I have been complaining for many years – it’s not particularly fun but someone has to do it – about the lamentable speed with which prosecutions proceed in Hong Kong.
Survey of international standards here. You will notice that this case predated both COVID-19 and the 2019 arrestfest. I will not repeat the details. Suffice to say that in the absence of special circumstances two years between arrest and trial is widely regarded as an infringement on the rights of the accused, and three years as so unacceptable that less serious cases at least should be dropped altogether.
But that is not how we do things here. Four years or more is regarded as perfectly acceptable. As a result we have cases in which the convicted defendant walks free because he has already served his sentence in bail-less custody before the trial, and a recent case where erroneous prosecution evidence was excused by the judge on the basis that the events occurred a long time ago.
Let us note in passing that this was a serious error. The onus is on the prosecution to prove its case beyond reasonable doubt; any deficiency in that case should help the accused. It is not the judge’s job to rehabilitate the reputation of police witnesses.
Last week we had a new horror, so outrageous as to attract the attention of the presiding judge. Invited to pass sentence on four participants arrested at a riot scene in 2019, five years ago, District Judge David Cheung announced the intention to look into any delay in the prosecution and asked for a time-line.
It is not for me to put thoughts into the judge’s head, but what may have attracted his attention is that two of the defendants were twins who, at the time of the offence, were 14 years old.
This presents an interesting sentencing dilemma. At the time of the riot the twins would have been eligible for a variety of treatments designed specifically for juvenile offenders. With the passage of time they have now become adults.
This is not supposed to happen. The law recognises that in most cases it is not appropriate to deal with young offenders in an adult court, and though exceptions are sometimes made they are rarely made for 14-year-olds.
Delaying the proceedings for so long that the defendants become adults not only deprives them of the special arrangements made for young offenders (informal procedure, presumption in favour of rehabilitation etc.) but also of the restrictions on the reporting of juvenile proceedings.
If the twins had been dealt with in a juvenile court, as they should have been, it would have been an offence for the media to report their names or any identifying details. Their names are now all over the place, with effects which may include adverse discrimination in bids for employment or education.
No doubt the judge will consider whether perhaps this exposure in the public pillory may be punishment enough.
After the UK government sped its local rioters into court within a week one of the China Daily tellers of good stories about Hong Kong observed that there would have been international criticism if Hong Kong had done the same. That may be true, but there is a happy medium in these matters. Five years is not a material improvement on five days.
It must also be said that if a case in England had taken so long that a 14-year-old defendant appeared for sentencing at the age of 19 there would be an almighty and amply justified row. Heads would roll.
You have to wonder what the Secretary for Justice tells his children he does for a living. Practising for when the Olympic authorities finally recognise snail-herding as a sport?
Sniping at Carrie Lam is a tempting option for legislators and other politicos these days. It allows the critic to appear independent and outspoken without incurring the risks involved in complaining about the current regime.
It is a bit like flogging a dead horse but perhaps more like pulling the tail of a stuffed tiger; it looks good in your selfies without involving any real danger.
So it came about that there was much wailing and gnashing of teeth over the discovery that Ms Lam’s office, which comes her way on the public tab because one is provided for all former Chief Executives, was costing $9 million a year. Most of this goes on the rent for the office, which is in Pacific Place. Follow-up questions elicited the fact that this arrangement had cost $22 million in two years.
What, cries the well-informed connoisseur of Hong Kong historic architecture, why is Ms Lam not in the building at 28 Kennedy Road, lavishly redecorated and designated for the use of retired chiefs since 2005? Well it’s a long story.
This handsome building is of some age, and is listed as a Grade 1 landmark. It enjoyed a period of modest fame 30 years ago, when it was the Hong Kong home of the Sino-British Joint Liaison Group. The Group was set up under the Sino-British Declaration on Hong Kong’s future in 1985 to settle the finer points of the transition to come, and continued to meet until 1999, two years after the handover.
After this the building seems to have been left empty, as it presented a small problem. It is too big to be a company home, too small to house a government department, and cannot be extensively modified because of its Grade 1 listed status.
In 2005 came a brainwave. Mr Tung Chee-hwa, the first Chief Executive of the Hong Kong SAR, had resigned on grounds of ill health. The former Liaison Office’s home would make a nice office in the mid-levels for Mr Tung and his successor ex-Chief Executives.
As the Legco paper put it at the time, rather prematurely because there was only one Former CE at the time:
The Office provides administrative support to Former Chief Executives to perform promotional, protocol-related, or any other activities in relation to their former official role. The activities include receiving visiting dignitaries and delegations, giving local and overseas media interviews, and taking part in speaking engagements. The office shall provide administrative support for scheduling and making arrangements for public and social appointments, handling correspondence and enquiries, and dealing with general administrative duties.
The paper went on to estimate the annual cost of this arrangement at $2.2 million, most of which would go on the wages of three secretarial staff and a driver.
In 2008 the conversion of the building was completed, marked by the issuing of a triumphant video (link here) and a brief opportunity for members of the public to visit and admire the premises. The first floor has two lounges and a meeting room, and on the next floor up are three offices for ex-CEs. These are quite lavish. You could land an aeroplane on the desk supplied, and there is also a coffee table, armchairs and such. Space has not been skimped.
The provision of three offices seemed reasonable at the time. CEs, it was no doubt supposed, would be appointed at about the age of 60. This was a good guess: age on appointment of the crop so far 59, 60, 57, 60, 64. Average: 60.
Less happily, the planners seem to have assumed that CEs would generally serve the maximum two permitted terms. This would mean the former CE would be on average 70 when retiring. Turning to the relevant Census and Statistics tables we see that a 70-year-old man (CEs are usually men) can on average look forward to another 17 years of life. Under these circumstances – appointment at 60 and ten years in office – when a new CE takes over his predecessor will have 17 years ahead of him, his predecessor in turn will be seven years from the Pearly Gates, and his predecessor in turn will no longer be with us. Three offices will be quite sufficient. On average one will be empty.
