tim's experiment

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.

Dear me, I have had so much fun watching the government’s puppet legislators apologising for the reform cock-up that I fear Hong Kong politics will never offer so much amusement again. One must congratulate for their unaccustomed honesty those legislators whose main concern was that Beijing, or the Liaison Office, might be angry because they had failed to record a vote for the government. So now we know where they take their instructions from. Ms Regina Ip, who has often given the impression of having a mind of her own, explained her part in the walk-out as being simply a matter of following the DAB. So now we know what the New People’s Party is: it’s a political trick to get some more DAB supporters into the chamber under another name. Academic observers wondered what the voters would make of it, a question which did not seem to have come up much with the people concerned. And Mr C.Y. Leung, who can be depended on not to rise to any occasion, came out with the limp comment that it did not matter really because the pan-democrats had all said they would vote against the proposal anyway. But this will not do at all.

True the pan-democrats had said they would vote against the proposal, but as Mr Leung’s long record of terminological inexactitude reminds us, you can never rely on what a politician says. It may well be that some pan-democrats were hovering, tempted by the inducements offered, swayed by the last-minute pleas of Ms Carrie Lam, or bored with being virtuous. I do not suggest that anyone was doing anything as crass as offering large sums of money. But there is more joy in heaven over one sinner that repents than over 99 righteous persons who need no repentance, as Luke puts it. We need not doubt that if a few pan-dems had rescued the government from defeat at the last minute they would have been lavishly rewarded – lionised by the Liaison Office, nominated to sundry offices of prestige and profit, praised as the voices of moderation and possibly in one or two cases even allowed to be one of the ten candidates to be considered by the election committee before it names the three men approved by Beijing. Honours and opportunities would have come their way, but only, of course, if the government did manage to snatch victory from the jaws of defeat. There would have been no mileage in changing your mind the way things turned out, which would merely have changed the voting figures from – say 28:9 to 24:13.

In other words, if anyone was going to change his mind at the last minute he would only do so if the full force of the people’s puppets was in the chamber and voting. Otherwise it would make no sense. After all the last-minute turncoats are going to pay a price. They will lose a lot of friends, be turfed out of their parties and will probably have no electoral prospects at all. This might be worth if if you were going to be the historic last-minute rescuers of the government’s historic initiative. If you are just going to spread the derision more widely then it is not worth it at all. So the fact is that we shall never know what would have happened without the walk-out. Possibly the pan-democrats would all have voted the same way. But the absence of the government payroll vote certainly made changing your mind pointless. So the cock-up may or may not have made a difference.

It has certainly made a difference to the way people look at the government’s supporters. Even the SCM Post, which is increasingly hard to distinguish from the China Daily, printed the observation that the establishment’s lawmakers did not seem on the whole to be very bright, and that election from a functional constituency neither required nor conferred any political nous. The call for democrats to “unbundle themselves” was recalled, after the establishment crew had exposed themselves as not only bundled but willing bundled puppets. People said nice things about the Liberal Party, a rare event. And James Tien achieved viral status in cyberspace with a cartoon pig and an assurance that it wasn’t a conspiracy, just stupidity.  On the whole I have to agree. It is tempting to suppose that this was all a devious plot to allow DAB candidates to present themselves to the electors without a vote for pseudo-democracy on their records. But this theory is not credible. The people concerned are too dumb for anything like that. We shall just have to accept that what you see is all there is. You don’t have to be stupid to be a pro-government legislator. But it helps.

I am rolling on the floor here. After all the fuss and pretentions … historic occasion, momentous change, first time in Hong Kong history, those who vote against will be criminals … the great Legco tussle over pseudo-reform ends in farce. According to early reports the problem was that the forces of reform/reaction knew that senile rural bandit Lau Wong-fat was anxious to vote for the proposal. But he was held up in traffic. They asked for an adjournment on entirely spurious grounds, which was refused. Then they thought they would challenge the quorum, and walked out, supposing that this would delay the vote. But alas the meeting was still quorate, the vote was held, and the government’s proposal suffered an unexpected fate. Instead of failing to reach the required two thirds majority it was resoundingly defeated. It was, as we used to say in rowing circles, pissed on from a great height.

