Facebook sees 212% increase in Hong Kong gov’t user information requests

Hong Kong government departments have submitted more user information requests to social media networks over the past three years, though there is a general decrease in the number of overall information requests, a report has showed.

The number of requests sent to Facebook increased by 212 per cent in 2015 compared to 2014. There were 184 requests made in 2015, compared to 59 in 2014. The number of accounts involved increased from 89 to 415 between the two years.

The annual transparency report published by the University of Hong Kong’s Journalism and Media Studies Centre said this increase came despite a gradual decrease in general number of user information and content removal requests since 2013. The number of cases dropped from 6,008 in 2013 to 4,637 in 2015.

The report said the government did not directly reply to a question raised by IT sector lawmaker Charles Mok in January about the spike in requests made to Facebook, whilst the social media giant declined to respond to media enquiries concerning which department had made such requests. Nor would it respond as to whether the rise was related to arrests after the 2014 Occupy protests. It only stated that the government requests were for crime-related investigations.

Online comments 

However, according to a database maintained by the project, at least 19 people were arrested for comments made online from June 2014 to November 2016 – ten of which were arrested for remarks made on Facebook. Ten of the 19 arrests were related to the Occupy demonstrations.

All of those arrested were charged under Section 161 of the Crimes Ordinance – involving accessing a computer “with criminal or dishonest intent.” Four have been sentenced to either community service or time in a rehabilitation centre.

Eric Cheung Tat-ming, Principal Lecturer at Law of the HKU, was cited as saying that “the authorities were exploiting the ambiguity of ‘access to a computer with criminal or dishonest intent’ to repress political activists’ speech on the internet.”

Occupy Central

Craig Choy of the Progressive Lawyers Group, who focuses on privacy issues, told HKFP that it showed a change in user habits whereby internet users are moving from discussion forums to Facebook.

“No matter what you are doing online, it is always advisable to protect your personal information. For example, using Tor on Facebook,” he said.

Rejected requests 

As for the general decrease in the number of requests, the report noted that – although the government has yet to offer any explanation – a driving force could be push-back from international ICT companies. Google, Facebook, Twitter, Microsoft, Apple and Yahoo rejected an average of 40 per cent of user data requests from the Hong Kong government.

For instance, the Customs and Excise Department requested in 2012 that Google remove 370 YouTube videos for copyright infringement, but they were rejected due to incomplete applications. The department made a record high of 372 removal requests in the following year, but it plummeted to 42 in 2015.

It added that the police accounted for 87 per cent of all user data requests – an average of 4,220 each year – since 2013. But it was not revealed how many of the requests were sent with court orders, or how many were complied with.

Google

In 2014, the police requested Google remove a video posted online which showed apparent police brutality – officers apparently assaulting a person under arrest in a police vehicle. The technology company did not take it down.

Choy said the police very often quote Section 58 of the Personal Data (Privacy) Ordinance when they request user information from ICT companies – for the reason of prevention or detection of a crime – and the requests could be easily made by a letter or by phone.

“I guess now ICT companies realise that even if the police make such a request… they are not obliged to comply,” he said. “There are at least two things companies should do: Ask the police to justify the scope of the disclosure of user information, and insist on having a court order.”

The report urges the government to review the user data and content removal request mechanisms, establish internal guidelines and make them public, and routinely publish such statistics on a biannual basis. It also recommends that Hong Kong ICT companies publish regular transparency reports, in the same way that 61 tech firms around the world do.

Article originally appeared in Hong Kong Free Press on 17 December 2016

Hong Kong Lawyers Protest Beijing’s Overreach

Article was originally published in The Diplomat on 9 November 2016

For the fourth time since the 1997 return of Hong Kong to China, legal professionals staged a silent protest against intervention by Beijing. Over 2,000 legal professionals dressed in black marched through Hong Kong’s central business district in silence on Tuesday.

The march was in response to the National People’s Congress Standing Committee’s interpretation of Basic Law Article 104, which held that lawmakers must be “sincere” and read the prescribed oath “completely, accurately and ­solemnly” in order to assume their posts.

