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Message to prosecutors: children should be treated as children

Posted in Uncategorized, tagged , , on July 10, 2026| 1 Comment »

The Department of Justice continues to find ways to spoil my breakfast. Consider the case of Ms Ami Chan, which was heard in the Eastern Magistrates Court earlier this week.

Ms Chan was arrested in 2019 (yes, it’s one of those cases) although she was not accused of rioting. The case revolves round the contents of her rucksack, which included two laser pointers and two cans of spray paint. A rare hit from “stop and search” policing.

Nothing further happened until 2021, when Ms Chan, still a free woman without convictions, moved to Australia, where she has lived and worked ever since.

However earlier this year she returned to Hong Kong and was then arrested and charged with the offences involving her unruly rucksack. Nothing remarkable so far. Cases dating back to 2019 are still coming before Hong Kong courts, although apparently the government now accepts that most of the thousands of people who were arrested will never be charged with anything.

Why am I bothered? Because at the time of her arrest Ms Chan was aged 15. She was a schoolgirl, a juvenile in the eyes of the law. Now she is an adult, appearing in an adult court and facing possible adult penalties.

This is not supposed to happen. The law sensibly has a less abrasive approach to juvenile defendants than it does to adult ones. There are differences in procedure and also in the penalties which can be imposed in case of a conviction. There are also reporting restrictions.

This system only works if prosecutors get their act together in a reasonably quick fashion and get the case into court while the juvenile is still a juvenile. When I was a court reporter we still covered juvenile cases (the public is not admitted but media reports of a limited kind are allowed) and the hearing commonly occurred within weeks of the alleged offence.

I do not recall any case in which the prosecution of a juvenile took so long that the matter had to be heard in an adult court. This routinely occurs in Hong Kong.

In defence of the prosecutors it will be said that Ms Chan was responsible for some of the delay because she could not be prosecuted while she was not in Hong Kong. That is one way of putting it. After all Hong Kong citizens are not required by either law or morality to hang about in Hong Kong waiting for the justice machinery to churn through their paperwork if they have things to do elsewhere.

I note also that in 2021, when she left, she will already have been 17, on the brink of legal adulthood. The further five years have sufficed only to remove her from the further protections provided by the Court of Appeal’s sentencing guidelines for people under the age of 21.

I express no opinion about Ms Chan’s guilt or innocence, on which the magistrate is now pondering. I do believe that having fallen so far below the standards expected of prosecutions in cases involving children the Department of Justice should not have brought this case at all.

The department’s guidelines for prosecutors (echoing numerous human rights instruments, including our local one) say that defendants are entitled to a trial within a reasonable time. What the department’s denizens seem to have trouble getting their heads round is that this may vary with the age of the accused.

It may be acceptable (God help us) to keep an adult waiting for seven years. For a juvenile even seven weeks could be considered excessive. Faced with a kid in trouble the case needs either to be diverted into a high-speed channel from the bureaucratic pipeline where it has to float along with the rest of the legal excrement, or fished out and dealt with promptly by whoever owns the relevant in-tray.

Depriving young defendants of the benefit of the provisions expressly provided for them is a rank and undisputable injustice, whether it is perpetrated as a deliberate abuse or an unintended result of a sluggish system. Children should be treated as children.

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Freedom of expression? Blessed are the pessimists

Posted in Uncategorized, tagged , , , , , on June 27, 2026| Leave a Comment »

For a fairly depressing experience, try reading the Court of Final Appeal’s decision on the question whether it is acceptable for the government to make it a crime to encourage people not to vote. Of course it is all right. This does not come as a surprise. As Alexander Pope put it, “Blessed are the pessimists, for they shall never be disappointed.” The judges’ conclusions lived down to expectations.

Well I do not propose a critique of the decision. This would be pointless. The law is, in the end, whatever judges decide it is.

The interesting thing about the judgment written by Chief Justice Andrew Cheung, and unanimously endorsed by his colleagues, was what was said, or implied, about what you might call the surrounding area. Granted that the restriction on advocating election boycotts was an acceptable restriction on freedom of speech, what areas are we left with?