Several things went wrong with this prediction. The first is that the expectation of life tables include people who reach 70 already sick and senile. CE candidates are, we hope, picked from the ranks of the fit and frisky. They are likely to be healthier than the aged population in general.
The second problem is the well-established scientific fact that people with prestige do seem to derive some medical advantage from it. Politicians who become ministers live longer, on average, than those who remain mere MPs. Senior civil servants live longer than junior ones, actors who win Oscars last longer than those who do not, and so on. Being at the top of the pecking order is good for your health.
So the provision of three offices may already have been a bit optimistic. What really sabotaged the scheme, though, was the failure of successive Chief Executives to serve a second term. Tung Che-hwa resigned two years and a few months after being elected to a second term. His successor, Donald Tsang, served the remainder of Mr Tung’s second term and was elected to a full term of his own. It was then ruled that he had had the maximum two goes already. The next two CEs both served just one term each.
The current CE, John Lee, will be 69 at the end of his first term, which may appear to him, or to the selectors, to be more than enough. We shall see. But the shortage of desk space for former CEs is probably not going to go away anyway. Leung Chun-ying was the youngest CE so far and Carrie Lam, being female, may well go on for ever.
But there is, at present, no room for Ms Lam in the historic building, leading to the leasing of a substitute in Pacific Place. This can hardly have been the cheapest option.
What is to be done? One legislator suggested that the provision of a free office and associated goodies should be confined to the most recent three CEs, others being presumably left to fend for themselves. This has something to be said for it: do we really want 80plus-year-old dinosaurs meeting visitors, giving media interviews, or making public speeches?
Well I don’t know. People last better than they used to. Speaking as someone who will shortly pass the same landmark I don’t think 80 is that old.
What do they do in other places? There is a problem here. The Chief Executive is not a head of state. In some jurisdictions he would be considered scarcely a Governor. Unsympathetic observers might describe the job as little more than a mayorship.
Diligent searching, however, reveals no examples of places which provide offices for ex-mayors, or even for ex-governors. Google users will be entertained by numerous updates from a Nigerian province where the governor indignantly denies reports that his predecessor has set up an office in the gubernatorial palace.
So, while acknowledging that we are not really comparing like with like here, the arrangement for UK ex-prime ministers is that they can claim up to £120,000 for “office costs and secretarial costs arising from their special position in public life.” As you will see from the table John Major (now 81) is still in business. No claims have been received from Boris (too disorganised?) or Rishi (too rich?) but Liz Truss, famous for her lettuce-length term of office, has already started collecting. So, up to about HK$1.1 million a year.
Much information is available about former US presidents, who are, at least to me, surprisingly numerous. According to the table here in the last 25 years the US has supported eight former presidents of whom five are still with us. This involved a total of 109 ex-president/years for a total of US$125 million, or US$1.1 million per president/year, which would be about HK$8 million in round figures. But this includes the president’s pension, travel and other expenses, which occupies about half of the total, so the figure for office and other amenities would be about HK$4 million.
So by international standards the originally projected figure of $2.2 million a year was generous, the expenditure of $11 million a year on Ms Lam was extravagant. But of course these sums are chicken feed by government spending standards; legislators should have more urgent things to looks at.
I do wonder, though, if former CEs really need a personal secretary and a clerical assistant each. In these digital days we can all type. Are these two people really busy, or are they like the two women standing behind the emperor’s throne in a Chinese opera: not doing anything but an important badge of rank?
I also have some difficulty with the Administration Office’s report that in her two years as an ex-CE Ms Lam has “attended 700 functions”. With all due respect for Ms Lam’s Stakhanovite work ethic, that is almost a function a day. Many of us find that the mention of Ms Lam brings back unhappy memories, some of which were not her fault (COVID) and some of which were. But 350 functions a year? One can only feel terror and pity.
I obviously haven’t been keeping up with the local economic scene as much as I should have, because it came as a complete surprise to discover that the key to our future prosperity was something called the “low-altitude economy”.
Apparently this idea has been around for some time. It was mentioned in the national government’s work report and subsequently endorsed (surprise!) by our Chief Executive. What is it?
I wondered if it was one of those metaphors dear to economists, like “inflation” or “depression”. But it doesn’t sound very inspiring: a bit too reminiscent of a low-rent flat, or a low-energy boyfriend.
Or was it one of those “stories” broadcast in an attempt to put new life in a sagging stock market. The low-altitude economy is the Next Big Thing; get your bets on it now.
Apparently neither. The low-altitude bit is a literal description of where it will all happen. Of course as tends to happen with ideas like this there is quite a lot of variation depending on whose version you are reading, but the basic idea is that low-altitude flight, mainly by variations on the drone, will increase massively, providing lots of business opportunities.
As noted, quite how high the low altitude goes ranges from 1,000 metres (Mary Ma in the Standard) through 3,000 metres (Ken Ip in China Daily) to 6,000 metres (Standard’s “Staff Reporter”).
What will go on in this air space also varies. A lot of people are already using drones as a way to get cameras of various kinds up to places you can’t reach with a stepladder. This is indisputably a growth area and will create a flourishing continuing demand for smallish drones.
More questionably, at least in the Hong Kong context, there is a lot of interest in the idea of drones making deliveries. There have been some successful early experiments, apparently, but these have been in places where most people live in houses with yards or gardens.
The idea would work for me – we have a small garden into which a well-intentioned drone could drop – but I do wonder how anything more valuable than the groceries will be delivered to people who live in high-rise flats. Will they be expected to leave a window open?
One must also wonder about the safety implications of having load-carrying drones buzzing around the place, possibly colliding with each other or with large birds, and producing results reminiscent of those interesting Ukrainian videos in which a drone drops a small bomb on a Russian tank.
For a really alarming prospect, though, there is the matter of drones carrying people. There is no particular technical difficulty in this but turning it into a widespread activity which is going to move the economic needle raises some interesting questions.
To start with, who will steer? It seems you can now buy a person-carrying drone which can easily be piloted by anyone who can ride a bike. Fortunately they are still very expensive. But the films you see of people using them generally feature landscapes which are either flat, deserted, or both. It does look like serious fun, though.