Those of us who found it hard to take the DAB seriously before face a renewed struggle. There was an interesting programme on ATV the other week. An RTHK production, I hasten to add. The people making this item wished to investigate the political drift of young people. Of course they found and interviewed a yellow umbrella supporter who said the usual things. Then they introduced us to a young DAB member who did not say the usual things. He said he had joined the party because it would benefit his future business career. His friends, who were embarrassed about this but (I was glad to see) still his friends, said he was a “cunning Hongkonger”. I cannot believe that the RTHK people set out to find someone who had joined up for this sort of reason. This leads to the suspicion that nobody joins up for any other. This seems a cruel thing to say but does anyone join the pro-establishment group from what we might call nice motives? Or are they all a bunch of nitwits blinded by greed or ambition?

Of course I may be reading too much — or too little — into the unexpected demise of the reform proposal. Perhaps this was not an accident at all, but a cunning device to enable those DAB members who have to face the electorate sooner or later to say that they did not vote for the government’s plan anyway. We shall see. I notice that the democratic group who met Chinese officials in Shenzhen were warned that they would be “punished by the electors”. What do Chinese officials know about elections, one wondered. One also wonders what the electors will think of the organisers of the debacle last night. Would you want them running Hong Kong?

Modern football, at least the professional part featuring multi-national millionaire mercenaries, doesn’t seem to have much to do with the game which I played and liked as a boy. It doesn’t even seem to have much to do with the activity I watched somewhat later from the part of the Chelsea ground called the Shed. I don’t know why it was called the Shed because there was no shelter from the elements at all. Nor did you get a seat. Still, I have enough affection left for the activity to rejoice that Septic Blatter has finally agreed to step down from the peak of the pullulating pyramid of corruption over which he has presided for so many years. It seems that national police forces are very slow to take an interest in international sporting organisations. As a result those which manage to attract large sums of money slip into a corrupt lifestyle very easily, a problem which has also afflicted the Olympics over the years.

At a time when many people who had paid lip-service to the Blatter regime are now turning round and saying they knew FIFA was rotten all along, it is perhaps refreshing (if also a bit embarassing) to find that he still has a fan club in Hong Kong.

Enter Mr Timothy Fok Tsun-ting, who represents Hong Kong in FIFA elections — and much else — and happily voted for Mr Blatter days before Mr Blatter himself decided that perhaps that was a mistake. We all know Mr Fok — rich daddy, English public school, American university, President of Hong Kong Olympic Committee, member of sundry international sporting bodies, Member of the Legislative Council, on which he represents sports and (God help us) culture, and the CPPCC — hailed on several occasions as the laziest member of Legco but a formidable bringer in of the bacon as President of the Hong Kong Football Association, now basking in a shower of public money.

Mr Fok defended his vote for Blatter on the grounds that Mr B had done a great deal to give a “helping hand” to smaller federations in Africa and Asia. Let us resist the cynical thought that if you are buying votes the smaller federations are probably cheaper… It seems the HKFA had received from FIFA over the last five years no less than US$3,3 million. The Association spent US$1.3 million of this refurbishing its offices, which Mr Blatter ceremonially reopened last year.

There is an interesting mechanism at work here, which may indeed account for Mr Fok’s longevity in office, as well as Mr Blatter’s. Sporting bodies customarily have a rather curious financial structure, in which the grass roots are comparatively impoverished but there is an international circus which makes a great deal of money. This leads naturally to calls for a mechanism to distribute the largesse collected from the television coverage of the circus to the deserving poor on whom the whole enterprise depends. But somehow in sporting organisations this always seems to come down to one man which his hands on the money tap. He gets all the credit from those who receive it and becomes a sort of permanent unretirable Pope, at least until the FBI arrives. Mr Blatter, according to Mr Fok, was responsible for “the commercialisation of the sport”, which is now sitting on a pile of money as a result. This is nonsense. All sports which can be commercialised have been commercialised. Credit should go, I fear, to Rupert Murdoch.

Anyway the question which all this raises is this: given that football has this sugar daddy who is not available to other sports, shovelling millions of dollars in its direction, why is it also the beneficiary of a generous scheme intended to “put the sport back on its feet” at the expense of the Hong Kong taxpayer? The FA is not an impoverished organisation — the headquarters is in Ho Man Tin for goodness sake — and after years of squabbling the professional end of the game doesn’t look like a plausible choice for a deserving recipient. Other sports do not get Mr Blatter’s largesse or anything like it.

