reported the Post from the official opening.

A China Daily writer described the new system as “more than a runway; it’s a bridge to new economic vistas that will invigorate the city’s future.”

Certainly it’s more than a runway. It could be regarded as a suitable commemoration for the Capital Works Fund, a curious financial arrangement inherited from the colonial era.

The basic idea was that income from land sales could not be depended on, and should accordingly not be relied on to cover the government’s running costs. Instead it should be put in a special pot, to be drawn on only for infrastructure projects which would be one-off bursts of expenditure.

This bit of fiscal puritanism may be compared with the present arrangement under which the proceeds of the sale of bonds (which will have to be repaid some day) are treated as income. But let us leave the financial technicalities aside. Basically we were presented with a government looking at a large pile of money which could only be spent on infrastructure projects.

Call me a cynic if you will, but I would expect that to produce a growing enthusiasm for expensive and elaborate projects, with an increasing likelihood of white elephant production. Bridges, railway lines, reclamation of whole islands … Is this starting to look familiar?

All of these projects will be defended as contributing to Hong Kong’s future prosperity and status as some kind of hub. Let me dispose of two points before we get to the airport itself.

Firstly, as Kuper and Symanski point out, economists firmly believe that people respond to incentives, and economists certainly do. No plan for a sports facility or festival ever comes without a glowing prediction from an economist of the future wealth it will generate for the hapless taxpayers who are invited to pay for it. So it goes also for infrastructure projects.

The third runway can probably claim some sort of record in this area, as it was justified by a prediction of $455 billion in economic benefits … spread over the next 50 years. You can see that far ahead? J.K. Galbraith said, “The only function of economic forecasting is to make astrology look respectable.”

Secondly let us be wary of a promised “boost for tourism”. If you are a tourist-attractive island which can only be reached by the use of a small and uncomfortable ferry (as the Isle of Sky once was) then building a bridge will attract a lot of the formerly discouraged and will boost tourism (as it did).

If you are a coastal European city with the usual kit – city walls, cathedral, town hall, famous man’s birthplace – and cruise lines are by-passing your pathetic port, then constructing a cruise terminal may bring a new flood of people who used to miss you.

On the other hand if you are getting a million tourists a year, and your airport can handle two million, then upgrading it to a capacity of three million is not going to make the slightest difference. People are not going to visit specially to see the new airport. It is a means to an end.

And this brings us to the impact, or lack of impact, of the new runway. In 2015 an assessment of the situation was produced for planners and legislators. Keeping the airport as it was (Option A) implied a maximum annual capacity of 57 million passengers and 4.4 million tonnes of cargo. Making improvements but not extending them to a third runway (B) could raise this to 77 million passengers and 6.1 million tonnes. Option C – the third runway – would increase capacity to 102 million passengers and 8.9 million tonnes.

How much capacity did we actually use in 2023, the last full year? Ah, 43 million passengers and 4.2 million tonnes. In other words, comfortably within Option A.

The Airport Authority asserts that usage was depressed during COVID and will eventually recover. But is this inevitable, or even likely? Views differ. Since 2015 rival international airports have expanded in Shenzhen and Zhuhai. Passengers on shorter routes from Chinese cities can also consider the express rail link, which opened in 2018.

Spokespeople for the authority say that the airport is already busy again in rush hours. But these are not like land-based rush hours, caused by lots of people going to and from work at the same time. They are caused by airlines, for reasons of their own, all wanting to land and take off at the same time.

Catering to this urge is wasteful. Another way of looking at airport capacity is the number of movements it can handle. Because aircraft, once up, have to be kept two minutes apart there is a fixed ceiling of about 30 movements an hour per runway. Clearly with three runways you can hope to handle 90 movements an hour, which is an improvement.

But here again we seem to be meeting a non-existent need. In 2018, the last year before various interruptions culminating in COVID, the airport handled 427,000 movements. In 2023 it handled 276,000. This year so far we have 298,000. Clearly the figure is still rising, but has a long way to go before it catches up with the number achieved with two runways alone.