Talk of air taxis inspires the rather worrying thought of Hong Kong taxi drivers being converted into pilots. Considering the way taxi drivers drive – I did this for a while a long time ago and haste is unavoidable because time is money and the busy periods are quite short – you might not wish to see a flying version.
It seems the preferred solution to this in China is to have the drone fly itself. This means you are in effect entrusting your life to a computer. Are you OK with that? Our government says that safety will have to be considered, naturally, but it will no doubt come under pressure from those who think, as one writer put it, that “cautious attitudes about safety could … be restricting growth.”
I expect there will be lots of money to be made from making the drones, but I am not convinced that Hong Kong is going to be a happy spot for implementing their use on an industrial scale. Apart from the difficulties created by mountains and high-rise buildings, there is also the question of avoiding the old-fashioned high-altitude economy when it comes into land.
Looking on the bright side, it is enchanting that part of China’s contribution to the low-altitude economy is the construction of a new airship, a technology which most people find attractive, if a bit nostalgic.
Personally I’ll give the self-driving drone a miss, but if you’re offering a ride in an airship…
Lord Sumption, a retired British Judge and formerly one of our token foreigners on the Court of Final Appeal, was roundly denounced by the usual government spokesman when he marked his retirement from the CFA with an article in the Financial Times, complaining that the rule of law could no longer be relied on in Hong Kong.
“The rule of law is profoundly compromised in any area about which the government feels strongly,” his Lordship wrote. And this brings us to recent developments in the case of Mr Kinson Cheung King-sang. Before we get to the developments, though, some background.
Mr Cheung was the chairman of the Hong Kong University Students’ Union, back in the days when students were allowed such things. The union’s committee, in an ill-advised moment, passed a motion expressing sympathy for a man who had attacked a policeman and then killed himself.
The motion was rescinded the following day, but this was not enough to head off a major reaction in pro-government circles and several students, including Mr Cheung, were arrested. Three people were eventually charged: the proposer and seconder of the errant motion, and Mr Cheung because he chaired the meeting. When I was a student union chairman I was expected to be neutral when chairing meetings, so this looks a bit odd. But they’re not hot on democratic conventions in pro-government circles.
The three chosen ones were charged initially with encouraging terrorism, an offence under the Beijing-imposed National Security Law. After negotiations this charge was replaced with “incitement to wounding with intent”, an obscure but ancient and respectable limb of the Common Law. The three defendants then pleaded guilty. This enshrined an interesting legal notion, that the union’s motion had “incited” an act which had already happened when it was passed, and whose perpetrator was dead. Well, lawyers understand these things.
We must note at this point that Hong Kong now has in effect two legal systems. One of them, which we may call option A, is the traditional one, based roughly on the notion that, as the legendary jurist Blackstone put it, “it is better that ten guilty men go free than one innocent one suffer.”
The other one, option B, is for national security cases only, and dispenses with precautions – some of which go back to Blackstone’s time (1723-1780) – intended to reduce innocent suffering. Getting our ten guilty men behind bars gets a higher priority.
So the defendant no longer has the right to be brought promptly before a magistrate, the right to bail, the right to a jury in serious cases, the right to a judge not selected by the prosecution, or the right to the counsel of his choice. Reading national security cases one sometimes wonders if the presumption of innocence has been eroded a bit as well.
Another feature of option B is a limitation on the right of a convicted prisoner to participate in early release arrangements for prisoners who behave themselves in jail. This was not part of the gift from Beijing; it was a local inspiration incorporated in the Safeguarding National Security Ordinance. Inmates may be released early only if the Commissioner for Correctional Services is satisfied that such release will not endanger national security.
So here we have Mr Cheung, so far subject to option A, under which he was sentenced to two years in prison. He then appealed on the grounds that the sentence was too severe. The Court of Appeal agreed, replacing his two-year sentence with one of 15 months. The interesting consequence of this was that, assuming the usual discount for good behaviour, he was now eligible for release. The law works slowly these days.
But nothing happened. Mr Cheung was not released. He then applied to a High Court judge to order his release. At the first hearing the judge was sufficiently impressed to consider releasing him on bail pending full discussion of the matter, but was talked out of it by counsel for the government.
The following day a magical transition had occurred: Mr Cheung’s legal ordeal had been moved from option A to option B. The Commissioner for Correctional Services, apparently a fast worker, had accordingly considered whether Mr Cheung’s release would endanger national security, and decided it would.
The magical transition took the form of a decision of the National Security Committee, a gathering of government security bigwigs including an “adviser” who represents our landlord. The NSC had ruled that Cheung’s offence “involved national security” and that his early release would be “contrary to the interests of national security.”
Senior Counsel Mike Lui, representing the government, said “The development since the adjournment yesterday has been nothing short of momentous,” with which one can only agree.
The National Security Committee was set up under the National Security Law, which outlines its powers and duties as follows:
The duties of the National Security Committee are to analyze and assess developments in relation to the safeguarding of national security in the HKSAR, make work plans, formulate policies, advance the development of the legal system and enforcement mechanisms, and coordinate major work and significant operations.
Call me a legal pedant, but I do not see anything there which suggests that the National Security Committee has a role in adjudicating on individual cases, or that it would be proper for the NSC to issue detailed instructions to a judge hearing a case. The local Nat Sec law, on the other hand, says that:
The courts are to adjudicate cases concerning national security independently in accordance with the relevant provisions of the Basic Law and the HK National Security law, free from any interference.
I infer that the judge in this case had the cart the wrong end of the horse when she said that “No jurisdiction [in Hong Kong], including the Judiciary, shall interfere with the decision made by the [national security committee]. His detention is fully lawful.” Did it not occur to the learned judge at all that the NSC might be exceeding its powers, or are we now so cowed that the idea of a government body exceeding its powers has become meaningless?
