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Posts Tagged ‘politics’

A national security sentence is longer than you think

Posted in Uncategorized, tagged , , on April 25, 2024| Leave a Comment »

It is a commonplace political observation that carelessly passed legislation often has unintended – and maybe ridiculous – effects. Our newly minted local legislators seem to have neglected this important warning.

We are all, these days, eager to secure national security. Attempts to achieve this by jailing those convicted of national security offences for long periods have reached a curious position.

Readers will recall that under the national security law bestowed on us by Beijing, national security offences come, like Pacific Coffee, in three sizes: small, medium and large. Those convicted must be imprisoned (there is no room for the usual alternatives; they do not mess around in Beijing) for terms ranging up to five years, from five to ten years or from ten to 15 respectively.

It has already become clear that five is going to be a hot number. In the present climate nobody, or at least nobody in the Department of Justice, is going to risk classifying a nat sec offence as anything which could be mistaken for “trivial”. So the popular classification among prosecutors is the medium one.

When the case finds its way to the sentencing judge, however, some comparison is inevitable with sentences commonly imposed in less political cases, and a five-year stretch is usually reserved for cases involving the violent separation of a victim from his health or property, or large quantities of drugs.

So five years is likely to seem enough for nat sec cases, most of which involve the holding and expression of inconvenient opinions. Note, though, one curiosity which will become relevant later: the Court of Appeal has decided that the five years is not a guideline, like the conventional suggestions on sentencing which it dispenses. Five years is a solid minimum, so the usual discount for pleading guilty is not available.

Traditionally, if you pleaded guilty, you got a third knocked off what would otherwise have been the sentence. Recently local judges have followed an odious innovation from the UK and replaced the one third discount with a sliding scale. You get one third off if you plead guilty at the earliest opportunity. After that the scale of the discount declines, reaching 20 percent at the trial kick-off and ten percent later.

The objection to this is that it encourages prisoners to admit offences before taking legal advice, which in complicated cases may mean they admit a charge to which they have a good defence. Never mind.

Now we come to the local contribution to the punishment regime, which is that nat sec prisoners will not be eligible for any of the usual early release schemes, unless the Commissioner for Correctional Services is satisfied that they will not infringe again.

Given the difficulty of proving a negative and the degree of nat sec paranoia expected of senior officials these days this looks like a plausible way of ensuring that nat sec offenders are going to be enjoying the correctional M and Ms for a long time. No doubt that is its intention.

And this gives rise to a curious situation. Let us take two prisoners, who were arrested on the same day and kept in custody thereafter. One of them is an Ordinary Decent Criminal (a term coined in Belfast for miscreants motivated by greed rather than politics) and the other is a nat sec offender.

The ODC has committed armed robbery. The judge takes as his starting point in sentencing the guideline supplied by the Court of Appeal for this offence (provided no firearm is used) which is five years. The ODC has pleaded guilty at the first opportunity so he gets the full one third discount and is sentenced to three years and four months in jail. The nat sec offender, whether he has pleaded guilty or not, gets the grande five-year minimum.

Let us suppose they share a cell. You may think that the ODC, lucky chap, will be leaving a year and a half or so before his neighbour, but that is not so. He can apply for release under supervision after serving half of his sentence, which would be just 20 months, or a little over a year and a half. If he does not fancy being supervised by the Correctional Services he can wait a bit longer and, if he behaves himself, get the discount for good conduct which is one third of your sentence. This would get him out after just over two years, on the streets and unsupervised.

At this point his cellmate still has virtually three years to serve. This is likely to strike both of them as rather unfair.

You can look at it another way. What would the sentence have to be if a judge wished to ensure that an ODC would actually, like our nat sec offender, be off the streets for five years, even if he qualified for the guilty plea discount and early release. The answer is 15 years.

This weird situation is a predictable result of the system of sentencing and imprisonment which has been around a long time. You might hope that legislators who were proposing to tinker with it would have first studied it in sufficient detail to avoid constructing obvious new anomalies. You would hope in vain, apparently.

The purpose of the guilty plea discount is to encourage early pleas, which save the time and expense of a contested trial. It appears that if you are accused of a nat sec offence you might as well try your luck in court. You won’t get the discount anyway. At least it will give you a few chances to wave at your mother.