Given that the government is now running a huge deficit and is no doubt contemplating something painful in the way of increased taxes and lower benefits, it is quite understandable that the “line to take” is not that they blew $140 billion to provide some extra convenience to airlines.

So roll up for the new epoch, which will either feature massive financial losses or mass tourism. Are we having fun yet?

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The primary polls case: from a distance, it’s a duck

November 28, 2024 by timhamlett

One of the distressing things about writing for the media in Hong Kong these days is that there is one law for the government’s supporters and another for the rest of us. The system is, as a Brazilian president once put it, “for my friends, everything; for my enemies, the law.”

So during the trial of the 45 primary poll participants, carefree writers in pro-government publications were free to imply that all the defendants were guilty of the crimes charged, and some of them were guilty of other things as well. This used to be illegal. The offence is known as strict liability contempt of court.

You are not allowed to imply a particular conclusion for the trial, so it is also illegal to imply that the defendants are innocent. None of the numerous people who held this view dared to publish it. There has only been one prosecution for this offence in the last two decades. The accused publication was Apple Daily. One gets the message.

However, now the matter has concluded a few local voices, and some overseas ones, have ventured the opinion that all was not well with this case. And in due course this produced a predictable response from the government, and some more interesting ones in other places.

Oddly, though, these responses tend to ignore the most important criticisms. The question which has been awaiting an answer since before the trial, and indeed before the primary, is how can this possibly be illegal?

Lord Sumption (a very senior retired judge) having removed himself to a safe distance, put it bluntly. The Basic Law, he said, explicitly authorised the Legislative Council to reject the budget and … force the city’s leader to resign. It now appeared that “Legco cannot exercise an express constitutional right for a purpose unwelcome to the government.”

His Lordship characterised the situation as “legally indefensible”. This is a serious fundamental objection to the whole case. The council has a power conferred by law, and a procedure specified through which that power can be exercised. How can it be illegal for a candidate for election to say that he or she will, if elected, activate the procedure and exercise the power?

This point seems to elude commentators. Even Cliff Buddle, in an otherwise admirable dance along the tightrope that independent commentators all perform on these days, summarised the crime as the defendants intended to “blindly veto the government’s budget”. But blindness had nothing to do with it. The procedure was intended to allow the resolution of a situation in which the council and the Chief Executive could not get on with each other. The merits of the budget as a budget were not relevant.

Of course times have changed since the Basic Law was drafted in the 1990s. It seemed conceivable then that in some unlikely set of circumstances, and with a procedure designed to be discouraging, there might eventually be an occasion when it was acceptable for an elected Legco to dispense with the services of an elected Chief Executive. And the mainland officials who were “consulted” about the law went along with this.

Nowadays mainland officials are all subscribers to the theory of “whole-process democracy”, in which wisdom descends the pyramid from layer to layer like those extravagant displays in which a large bottle of champagne is used to fill several layers of wineglasses. The idea of someone appointed by them being fired by a local legislature is not acceptable at all.

The second objection which seems to have passed defenders of the prosecution by is that the prosecution’s case is based on the notion that sacking the Chief Executive would precipitate a “constitutional crisis”, paralyse the government or overthrow the system.

This is an entirely fictitious prospect drummed up to justify longer sentences. Whatever the organisers of the referendum may have dreamed, the Basic Law provides for a continued orderly and effective government at all stages of a bid to fire the Chief Executive. If there is no budget the government is authorised to continue with the old one. If there is no Chief Executive another official takes over pending the election of a replacement.

Of course there would still be considerable embarassment for whoever chose the CE in the first place. But embarassing officials is not a crime. Is it?

More forgivably, local commentators do not seem to pick up the fact that people overseas are considering the case in its context. As a poet once put it “You can tell a man who boozes by the company he chooses,” and the same thing applies to government actions.

For a government to jail large numbers of opposition politicians will always inspire suspicion. OK, politicians do get up to mischief, but are our guys completely innocent?

However when said jailing is accompanied by a blizzard of stories in which elections are cancelled, rules are changed, critical people are prosecuted for long-forgotten offences, companies and societies are abruptly closed, student unions disappear, and laws are changed to make it easier to prosecute … well never mind the details. The view from a distance is based on the overall impression: if it looks like a duck, walks like a duck and quacks like a duck … it’s a duck.