The interpretation came after Sixtus “Baggio” Leung, 30, and Yau Wai-ching, 25 – who were democratically elected to Hong Kong’s legislative council in early September – used the swearing-in ceremony to demonstrate against China, and slandered Chinese people with a derogatory term from the World War II era.

The Progressive Lawyers Group says the ruling has gone well beyond an interpretation of the Basic Law as it effectively prescribes matters within the remit of Hong Kong domestic law, which is a power not accorded to Beijing under the existing Basic Law framework of Hong Kong.

China reacted harshly to the two legislator’s actions, calling Leung and Yau “national and ethnic traitors” before announcing Beijing’s interpretation of Article 104. While the majority of Hong Kong citizens disapproved of the two firebrands’ actions, many have seen this most recent intervention by China as an overreach of power, and detrimental to the “one country, two systems” concept.

Leading the march were senior counsels including Martin Lee Chu-ming, Audrey Eu Yuet-mee, Graham Harris, Alan Leong Kah-kit, and solicitor John Clancey. Denis Chang, second on the Bar list, was also there.

Alvin Yeung, a lawmaker representing the Civic Party, told HKFP that the legal profession was here today “to express our concerns, our deep condemnation, and deep regret regarding the interpretation of the Basic Law.”

Barrister and lawmaker Tanya Chan of the Civic Party said the march was a very strong statement made by the legal profession as well as members of the public.

“This is a very serious matter… Before the interpretation of Article 104, the secretary for justice and legislators of the pro-Beijing camp insisted that the judicial system could solve this legal issue. However, the Standing Committee initiated the whole thing — the whole interpretation procedure… This is not simply an interpretation but actually a rewriting of Hong Kong law — this is totally unacceptable. We have clear procedures illustrating how the law can be amended,” said Chan.

Martin Lee Chu-ming, a member of the Basic Law Drafting Committee in the 1980s, led the procession and said that Beijing had no legal right to do change Hong Kong laws.

“It is like a tank crashing into Hong Kong’s legal system,” said Lee. “It is not an interpretation of the Basic Law – it is an amendment of Hong Kong law.”

Incumbent Chief Executive CY Leung has insisted on the expulsion of Yau and Leung from the Legislative Council. However a Basic Law adviser to Beijing said it was up to local courts to decide whether the new mainland ruling would apply retrospectively. This offers a glimmer of hope for the two young legislators-elect, but also the possibility of legal challenges against other pan-democrat lawmakers over the way oaths were taken.

In 2014, the legal profession also initiated a silent march after Beijing issued a white paper which said that judges should be patriotic.

This week, Beijing is putting Hong Kong’s judicial independence on the line

As the Hong Kong government takes to the courts to challenge the right of two pro-independence politicians to swear in as lawmakers in the city’s legislature, many are looking to the judiciary as the last line of defense against Beijing’s growing encroachment on Hong Kong’s autonomy.

Tomorrow a hearing will begin to decide the fate of two young aspiring politicians, Yau Wai-ching and Baggio Leung, who were elected to the legislature in September elections. The judge in the case, Au Hing-cheung, has practiced law in Hong Kong since 1998, and has nine years of experience as a judge. Hong Kong’s “Basic Law” guarantees the city’s courts the right to “exercise judicial power independently, free from any interference.”

Nonetheless, Hong Kong chief executive Leung Chun-ying has already warned he has not ruled out asking Beijing to interfere as an option. That directly refutes justice secretary Rimsky Yuen saying the matter would be handled by Hong Kong only. The issue was apparently added to the agenda of the Chinese Communist Party’s “sixth plenum” meeting last week, and the mainland’s top legislative body is reportedly meeting Nov. 3 to discuss an interpretation of the Basic Law in response to the hearing.

The situation threatens one of the few pillars of the “One Country, Two Systems” principle—espoused by Chinese leader Deng Xiaoping when the city was handed over from Britain to China—that is still strong. Hong Kong’s executive branch, with the deeply unpopular Leung at its helm, is already considered under Beijing’s control; the legislature’s convoluted voting structure gives an edge to pro-Beijing candidates; local media and academia are threatened by China’s Communist Party, and free speech in the city is under attack.