Similarly the purpose of releasing prisoners early if they behave themselves is to encourage conformity to prison rules and sincere participation in rehabilitative activities. If these are desirable objectives you might think they would be equally desirable for all prisoners.

National security is an important objective of the law and order industry. So is fairness.

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Time for the Director of Audit to stick to his knitting?

Posted in Uncategorized, tagged , , , , on February 19, 2024| 1 Comment »

Regular readers will recall that a couple of months ago I complained that the Director of Audit had devoted the resources of his department to some nit-picking criticisms of the Chinese University of Hong Kong.

I thought there was a danger that this might look like a contribution to the general barrage of abuse from government-friendly quarters which had led to the departure of the university’s vice chancellor.

However it appears from the director’s annual report that this is not what is going on at all. What is going on is a violation not of the separation of powers but of an even older principle: the division of labour.

The Director of Audit, Nelson Lam Chi-yuen, is not a career civil servant. Before he was appointed to his present post by Carrie Lam in 2022 he was an accountant, his political experience limited to membership of the usual sort of consultative bodies and six months on the Legislative Council.

This may explain why he apparently supposes that senior civil servants are free to devote themselves to whatever work they think might be important and interesting, regardless of whether this is their appointed function, or whether it may in fact be someone else’s.

Mr Lam devoted a quarter of his annual report to his efforts to improve the protection of national security, including his farcical foray into the Chinese University. He is reported as complaining, in a newspaper interview, that “government departments and other public organisations either failed to prioritise the national security law or did not fully comply with the government’s requirements.”

“These departments and organisations are at risk of violating the law,” he said.

It seems I am not the only scribe who thought that Mr Lam’s self-appointment as a sort of national security Witchfinder General was straying a bit off-piste, as it were. Why, he was asked at the inevitable press conference, was his department no longer keeping its traditional focus on an audited body’s proper and effective use of money?

His reply deserved quoting in full: “Efficiency and effectiveness refers to whether the audited body abided by the law or not. If they have failed to do so that means they are doing a poor job. If they have broken the law, that would also involve money,” Lam said.

Which of course is rubbish. It is perfectly possible to impair national security without involving money. Effective spending of money is not the same thing as abiding by the law. And ineffective spending may be perfectly legal. Contrariwise there are many things which will eventually involve money if left unchecked, which we do not expect auditors to explore. If the drains in the Central Government Offices are blocked it will eventually cost money; we do not on that account expect the Director of Audit to explore the official sewers.

There are already elaborate mechanisms in place to ensure that government departments and public bodies accord appropriate attention to national security and obey the relevant laws. We have national security police, our shy guardians from over the boundary, the Secretaries for Security and Justice, and so on.

Mr Lam’s formulation that departments and organisations are “at risk” of breaking the law tells us, and should tell him, that he should be leaving law enforcement to police people and lawyers who will have a better idea of whether the risk is real or imagined.

The flip side of the Director of Audit developing a new national security hobby is that it will reduce the resources devoted to his proper function, which is ensuring that government spending is honest and effective.

Nobody else has the knowledge, experience and powers to do this job properly. Amateur observers have no right to extract answers from recalcitrant departments, and potential whistleblowers in the civil service may well be restrained by the thought that whistleblowing is rarely a good career move.

Mr Lam’s innovation in this area is the idea that “not everything has to be audited at once”, so any new policy will be given a few years before it is audited. By which time, surely, it will be too late to do anything about it?

An unintended light on the new approach was shone by Mr Lam’s concluding remark that “the Audit Commission is not trying to pick on the government’s mistake, but trying to step up the government’s accountability and service quality.”

Well perhaps it would be a good idea if someone in the government was trying to “pick on the government’s mistake”, because critics from outside it are “at risk” of breaking the law, as Mr Lam might put it.

And some errors become evident long before a few years have passed. The West Kowloon Cultural District, for example, is tottering towards bankruptcy because its two big museums operate at a loss, as museums generally do, and no arrangement has been made yet to fill in the resulting financial gap.