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National security guidelines: could this be Too Much of a Good Thing?

November 18, 2024 by timhamlett

Civil servants are to get a new set of guidelines next year, according to Security Secretary Chris Tang, which will show them how to safeguard national security in their daily duties.

Announcing this interesting project in Legco, Mr Tang said the exercise would “change the mentality and mindset of our colleagues, to embed the concept of national security in their brains.”

This seems to be asking a lot from a set of guidelines. But the really puzzling bit comes next. The new guidelines will be confidential. I quote from the HKFP report: “It must be confidential. If others know about how we remind our colleagues [to safeguard national security], those endangering national security will try to escape from [being caught],” Tang said in Cantonese.

And at this point Mr Tang really seems to have crossed from optimistic to delusional. According to the government publication Hong Kong the Facts, “As at March 31, 2024, the civil service employed about 173,100 people (excluding judges, judicial officers, officers of the Independent Commission Against Corruption and locally engaged staff working in the Hong Kong Economic and Trade Offices outside Hong Kong) or about 4.6 per cent of Hong Kong’s labour force.

Under modern circumstances – or for that matter in ancient ones – the idea of a secret being preserved between more than 170,.000 people is clearly preposterous. A professional spy will laugh at the idea. With so many targets he will expect to have an informant already – motivated in the usual way by ideology, money or sex – who will pass him the guidelines in a matter of days.

The amateurs who just enjoy sticking it to the Man will need a bit longer. But the end result will be the same. We could run a sweepstake on how long it will take before the guidelines are uploaded to some subversive website beyond the reach of the Hong Kong government. What is your money on? One month? Two?

The good news for Mr Tang is that this is unlikely to be a huge help to people who do not care for national security.

His idea seems to be that there is some secret giveaway, known to the Security Branch but not to its assorted enemies, which the well-briefed civil servant can spot in a subversive. If this secret gets out, then the assorted enemies can change their spots, abandon their tell-tales, whatever they are, and so avoid detection.

This sounds very much like the sort of thing which used to go on in European countries when they still believed in witches. Elderly lady living alone? Suspicious. She has a cat? Clearly an emissary from the Dark Lord. She has a broomstick? What more evidence to we need? Send for the witchfinder, who will find the definitive sign: a place where she does not feel pain.

We can all look forward with interest to discovering what the secret giveaway for national security violators might be. A foreign phone? Stays late in the office alone? Arrives early? Wears Pooh Bear tee-shirts at the weekends?

There is a serious side to this, of course. Whatever the concealed Mark of Treason might be, it is not going to be conducive to good morale if everyone in the civil service is constantly casting a suspicious eye over his colleagues.

There will, I fear, be cases in which a sincere mistake is made, leading to unjustified suspicion being cast, and much distress and anxiety to the victim. Alas, there will also probably be cases in which a spurious mistake is made, as a way of putting a spoke in the wheel of some rival candidate for promotion or apres-office sex. If you give everyone a dangerous weapon some people will mishandle it.

I do wonder if someone could perhaps persuade Mr Tang that even in national security matters there can be such a thing as Having Too Much of a Good Thing.

Civil servants are already required to swear allegiance to the government. Their code of conduct now starts with “upholding the constitutional order and national security.” Judicious pruning has removed objectivity and impartiality, so the persecution of independent bookshops and inconvenient political bodies is now unimpeded.

Most civil service jobs have little or no connection to national security, however broadly defined. They have taken the oath and read the code. Surely that should be enough. Or are they also required to love Big Brother?

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The law’s delays continued, and some public figures

November 6, 2024 by timhamlett

Well well. Government spokesmen of various kinds have been commmenting defensively on the slow-motion prosecutions which have left two thirds of the people arrested during the 2019 disorders still awaiting trial. I would not dare to attribute this to my nagging on the subject, but it seems there is some unease behind the scenes. As there should be.