 “The institutional pressures on the judiciary have only been increasing over time…” Right now, the judiciary “remains, for the most part, robustly independent,” said Alvin Cheung, a doctoral student at NYU who previously conducted outsourced prosecutions for Hong Kong’s justice department. But, he said, “the institutional pressures on the judiciary have only been increasing over time, and that trend is unlikely to reverse.”

Security guards block Baggio Leung from retaking his oath inside the Legislative Council in Hong Kong
Security guards block pro-independence legislator-elect Baggio Leung from retaking his oath inside the Legislative Council in Hong Kong, Nov. 2, 2016. (Reuters/Bobby Yip)

This week’s case centers around two members of a political party called Youngspiration that was born out of 2014’s pre-democracy Occupy protests. Weeks after they won seats in September’s legislative elections, the two still have not been sworn in as lawmakers. On the first attempt, their oaths were nullified by the Legislative Council (LegCo) president because the two used a racial slur against Chinese people. Their second attempt was then thwarted by an eleventh-hour judicial challenge by the Hong Kong government (followed by a walk-out by pro-Beijing legislators to sabotage the LegCo session). Neither took their oaths in a council meeting held today.

The government’s decision to use the court to interfere in what is seen to be the legislature’s affairs is also problematic. It raises fears that the separation of powers between the three branches of government, also enshrined under the “One Country, Two Systems” principle, is under grave threat. While chief executive Leung had every legal right to use the court in such a way, the decision to do so sets a dangerous precedent, said Kevin Yam, a member of the pro-democracy advocacy group the Progressive Lawyers Group.

“The example I always use in comparison is when during Watergate [US president Richard] Nixon ordered the attorney-general to sack the special prosecutor. He had the legal right to do that, but was it appropriate to do so?” said Yam. “The attorney-general at the time rightly concluded that that was setting a very bad precedent and that it would also impact on future perceptions or actual operations when it came to prosecutorial independence, so he resigned rather than going ahead to carry out a lawful order.”

The Department of Justice said in response to a request for comment:

Any suggestion that the legal proceedings have or will create negative impact on judicial independence or separation of powers is wholly misconceived. The case concerns whether the two LegCo members in question had properly taken the oath as required under the relevant Hong Kong law. Hence, it is a legal question. Such legal question (sic) can only be adjudicated by the Court, not by the LegCo itself.

If Beijing steps in after this week’s hearing, or even before, it will seriously undermine the Hong Kong court system, legal experts say.

According to the Basic Law, the Standing Committee of the National People’s Congress—China’s highest legislative body—has the right to interfere in Hong Kong’s constitutional affairs. It has done so four times since 1997, and sparked a backlash each time. In 1999, for example, when Beijing reinterpreted the law to allow mainland China-born children with a Hong Kong parent to live in the city, the move was met with widespread outrage and protests.

“If people think that no politically important case can actually be litigated in Hong Kong without being kicked upstairs to (Beijing), how likely are they to take Hong Kong courts seriously?” said Cheung.

Hong Kong’s court have heard a number of politically charged cases arising from the Occupy protests and subsequent incidents such as January’s so-called “Fishball Revolution” riots. Yam said that the judiciary has so far done a “fine job.”

“You’re always going to have judges that are more predisposed one way or another, but that’s not a reflection of the quality of the judiciary, nor is it a reflection of it being compromised—you find it in any part of the world,” Yam added.

Even before the most recent events, many in the legal profession had sounded the alarm over the future of their profession. In 2014, lawyers dressed in black marched through the city after Beijing stipulated in a white paper that administrators including lawyers should be patriotic.

“If even academic freedom is being threatened, why would the judiciary remain independent?” retired Hong Kong judge William Waung wrote last year (link in Chinese). “I would say, if you still believe that the independence of the judiciary won’t be eroded, this is a very naive way of thinking.”

Article originally appeared in Quartz on 2 November 2016

Hong Kong does not have separation of powers, only judicial independence, says pro-Beijing heavyweight

Pro-Beijing heavyweight Rita Fan Hsu Lai-tai has said that Hong Kong does not have separation of powers as it is not written in the territory’s mini-constitution.

