tim's experiment

The row over autonomy at HKU took a surprising turn last week, when the People’s Post published a long piece by one Tony Carty, who was described in the usual endnote as the Chair in Public Law at the University of Hong Kong. As it seems unlikely that the furniture at HKU is writing op ed items I take this to mean that Carty is a Professor, and a law professor at that. He is in fact (according to Wikipedia) two professors, as he holds down a similar job in Aberdeen.

Prof Carty led us through the background, in four paragraphs, and said that as he could not read the 350 hostile articles about Johannes Chan in the left-wing papers he had asked one of his PhD students to translate one. This could be considered a rather small sample but we are not in a social science class here so let that pass.

Prof Carty then lists three “criticisms” in the article: “Chan’s policy of having assistant professors without research degrees supervising mainly mainland PhD students; the faculty holding apparently academic meetings which are actually expressions of political activism; and appointing many senior Western academics who are not noticeably academically productive in research while in Hong Kong.”

And the Prof goes on to say that “If there was to be a judicial review of these smears, I would expect any judge to say that they are “fair comment'”. Oh dear me. Let us not linger over the fact that Prof Carty’s writing skills do not include the use of the subjunctive. He is not exactly scintillating on the law either. Judicial review is a procedure in which a judge considers the propriety of an administrative decision. It has no place here, except perhaps to impress readers who are sensitive to legal mumbo-jumbo. “Fair comment”, comes from the law of libel and is the old name for the defence which has been called “honest comment” since the Court of Final Appeal’s decision on Cheng v Tse in 2000. This protects the expression of honestly held opinions. But the three criticisms which Prof Carty lists are not matters of opinion. They are matters of fact. The maker of the statement would be required to prove to the court, on the balance of probabilities, that it was true that there was a policy that assistant professors without research degrees should supervise mainland students, that apparently academic meetings were held for political purposes, and that Western academics were appointed and then did little research. If the newspaper established these facts, then the further inference that because of his poor taste in research supervisors, meeting agenda and visiting scholars Johannes Chan should not be appointed a Pro Vice Chancellor would be an honest comment. But a comment must be based on true facts to enjoy the defence. And it must be a comment, not an opinion about a factual matter. If you write a piece saying that X beats his dog and his wife, only to discover that he is a dogless bachelor, then the fact that you honestly believed the tale will not help you.

Alert to the possibility that this might be an interesting piece, I trudged on to Prof Carty’s account of the appointment of Chan’s replacement as law dean. The relevance of this is that the new dean does not apparently share Prof Carty’s horror at the idea of a law teacher participating in Occupy Central. There seems, however, to be another problem here. An alternative candidate, who was not selected, was “a leading world specialist in the common law, with the inevitably much deprecated PhD from Oxford in the philosophy of the common law…” Well actually he didn’t have a PhD, deprecated or otherwise, because in Oxford they call it a DPhil, but what is going on here? Could it be, one wonders, that Prof Carty has a PhD and feels it is not getting the respect it is due? Johannes Chan, as we all know, hasn’t got one, and neither does his replacement. Neither do I. The relative merits of a research degree or a career in a real job are a recurring problem in professionally-orientated departments.

Now we come to the heart of the matter. A nameless “law graduate” had written publicly to Johannes Chan, asking how a teacher of law could be a leader of Occupy. Chan’s reply seems to have run to some length. In the middle of it is the sentence “It is a classic debate in any jurisprudential class whether the laws asking the Germans to kill the Jews are law even when such law has been duly passed by Parliament.” Chan goes on to say that opinions about breaking the law as a protest are a “political choice” and a respectable academic institution should not “penalize someone simply because we do not agree with his political choice”.

Prof Carty pounces: “In other words, if a law professor in Hong Kong chooses to consider the Chinese government the equivalent of Nazi Germany and organizes mass illegal demonstrations to force the resignation of the chief executive, such is he personal political choice and not the concern of HKU.”

Hold on a minute. Nobody is saying that the Chinese government is “the equivalent of Nazi Germany”. The Nazis come up in discussions of whether it is ever wrong to break the law. They come up for one purpose: the refute the naive and simplistic idea that it is always wrong to break the law. Prof Carty seems to take a rather primitive view of the matter. The point is that there are circumstances in which it is clearly not wrong to break the law. That does not mean that it is always right to break the law. It means that in any particular case we have to consider the circumstances in detail. We cannot just jump to the easy conclusion that illegal = wrong.