According to the the latest figures, of the 10,279 people arrested 2,974 had been or were being processed in September, leaving about 7,000 still awaiting a decision.

First up was Secretary for Justice Paul Lam, who told Sing Tao that there was no statute of limitations on criminal cases in Hong Kong. This is inaccurate and irrelevant. There are in fact statutory requirements that prosecutions for some offences should start within six months of detection.

In any case the absence, if there were an absence, should perhaps be remedied. As a legal scholar put it: “legislatures implement a statute of limitation out of necessity to protect defendants from defending against purported injuries that challenge faded memories and lost records. The aim of statutes of limitations is not to set the guilty free, but to serve justice by ensuring that plaintiffs do not bring claims against which a defendant cannot properly defend.”

Mr Lam also said that he did not understand why people were complaining because those awaiting trial were free to “travel, work and study.” Well good luck with starting a career when you have the possibility of a four-year furlough in Stanley hovering over you. Travel is a tempting thought, though. I am not sure exactly how Mr Lam put it – the interview was in Cantonese – but he may need to work harder to avoid giving the impression that officials rather hope all these ungrateful malcontents will emigrate rather than face trial, sparing us a “bad story about Hong Kong” and leaving space for a replacement crew of compliant mainlanders.

Next up was Secretary for Security Chris Tang, in a briefing for selected media. Mr Tang said the delay in prosecutions was “not unfair” because the police needed time to gather evidence. He also said it would be against the rule of law principle if prosecutions were subject to a time limit, and gave the example of someone who murders his wife and flees the jurisdiction. If he returns 20 years later he should still be tried, Mr Tang believes.

As do we all, but this example has two deficiencies. It is an example of the most serious possible crime (well … unless you’re really hung up on national security) and of a delay entirely caused by the defendant, who could have had his trial promptly if he had not left town first.

Mr Tang said that if anyone was not prosecuted it would be making something legal which was illegal, an odd way of putting it. But there we are.

Neither of these gentlemen offered any alternative to continuing as at present. There were no ideas for reducing the workload or speeding up the work. The government is apparently happy to continue on its present course, which will lead to continued prosecutions hitting the court sheet until about 2035, by which time the defendants will have been waiting for 16 years.

No doubt they will then be consoled with a repeat performance from Grenville Cross SC of his piece in the China Daily recently, reassuringly headlined “Delay in protest cases is legitimate and unavoidable”.

This opens with some of the usual platitudes about the decision to prosecute, and continues to a fine example of the sort of legal argument which leaves lay people baffled and frustrated. Mr Cross introduces the “ancient common law doctrine” that “time does not run against the Crown” as indicating that prosecutions are not invalidated by delay.

This doctrine is indeed ancient. It would be unfair to describe it as a dinosaur. It is a fossil. Historians trace it back to the time of Willliam the Conqueror. Being ancient it was of course originally expressed in Latin: nullum tempus occurrit regi. In accordance with the ancient legal principle that proceedings should be as incomprehensible as possible to non-lawyers this is usually referred to simply as “nullus tempus”.

In the Middle Ages it did not apply to criminal matters, which were disposed of in a drastic and summary way. The question of delay did not really arise. Defendants facing serious charges were kept in jail until an itinerant judge charged with “gaol delivery” arrived and after brief hearings they were freed (if acquitted), mutilated or executed. Prison as a punishment did not appear until the 19th century.

The “nullus tempus” rule applied to the ownership of land. The common law rule was that if you had occupied the plot for 60 years – as far back as anyone could decently be expected to remember – then it belonged to you. But this did not apply if the would-be owner disputing your claim was the King. If your land had once belonged to the Crown then it made no difference how long you had been sitting on it.

This was manifestly unfair and it was abolished by two Acts of Parliament known as the Nullus Tempus Acts, in 1623 and 1769. Their full names (I cannot resist this stuff) were “An Act for the General Quiet of the Subjects against all Pretences of Concealment whatsoever” and “An Act to amend and render more effectual an Act made in the 21st Year of the reign of King James the First, intituled An Act for the General Quiet of the Subjects against all Pretences of Concealment whatsoever.”