In jurisdictions which enjoy the rule of law it is out of order for essentially political or administrative bodies to jog the elbow of judges actually adjudicating cases. The committee, or the legislature, may change the rules, but in the meantime defendants and convicts are entitled to know what rules apply to them. This case is a grotesque parody of the rule of law, the more unpalatable because the government seems to be motivated entirely by the spiteful inclination to nullify the Court of Appeal’s decision and keep Mr Cheung behind bars for as long as possible.
After all the implications for national security are trivial: Mr Cheung will be free in November anyway. I also note that the judge who granted Mr Cheung pre-trial bail (over-ruling a magistrate who had refused it) did not seem to think that Mr Cheung was a great threat to national security.
I met a lot of student union chairmen when I was one. Two of the creepier specimens eventually became government ministers. Nobody became a revolutionary. I am sure Mr Cheung will in due course become a respectable member of society … with, perhaps, some highly critical views of the Hong Kong legal system.
Malcom Gladwell is a great populariser of scientific obscurities, so we now all know that in order to achieve proficiency in almost any worthwhile pursuit you have to put in 10,000 hours of practice. Or alternatively, it now appears, you can outsource the grunt work to a computer and just claim the credit.
This has led to much discussion in the places on the internet where writers gather – that is real writers who produce novels, not mere scribblers like me. The question is how much help can you get from Artificial Intelligence and still regard the resulting output as your work.
Having done my 10,000 hours long ago I have resisted the temptation to dabble in AI-aided composition. But I see there is a tricky question here. If I ask the computer to – say – write an epic poem in the style of Dryden’s “Absalom and Achitophel” on the recent ownership of Chelsea Football Club, and the result is a resounding success, who deserves credit? Clearly the piece has not been written by Dryden. He died in 1700. But it hasn’t been written by me either.
A similar dilemma arises with blame. If you invite ChatGP to write a piece in the style of George Orwell’s “Animal Farm” about the recent history of Hong Kong, it is quite possible that a national security judge will consider the resulting work to be subversive. But he can’t jail the software.
These are extreme cases, I suppose. What bothers the writers is the intermediate case in which the author has had some help, and the question is how much is acceptable before the participation of AI has to be acknowledged on the cover.
After all even dinosaurs like me accept some help. I tune out or switch off comments on my grammar or sentence length. But I pause for a moment after writing words with tricky spelling like accommodation, embarrassment, or Philippines, to see if the tell-tale red line appears to indicate that I have missed a double consonant somewhere.
This certainly does not call for specific acknowledgement. We all know the spell-checker jokes. Serious publishers still employ human editors. What about a detailed plot line and story structure, passed to the computer with instructions to flesh it out as a racy romantic potboiler fresh from the desk of Betty Bodiceripper?
And would it then be another new novel if you fed in the same materials but told the computer you wanted a serious exploration in the style of Albert Camus of the dilemmas of the human condition in the 21st century?
The problem for most of us (as opposed to writers) in all this is that it is becoming difficult to read anything published after 2013 without the lingering suspicion that much – or even all – of it is the product of an agile microchip.
This brings me to a particularly interesting literary form, Hong Kong government press releases condemning some outrageous comment made by a politician or newspaper overseas.
Anyone who has wrestled with our government’s efforts to provide services over the internet will happily dismiss the thought that our leaders have developed sufficient digital fluency to outsource the production of these little masterpieces to a computer. It is, though, perhaps a problem that they so often look like the output of an AI programme urged to produce a “Hong Kong government press release rejecting foreign interference in the style of a Ministry of Foreign Affairs press conference in Beijing”.
Anyone who reads all of these things will be unable to suppress the suspicion that the unnamed “spokesman” responsible is getting in a bit of a rut. The language is always the same: “slander and smear” “lies and hypocrisy”, “government will resolutely discharge its duty”, “violation of international law”, “bound to fail”.
You may wonder if we are here in the presence of a standard PR technique, writing a press release by digging out an old one and updating the names. This does not seem to be the case. On the other hand the consistency of the tone, bitter resentment and anger, is very striking. The “spokesman” seems to be making a conscious effort to sound as if he is purple in the face, with steam coming out of his ears.
It may be a problem that in the old colonial days the government spokesman wrote his rebuttals and refutations in English, and they were then translated into Chinese. Now, it appears, they are written in Chinese and then translated into English. The result comes across as rather blunt.
Chinese writers are much less influenced than Western ones by the desire for “elegant variation”, which leads even eminent publications like the Economist to inflict “the black stuff” on readers because it does not wish to use “oil” twice in the same paragraph.
This may in turn be due to differences in culture and education. In cultures with alphabetic languages, like this one, words are regarded as a substitute or symbol for an elusive underlying idea. In cultures with ideograms, like Chinese, the ideograms are the idea. So in a European university asking the student to report Saint Augustine’s views on virtue in her own words is a test of learning. Asking a Chinese student to report Confucius’s views on the same topic in her own words would be sacrilege. Who are we to improve on the words chosen by the Master? Learning was traditionally demonstrated by the ability to recite the Analects from memory.
The rather limited vocabulary employed in official corrections may have a more mundane explanation. Although printing with movable type was a Chinese invention the Chinese language presents serious problems for printers, because so many characters have to be available. Putting a piece together while picking from thousands of characters is hard work and writers were expected not to to make it harder by choosing from a wide range of words.
Nowadays the computer has solved this problem but English newspapers are still following conventions inherited from the old printing methods and so perhaps other people are too.
Anyway the point which our spokesman may consider worth pondering is that turning on the extreme indignation every time eventually becomes ineffective, and even risible. It may be too much to ask that you consider the possibility that some criticisms may have merit, but could we at least try to be – shall we say – more Harris and less Trump?
One might also wonder whether every criticism needs the same response, or indeed any response at all. I realise that you may fear that silence in the face of fierce attacks will be mistaken for indifference, or even assent, but surely there are some quarrels not worth picking? It is very regrettable that the New York Times was not impressed by the new National Security Exhibition Gallery. But if you hadn’t replied, would anyone have noticed? The same might be said of the British Foreign Office’s six-monthly report on Hong Kong. We all know what this is worth by now.