It may also be useful for lawyers to bear in mind that the public has no difficulty in seeing variations in the seriousness of illegal acts. It is, for example, illegal to enter an MTR station for the purpose of protesting against the corporation’s luggage rules. But anyone who got huffy about that would be considered to be lacking a certain sense of proportion. Professors do illegal things all the time … and we pay our parking fines like the rest of the population. Most people consider quite reasonable the HKU line that a prof who meets his job obligations has a right to do pretty much what he likes out of the office. It seems that the government also takes this view with its own employees. The Development Secretary, Paul Chan Mo-po, lost a spectacular libel action last week. This would once have been considered a serious blemish on the honour of a public servant, requiring resignation. Not these days, apparently.

Rather surprisingly Prof Carty comes to the conclusion that the decision not to appoint Johannes Chan was political, and it is “only to be expected” that the government’s appointees and supporters “will avail themselves of the advantages which they have, under the colonial-style constitution of the council, to resist Chan’s appointment.” So it’s political, but he’s OK with it, because Chan is part of the worldwide pro-democracy, anti-China conspiracy.

This is all rather disappointing. It seems to me that Prof Carty has an unfortunate habit of taking quotes out of context, interpreting them in a way which is clearly unfair to the speaker, and as a result coming to a rather sensational conclusion. This is perhaps the sort of thing which journalists do, but then journalism is, as Max Hastings puts it, “a profession for cads and bounders.” Professors, on the other hand, are supposed to be gentlemen and scholars.

The function of tragedy, according to Aristotle, is to inspire terror and pity. Recent goings on at Hong Kong University fill the bill nicely. The usual “search committee” settled on the idea that Johannes Chan should be a pro Vice Chancellor (PVC). Mr Chan was then subjected to a barrage of abuse — literally hundreds of articles — in the PRC’s poodle press. The University Council decided to postpone the matter while the question of who did what over donations to Occupy Central was clarified. This was done. Then the council found another reason, and postponed the matter again. This reason (wait for appointment of new Provost) having collapsed in a heap they tried another one. This week the excuses ran out and the council rejected the appointment altogether. The council has clearly taken leave of its collective senses.

Many years ago, owing to some quirks in the constitution of the University of Lancaster, I was a member of that university’s Council for a total of five years. Nothing remotely like this ever happened. There are good reasons for this.

Contrary to what some members of the HKU version apparently believe, it is not the job of the University Council to run the university. Power in universities is deliberately divided between the Senate and the Council. The Senate is an academic body whose members are engaged in teaching and research. These matters are the main purpose and function of the university and they are properly a matter for the Senate and its off-shoots. There are, however, matters involved in the management of a university which do not involve teaching and research as such. Scholars are supposed to be unworldly creatures who should not be left by themselves to deal with members of notoriously shady professions like building and banking. The purpose of the Council is to provide the input of lay people – who in academic terms are amateurs – on practical matters. It should ensure that the university is not bankrupt, is adequately housed, conforms to the law and responds appropriately to external conditions like the demand for particular kinds of graduate in the labour market.

The requirement that senior posts be endorsed by the council is supposed to ensure that the number of expensive appointments is not unreasonable in the light of the university’s needs and resources. It is not intended to allow lay members of the council to make their own personal assessments of the merits of individual candidates, and impose them on the university.

This is particularly the case when the search was presided over by the Vice Chancellor. The V-C is the full-time specialist administrator responsible for running the university and while I can recall Council members expressing misgivings about particular policies or ideas, I can recall no occasion when the V-C’s clearly expressed views were contradicted or ignored. Indeed this is so unusual that I am rather surprised the Vice Chancellor concerned has taken it so calmly. In such a situation many people would be considering resignation. If the council makes it impossible for anyone else to run the university without interference they will soon find that a “search committee” — supposing anyone is prepared to waste his time by sitting on it — is not finding anyone worth hiring.