Fan made her comment in response to the government’s unprecedented decision on Tuesday to file a judicial review and injunction in an effort to block two independence-leaning lawmakers from retaking their oaths in the Legislative Council on Wednesday. The government has been criticised for interfering in the internal affairs of the legislature and disregarding the principle of separation of powers.

‘Only judicial independence’

Fan, a former president of the Legislative Council, said on Thursday: “I think it is understandable for the chief executive to file [a judicial review] to the court if he thinks he has such a duty after thinking it through.”

A member of China’s top legislative body, the Standing Committee of the National People’s Congress (NPCSC), Fan said that the NPCSC previously had a group discussion on Hong Kong, and “clearly explained” that the Basic Law does not mention separation of powers.

“The idea of separation of powers is only something brought up by some members of Hong Kong’s legal sector,” said Fan.

See also: Explainer: Separation of powers, judicial reviews and the legal bid to stop localist lawmakers

Fan said that the Basic Law only safeguards judicial independence, “meaning that judicial decisions should not be affected by the government or any influential people in Hong Kong.”

“I think it may not be completely correct to say that separation of powers is part of the framework of the Basic Law,” Fan concluded.

‘Completely wrong’

Lawyer Alan Wong of the Progressive Lawyers Group slammed Fan for “completely misinterpreting” Hong Kong’s mini-constitution.

high-court-1

“I believe many lawyers and judges would disagree with Mrs. Fan’s interpretation of the Basic Law,” Wong told HKFP. “The idea of separation of powers is that the executive branch, the judiciary and the legislature keep each other in check to prevent abuse of power by any one branch.”

“Fan herself agreed that there is judicial independence. But if there is no separation of powers, how can there be judicial independence?” Wong said.

Progressive Lawyers Group member and lawyer Kevin Yam told HKFP that although Hong Kong’s political structure can be described as “executive-led,” it does not mean that there is no separation of powers.

“The chief executive and the government are answerable to the Legislative Council, and the courts also keep the chief executive in check,” said Yam. “There are also court cases affirming the principle of separation of powers.”

NPCSC interpretations

Wong said: “The courts have in the past made decisions based on the principle of separation of powers. If Fan is saying that there is no separation of powers, is she also saying that many past judgments were wrong?”

“If that’s the case, does she dare to ask the NPCSC to interpret the Basic Law?” Wong added.

NPCSC beijing

Article 158 of the Basic Law confers the power of interpreting the territory’s mini-constitution on the NPCSC. In other words, the NPCSC’s opinions are final and legally enforceable.

An NPCSC interpretation – which has happened on four occasions since the 1997 handover – is always controversial due to the public perception that Beijing is undermining Hong Kong’s judicial independence.

Fan said earlier that an NPCSC interpretation is not necessary at this stage.

Timing

Shiu Sin-por, the government’s top advisor and a member of the Chinese People’s Political Consultative Conference, also wrote in Ming Pao on Thursday that Hong Kong’s political system is not based on the principle of separation of powers. “It is not now, and will never be,” said Shiu.

Wong said that Fan’s and Shiu’s comments were meant to justify the government’s decision against criticisms that it is using the court to interfere in the internal affairs of the legislature.

“The government also didn’t argue in court that there is no separation of powers,” said Wong. “It just couldn’t justify its action.”

Baggio Leung Yau Wai-ching

In a speech in 2014, Chief Justice Geoffrey Ma said: “The Basic Law sets out clearly the principle of the separation of powers between the legislature, the executive and the judiciary, and in quite specific terms, the different roles of the three institutions.”

The High Court held in a judicial review in 2007: “The Basic Law enshrines the separation of powers. A reading of the [Basic] Law makes it evident that the executive, the administration and the legislature are each to perform their constitutionally designated roles in a co-ordinated and co-operative manner for the good governance of Hong Kong.”

Former president of the Legislative Council Andrew Wong Wang-fat has said that it is unwise of the government to challenge the ruling of the legislature’s president.