And you might have waited a bit before taking aim at the Hong Kong Economic Trade Office Certification Act, after it passed the US House of Representatives. Despite its name this is not a law. It is what we call a Bill: a piece of proposed legislation which still has to go through a long and arduous process before it becomes law. On average the proportion of proposed laws which make it through the US legislative process to the statute book ranges between two and nine per cent, with the lower figures coming when, as now, the two houses are controlled by different parties. Figures here.
Clearly the US legislature is not at all like ours.
Well, now it’s over and we can comment on the Stand News case we may note first of all the existence of a concept common in the academic circles where the fine points of free speech are explored: the chilling effect.
This refers to the tendency for expansively drafted laws restricting free speech for impeccable reasons to have an effect beyond the territory they are aimed at; the new rules restrict or discourage activities which they were (at least as presented by their drafters) not supposed to cover.
The chilling effect is alive and well in Hong Kong, and drastically curtailing the sort of journalism to which local consumers have access. Outside the government’s cheerleader chorus writing for government-approved media, opinion writing has become a rare and nervous activity. If it is written, editors are nervous about running it. Willing writers are on offer overseas, but publishers are unsure of the legal risks of using such sources, so offers are usually refused.
In fact if you are interested, even perusing the law itself is not much help. Traditionally it was supposed that seditious content must be so extreme as possibly to inspire violence. If violence was not implicitly advocated there was no sedition. This condition has apparently lapsed. It is in any case specifically excluded by the relevant part of the Safeguarding National Security Ordinance, where the revised law on sedition now resides.
The law is ostensibly politically neutral. Social critics can say that if you outlaw resistance you are defending the status quo, but the idea of sedition looks only at public order consequences. You would not, however, gather this from looking at the output of its local defenders.
Virginia Lee, writing in the English-language version of the China Daily, notes that the Stand News output was scrutinised for “illegal ideologies”. Goodness. Last time I was in Festival Walk’s excellent bookshop I noted with some amusement that on one shelf potential readers could consider the works of Karl Marx, Adolf Hitler and Donald Trump. So which ideologies are illegal?
Fu Kin-chi, writing in the same publication, elucidates: the court “determined that the media outlet’s political ideology was ‘localism’ and its editorial policy was to promote ‘local autonomy’ in Hong Kong – both terms are an [?] euphemism for ‘Hong Kong independence’”.
I am not sure whether the equation of localism with independence was part of the court’s determination or Mr Fu’s, but in either case it is bilge. Localism, for many of its followers, was more cultural than political: an attempt to preserve Hong Kong’s language and lifestyle from overzealous attempts at updating and aligning with the mainland. Most of those who took a more political angle did not seek independence, whose practical difficulties and general implausibility were obvious. Local autonomy is not the same thing as independence and attempts to obliterate the difference are just an attempt to give a dog a bad name before hanging it.
Returning to the old definition of sedition, this involved efforts to “bring into hatred or contempt or to excite disaffection against” the Hong Kong government. There is nothing about illegal ideologies there. This was long supposed to set a high bar for the prosecution. Hatred is an extreme emotion. Many, perhaps most, people do not have strong enough feelings about political or constitutional matters to “hate” anything. Mere distaste or criticism was not enough. The words complained of must actively encourage resistance or rebellion.
National security judges have steadily diluted this to the point where vigorous criticism of one piece of legislation is enough, especially if it happens to be the National Security Law.
The definition in the new Safeguarding National Security Ordinance has been diluted even more. Protection is extended to a new range of potential victims, including the local Liaison Office, the local branch of the Ministry of Foreign Affairs and the local PLA garrison. We then go through much the same verbiage as in the old Crimes Ordinance section on this topic, until we come to two new bits:
(e) an intention to incite any other person to do a violent act in the HKSAR;
(f) an intention to incite any other person to do an act that does not comply with the law of the HKSAR or that does not obey an order issued under the law of the HKSAR.
Judge Kwok will no doubt note with some concern that “intention” is clearly required, which suggests that his innovative “reckless disregard” approach may have been a poor idea.
Connoisseurs of carelessly drafted legislation will note that (f) is open to very wide interpretation. I did not realise, the other week, when I wrote that owners of small dogs and suitable bags could travel with them on the MTR in defiance of the railway rules, that this was a possible offence. Does an “order issued under the law” cover anything a policeman says to you?
Clearly this new law received all the careful scrutiny you would expect from a friends-only legislature working in a hurry. Nice work.
Teaching young teenagers about sex is a tricky matter. It has to be attempted, because otherwise curiosity will lead potential pupils to the steamy parts of the internet, where you can claim access to “adult” stuff by simply clicking on a “yes” button.
But avoiding potential pitfalls is not easy, as the Education Bureau has recently discovered. One wishes to describe the machinery accurately, as it were, while subtly discouraging premature experiments in its use.
The Bureau’s efforts came in for a good deal of criticism. One of the potential problems is that your efforts to foster celibacy will launch a fleet of risqué jokes. The new curriculum’s suggestion that people should sublimate lusty urges by playing badminton gave a harmless pursuit a new sexy edge. Inviting someone for a game will never be quite the same again. And what will they say when they discover that the English name for that little fluffy thing they bat backwards and forwards is “the shuttlecock”?
Another danger is that the message will be sullied by well-intentioned statements which are visibly unjustified by reality. The new curriculum says that pre-marital sex is regarded in society as “deviant”. Really?
Still, if our government has problems with conventional sex, they are as nothing compared with its problems with the constantly growing list of alphabetic alternatives, which has now, in The Guardian at least, reached LGBTQIA+.
It is understandable that in the search for patriotic placeholders very little attention was paid to candidates’ attitudes to unconventional sexual preferences. But as a result some of the newly minted public figures combined a laudable enthusiasm for national security with distinctly old-fashioned attitudes to LGBT etc.
This was most visible in the history of the Gay Games, which followed a trajectory reminiscent of the Post-SARS Harbourfest, starting with general jubilation about an event which would put Hong Kong on the map, and concluding with bitter recriminations about wasted money and foreign influence.