Consider, for example, a generalisation during what you might call the warm-up phase: “Debate and discussion during an election period concerning whether to vote, for whom to vote, and whether the election is being conducted openly, fairly and honestly are plainly matters of importance.”

May we deduce from this that having allowed the government to curtail discussion of whether to vote, judges will in future defend the right to discuss whom to vote for, and whether the election is open, fair and honest?

There are, I think we can infer from the turnout in the last district polls, among us some deluded citizens who think the elections were neither open nor fair, and as that is the case the question of honesty does not really arise. They may think that the electoral system merely pastes a rather ineffective figleaf over an entirely predictable exercise of China’s undisputable and unlimited sovereignty, that a Chief Executive “election” with only one candidate lacks a certain je ne sais quoi in democratic respectability

But if one of these unfortunate people were to express this view in a public forum, what would happen? Our government’s reaction to public criticism of any kind, even from its most dogged supporters, tends to fall in the range between tetchy and outraged.

It also appears that with so many recycled police people in the administration, the reaction to opposition is like that of the man with a hammer to whom every problem looks like a nail. Ungrateful people and organisations should be arrested and charged. If there is no convenient law permitting this we should explore the uses that can be made of inconvenient ones, so independent bookshops get raided, independent news outlets get tax demands, independent restaurants are inspected…

This seems a long way from the world inhabited by Chief Justice Cheung, who observes that the law on boycott calls “is confined to the election period and to acts of public incitement. At other times and on other occasions, the right to freedom of expression remains unaffected.”

Does it indeed? I suppose private incitement enjoys a certain amount of freedom because it is private. As the old Lancashire saying has it, “what the eye doesn’t see the heart doesn’t grieve over.” As a potential practitioner of public incitement, though, I remain unconvinced by the time limit. Would 1,000 words on the deficiencies of Hong Kong elections under the current system pass unnoticed if published outside the election period? Would it make any difference if they were in Chinese? Would it make any difference if they had been written by some reviled target figure like Ted Hui?

Far be it from me to suggest that the Court of Final Appeal has erred. It is difficult though to acquit the court of the charge of complacency. Freedom of expression is an endangered species and it would be nice to think judges would protect it. Perhaps this was not a suitable case for a demonstration of judicial zeal for the defence of an important human right. Perhaps there will never be a suitable case…

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Keeping ‘Five dumplings not one less’ off local menus

Posted in Uncategorized, tagged , , , on April 17, 2026| Leave a Comment »

The Hong Kong government’s attitude to the rule of law is interestingly ambiguous. It wishes to claim credit for being a law-abiding government, but it does not want to sacrifice for this purpose the achievement of other desires.

This implicit conflict is nicely wrapped up in the matter of restaurant licences. In any sensible jurisdiction there are some requirements for restaurant operators, intended to ensure hygiene and other worthy food-related objectives.

However these days all government departments are expected to show their enthusiasm for national security. So last year the Food and Environmental Hygiene Department, which licenses restaurants, treated licence-holders to a letter warning that licences would be revoked if holders or their “related persons” engaged in conduct against national security or the public interest.

Now the FEHD has form in the matter of using existing regulations to pester or persecute restaurants which the government, for some basically political reason, does not like. So there were complaints that what was effectively a new licence condition was too vague, and consequently open to abuse.

Not so, the Chief Executive told a news conference. “Offending conduct means any offence that endangers national security, or acts and events that are contrary to national security and public interest in Hong Kong. It is very clear,”

But it is not very clear, because two very different things are being mixed together. An offence that endangers national security is a criminal matter. Conviction takes place in a public court and is a matter of record. A restaurant owner convicted of such an offence may feel that losing his licence is the least of his problems, but he can read the law and look at the way it has been applied.

He will avoid traditional menu items like Five Dumplings, Not One Less, or Three Hamburgers; Revelation of our Thyme. “Related persons” will be urged to behave themselves. But what does the public interest require?

This mystery persists in the latest version of the licence, which has a clause we can consider in full:

“I shall ensure that no act or activity engaged or involved in by me or any of my related persons (include the directors, officers, employees, agents and sub-contractors) may constitute or cause the occurrence of an offence endangering national security under the National Security Law or other laws of the HKSAR, or conduct is otherwise contrary to the interests of national security or the interest of the public (including public morals, public order and/or public safety) of Hong Kong.”