The ensuing discussion of the veto has been illuminating, mainly because the student rep on the Council, one Billy Fung, decided that it would be of some public interest if he disclosed what was actually said in the meeting. This produced much huffing and puffing about confidentiality, but there is, as they say, a time and a place for everything. There have also been some disputes over the accuracy of Mr Fung’s recollections. So let us not go into exquisite details. Clearly, though, some of the discussion revealed more ignorance than enlightenment. They also revealed an interesting contradiction. If this is an academic appointment, requiring particular qualifications or a substantial research background, then that is not a matter for the Council. They are not themselves academics. The composition of the search committee should reflect the requirements of the job, and their view on the matter should prevail. If on the other hand this is an administrative post, then the matter of qualifications, experience and publications should not arise. There is no need for administrators to be scholars. When I was a student at Kings College London it was being run, with great success, by a gentleman whose previous appointment was as the General Commanding the British Army of the Rhine. Most administrators in those days had chosen it as a career after graduation, started as departmental administrators and worked their way up. They did not have PhDs. I think this is still the case in many places and I was rather surprised to find so many PhDs in university administration in Hong Kong. I do not think this has anything to do with the job requirements. Academics like producing PhDs because every research student is also a teaching assistant. So there is a surplus.

The other interesting revelation produced by Mr Fung’s indiscretion is provided by the diligence of reporters asking council members who voted against the appointment what they had to say on the matter. Quite a lot of “no comment”, of course. Arthur Li came out squirting venom – “This guy is a liar” – as is his personal habit. Also revealing a nasty side was Leonie Ki Man-fung, who combined her “no comment” with a vicious personal attack on Mr Fung, who apparently, among other sins, has “no integrity”. Coming from someone who can look back with pride on a long career in advertising and PR this is a bit rich.

What the councillors did not say was as interesting as what they did. Nobody, apparently, at any point mentioned the word “occupy”. Clearly they think we’re all very stupid…

Look at this way. If Mr Zhang Xiaoming, chief of the central government’s liaison office in Hong Kong, had stood up at a public function and said that the Occupy Central movement was organised by little green men as a preparation for a Martian invasion, we would all have giggled. But the Martian invasion theory cannot be dismissed as totally off the planet, as it were. Absence of evidence is not evidence of absence. We may feel it is a long shot but it cannot be positively disproved. Perhaps there was a Martian connection.

What Mr Zhang did say at a recent celebration of the 25th anniversary of the Basic Law, on the other hand, was not just unlikely but palpably and demonstrably wrong. The Chief Executive of the SAR, according to Mr Zhang, “possesses a special legal position”. For this reason he was above the executive, legislature and judiciary … “his power is not limited to leading the Hong Kong administration”.  Mr Zhang’s first error was to include the word “legal”. Of course we may well suppose that the CE does enjoy a special position – he enjoys the protection and advice (usually bad) of the Liaison Office. If he is in real trouble he can call on the support of the PLA. But we cannot deduce his legal position from observations of this kind. His legal position derives from the law, specifically in this instance from the relevant articles of the Basic Law, which specify his powers and role, as well as those of the other parts of the government. Mr Zhang’s fundamental error is to suppose that the law is whatever he says it is. This is the way things work on the mainland, but it is not yet the way things work here.

Let us suppose that you are accused of a crime. Let us further suppose that the Chief Executive publicly orders the court to convict you. This is a clear breach of Hong Kong law. The court will disregard the order. The CE will be prosecuted (albeit, the way things are done these days, very slowly). If it is argued in his defence that he enjoys a special legal superiority over the courts, conferred by the chief of the Liaison Office, then the defence will fail. Legal authority in the Hong Kong system derives only from the law, as interpreted by judges. Mr Zhang’s pronouncements enjoy no special status and indeed if he breaks the law himself he will be arrested and (extremely slowly) prosecuted. At least in theory. This is what the rule of law means, among other things.

Not content with annoying the simple by elevating the CE to godlike status Mr Zhang proceeded to irritate the constitutionally sophisticated by chatting about that mysterious beast, the separation of powers. The separation of powers was invented in the 18th century by the French political theorist Montesquieu, who picked up a moderate version of the idea from Blackstone and, as French intellectuals tend to do, carried it to its logical conclusion. The power of government commonly takes three forms, according to the theory – to run the country, which is executive, to make laws, which is legislative, and to adjudge disputes, which is judicial. Montesquieu claimed that the English system owed its success to the fact that the “three powers” were separated. In his defence we should perhaps note that the alternative political model in 18th century Europe was absolute monarchy, in which the powers were not separated at all. Still, it is now generally agreed that the three powers were not actually separated in the 18th century. Nor are they now. The idea had much influence on the framers of the American constitution, but it is impractical. Some overlap cannot be avoided. Even in America the President appoints some judges and his approval is required for legislation. Congress has unavoidable power over policy because it controls the purse strings.