It is a recurring puzzle how our government makes decisions on these matters. Enter any district sports centre and you will see all the squash courts being used … for table tennis. Frantic efforts are made to breathe life into professional football while equally deserving activities are ignored or even hampered. Personally I think Hong Kong will never be a great footballing centre. There is a shortage of space, leading to a shortage of formal pitches and an even more severe shortage of flat patches of grass where kids can have informal games.  Another problem is the matter of size. One of the things which surprised me when I was a full-time football reporter was that nearly all professional footballers could look me in the eye. I am over six feet tall. People who were not built on that scale did not generally make it. Of course there are occasional exceptions. But still – there are plenty of sports in which height is no advantage, or may even be a handicap. As Hong Kong is generally a vertically challenged community it would be a good idea for us to make sensible choices. Better than leaving it up to Mr Fok, anyway.

Much anguish in railway watching circles this week over the fact that the new express rail station does not yet feature any arrangement for passengers to go through mainland customs and immigration before they get on the train. Clearly if extended this lack will be inconvenient. On the other hand it’s not rocket science, and the officials concerned have at least another two years to get their heads round the problem. Meanwhile the light at the end of the tunnel is beginning to look very much like the headlamp of an on-coming train. In this morning’s paper Gary Cheung warned that the new railway might be a white elephant” if the checkpoint problem was not solved. But this is an optimistic estimate. It is becoming increasingly clear that the rail link will not be a white elephant but a black hole, inexorably sucking in money from all directions.

Note that careless reporters, including Mr Cheung, often report that the original budgeted cost of the project was $65 billion. This is not the case. The original budgeted cost was $85 billion. Realising that this held out dim prospects of the line ever covering its costs, officials then massaged the figure down to $65 million. This was not done by cutting any expensive features from the design. It was done by shunting parts of the expenses into other sidings in the government budget on the specious grounds that they “would have to be done anyway.” For some time after that, interestingly, the price of the cultural district (which shares part of its site with the railway terminus) went up like a rocket while the publicised price of the railway remained the same.

Meanwhile I predicted that if the sums were done honestly the taxpayers would in the end see no change from $100 billion. This was not a particularly daring or cynical guess. The average budget over-run on big rail projects (not the maximum, the average) is 50 per cent. Projects involving long tunnels are particularly prone to bad financial news because although you can drill test holes, in the end you cannot really know what is down there until you build the tunnel itself. And your contractor will charge you extra for any nasty surprises. The express rail link, owing to an extravagant early inspiration, consists of one long tunnel.

It now appears that the $100 billion guess will need to be revised upwards. The official price is now $71.5 billion but Michael Tien, who has some experience in these matters, is now predicting a figure of $90 billion. And the corporation has not yet made the widely-expected announcement that the line will not open by “the end of 2017”. Many people now do not expect to see it open before 2018. Delays are themselves a cause of extra expense, as officials remind us every time one of their pet projects fails to get through the Finance Committee at the first time of asking.

So let us suppose for a moment that the MTR Corp ends up paying $100 billion in round numbers for the construction of the line. Assume also that the cost of borrowing has by then returned to the historic average of about 4 per cent. This means that the corporation will have to find $4 billion a year just to pay the interest on its debts. This compares with its profit from all other railway activities in Hong Kong last year of $7 billion. This is a big ask. How much can you charge people for taking them 27 kms?

Mr Cheung quotes Frederick Ma, chairman of the independent committee which looked at the project, as saying that without a joint checkpoint at West Kowloon the trip will only be marginally faster than the existing through train. On the through train passengers do their Hong Kong formalities in Hung Hom, and the China stuff in Guangzhou. I am not sure that I follow this. Even if there is a joint checkpoint this does not mean that one joint immigration person is going to do the passport part for both Hong Kong and the mainland. You will queue for the Hong Kong formalities and then you will queue for the mainland formalities. They will not be quicker; you will just get all your frustrations in one place. Mr Ma apparently supposes that in the absence of a joint checkpoint the train will have to stop in Shenzhen for the purpose. But by all accounts it is going to stop in Shenzhen anyway. The trains between Shenzhen and Guangzhou are losing money hand over fist, and amalgamation with the Hong Kong service is eagerly awaited. There will also be a stop in Dongguan. And then the “high speed” train will drop you in the outskirts of Guangzhou, instead of the middle. Some people might consider the existing through train better value even if there is no extra charge for the new-fangled express at all.