As tends to happen in very long sentences the grammar wilts a bit in the closing stages and seems to require either the insertion of “that” after conduct or the deletion of “is” in the same place. But this does not affect the meaning, which still leaves the question over what might be in the public interest.

There are some legal glosses on the phrase, though unfortunately they are not particularly helpful. Some restrictions on media stories can be waived if publication is “in the public interest”. Judges tend to be quite conservative about this but the general rule seems to be that the public interest is served by stories which expose iniquity (in a broad sense) or stories which alert the public to hazards which they need to know about.

In contract law it is well established that contracts will not be enforced if their effect is not in the public interest. Once again this does not come up very often – judges are even more hostile to unenforced contracts than they are to muckraking journalists – but traditionally contracts have not been enforced if they concern gambling or commercial sex.

The morals/order/safety part seems to have been inspired by the part of the Bill of Rights Ordinance which specifies the purposes for which the government may restrict freedom of expression. This suggests – a worrying thought – that the government intends to use threats to restaurant licences to restrict freedom of expression, and proposes if anyone complains to rely on the permitted restrictions.

This may not fly in court because the Bill of Rights Ordinance also requires that restrictions should be specified by law and necessary in a democratic society. Clearly legal language is being used here, but perhaps as an adornment rather than a substantial signal.

Where does all this leave us? Well one theory is that the government wishes to increase its options in efforts to suppress businesses which supported the wrong people in 2019. Asked if this was the case Mr Ronnie Tong, a government adviser, replied last year that it was “hard to say”.

Another theory is that the unstated purpose is to reinforce the existing routine practice under which food outlets which have accepted bookings from organisations the government does not like tend to cancel them at the last minute.

Maybe it is just that the “public interest” is one of those elusive philosophical concepts like “soft resistance” which puzzle the public but are perfectly clear to recycled policemen and the people who write the front page of Ta Kung Pao.

The other remaining puzzle is why restaurant licences have been singled out. All government departments, we are told, have an obligation to support national security. But the numerous other licences issued for various purposes by different departments have not been amended in the same way.

Yet.

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Are our leaders too keen on locking people up?

Posted in Uncategorized, tagged , , on February 11, 2026| 1 Comment »

So the new regulation requiring us all to wear seat belts on buses was cancelled after five days, apparently because of public opposition to the measure. It is nice to know that the government cares what people think, at least about some things.

At one level this is an everyday story of careless constitutional design. The reformed system is set up to stuff the legislative and consultative machinery with people who will tell the government what it wishes to hear. You can’t expect it to provide an accurate report of public opinion on anything and it doesn’t.

At another level this is a typical performance from a department which seems to have strong opinions of its own. Observant residents in Sui Wo Road are baffled by the apparently random placement of a variety of street furniture, culminating in the curious insistence on providing bus shelters in places where nobody will use them, while adamantly refusing to put them where they are needed.

In the days when I occasionally visited government departments to interview their occupants the Transport people came across as intelligent and thoughtful. No doubt they still do. But the results of their collective efforts are, alas, sometimes difficult to understand.

I am personally an enthusiastic user of seat belts. They have saved many lives, including mine. Tour buses, on my last trip to Europe, all featured seatbelts and we were regularly reminded that using them was a legal requirement.

But in a Hong Kong public bus? Regardless of the numbers painted on the side they are, at busy times, packed. The driver has no control over the number of passengers admitted, and quite understandably imposes a limit only when the number of standing passengers threatens to block his view of the nearside wing mirror. Insisting that the seated passengers should wear a belt seems a bit of a token gesture.

Anyway many writers have chewed over the transport aspects of this matter. What I thought should have been given a bit more thought was the matter of penalties for not belting up. Of course there must be some penalty or the rule will not be taken seriously, but what on earth was going through the head of the person who thought it appropriate to threaten offenders with three months in prison?

Failing to fasten your seat belt is, as the late lamented Judge Caprio used to put it, “not an offence of gross moral terpitude”. It is a victimless crime, in the sense that the only person likely to be hurt as a result of failure to fasten is the perpetrator. Most offenders will have been guilty of nothing worse than absent-mindedness.