So when Mr Zhang says, as he did, that “Hong Kong is not a political system that exercises the separation of powers — not before the handover and not after the handover — ” What can one say? No shit, Sherlock, perhaps. Or Doh!

I suspect that Mr Zhang was not really addressing the Hong Kong audience at all. There seems to be a backstage tussle going on between those who think that Hong Kong’s problems can be solved by redressing grievances and reforming the system, and those who think they can be solved by repressing dissent. It is suggested — and when dealing with a secretive organisation I realise that this may be unfair — that the Liaison Office is pushing for repression and the Hong Kong and Macau Affairs Office in Beijing for reform and redress. This sort of controversy can run and run. A similar argument over Ireland preoccupied English governments for four centuries. Clearly any attempt to soothe rugged feelings by giving the people what they want will have to start with the thought that C.Y. Leung should be removed from the scene as soon as decently possible. But he is the Liaison Office’s pick. So any attempt to remove him from his pedestal would imply (quelle horreur!) a bad choice by them in the first place. Better to provide a higher pedestal. Personally I think the priorities in the Dump CY campaign are misplaced. It would be more useful to get rid of Mr Zhang.

Sit down children. We have been urged to learn the lessons of history but those lessons have been much mangled lately so let us straighten a few things out.

1. China did not win World War Two. In fact if it had been left up to the Chinese war effort we would all be speaking Japanese now. Chinese people suffered terribly, but the efforts made on their behalf were totally unsuccessful. They were rescued by the Russians, like the rest of us.
2. The atom bombs did not end World War Two. Never mind the argument about whether the Japanese were sincerely considering surrender before the bombs were dropped. If you look at the records of Cabinet meetings afterwards the atomic bombing was scarcely mentioned. The US Air Force had been incinerating Japanese cities by less technological methods for months. This was not a government to be discouraged by civilian casualties. The decisive point was that the Russians had declared war on Japan and would, as they did, rapidly “liberate” the occupied parts of China, and gobble a few fragments of Japan itself.
3. The Communist Party did not win the Civil War because of all that interesting metaphorical stuff about the fish and the sea, surrounding the cities with the countryside and such like. There were big setpiece battles and sieges of mediaeval ferocity. The Party’s advantage was that the Russians handed them an army’s worth of good conventional equipment. The Americans were less generous to the nationalists and their stuff was not as good.
4. Since the war the PLA has seen action in North Vietnam, India, Russia, Tibet and Korea. In that time Japan has had a pacifist constitution and followed it. The Chinese constitution is rewritten every ten years or so and nobody follows it anyway. Who would you regard as an uneasy neighbour?
5. Parades for Peace???

This blog was not supposed to be a running commentary on the eccentricities of Hong Kong’s magistrates. But someone has to say it. Standards appear to have collapsed. I realize that cases with a political flavour put the impartiality of justice under a strain to which it may not be accustomed. But that is no excuse for abandoning basic standards.

So, here we have Eastern Court magistrate Lee Siu-ho, hearing a case of alleged unlawful assembly. The defendant, a sixth former now 18 years old, was apparently detected sitting on a central divider and throwing a plastic traffic cone into the road during an Occupy protest last October. Proceedings continued along the normal channels until defending counsel’s closing argument, which was that the prosecution had failed to prove a necessary ingredient in the offence. An assembly, lawful or otherwise, must comprise more than one person and the evidence only showed that defendant Law Cheuk-yan had acted alone.

A lay observer might suppose at this point that young Mr Law was ten minutes away from the standard interview on the courthouse steps, averring his undying faith in Hong Kong justice, and his gratitude to all concerned for a finding of not guilty. But this is not what happened. The learned magistrate then announced that he was going to change the charge to one of disorder in a public place. Mr Lee then convicted Mr Law of the new charge, and adjourned the case for reports before sentencing.