I conclude that the new link is never going to make money. This is not uncommon with new rail services and lines. They often only make a profit after the original builder has gone bankrupt and sold them off at a huge loss. But this is not an option for the HKSAR Government. It has placed the MTR in a tricky dilemma. If it charges too much for the new express trains then nobody will ride them. But in view of the mammoth costs of construction, if the trains are priced a level which fills them with customers they will lose money anyway. This is beginning to look like a financial catastrophe on the scale of the Sydney Opera House (original budget $7 million, final cost $102 million). Can we name it after Donald Tsang?

So you thought after all this fuss about how the next Chief Executive would be “elected” that the winner would at least be the CE? Think again. The Chinese government will appoint whoever it likes, whether or not he (or she … fat chance) has won the election, or even participated in it.

This was the message buried in the last paragraph of a seriously boring non-story in this morning’s Sunday Post, most of which was devoted to the fact that some academics had suggested postponing the Legco vote on the elections. In a desperate effort to suggest that this was worth telling us about, the reporter said it received a “lukewarm response” from top officials and lawmakers. This seemed a funny way of summing up the responses of Carrie Lam (currently acting CE) and Exco convenor Lam Woon-kwong, who both said it was “not feasible”.

The last paragraph started “Meanwhile…” indicating a polite change of topic. It then introduced Professor Lau Siu-kai, vice chairman of “the semi-official Chinese Association of Hong Kong and Macau Studies”. Professor Lau is best known as the scholar who capped a career spent telling the world that Hong Kong people were not interested in politics by predicting that the demonstration against national security legislation would attract only a few thousand protestors. I take it that the reason for stressing his current semi-official status rather than his past as a reverse Cassandra (believed …but wrong) is to imply that Prof Lau is privy to official thinking in Beijing.

Just in case this is true, this is what he said (in the Post’s words): “election results obtained under universal suffrage would only provide a ‘reference’ for the central government to decide whether to appoint the elected candidate.” In other words, if our rulers do not like the election result they will over-rule it and appoint someone else. Well this is interesting. After all we have been told time and again that systems of universal suffrage vary, that there are various obstacles to public nomination, Mr Cameron was not elected by the general public, America has an electoral college, and so on. But the one thing which everyone else’s systems for electing a president or prime minister have in common is that the winner does actually get the job. In universal suffrage with Chinese characteristics, on the other hand, we have a distinctive feature. The winner only gets the job if the Communist Party leadership likes the look of him.

Really it makes you wonder what all the fuss is about. We have been told that this is a historic opportunity, that people are in danger of being deprived of the right to vote, that Hong Kong stands on the brink of a new epoch, and such like blather. Actually, all we are being invited to do is to provide a “reference” for the central government. Calm down, everyone. It doesn’t matter what electoral system we use. The winner doesn’t necessarily get the job anyway.

Meanwhile (to coin a phrase) next to Professor Lau’s paragraph we have a picture of Carrie Lam raising two fingers. In some cultures this is polite as long as the fingers face away from you and rude if they face you. In other cultures the reverse is true. Ms Lam is saying f*** you in Greek. Rather similar to what Prof Lau is saying in English.

I have written before about the continuing failure of our legal leaders to enforce legal restrictions on media coverage of trials. These restrictions are intended to protect the rights of defendants and victims. If they are not enforced they will fall into disuse and the rights of defendants and victims will not be protected. Another grim landmark in this continuing process was passed last Tuesday.

An elementary point made in all media law courses is that one should generally not publish pictures taken of defendants outside the court. This piece of advice is of great antiquity. The reason is to avoid polluting the evidence of witnesses who may later be asked to identify the person they saw doing the crime. If they have already seen a picture of a person described as a “suspect” then they may be influenced in the direction of identifying that person as a criminal. Bold media outlets may decide to publish a picture if they believe that identity will not be an issue at the trial, in which case no offence is committed. But this is a dangerous game because you don’t really know. The prosecution is not obliged to tell you, and even if they do there is no legal bar to them changing their mind later. Also the issue may come up later from the defence, for example if the defendant offers an alibi. A further problem is that if the defendant is pictured in a “criminal” context this may influence future jurors.