Willingness to jail people for this minor offence sits uneasily with the government’s total helplessness when faced with equally minor offences committed by people who can afford cars of their own, and the general immunity enjoyed by the perpetrators of potentially dangerous peccadillos like double parking in busy streets or obstructing roads reserved for emergency use.

Not wearing a belt is surely the sort of offence which can be easily and quickly dealt with by the issuing of a fixed penalty ticket, preferably for some modest sum within the means of bus travellers, who are not a wealthy bunch.

Sending people to prison for a few weeks used to be common in many jurisdictions but is now often considered an abuse to be avoided as far as possible. It inflicts the sort of disruption which makes a return to law-abiding citizenship difficult; the prisoner may lose job, home or spouse. At the same time it provides no opportunity for the sort of rehabilitative and educational activities which can form the constructive part of a prison sentence.

The inmate is more likely to emerge resentful than reformed.

Our government seems, sadly, rather over-enthusiastic these days for throwing people into prison, regardless of their age or condition. This may be a difficult point to put across to retired policemen turned politicians, but the government is in some ways different from a police force.

Success in police work may be measured by the number of criminals jailed. Success in government is measured by the happiness of the governed. Are we happier this week?

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Slow-motion justice: not just for political cases and not just a problem for defendants

Posted in Uncategorized, tagged , , , , , , on January 7, 2026| Leave a Comment »

Long delays in bringing criminal cases to court have been an unlovely feature of the Hong Kong legal system for a long time. Critics, including me, have tended to assume that this was mainly a problem affecting defendants with whom the government had a political beef.

Keeping defendants waiting for trial was particularly objectionable – and, if deliberate, effective – in national security cases, because the wait for a day in court was commonly spent in custody, not on bail.

Two recent cases suggest that the problem is more widespread, and also more harmful in its effects, than this simple narrative suggested.

Some background: pre-extradition bill case involving umbrella movement defendants, with an outline of international standards. Some figures. Recent horror story. The government’s defence and some comments on it: Connoisseurs of legal bullshit will particularly enjoy Mr Greville Cross’s reliance on a doctrine which never applied to criminal cases and was formally abolished by the English parliament in 1769.

Now to recent events: consider the case of Dr Franklin Li, a plastic surgeon who unwisely continued to practice after reaching an age at which the attractions of the golf course and the retirement home should have been irresistible.

In 2018 Dr Li, in a moment of negligence while performing a face lift, killed an investment banker. The doctor was then 86 years old. The legal wheels started turning, and they were still turning in 2022, four years later, when Dr Li, then 90, hit his head in a fall.

Late last year, now 92 years old, Dr Li finally appeared in the High Court charged with manslaughter, and was found to be so afflicted by dementia that he could not receive a fair trial. The case was accordingly dismissed. Justice was not served. The banker remains dead.

A curious little footnote: last week the Department of Justice (sic) was in action in the Kowloon City Magistrates Court, where Dr Li was supposed to face two counts of misleading a police officer and 12 of failing to keep accurate drugs records. The prosecution was allowed to drop the charges on the basis of the High Court’s decision that the doctor was unfit to plead.

And the lesson of this sorry story is that the passage of time changes things, and if six years elapse between alleged crime and prosecution then things can change a lot. The usual concern in complaints of this kind is that this may harm the defence; memories fade, witnesses disappear, evidence erodes… But the change may be bad news for the prosecution too.

Manslaughter is a serious matter with no political hooks. Presumably the investigation started promptly with the discovery of the dead victim. Why so long?

Business as usual, perhaps. Let us now turn to the case of Jeffrey Tam, also in court recently. Mr Tam was working as a police officer in 2019, when he had a hernia problem. This was successfully treated, but required some post-operative restraint in physical activity.

However Mr Tam told his doctor that he was a physical fitness trainer and could not avoid strenuous activity as part of his job. The doctor then provided a sick leave certificate covering 54 days, which Mr Tam duly took off work, with pay.

Magistrate Amy Chan took the view that Mr Tam was trying to avoid further participation in the tear gas festival which was in progress at the time, and sentenced him to six months in jail, where he will no doubt be warmly received, poor chap.