The law on this matter is quite clear, and indeed Mr Lee demonstrated his awareness of the point by citing the ordinance concerned, Section 27 of the Magistrates Ordinance. Section 27 says that a magistrate may amend defects and variances in complaints, information and summonses before him that are not material (my italics). In other words the magistrate is free to overlook misprints, errors in addresses or names, and similar trivia if they do not affect the substance of the matter before him. This does not provide carte blanche for the magistrate, having heard both sides of the matter, to delete the charge on which he would have had to aquit the defendant, and replace it with another more promising for the prosecution. Clearly if the defence has been that an essential element of the original charge was not proven, then it is highly material to replace the charge with one that does not have this requirement. After all the defence is entitled not only to make the defence it wishes, but also not to make others which in the circumstances are not necessary. If Mr Law and his counsel had known the charge would be disorder then they might have concentrated on other matters, considered other arguments, and sought other witnesses.

Authorities on these matters have different ideas about when in the proceedings the defendant should be told what is the charge he faces. But they generally concurr in the view that this point should come before the end of the presentation of his defence. Then there is the Hong Kong Bill of Rights Ordinance, which states that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal”. Mr Law may well feel that his treatment did not come up to this standard. Mr Law (an interesting name in the context) may feel that there is an ass involved here. And it is not him.

Dear me, this is not the way it was done when I was a court reporter. Last month three men were convicted in the Eastern Magistrates Court of malicious damage and illegal assembly. The magistrate ordered them to do 150 hours of community service and pay costs. On Monday the whole case was reopened at the behest of the prosecution, which complained that the sentence was insufficiently stringent. The magistrate, principal beak Bina Chainrai, decided to take a different view of the matter, and sentenced them to three and a half months in prison.

There is no equivalent procedure in English courts, though the prosecution can appeal against errors in law to the High Court. Allegedly erroneous sentences, on the other hand, stand. The only reason why the Department of Justice is allowed a second bite of the cherry in Hong Kong is because this is a colonial relic. During the early days of colonialism in Hong Kong it was not necessary for a judge to be a lawyer. The first magistrate was a converted policeman. In the early 1880s there was some discussion as to whether it was necessary for a magistrate to be a lawyer, and the government concluded that it was not, and appointed a school principal to the job. Well into the 20th century the Harbourmaster exercised jurisdiction over offences committee on ships, and well into the 50s District Officers were expected to resolve legal disputes in their districts, though they were offered a short law course to help them. Under these circumstances there was clearly a danger that a magistrate would do something  nonsensical, and it was desirable to have a simple procedure whereby a proper lawyer could revive the case and invite the magistrate to think again.

But that was then and now is now. The learned magistrate in this case was neither junior nor unqualified. The prosecution had enjoyed every opportunity to put its case, both for the guilt of the accused and for condign punishment. No doubt there is always room for second thoughts, but there are worse things than the odd miscreant getting off light. The arrival of a government lawyer asking, and getting, a drastic change in the conclusion of a case which has already been decided looks disreputable. No matter how carefully the magistrate considers the matter there is an inevitable appearance of orders being given, and acted on. I see from the reports in one newspaper that Ms Chainrai said she could “see the severity of the offences from the video clips”. Were these clips not available at the original hearing? Justice mediated by video clips selected by the prosecution does not inspire confidence. Clips can be selected and edited to support many different points of view. You would think fairness would demand that the defence should be given the opportunity to view whatever video material is available before a biassed selection from it was put before the magistrate.  I suppose this did not happen.

This is not just a matter of injustice to the three men concerned, though that is serious enough in itself. Two basic principles of sentencing are being flouted at the behest of the Department of Justice. The first is that it is generally not considered a good idea to jail people for a first offence. The purpose of punishment is to discourage future transgressions. Merely being arrested and convicted is a traumatic experience for many first offenders. Alternatives to prison are cheaper and avoid disrupting those aspects of the criminal’s life, like his work and his family relationships, which will help him to avoid further crime. It is also generally considered wrong in principle to sentence people to terms of a few weeks or months. This causes maximum disruption to the convict’s life, while offering prison staff no meaningful opportunity to ensure that he leaves prison a better man than he was when he arrived. Short-term prisoners are likely to be resentful, suicidal or both. Their custodians have no time to build meaningful relationships with them, still less to embark on such things as psychiatric treatment, remedial education, job training, and such. Moreover since prisons are, as Peter Kropotkin put it, “universities of crime” it is quite possible that the short-term prisoner will be more corrupted than improved by his experience.