And that was really that as far as English law was concerned. English judges now routinely throw out cases if they feel the prosecution has not been carried out at a decent speed. However as often happened in the old imperial days laws passed in London did not always apply in colonies, and shortly after the second Nullus Tempus Act the American colonies declared independence with the old law still on the books.

Many states have since abolished or modified the common law rule, because – as one judge put it – “The fundamental injustice caused by the nullum tempus doctrine is that it renders the public forever vulnerable to a suit by the State for long past conduct or omissions.”

The principle also lurks, for similar reasons, in some parts of Canada. As Hong Kong adopted the English system in the 1840s, long after the two acts, it has nothing to do with us really.

Emerging from this grey area Mr Cross canters through the territory explored by Messrs Tang and Lam, with whom (mirabile dictu, as lawyers would say) he entirely agrees, and observes that the courts have the right, which they occasionally exercise, to dismiss prosecutions if manifestly unfair, and reduce the sentences of people whose ordeal in the legal digestive system has been prolonged.

Mr Cross opines that “It is invariably in the interests of justice that those who commit offences should face justice, even if it takes time.” Whether he regards 16 years as acceptable in this context is, alas, not explored. But he adds that the police are investigating in good faith and are doing their best to get the whole thing over with.

Actually I entirely agree with that last point. Because we have also had, since I last visited this topic, the result of District Judge David Cheung’s request for a time-line of the prosecution which had arrived in his court earlier this year.

According to HKFP’s intrepid reporter, he summarised the result as follows: “Cheung said police spent three months investigating the case, while the Department of Justice used two years and three months to give legal advice.”

Just in case you weren’t listening carefully I’ll repeat the most interesting part of that: “the Department of Justice used two years and three months to give legal advice.” What? No analysis of hours of video, no missing street cameras, no extended and detailed investigations? Nope. The police did their thing in three months.

The Department of Justice operated at a speed which beggars belief. It took them longer to produce an opinion than many writers consume over a book. George Simenon could have written two novels in that time. Precocious babies who were born when the file hit some government lawyer’s in-tray were talking and walking by the time it had crossed the desk to the out-tray.

The remaining two and a half years still unaccounted for were, I presume, consumed waiting for a court and a judge to be available. This shortage was entirely predictable and – thanks to the Department of Justice’s contribution – the government had two years to tackle the problem, which it did not.

Now look, the issue of unreasonable delay in proceedings is not a matter on which mediaeval lawyers had the last say and it is not a simple matter of saying that justice must take its course, even if it takes time. This is a matter of human rights on which there are international standards. Human rights instruments often include the requirement that trials should not be unreasonably delayed, and if they do not this is usually inferred anyway from the more fundamental obligation to provide a fair trial.

There will always be cases where this is difficult for good reasons. The British system managed to get some rioters into court in a matter of days recently. On the other hand the trials ensuing from the investigation of the Grenfell Tower fire in 2017 will not start until next year, about which there have been some bitter complaints. The public inquiry was put first.

But the principle is that defendants are entitled … not allowed to hope for, entitled … to a speedy trial unless there are good reasons for delay and the case is so important that a bad trial is better than no trial at all. Otherwise the remedy is, and should be, to drop the case altogether.

If the government cannot bring itself to stop the flow of cases and leave some pouinds of flesh uncollected then there really needs to be some serious thought about how we can stop the whole saga from running uncontrollably into the next decade.

In the old days Hong Kong magistrates’ courts had a way of handling hawking offences in bulk. The day’s crop of suspects would be lined up at the back of the court. The clerk would read out their names and announce that these defendants would be fined $10 if they pleaded guilty, which of course they all did.

I suppose many of our 7,000 waiting suspects would be quite happy to be invited to plead guilty before a magistrate, whose sentencing powers are much less than those of a district court judge. That would overload the prison system so we may also need to revive some alternative punishments. The Italian government has built a camp in Albania which the courts will not allow it to use for asylum seekers. Bring back transportation?

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Cheaper booze is an interesting budget boon

October 31, 2024 by timhamlett

The tax cuts on “premium liquor” have some claim to be the most inconsequential part of the recent policy speech.