More surreptitiously the new puritanism is gradually affecting the parts of the government which interact, or ought to interact, with the community of people with minority sexual tastes or preferences.
For example, the Constitutional and Mainland Affairs Bureau (curiously) is in charge of an Equal Opportunities (Sexual Orientation) Fund which, since 2015, has supported NGOs working in this area.
For the current financial year its budget dropped by almost half. Many groups had funding cut or deleted altogether. The fund went from supporting 18-24 groups to supporting just ten. Also, among the survivors are three groups, all founded by the same person, offering “conversion therapy”, a scientifically disreputable attempt to turn gay people “straight” much cherished by religious groups.
Funding for AIDS prevention work (which comes from the Health Bureau) has also been cut. And the Equal Opportunities Commission has dropped its earlier enthusiasm for legislation against discrimination based on sexual orientation.
Like other NGOs which do not attract official support those working in this area find it difficult to hold events in public places or to book venues for private ones. Fund-raising has withered because of the legal hazards, particularly if the funds come from overseas.
These changes are ominous for the communities concerned. No doubt government funds are shorter in these deficit-haunted times, but the fact that cash can still be found for fundamentalist nonsense suggests that something else is at work. There is also a worrying implication in all this for all of us.
After all NGOs catering for the needs of sexual minorities are not in themselves political. Encouraging people to feel comfortable in their preferences is not subversive. Distributing health education materials and free condoms is not a threat to national security.
Are we approaching a new reality in which any NGO not wrapped in the tentacles of the local establishment is going to be frozen gradually out of existence? Fairness, like justice, must be not just done, but seen to be done.
Here is a puzzle. The other week Yazhou Zhoukan, a news magazine which has baffled foreigners’ efforts to pronounce its name properly since the early 1990s, hosted an event and invited a guest to address the assembled multitudes.
The guest was the Secretary for Security, Chris Tang. This is a strange choice. In the days when I was often invited to or running such things you usually got the Director of Information Services. This person at least had some knowledge of media matters, although I recall interviewing a freshly minted one on an RTHK programme who was suffering not so much from stage fright as from television terror.
On particularly important occasions you might get the Secretary for Home Affairs, who was responsible for the government’s media policy. Occasionally more prestigious people than me might be able to rope in the Governor/Chief Executive. Nobody thought the Secretary for Security would be relevant.
Mr Tang is also an odd choice because he takes a rather jaundiced view of media matters and his oratorical repertoire does not extend to the “soft answer that turneth away wrath”. Indeed his thoughts about reporting tend towards Trumpism with Hong Kong characteristics: complaints about “false news”, and warnings of the wrath to come.
True to form he turned up with a complaint about an unnamed newspaper and an unnamed columnist, instantly recognised by connoisseurs as a reference to Ming Pao and Johannes Chan, who writes for the paper on legal matters.
And he warned that no protection from trouble could be obtained by a precaution widely adopted among the Chinese press of putting at the end of an article a rubric stating that if a piece is critical it is “is meant to point out mistakes or flaws in the system, policy, or measure… The purpose is to facilitate the correction or elimination of such mistakes or flaws … there is absolutely no intention to incite hatred, disaffection or enmity against the government or other communities.”
This is a rough summary of part of the old Crimes Ordinance definition of sedition, incorporated with minor changes in the Safeguarding National Security Ordinance, which states that pointing out flaws etc. with a view to their correction shall not be regarded as seditious. Sober discussion of public policy is still allowed.
Actually I do not think any of the newspapers which have adopted this precaution suppose that it provides any protection as such. It is more a pre-emptive reminder to readers in the law and order industry that some speech does still have legal protection. Clearly if the article preceding the precaution calls for the overthrow of the Chinese Communist Party or the assassination of the Chief Executive then legal consequences will still ensue.
Mr Tang’s message was that “overseas columnists” had “deliberately misinterpreted government policies or official speeches and misled readers.” If a newspaper “condones such writers and their biased essays, it will have corrupted society and created divisions.”
Editors had a responsibility to ensure that a publication was “fair, objective and unbiased,” he concluded.
Well the short answer to that is that the search for fairness and objectivity does not seem to trouble the media which are in fact or in practice in the government’s pocket. Is Ta Kung Pao fair and unbiased? Is the China Daily?
The long answer is that this is a simplistic answer to a very complex question. Issues of public policy often do not lend themselves to a treatment which will satisfy all the stakeholders involved.
A good example is the controversy which Mr Tang may have had in mind. Prof Chan, who as a former Dean of the Hong Kong University Law Faculty may be supposed to know something of what he writes about, opined that recent legislation limiting national security prisoners’ access to early release schemes might infringe their human rights.
The government reply, which was attributed to the Correctional Services Department but appeared to come from the same Outrage Factory as similar complaints on other matters, said that Chan’s essay was “factually inaccurate” because early release had “never been a guaranteed right under the laws of Hong Kong.”
But this is based on a misunderstanding. Of course a prisoner did not have a guaranteed right to early release, any more than someone who takes a driving test has a guaranteed right to a driving licence. But the early release schemes are not a mysterious present bestowed by the CSD on deserving inmates. They are regulated by statute and rules. So it is at least arguable that changing the rules after the prisoner has been convicted is a violation of his right to be dealt with according to the laws in force when he committed the offence.
The reply went on to say that Chan had “misled readers to believe that if a [prisoner] is not granted remission … it would be tantamount to receiving a heavier sentence and a breach of the Hong Kong Bill of Rights.”
Here we may have a linguistic problem. It is I suppose true that whether a prisoner is refused early release, or granted it, in either case the sentence remains the same. The prisoner allowed release is still expected to conform to rules about supervision, residence and good behaviour. If he violates the conditions of his release he can be recaptured to serve the rest of the sentence inside. So in that rather pedantic legal sense is true that a prisoner who is refused early release is not receiving a heavier sentence.
On the other hand in the ordinary everyday use of language someone who is expecting to be able to apply for early release after two years and then discovers that because of a change in the rules he is going to be behind bars for three is likely to regard this quite legitimately as “tantamount to receiving a heavier sentence.” Cambridge Dictionary definition of “tantamount”: “being almost the same or having the same effect as something, usually something bad.”