These matters are, it seems, not much discussed in Hong Kong. I am an avid consumer of legal memoirs. Some of their authors come across as really nice people (Kamal Bokhary, whatever you think of his opinions, is a sweet guy) and some of them don’t (no names here, for obvious reasons). The one thing that such books have in common is the complete absence of any discussion of the effects of sentences on the people subjected to them. The system chugs on, displaying a monumental indifference to the value of other people’s time and a distressing willingness to impose on minor criminal figures the sort of sentences which would be considered excessive for a murderer in other jurisdictions. Meanwhile the only contribution that government lawyers can make is to urge magistrates to take their sentencing cue from the op-ed page of the China Daily and other newspapers of that ilk, which have been complaining for weeks about the absence of custodial sentences for political protesters.

We are all urged to respect the law. Respect must be earned. We are supposed to have an independent judiciary and government lawyers could set us all a good example by behaving as if we had a judiciary independent of them.

Some well-justified praise for the legal machinery last week, when a man was convicted of murder under circumstances which tested the ingenuity and persistence of the prosecution team. There was no body, no scientific evidence of the kind which CSI has made so popular, and no sign of that staple of Hong Kong criminal proceedings, a confession. Nevertheless the defendant, a businessman accused of killing his mistress after his wife got wind of the relationship, was found guilty by the jury. No doubt this was what he deserved. It seems the prosecution relied heavily on the closed-circuit TV recordings of his comings and goings to the clandestine flat. This is not a completely unprecedented case. In the old Penguin Famous Trials series there was one case whose sole claim to fame was the absence of a body. It concerned a steward on a passenger ship who had what we would now call an “inappropriate relationship” with a lonely female passenger. She disappeared and investigators concluded that the steward had killed the lady when she threatened to reveal all. He then bundled the body out of a porthole. The steward was convicted and, after the barbaric custom of the times, hanged. The absence of capital punishment has taken some of the thrill out of murder trials but no doubt the latest Hong Kong one will merit at least a footnote in some history of such matters.

It leaves me wondering, though, why local prosecutors who can rise so splendidly to the occasion when required to make bricks without straw, make such heavy weather of matters which you would think were much easier. Look for example at the case of the Police Superintendent who was filmed taking a wild swipe at a cringeing member of the public; the video can be seen here: https://www.hongkongfp.com/2015/08/03/police-seek-advice-from-justice-department-on-superintendent-assault-case/

You would have thought that this case presented local legal eagles with the prosecutorial equivalent of a penalty kick against a blind goalkeeper. Nobody who has seen that video can be in any doubt about what happened. The victim is also publicly known and is apparently willing to give evidence. Yet no progress has been made on this matter at all. It has been considered at extraordinary length by the committee which oversees police complaints. The committee came to the entirely unsurprising conclusion that the superintendent had assaulted the protester concerned. But it is not customary for criminal proceedings to await the outcome of related police complaints. On the contrary defendants who have made a complaint usually come to trial long before the complaint has been unsubstantiated, as such complaints usually are.  What can be taking so long, one wonders.

Then there is the case of the Magnificent Seven, who appeared on television news beating and kicking a protester who was not engaging in any disorderly activity at the time but was lying on the ground bound hand and foot. The relevant footage, without commentary – judge for yourself – can be found here: https://www.youtube.com/watch?v=so1SdZmZuvc

Once again you would think that this presented something of a forensic sitting duck. There is no doubt who was involved, or what they did. The victim is willing to testify to his ordeal and I suppose the camera crew could also be recruited by a prosecutor who wished to take no chances. We have some hint as to what may be the problem here: according to the Secretary for Justice the matter is being considered by a Senior Counsel. This is apparently a time-consuming process and one has to wonder what the said counsel is taking so long over. Is he considering the argument, advanced in the superintendent’s case, that policemen on Hong Kong streets have a legal right to treat members of the public in a way which would be illegal if applied to a dog? Is he considering some exotic variation on self-defence, provocation, droit de seigneur?

In the absence of answers to these question we are left to wonder if a similar delay would have ensued had seven protesters been filmed beating the crap out of a policeman.