Now turn to the SCMPost City Section for last Tuesday, on the front of which is a four-column picture which will be a boon to future writers of “how not to do it” textbooks. Here we see a gentleman called Zheng Xingwan, who at the time was the only person arrested over the Queenie Law kidnap case. He had been charged with a mass of verbiage “commonly known as kidnapping”, as the Post’s reporter put it, and been remanded in custody. And there he is in the picture, large as life, and just in case he doesn’t look criminal enough for you, wearing handcuffs.

Readers may wonder if this was the approach favoured by other media. Well two Chinese-language news websites had the same picture and put a black rectangle over the eyes. Presumably their parent newspapers did the same. The Standard reported that Mr Zheng had arrived with a bag over his head, and printed a picture in which he was still wearing it.

Was this a one-off oddity caused by the absence of specialised sub-editors, an ill-advised economy popular with newspapers in these internet-threatened days? Not at all. This Friday (May 15) the City section has on page C4 an even larger (five columns) picture of a Mr Rashid Khan, who was leaving court after being charged with manslaughter. I do not know if identity is going to be an issue in Mr Khan’s trial, but he is going to have an up-hill struggle if it is.

What is going on here? I am left with a number of possible theories which I suppose I shall have to share with future students. The law on this matter is either:

1. It doesn’t apply to the Post.

2. It doesn’t apply to cases involving mainlanders or people with Pakistani surnames. Other ethnic minorities remain a question mark.

3. It doesn’t apply to government-friendly media outlets.

4. It doesn’t apply to anyone now, because the Department of Justice (sic) has lost interest.

Having tried to get the Department interested in this topic before, without success, I am putting most of my money on number 4. Readers may feel this is a matter which does not concern them. After all mainlanders or Pakistani hawkers accused of serious crimes may be guilty. And this is something which is not likely to happen to us personally. This is too complacent. The erosion of legal rights always starts with the despised — suspected criminals, ethnic minorities — but it will if left unchecked get round to the rest of us in due course. The price of freedom, as Thomas Jefferson apparently did not say, is eternal vigilance.

Having at times been quite rude about Alex Lo I should perhaps in fairness record my admiration for and agreement with his piece this morning. This concerned the case of Shih Chiao-jen. Mr Shih is 73 years old and was in danger of losing his job as a security guard because of his age. So he bought a forged ID card on which he was 11 years younger. This eventually came to light and he was charged with possessing a fake ID card to commit an offence. And duly sentenced, by a magistrate, to four months in prison. After a public outcry the magistrate refused to change the sentence. “I don’t understand why there’s a public outcry,” he said. “But that’s understandable because they’re not lawyers.”

As Mr Lo rightly commented this is a poor theory. It is more likely that people objected because they were ordinary decent human beings. Actually if you are a connoisseur of legal matters you can see that the magistrate made an elementary error. He pointed out that the “starting point” for this offence is a jail term of 15 months, so four months represented “an abundance of human sympathy”. Not so. The “starting point” for offences emerges from comments by the Court of Appeal on attempts to overturn sentences as excessive or inadequate. Faced with a social problem the Court of Appeal tends to look like the man with a hammer to whom every problem looks like a nail. Deterrent sentences are applied, despite the massive amount of evidence that longer sentences do not deterr criminals. Still, the circumstances in which these norms are established are always relevant and the magistrate has ignored them. The offence of having a fake ID card dates back to the early 80s, when ID cards were introduced. The object of the exercise was to suppress unauthorised immigration from China. People who appeared before the courts for possessing fake ID cards were people who were not eligible for a real one. Clearly in such circumstances the offence was a blow at the very basis and reason for the introduction of ID cards. It is an elementary error to suppose that the sentencing habits emerging from such cases should be applied to the case of someone who was entitled to, and held, a real ID card, but wished to have one with a later date on it.

Pretty poor magisterial performance, if you ask me. But then the contribution of the prosecutor was hardly helpful. Mr Shih, opined the prosecutor, had “duped” multiple property managers. This is a preposterous theory. We must suppose that anyone who employed Mr Shih met him and had an opportunity to observe him in an interview and/or at work. They had ample opportunities to form their own estimates of his agility and alertness. No sane person would base his assessment of these matters on the age given on a person’s ID card. Property managers are not stupid. Wish I could say the same about lawyers.