When you get to complex matters of opinion the idea of being “fair, objective and unbiased” does not get you very far. In reporting on simple conflict situations fairness can be supplied, or at least simulated, by giving equal attention to both sides: workers and employers, Tories and Labour, prosecution and defence, Manchester United and Liverpool (unless you are working for a Liverpool paper).
Objectivity is regarded as a myth by philosophers. I cherish the memory of a student orator in a debate at the London School of Economics who provoked much mirth by announcing his intention to discuss the “objective situation as I see it”. Well we can all only see the objective situation as we see it. For reporters objectivity is a style: third person voice, no evaluative or emotional words, all facts attributed to sources or speakers and so on.
Unbiased is code for agreeing with the speaker. Are we supposed to be unbiassed with regard to crime, domestic violence, traffic accidents, genocide…?
There is also an important difference between the writing of facts and the writing of opinions. Facts, as an early editor of the Guardian put it, are sacred. In their pursuit fairness and objectivity are legitimate targets, however elusive in practice. Opinion writing is another matter.
The writer of an opinion piece is seeking to persuade. Being fair to your opponent may help you to be persuasive, but is not compulsory. Of course you will not be objective and you will certainly be biased. But opinions are specifically protected in the Safeguarding National Security Ordinance Section 24 (4) (a) and (b), which both include the phrase “give an opinion”.
Let us see if we can put this in a way which will help Mr Tang. That Mr Tang is the Secretary for Security is a fact. That Hong Kong would be a happier place if someone less abrasive was doing the job would be an opinion.
There was a woman in Penfold Park the other day wearing a tee-shirt displaying the words “Another fucking Olympic games”. We must bear in mind, of course, that she may not have read it carefully before buying it, of if she did, did not understand the message or recognise the F-word.
Still, this is not a unique sentiment. It is a feature of the great international sportfests that the number of people who travel to the site of the event in the hope of watching the proceedings is more or less matched by the number of people who take a holiday from their homes to avoid the visiting crowds.
It would perhaps not be fair to apply this crudely to the current Olympics in Paris, because Paris notoriously empties itself of locals on July 14 (when the school term finishes) and is generally inhabited only by people who cater for visitors until sometime around the end of August.
Still, it must be recognised that the Olympics are something which people can have enough of. My dim memories of media coverage go back to the Melbourne summer games in 1956. Looking at the list I do not seem to have registered the winter versions at all.
There is a certain rhythm to these things. When the host city is chosen there is a whiff of scandal. Then there are the first of the pained noises about the budget which will continue until well after the games, because the bid budget always turns out to have been imaginative when it hits reality.
In the run-up to the great event there are some cliff-hanging stories around the possibility that some vital piece of infrastructure will not be ready in time. Then there are arguments in most countries about selection. Hong Kong’s version of these used to concern some athlete who was eligible but did not – um – look Chinese and was not selected. We seem to have outgrown this particular problem. There continues, on the other hand, to be subdued muttering about the number of Hong Kong Olympians who moved to the SAR after narrowly missing inclusion in the China team.
During the games there will be the usual dust-ups about refereeing, cheating, tactless winners and tactless losers, surreptitious efforts to help the home team, and so on. These will be off-set by magical moments of sportsmanship and joy. On the whole most of the media people and all of the officials will conclude that the games were a success, whatever that means, except for Munich 1972, marred by a massacre.
The host city will then be left to pick up the bill, which can be enormous – Montreal (1976) took decades to pay off its Olympic debts. Los Angeles (1984) seems to have been unique in actually showing a profit. There is also the question whether all the facilities specially built will, as the boosters predict, be useful afterwards. Here also outcomes vary. London (2012) seems to have found a use for all its Olympic erections; Athens (2004) still has weed-infested sports sites which were never used again.
Social scientists have determined that the economic benefits of hosting the games are overstated and probably non-existent, while they do give a lot of harmless pleasure to the population of the host city while they last. This is a difficult attraction to sell politically and bids to host have become sparse.
The current games, I notice, have already produced two rows of a kind to which we were not treated in the 20th century. The first concerns woman boxers who used to be men.
This did not come up in the old days, partly no doubt because there were no woman boxers. I recall some carefully phrased expressions of suspicion about well-built Russian women in the throwing events. The two boxers at the centre of the current row were excluded from the last Olympics. But the organising body for Olympic boxing was changed after a refereeing scandal and the new one revised the rules.
I confess to being non-plussed by the moral issues involved. It is an important moral principle that all people should be treated the same, and if they wish to be women they should be allowed to be women. On the other hand it is also an important principle that athletic contestants should be fairly matched, and in some sports, including boxing, being a man for the first 15 or 20 years of your life apparently confers a big advantage.
My Solomonic solution would be to ban boxing altogether as being a depraved pursuit unfit for decent human beings, who ought to be repelled by the idea of beating someone else unconscious. But that is not going to happen.
The other very 21st century contribution is the row over the Dutch volley ball player – unashamedly male – who was convicted some years ago, when he was 19, of having sex with a 12-year-old girl.
In England, where he did it – they met on-line, of course – this is treated as rape, and he was accordingly sentenced to several years in jail. After some months, though, he was returned to Holland, where consensual sex with under-age partners is, though still illegal, regarded less seriously. So he was released soon after.
The question which then arose from several directions was whether it was acceptable for such a person to be in an Olympic team. The Dutch view is that the man concerned has expressed remorse, served his time, recognised the error of his ways and is entitled to be treated like any other citizen who is good at volleyball.
The contrary view is that the man is a paedophile and should be shunned athletically, presumably for the rest of his life, as an inappropriate role model for young people who may regard Olympians as examples of behaviour to be emulated. Objectors also claim that having him on the court, pitch or whatever is upsetting for victims of sex crimes generally and his victim in particular
I confess to finding it easier to find a side to agree with in this one. Criminals who have done their time and expressed a decent level of reform and regret are entitled to be treated as ordinary members of society. If we are to bar convicted sex offenders from the Olympics what happens when some team turns out to include a bank robber, a mugger, a retired member of Islamic State or a fencer who honed his sword skills by beheading adulterous women in Saudi Arabia?