The news that 200 lawyers have been arrested could be considered a minor blip by China’s standards. After all over the years the Communist Party has killed people by the million. Many of the lawyers have been released, or at least released into “house arrest”. Some of them have simply disappeared; no doubt they will turn up eventually. Still this is a significant incident, because it draws attention to an aspect of “one country two systems” which our leaders constantly neglect. The attraction of the arrangement for China is that it preserves Hong Kong’s value as a place for economic and financial innovation. The attraction for those local super-patriots who for years were prepared to do anything for China except live in it, is that it unites us all with the motherland. But for the majority of the Hong Kong population the big attraction was and is that it allows us to satisfy the Mainland’s urge to expand its boundaries while sparing us the dubious pleasure of sharing in many aspects of life in the PRC.

This is the underlying problem with C.Y. Leung. The first two CE’s knew what was going on. They did not say it, which would have been tactless, but they did not lay on the prospect of greater integration with too much enthusiasm either, because they knew this would not be welcome. Mr Leung appears to be sincerely deluded on this point. One of the things which Hong Kong can do without is the experience of living under the Chinese legal system. The tactful way of saying this is that Hong Kong can continue to have the rule of law. The unspoken implication of this is that China does not. We are from time to time urged to respect the Chinese legal system – usually by some dim bulb like Elsie Leung. This is the local equivalent of that scene in 1984 when the hero is persuaded to agree that if Big Brother says 2+2=5 then 5 is the right answer. China does not have a legal system worthy of respect. Indeed it would probably be more accurate to say that it does not have a legal system at all. The structure which is called the legal system does not meet any of the requirements of its name. It neither reliably convicts the guilty, nor acquits the innocent. It fails alike to protect the weak or restrain the powerful. It does not even achieve the minimal requirement of ensuring that similar facts produce similar legal consequences. The latest wave of arrests, indeed, suggests that enthusiasm for legal methods has waned, at least as far as citizens charged with political crimes are concerned.  The lawyers’ offence is clearly to have supposed that their role in a trial was to explain and defend the conduct of the accused. This is not the way things are done in the PRC; the role of the defence lawyer in the Party’s view is to help and encourage the defendant in the drafting of his confession. The guiding spirit behind the legal system in China is not Confucius. It is Josef Stalin.

For this reason people in Hong Kong are very alert to any item of news suggesting that standards in Hong Kong are changing in an ominous direction, and this brings me to magistrate So Wai-tak. Mr So was presiding the other day over the trial of a protester convicted of punching a policeman.  Sentencing the miscreant to ten months in prison, Mr So reportedly said that he would not entertain some points made in mitigation by defending counsel, because to do so would “disrupt the police force’s morale”. This is an interesting innovation. I once listened to a great many sentencings. Sentencing is, judges maintain, an art not a science, and a variety of things are considered. There is the instinctive human feeling that the punishment should be proportionate to the gravity of the crime. There is the belief (wholly discredited by the evidence but warmly cherished by judges all the same) that harsh sentences discourage other people from like offences. There is the belief, also perhaps a bit optimistic, that the experience of punishment will turn its recipient into a better person. In some jurisdictions at least there is also some consideration of the feelings of the victims of the crime concerned. Experts in medicine and sociology are commonly consulted in an effort to dispose of a case in a way which is at once fair, humane and socially useful. There is a lot to think about. But I have never before heard it suggested that one of the purposes of sentencing was to increase happiness and good cheer in government departments.

Perhaps Mr So’s efforts were conducive to good police morale. But why should the police be the only recipients of judicial benevolence? Shall we see tax dodgers tarred, feathered and run out of town on a rail to cheer up the Inland Revenue Department? Will people who pose as bogus doctors be hung, drawn and quartered to boost morale in the Medical and Health Department? It also seems to me that Mr So is storing up some serious potential problems for his colleagues. Let us suppose, in a purely hypothetical way with no resemblance intended to real persons alive or dead, that seven policemen appear before a local magistrate, and are convicted of carrying a handcuffed protester away to a quite corner and beating the crap out of him. This is just a thought experiment; I realise that such an occurrence is highly unlikely. Will the magistrate then consider the morale of the police force in passing sentence? And if so, with what consequence? If our imaginary policemen do not get ten months in prison, there will surely be some among us who detect somewhere a violation of the old principle that justice should be done even if the heavens fall as a result. Mr So will find this phrase in the original Latin (fiat justitia ruat caelum) in any decent biography of the 18th century judge Lord Mansfield, and would do well to ponder on its implications before he is tempted to make a fool of himself again.