It seems the case against Mr Tam was boosted by a Watsapp conversation with his supervisor, in which Mr Tam admitted lying about his job to avoid the street fights. It is not clear from news reports when this conversation took place, but it is difficult to believe that the matter came up recently.

Anyway, Mr Tam is rather coyly described in news reports as a “suspended police officer”. I take this to mean that he was, as the Police General Orders put it “interdicted from duty”, while remaining on the payroll. This is a common arrangement in Common Law jurisdictions, and a cause of ongoing arguments.

The practice of suspending accused policemen while still paying them is defended as enshrining the principle that a person accused of an offence is innocent until proven guilty. Taxpayers groan that the system bestows a large amount of money on an officer who is not working for them and may indeed in some places actually take another job while awaiting trial.

What cannot be disputed is that a long wait for a case to come to trial does nothing for the rights of the accused policeman but costs the public funds a great deal of wasted spending, if the police person is eventually convicted.

Mr Tam was accused and convicted of fraud for collecting 54 days worth of pay. It would be interesting to know how much pay he collected perfectly legally for doing nothing while waiting for the prosecution to get its act together.

Mr Tam, I record in the interests of fairness, still maintains his innocence and plans to appeal. It may also be that sick leave claims in our beloved police force are often spurred by a desire for paid leisure. One of my police friends was for a while in charge of handling sick leave claims. The force is beset by continuing epidemics of two ailments difficult to diagnose: depression and lower back pain.

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Sadly, Olympic gold may not lead to a political podium finish

Posted in Uncategorized, tagged , , , , on December 18, 2025| Leave a Comment »

​The only part of the recent Legco election which cheered me up was the success of Ms Vivian Kong.

This is not because I warmly support her political views. I know nothing of what she thinks, but my rule in these matters is that the vetting and selection of candidates is now so effective that anyone allowed to run can be considered someone I would not wish to vote for.

On the other hand Ms Kong’s gold-winning Olympic efforts tickled the memory because I, too, was once an épéeist.

My career was much shorter and less glorious than hers. I was recruited at short notice by the Lancaster University fencing team because the league in which they played (North Lancashire had a fencing league? I was surprised too) required every team to include one épée person.

I had no relevant experience. Perhaps they thought someone who was used to waving an oar about would be able to handle the épée, which is heavier than the other two sport fencing swords, and has much simpler rules.

I expected to be massacred every week, but in practice it appeared that many of the other teams had a similar shortage of épée specialists, so I did reasonably well apart from the rare occasions when I came across a real épée person who knew what he was doing.

The following year such a person appeared at Lancaster U so I retired to do other things. But fencing can be recommended. I enjoyed the ritual side of it, and for a military historian it is a treat to practise a skill which was cherished by soldiers for centuries.

Ms Kong says she has learnt a great deal from her career as a professional sportsperson. She is a bright spark, has two real degrees and is working on a third. But the track record (if you’ll pardon the phrase in this context) of sporting superstars in politics is not impressive. Huge if rather patchy survey here.

Clearly winning an Olympic medal requires an impressive amount of dedication and toil, typically spread over years. Putting the legendary 10,000 hours in to acquiring one highly specialised skill must teach something. But how much of that is transferable?

It appears that a lot of former sportspeople have reached, and no doubt loyally served their respective communities in, what you might call the foothills of politics. In small countries they may hope for ministerial posts connected with youth or sports. But getting on the podium is much rarer.

There are examples of political gold medal winners, though none of them actually managed an Olympic gold as well. There is Lester Bird, a distinguished cricketer who became prime minister of Antigua and Barbados, or George Weah, who after playing for many of the best football clubs in Europe became president of Liberia.

Combat sports have a mixed record. Khalimaagiin Battulga, a star of Sambo (nor did I; here it is) later became president of Mongolia. The boxing champ who went on to become president of Uganda was the appalling Idi Amin.

Hong Kong citizens hoping for a livelier Legco will note with approval that Ms Kong has at least excelled at something outside of politics, and hope that she does not drop her current day job.

An ominous trend in Hong Kong politics is the rise of the full-time politician who does nothing else, and indeed in some cases has never done anything else.