There is talk of an MTR-like solution, in which the cultural district will go into the business of developing expensive flats. This raises an interesting question. Allowing rail companies to develop the land over and around their stations is justified as allowing the rail operator to share in the extra wealth that it generates when it opens a station. Whether this is an acceptable way of financing a cultural district is perhaps a different matter.

Then if Mr Lam is not too busy he might look at the Express Rail link. It seems most of the travellers on this wonderful innovation are only going to and from stations in nearby Shenzhen, for which purpose a high-speed rail link is inappropriate and ludicrously expensive.

No doubt readers will be able to think of other items which are more worthy of Mr Lam’s sleuthing skills than the Chinese University bookshop. Directors of Audit have traditionally had a high degree of freedom to pursue whatever issue attracts their attention. But freedom, as we are so often reminded these days, has limits.

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Survey of Hongkongers’ emigration views reveals a surge in the urge to leave

Posted in Uncategorized, tagged , , , on December 18, 2023| Leave a Comment »

Some people at the Chinese University of Hong Kong are still living dangerously. I infer this from an interesting piece of research, reported in a carefully phrased piece in the Standard.

This opened on what you might call a government-friendly note, announcing an “upsurge of citizens planning to live on the mainland”. This was not quite born out by the ensuing story but of course we must not blame the reporter (Marcus Lam) for that.

His first paragraph put it less strongly: “One in five Hong Kong residents wish to live in the mainland…” Even that may have been pushing it a bit. Later the desire to wander had been diluted to “would like to live in the mainland”, which sounds rather hypothetical. Still, no doubt the original question was in Cantonese anyway.

So, a boost for integration with the Greater Bay Area, exploration of opportunities in the motherland, and other worthy official aspirations, then.

Indeed it is. The number of people with an urge to move north has almost doubled, according to Chinese U’s Hong Kong Institute of Asia-Pacific Studies, to 20 per cent. Further paragraphs explored the reasons cited: living costs, poor environment, pricy housing and, for some people, the stressful pace of life in our city.

On the other hand, halfway down the story we came to another interesting titbit, the proportion of the 708 people sampled who reported a “desire” to emigrate, which was 38 per cent, more than nine percentage points up from the figure last year.

Overseas attractions cited: more space, freedom, friends or family members already there, and cheaper living costs. Top dream destinations: UK, Australia, Canada and Taiwan.

The intriguing thing about all this is the surprising way things are moving. Of course the mainland has become a more attractive option as COVID-related travel restrictions fade into the background. The option has also been eagerly pushed as a patriotic choice, good for regional development and career opportunities etc.

Emigration on the other hand has not been encouraged at all, and in many cases involves having your MPF funds stolen. Despite this thousands of people have already done it, and this bunch of ungrateful malcontents are now presumably beyond the reach of Chinese U pollsters.

So it could be considered rather ominous that the number of people dreaming of a semi-detached in Sutton, or some similar distant paradise, is still growing, and now comprises more than a third of the population.

Most of those surveyed thought this was a worrying trend for Hong Kong, and only eight per cent of them had a “positive outlook on the SAR’s long-term development”. However the indefatigable Mr Lam did manage to find an upbeat ending: according to the census people the net population of the city is still increasing by about two per cent a year, with 173,000 incoming migrants easily outnumbering emigrants. One can only hope that all these new arrivals liked what they found.

Really this is a sad story. When Hong Kong was a precarious colony, a third world enclave with high hopes, of course many people thought or dreamed of moving on to somewhere more prosperous.

As those high hopes were realised many people changed their view of the place, and came to see Hong Kong as a city with its own culture and values, in which one might hope to spend a rich and rewarding life, raise kids and participate in a lively community.

In just a few years the picture has changed again. This is now “Happy Hong Kong”, as the official propaganda puts it, where more than half of the population wishes to live somewhere else.

One can sympathise with our leaders, in a way, because it has become very difficult to establish what people think of them. This is, of course, mostly their fault, with news outlets shuttered, inconvenient individuals jailed or exiled, and political positions reserved for government supporters. The chorus of approval is deafening. Are people really happy? It has become very hard to tell.

Indeed, you have to wonder, as the local Red Guards complete their take-over of the Chinese University’s governing council, how long the Institute of Asia-Pacific Studies will be allowed to go on conducting surveys which may produce embarrassing results.

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