Note that the latter competitor will not have been jailed. A global sporting festival will include people from a variety of different backgrounds and legal regimes. Attitudes to sex are particularly fraught with geographical variations. The idea that some sex offenders should be treated to life-time ostracism is a Western thing.
As for the argument that this is all unfair to victims, I discern a whiff of hypocrisy. The fact is that there is a fairly small following for three-a-side volleyball, and the Dutch team is not particularly prominent. The player concerned has been in the international side since 2017. Nobody would have noticed his inclusion if nobody had made a fuss about it.
Update: There is an error in this piece. I supposed, and wrote, that the two boxers in a row over their hormone levels were people who had been born as males and transitioned to female. This is not the case. Both the women concerned were recognised and registered as female at birth and have gone through the rest of their lives as women. Their elevated testosterone levels are a result of a rare medical condition. The dilemma remains the same: does the effect of this produce so much unfairness, or danger, that the two athletes should be barred from competition? But opinions about the merits or otherwise of gender transition are nothing to do with it. Thoughtful piece in the Guardian here.
The Consumer Council is a curious creature. It is, according to its ordinance, not a part of the government. It is, though, according to the same ordinance, required to follow any written instruction from the Chief Executive. And it is, of course, governed, so far as the actual council governs anything, by government appointees.
This is not usually relevant to the council’s work, which is to help consumers with individual complaints and publish reports on topics relevant to consumption. The reports are a reliable source of news, though sometimes seem to be trying rather too hard.
Some of the “safety hazards” of which the council warns us are rather remote. A recent survey of bottled drinking water, for example, worried about bromates, chemicals often found in water which has been chemically purified.
Bromates pose a cancer risk. On the other hand if you drink a daily two quarts (or half a gallon) of bottled water at the upper end of the range allowed by food regulations, your lifetime cancer risk goes up by about two in 10,000 (according to the New York State Health Department).
Other risks which agitate the council are rather obvious. A report on beer, for example, warned that consuming large quantities regularly will make you grow fatter. This will not have come as a great shock to the beer-drinking community.
And so to last week, when the Council departed from its usual confident, if nit-picking, tone to engage in a full-court grovel before a mainland company which had complained about a report on bottled water.
The company, Nongfu Spring, is rumoured to be owned by China’s richest man. In view of the hazards attached to being China’s richest man this is probably a malicious report circulated by his enemies. Still, it is a big company, so we may suppose it to be well-connected.
The council had reported that a sample of Nongfu’s mineral water had a bromate content of 3 micrograms per litre, which coincides with the upper limit in the European Union standard for some water products.
It also made some mildly critical comments on the taste and mineral content, and gave the sample four and a half stars (out of five). Clearly this upset Nongfu, but if you want to dispute and downgrade a report you keep off the subjective stuff and go for the science.
In a strongly worded letter the company complained that the EU standard was inappropriate, and the sample tested was not, as the council had supposed, “natural mineral water” nor “purified drinking water”.
Instead it was in a category recognised by mainland food regulations, “natural drinking water” and met the standards required on the mainland for this category. If not offered a correction and apology the company would take “further action”.
It also complained that it was inappropriate to use food standards from outside Hong Kong, and as the water was produced on the mainland, mainland standards should apply.
Following a meeting the council, usually a robust defender of its conclusions, collapsed in a heap, apologising, reclassifying Nongfu’s masterpiece as five stars, and stressing that all the samples it tested were prefectly safe to drink, as indeed it had stated in its original report.
This is disappointing. Firstly it is important and useful that the Consumer Council should be able to consult and use a wide range of standards from outside Hong Kong. There are many matters for which there is no local standard. Also the phrase “mainland food safety standards” produces a little mental crashing of gears, the kind you get from concepts like “truthful Donald Trump”, “Swiss seamanship” or “Hong Kong’s beloved government”. We can do better.
Secondly, water is water. Nongfu Spring’s business model involves fostering confusion on this point. The company’s website offers Drinking Natural Water, Drinking Purified Water, Natural Jokul Mineral Water, Drinking Natural Water (Suitable for children and nursing mothers), Natural Mineral Water (containing lithium), Drinking Natural Spring Water (suitable for tea making), and Natural Mineral Water in three different kinds of bottle (sports caps, glass and zodiac).
Oddly enough there is no product called “natural drinking water” and people who hawk products called “mineral water” should not be surprised if mineral water standards are applied to them. How can we expect the Consumer Council to stand up for consumers if it is too timid to stand up for itself?
Also an unexpected contender for the traditional white feather this week was the Wall Street Journal, which summarily fired a reporter, Selina Cheng, for accepting the post of chairman of the local Journalists’ Association. Ms Cheng said she had been warned against “advocating for press freedom in a place like Hong Kong.”
Is this the real Wall Street Journal, proprietor R. Murdoch, home in New York, safely headquartered in the home of the brave, land of the free? Alas, so it is. Indeed some people have suggested that the WSJ already has one reporter languishing in a communist jail and is reluctant to risk having another in the same plight. Ms Cheng would not, if such a thing came to pass, be the first JA chairperson to see the inside of a prison.
I know US newspapers have a thing about reporters displaying political preferences. But even the WSJ apparently regards advocating for press freedom as acceptable, in places where there is press freedom – an oddly self-defeating condition. Also Mr Murdoch is famously hostile to unions of any kind.
Still. Ms Cheng’s union activities were not likely to clash with her professional work covering the car and energy industries in China. And the WSJ will soon be free from worries about hostility in Hong Kong because it is moving to Singapore.
In response to inquiries the WSJ borrowed a famous line from embattled government departments and refused to discuss individual cases. It also said it was “a fierce and vocal advocate for press freedom in Hong Kong and around the world.” Bullshit. Had chance. Blew it.
tim's experiment 