Looking at the list of Legco candidates, for example, of the 161 hopefuls 28 described themselves only as “district councillor” and 16 offered only “lawmaker”. Some of the jobs offered were also political (NPC member, trade union official) and some of them did not look as if they would take much of the candidate’s time (company director).

More than a third of those actually elected did not have a “day job”: ten district councillors and 23 “lawmakers”. We must suppose that some of the others will decide to give up, or become part-timers, in the professional activities they have declared, once the rather generous remuneration provided for Legco members hits their bank balances. Other pursuits may be difficult to combine with regular meetings. Lam Ming-fung, for example, is a “vessel captain”.

So I suppose that in the end quite a lot of our representatives will be spared any contact with life as it is lived by the average voter. This is perhaps a pity when it seems the average voter was not terribly impressed by them.

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Who wears the trousers in Hong Kong’s prisons … and who wears the shorts?

Posted in Uncategorized, tagged , , , , on April 18, 2025| Leave a Comment »

One of the interesting consequences of the way the law has worked since 2020 is the arrival in Hong Kong prisons of many inmates rather different from the usual inhabitants. A large influx of young, articulate and educated criminals whose offences are, if not explicitly political, well off the usual sex, violence and greed track has shone light into some neglected corners.

Practices hallowed by decades of history have been challenged, with interesting results.

The latest episode in this series stars Ms Chow Hang-tung, who has been enjoying correctional hospitality since 2021 and is currently awaiting trial on national security charges.

We may note in passing at this point an unintended consequence of the way national security cases work. Those convicted are not eligible for the usual discounts for good behaviour. So they can enjoy attempts to stick it to The Man without the apprehension which keeps conventional prisoners quiet – that The Man will, if provoked, perhaps find ways of sticking it to them.

Ms Chow’s complaint, which was aired in the High Court last week, is that prison clothing policy is discriminatory between the sexes (or if you prefer genders) because male prisoners are allowed to wear shorts in the summer, and female prisoners are not.

The resulting hearing was a good illustration of the way in which legal reasoning and conventions can take us a long way from the messy reality of the real world.

Of course nobody can stand up in court and say that Ms Chow is not really motivated by the minor unpleasantness of being trapped in long trousers through another of Hong Kong’s sweaty summers. She has noticed that the Hong Kong authorities are exploring every legal avenue in their determination to give her a hard time and is retaliating as best she can.

Nor would it be polite for counsel for the government to admit that the ban on shorts defies common sense, and is the legacy of decisions made decades ago when ideas about dress were rather different and sexual discrimination had not been invented. In those days respectable women did not wear shorts in the street while uniformed men had a summer get-up involving shorts.

The uniformed types have pretty much dropped shorts, but in civilian contexts women now wear them all the time. Ms Chow’s suggestion is nevertheless unwelcome, because it comes from her. Good order and discipline in local prisons is endangered if the Correctional Services Department is coerced into changing a rule by an uppity inmate.

So we can expect to see the government fight this all the way to the Court of Final Appeal, just as it did Leung Kwok-hung’s challenge to prison haircut rules.

One can only sympathise with the legal eagle, senior counsel Mike Lee, in charge of defending the prison uniform rules. Mr Lee argued that the ban on shorts resulted from consideration of a “basket of considerations” arrived at in decades of departmental consideration and experience. This had revealed, according to a CSD psychologist, that there were “inherent differences” between men and women. The women, consequently, did not in the department’s view wish to be allowed to wear shorts.

The saga will no doubt continue. I would respectfully suggest that Mr Lee drop the argument that uniform wearing is an essential part of maintaining “custodial discipline”, because this leaves him open to the question why custodial discipline in male prisons appears to be compatible with allowing shorts as an option.

I was also not impressed by the analogy to school uniform which, in Mr Lee’s view, “fosters a sense of learning” as “education is the prime objective”. Few educators subscribe to this view of uniforms, which are generally defended as concealing differences of wealth among students and fostering esprit de corps.

In any case some of the most successful education systems, like those of Finland and Denmark, do not require school uniforms at all. I note in passing that some of the most successful prison systems do not require uniforms very much either.