Liquor in this context means the hard stuff: whisky, gin etc. Premium means the most expensive versions of the hard stuff. Even the government announcement admitted that this would only be 15 per cent of the total market for strong plonk.

The way this works is that the current tax rate is 100 percent, which means that half of what you pay for a bottle goes to the government. Under the new regime the tax rate will be cut to 10 per cent, but only on the part of the price over $200.

If I have understood this correctly, it means that if the bottle costs $250, the government will take only $105 instead of the $125 it was taking before. This saving is unlikely to be noticed by drinkers because bars get between 16 and 30 shots out of a bottle, depending obviously on its exact size and the generosity of the measure.

Technically this converts the liquor tax into a “regressive” one, in that it now falls more heavily on the poor than on the rich. The tax on the people’s plonk remains 100 per cent. The aristocratic $1,000 bottle, on the other hand, gets a $720 tax cut. You have to be a serious optimist to believe that much of this windfall will find its way to consumers.

A quick unscientific survey of my local supermarket suggests that most liquor, even of the more pretentious kind, comes in at under $300 retail. There will be no big cut in the prices of gin, rum or vodka. The people who might notice the difference, if they bother to look, come in two categories: fine diners and the fans of the more obscure and interesting variations on Scotch.

Brandy as the conclusion of an expensive meal has a long history. There is a distressingly elitist passage in Brideshead Revisited in which an otherwise harmless character is dismissed as a parvenu peasant by the narrator because of a poor choice of Cognac.

But people who go in for brandy at the end of a meal are not going to be bothered one way or another by the price of a glass or two. Firstly if they are indulging in fine dining they are rich. Secondly they have probably already coughed up for an aperitif, white wine with the fish, red with the meat, something sweet with the dessert. Brandy, because it is commonly served by the glass, will be comparatively cheap.

As one of the fanciers of unusual and expensive variations on whisky I am really looking forward to a dramatic fall in the price of aged single malts. But this is very much a minority pursuit. Most bars will have a bottle or two somewhere. But the only Hongkong bar I have visited where this drink was taken seriously was an aggressively Scottish place in a Wanchai basement where the regulars could leave their personal bottles in glass cabinets to await the next visit.

I do not expect to see cohorts of mainland whisky fanciers being escorted through the streets to their next tasting of 12-year-old GlenMcMillionaire.

This does not hold out much hope for the purpose of the tax cut: “promoting the liquor trade and boosting the development of high value-added industries, including logistics and storage, tourism and high-end food and beverage consumption.”

I am an agnostic (or, less politely, ignorant) on the finer points of the logistics and storage industries, but as a former bar manager I note some lack of basic information in our leaders about the way this business works.

When I started in the booze business I read the bar management bible. There are lots of books about this topic nowadays but in those days there was only one, and that only existed because its production was sponsored by the pub landlords’ trade association.

Little of it has stayed in my memory but I do recall one injunction: don’t waste the good stuff on mixed drinks. What this means is that if you order a liquor on its own, or just with an icecube or a splash of water, you will get the best bottle the bar staff can lay their hands on. But this will not happen if you prefer it as a “cocktail” mixed in a tall glass with some or all of pop, syrup, fruit juice or a mediaeval monastic medicine chosen for its interesting colour. You will get the cheap stuff.

In any case the cost of the inputs which are actually eaten or drunk by the customers is a very small part of the cost of running a high-end establishment. Cheaper plonk does not guarantee lower prices. And actually lower prices do not guarantee more business. The more thoughtful economists are well aware that there are some goods to which the usual laws of supply and demand do not apply.

High prices of these goods are not a deterrent; they are an attraction. The Michelin starstruck are lambs who want to be fleeced.

Still at least this is all harmless enough, and lovers of the more exotic variations on whisky can look forward to a good time.

The other brainwave in circulation as a tourism boost is a major disaster in the making. The idea is to allow kids into racecourses, whence they are at present banned because of a sensible tradition that blowing money on slow horses (as for fast women) should be confined to adult audiences.