Adistressing thought popped into my head while watching the Secretary for Transport and Housing commenting on the latest update on the Express Rail Link. Well actually there were two distressing thoughts: the first one was that two different and very important matters should not have been combined in one bureau, an arrangement which pretty effectively guarantees that everyone concerned will spend at least half his time considering matters he knows nothing about. But there is no point in pursuing this – it is merely a by-product of the Administrative Officer theory, which maintains that good decisions can be made by very bright people who do not know what they are doing.

The more immediately bothersome thing was that the Secretary concerned, Mr Anthony Cheung, did not seem to have grasped what was going on. The government would, he said, consider who was to blame for the extra spending now demanded and seek payment from the MTRC as appropriate. This shows a lamentable inability to comprehend the true seriousness of the situation. Big projects which go adrift do not just require minor adjustments. They commonly run totally out of control, adding a decade or two to the completion time and multiplying originally estimated costs by whole numbers. We are in the presence here, folks, not of some minor glitch in a kitchen improvement project, but of a major epic demonstration of the “sunk cost” fallacy. The sunk cost fallacy occurs when a project which is clearly not going to achieve the target originally projected for it continues because the perpetrators think that otherwise the cash already spent “will be wasted”. Even at the prices currently projected the express link is a hole in the ground waiting to soak up money. But there is no reason to suppose that the currently quoted cost will be the final cost, or indeed that the currently quoted completion date will be the final completion date. And if you look at comparable projects, like the Channel Tunnel or the Sydney Opera House, the prospect is for more expense and more delay, as far as the eyes can see.

It is instructive, at this stage, to look at the original justification for the project. The theory was that it would cost $39.5 billion, and generate economic benefits of $83 billion. By the time it came to Legco the cost had become $69.9 billion. But this had been vigorously massaged downwards, which should have sounded warning bells somewhere. It is now expected, unofficially, that the new line will cost $90 billion and many of us will find it surprising if it does not cost more.

The paper originally presented to Legco did consider the question of possible losses, and noted that high speed rail projects elsewhere had been financial catastrophes. However, it said, “A major reason for reporting net losses is the burden to make huge interestpayments arising from loansfor financing the construction costs.  The construction of the Hong Kong section of the XRL is proposed to be a public works project to be fundedby the Capital Works Reserved Fund, not by loans. There will not be huge interest expenses incurred during the operation phase; and hence recurrent cash subsidy from the Government will be very unlikely.” In other words, the railway can still make a profit, folks, because the taxpayers’ money is costless. This is an impeccable piece of accountancy but does not really answer the question which is now at issue, which is whether the whole project is still worth it. After all the billions of dollars being devoted to digging large holes in East Kowloon could have been spent on something else.

We must, however, wonder if the railway will make a profit, even on this congenial basis. The problem here is that no passenger will travel only on the link. In all cases the revenue will be shared with the mainland operators of the rest of the line, on a mileage basis, and the fare structure will be agreed between the two. The suggestion supplied to Legco was that the Hong Kong section would get $31 from a passenger who travelled to Shenzhen, or $45 for those who went to Dongguan or Guangzhou. This would produce an operating profit of $300 million or so in the first year, rising, it was hoped, with increasing use. But the fare income figures will be rather inflexible, because an increase will require the consent of the Chinese side, who will take most of the resulting money. Making the trip to Shenzhen much more expensive is not an attractive option because there are many other alternatives and the time saving will be nothing to write home about. So it seems the railway will have a lot riding on the prediction that 100,000 people a year will use it. Connoisseurs of irony will note that the projection also held out the prospect of the MTRC paying the government “service payments” totalling $23 billion over the first 30 years of the railway’s operation. Well they’ve already spent that.

I suspect that in a perfectly rational world this would be the time to pull the plug on the whole thing, or as one columnist suggested convert it into an underground shopping mall. Clearly the express rail link is not going to make a profit, and its costs will easily exceed the “economic benefit” held out to justify the original decision to go ahead. True we were offered intangible benefits as well. Unfortunately they have not done very well in the ensuing five years. Integration with the Pearl River Delta now seems a dubious benefit and bringing more mainland tourists to Hong Kong might be more of a threat than a promise.  But we do not live in a rational world so I suppose we shall continue for political reasons. It is difficult to stop projects in which two governments have an interest. That’s what they used to say about Concorde.