Another point I have some difficulty with is the suggestion that the department is defending the rule on long trousers because the prisoners like it. I know and admire quite a lot of correctional people – the department was at one time a hotbed of enthusiasm for the Great Highland Bagpipe – and I acknowledge the idealism and humane sentiments which animate much of the department’s work. But a prison is not a democratic institution and the whole concept of punishment involves NOT giving the prisoners what they want, which in most cases is to go home.

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A man, a plan, Panama!

Posted in Uncategorized, tagged , , , on March 27, 2025| 2 Comments »

I generally hesitate to say anything about what appears in the Chinese-language press, because it reaches me only second-hand, and in translation. But recent commentaries in Ta Kung Pao have me puzzled.

I do not participate in controversies about China, for or against. Such matters are not very interesting and in any case, as a marooned Brit, none of my business. But I thought I understood how the game was played.

Take the row about Huawei and its exclusion from the business of providing telecom networks in Western countries. What we might call the Trumpeters’ tune is that there is no such thing in China as a private company. Whether or not Huawei wished to tweak its software to facilitate spying, it would have no choice.

But this is a smear peddled only by China haters and stirrers-up of trouble who wish to start a new Cold War. Actually Huawei is free to make its own decisions and would not dream of tricking its customers in this way.

A similar division of views hovers over the Belt and Road scheme. Critics say this is a cunning ruse through which China can extend its ownership and control over vital links in the world trade network.

Not at all, explain the scheme’s defenders. Belt and Road projects are win-win affairs which benefit everyone concerned: both the trading countries at each end of the road and the country which actually contains the port, railway, canal, or whatever. They are a benevolent donation to the common good by the PRC, and the eventual ownership of the items constructed will normally be vested in the country in which they sit.

Then there is the matter of the national security law. When this first appeared many critics (I rather think I may have been one of them) complained that there was a shortage of precise definitions of the new offences created. Not at all, we were assured. The descriptions of the offences were perfectly adequate and nobody who had read them carefully would be in any doubt as to what was intended.

All three of these comfortable thoughts have been thrown into doubt by the Ta Kung Pao leader-writers, who are generally assumed to be privy to the truth as senior Hong Kong government people see it.

The news which stirred all this up was that Hutchisons, generally regarded as a Hong Kong firm though most of its business is elsewhere and its registration is in the Cayman Islands, was selling 40 ports to an American consortium led by BlackRock. Among the ports in question are two next to the Panama Canal, about which President Trump has been complaining bitterly.

Hutchison’s explanation was that this was a purely business decision, basically to get out of the overseas ports business; the group will still own ports in Hong Kong and mainland China. In view of the danger of tariff wars shredding the international trading network this is not an ostentatiously surprising decision.

It did not, though, go down well with Ta Kung Pao. Hutchisons’ move was denounced as a “betrayal of all Chinese people”, an act of “spineless grovelling”. Former Chief Executive Leung Chun-ying asked “Do merchants have no motherland?”

Well no doubt the whole thing would have looked more attractive if President Trump had not so rudely called for changes in the Panama Canal Zone in the first place. On the other hand if Hong Kong companies (we’ll leave the Cayman Islands out of it) are expected to tailor their activities to PRC foreign policy objectives, how can we be expected to believe that mainland firms do not?

As the row rumbled on the deal was stigmatised as sabotaging the Belt and Road initiative. This is not what we used to be told about the Belt and Road at all. Is Ta Kung Pao now of the view that the purpose of the Belt and Road scheme was to ensure that no container could be unloaded anywhere in the world without China’s approval and participation?

And as the writers warmed to their task we came to the inevitable ingredient in any political storm these days, national security. Was the sale of the ports a national security crime?

Well one rather hopes not. The crimes created by the national security law are secession, subversion, terrorist activities and collusion with a foreign country or with external elements to endanger national security. Clearly the first three are not relevant, and it is difficult to see how the fourth could be applied to selling a business asset for a realistic price to a foreign buyer. It may be a source of pride and pleasure for Chinese people to know that one of their number is a global presence, but it can hardly be a national security necessity for someone with a Chinese name to own a port on the other side of the Pacific.

A couple of thoughts might soothe. The first is that ownership of two Panama ports does not confer any power at all over the canal, which remains the property of Panama and under the control of the Panama government. The ports are actually outside the canal proper and their main function is to deal with Panama’s own imports and exports. President Trump does not seem to know this, among many things.