When I was a kid my parents took me to a horse racing meeting, which was allowed in the UK. It was terminally boring. Nothing happened for 40 minutes and then a herd of horses thundered briefly by, evoking great excitement among the adults because they had money riding on some of them. This was repeated throughout the afternoon. Do not inflict this on your children.

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A visit from Holmes, with apologies to Mr Doyle

October 21, 2024 by timhamlett

The great detective eyed his temporary refuge in a Hong Kong hotel with distaste. “Come Watson, you have read the free newspaper. What is exercising the local scribes?”

“It appears,” said the doctor, “That dissent has broken out among the local governing team.”

“Of course it has,” said Holmes, “having eliminated all opposition they have nobody to fight with but each other. What is the row about?”

“Not exactly a row, said Watson, “but the Secretary for Culture, Sports and Tourism was publicly scolded by the Chief Secretary in the policy speech. A whole paragraph.

“Goodness me, what had this unfortunate triumvirate done to deserve such a public humiliation?”

“You misunderstand, Holmes. This is not a triumvirate. One minister is responsible for all three: culture, sport and tourism. It is a Mr Kevin Yeung.”

“That is a strange arrangement, Watson. It is like putting the nerds and the jocks in the same quiz team. Also there seems to be a danger that objectives will be confused. Is the main purpose to pursue healthy minds, healthy bodies or healthy bank balances.”

Watson grunted. “We’re in Hong Kong now. Bank balances.”

“And where did Mr Yeung come from? Is he a cultivator, a sportsman, or a tourist?”

“Actually, he was a bureaucrat,” said Watson. “Impartiality is guaranteed.”

“Very well, said Holmes, “so what has the secretary done to annoy his master so much.”

“This is a good question,” Watson replied. “Miss Mary Ma, writing in the Standard, reports much bewilderment as to why the falling out was so serious, and so public.”

Holmes frowned. “Miss Ma is not trying hard enough. This is a young administration. One of two things may be happening. The secretary may bave been appointed over the Chief Secretary’x objections, in which case he is trying to show that he was right to oppose the idea. Or the secretary may have been appointed over someone else’s objections, and the Chief Secretary is trying to show that he can get his protege up to the mark by – what is it the young people say now? – putting a rocket up his posterior.”

“Well,” Watson replied, “according to Miss Ma, Mr Yeung has not been diligent in following up a suggestion from Mr Xia Baolong, who is the Chief Secretary’s superior. The idea is that Mr Yeung should, let me see, ‘draw up a master plan to develop an industry out of arts and culture, which are also tied to creativity.’”

Holmes dropped his pipe, spilling something which looked suspiciously like a Controlled Substance onto the carpet. “An industry out of arts and culture! What a preposterous notion! Do we not know that art and culture concern the pursuit of the good, the true and the beautiful, while industry concerns the pursuit of money?”

“I think the idea might be the pursuit of soft power,” Watson ventured.

“Ah,” Holmes replied, “the idea that people who like our movies will overlook our human rights violations. But this hardly seems suitable for Hong Kong.”

“Why not? Miss Ma says that if Japan and South Korea can succeed in this, why not Hong Kong?”

“Miss Ma’s question answers itself,” said Holmes. “Japan and South Korea enjoy creative freedom. Hong Kong does not. If I were just to go downstairs and hum [NAME OF SUBVERSIVE TUNE REDACTED] I might be arrested. Here we have films censored, plays banned, artists like [NAME OF SUBVERSIVE SINGER REDACTED] out of work, groups who cannot find venues and books banned from public libraries. Even writing about me may be [SMEAR REDACTED].”

“Come Holmes,” said his faithful acolyte. “Surely it cannot be as bad as all that. Is it not true that the law-abiding have nothing to fear?”

“Would that it were true,” said the great detective. “But even innocent people are affected. My old friend the arborist Jennifer Juniper told me yesterday that she cannot get a publisher for her latest book about local forests.”

“That is a shame. Why is there a problem?”

“Something to do with the title, apparently. She wanted to call it ‘Tree Hong Kong. Evolution of our Pines.’”

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