The second is that the new American owners will not be under the same pressure or expectations which local patriots would like to exert on Hutchisons. Much has been made of the fact that the chief executive of the buyers, BlackRock, is an old friend of Donald Trump.

Well all these plutocrats go to the same parties, no doubt. But American business is not inhibited by concerns about the national interests of the USA, or indeed anywhere else. Ethical standards have gone down the tubes over the last 50 years. Money trumps morals every time. Ports controlled by American companies will be ruled by pure greed, unsullied by politics. Doesn’t that feel better?

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Commenting on, or criticising, court cases is both legal and helpful

Posted in Uncategorized, tagged , , , , on March 10, 2025| 1 Comment »

It is nice to know that the Secretary for Security reads Ming Pao. Think of the alternatives. Sadly however the secretary, Chris Tang, often does not appear to enjoy his reading.

The last item to arouse Mr Tang’s ire was an op ed on the latest legal instalment of the Yuen Long incident, by law professor Johannes Chan. “The author, who is a law professor, has once again published a biased article,” Mr Tang complained, “deliberately ignoring the fact that some white-clad people have already been brought to justice, misleading readers with a warped perspective that the court has made an unfair judgment regarding either party, shaking the public’s confidence in the court system, and undermining the rule of law in Hong Kong, which must be condemned.”

Mr Tang went on to say that the afterword, commonly added to opinion pieces these days, saying there was no intention to incite hatred of the government, did not discharge the obligation on the editor to ensure that his publication was “fair, objective and unbiased.”

He concluded “It is hoped that Ming Pao will not continue to be exploited by people with ulterior motives to use this platform to spread confusing remarks, to poison the community, and to create conflicts.”

Now I propose to ignore some of this. Opinion pieces are not supposed to be fair, objective and unbiased. They are expressions of opinion. Moreover if Mr Tang wishes to campaign with any credibility for unbiased media he needs to avoid the impression that he has some unique problem with Ming Pao.

I shall also pass by the bit about white-clad people being brought to justice, which strictly speaking is entirely irrelevant. Injustice to one defendant cannot be balanced by justice to another.

More interesting is Mr Tang’s claim that the offending piece misled readers into the “warped perspective” that the court had made an unfair judgment, and that this had “shaken the public’s confidence in the court system”, thereby undermining the rule of law.

This is, alas, nonsense. The rule of law has never required the public to believe that judges are infallible. In 1793 the then Chief Justice, Lord Kenyon, said that “In the hurry of business, the most able Judges are liable to err.”

More recently we can consider the view of Lord Denning:”We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.”

Or there is the rather more literary, oft-quoted, opinion of Lord Atkin (more famous as an innovator in business law), which goes in part “The path of criticism is a public way. The wrong-headed are permitted to err therein… Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even if outspoken, comments of ordinary men.”

I infer that Mr Tang is offering the courts a protection which they have never sought and do not need. If a judge makes a statement about the law it is open to criticism and comment. Similarly if the judge is sitting alone and has to make findings of fact, they may also be scrutinised. The rule of law is fortified, not weakened, if the activities of the courts can be discussed and debated.

He may also care to consider that freedom of the press is not furthered by threatening words from officials in the law and order industry, and if the government wishes to offer a running commentary on media output this might be better left to the information specialists.

Mr Tang’s repeated insistence that appending “this piece is not intended to inspire hatred of the government,” or words to that effect, is not an effective bar to prosecution, is unnecessary. We all know that. It’s like starting a novel with the usual stuff about “no resemblance to real persons, living or dead”. This will not keep you out of the libel courts if your lead villain is an erratic politician called Ronald Frump.

Mr Tang may be a happier reader if he bears in mind the wise words of the American judge Robert Jackson: “The price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.”

And if tempted to rush to the defence of some official masterpiece he might also bear in mind another observation from the same judge: “Who does not prefer good to ill report of his work? And if fame — a good public name — is, as Milton said, the “last infirmity of a noble mind”, it is frequently the first infirmity of a mediocre one.”

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

Posted in Uncategorized, tagged , , , , on December 27, 2024| 1 Comment »

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

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