On Tuesday, the government lost in its legal bid for an interim injunction against pro-independence lawmakers Yau Wai-ching and Sixtus Leung Chung-hang of Youngspiration to block them from retaking their oaths, but the court granted leave for judicial review to the government. A hearing is scheduled for November 3.

Article was originally published in Hong Kong Free Press on 20 October 2016

協助斯諾登的律師說,他認知的香港早變了,但「勿小看自己」

2013年6月10日星期一早晨,何謝韋律師事務所的文浩正(Jonathan Man)律師接到一個電話,對方請他和加拿大人權律師羅伯特·提伯(Robert Tibbo)一起去見一個客戶:「斯諾登。」對方並沒有隱瞞。

前一天,斯諾登通過《衞報》(Guardian)發布視頻,公開了自己是洩露華府「稜鏡項目(PRISM)」的告密者身份。因為公開當日是休息日,文對事情的發展並不知情。

傳記影片《斯諾登風暴》(Snowden)在加拿大多倫多國際電影節全球首映,也於9月、10月先後登陸台灣、香港。這部電影講述了前美國國家安全局外包僱員愛德華·斯諾登如何在2013年揭發美國政府大規模監視美國公民的秘密行動,成為舉世聞名的「告密者(whistleblower)」故事。

影片由斯諾登親自提供資料,拍攝《JFK驚天大刺殺》(JFK)和《華爾街》(Wall Street)的名導演奧利華·史東(Oliver Stone)執導,在美國首映之後還請到斯諾登連線現場進行映後談,上映初期已賺足噱頭。

曾經協助他的香港律師文浩正、何俊仁並沒有出現在大屏幕上。但文浩正回憶真實情形,亦是「像電影一樣」。

他不能透露誰給他第一個接下斯諾登的電話,但對其後發生的事情知無不言。

接到電話後,文浩正與提伯趕到位於九龍的W酒店,大堂已聚集了一些外國傳媒。被帶領進入到一間房間後,他們見到了後來出現在紀錄片《第四公民》(Citizenfour)中的與斯諾登對談的兩名《衞報》記者,格蘭·格林沃德(Glenn Greenwald)和埃文·麥卡斯基(Ewen MacAskill),在場還有記者的律師。提伯和文遞上名片,對方立刻用電腦核對了兩人的身份。

確認身份後,《衞報》記者告訴兩個律師,斯諾登其實住在美麗華酒店,並告知要極其小心被跟蹤。說話的時候已有記者找到他們所在的樓層,在房間外遊蕩。

交接完畢,格林沃德等人先行搭乘電梯離開,在大堂酒吧接受媒體採訪,分散記者們的注意力。隨後,提伯離開,為下一步行動做準備。《衞報》記者囑咐文律師「提防被跟蹤」。

十分鐘後,文律師最後一個走出房間,避開聚集了媒體的電梯,打算走樓梯到大堂,結果因為防火設計迷失了路線,折回走廊,仍舊坐電梯到大堂。出了酒店他沒有立刻搭的士,而是走到酒店對面的圓方商場。當時大部分店面還沒有開始營業,但他仍兜了幾個圈,確認沒有人跟蹤之後,十點多叫了一輛的士。他先在尖沙咀喜來登酒店下車。他在這間酒店舉辦過自己的婚禮,自認對這裏的地形比較熟悉。繼續在此地消磨一陣,吃了一個quick lunch(簡便午餐),才通過美麗華商場進入到美麗華酒店,登上樓層,報上姓名。進入房間,見到斯諾登和正在拍攝《第四公民》的羅拉·柏翠絲(Laura Poitras)。

這時斯諾登已經退房,搬進了柏翠絲的房間。文見到斯諾登時,發現他的神秘客戶神情緊張,聽到電話鈴響就顯出不安的神色。斯諾登將必需品裝在一個大膠袋裡,出門之前花了一些時間在鏡子前整理頭髮。文律師說,斯諾登住在美麗華的八天時間足不出戶,最大膽一次是走到酒店對面的商場買了一件上衣。

被美國政府通緝的斯諾登(Edward Snowden),在2013年曾匿藏香港近一個月。
被美國政府通緝的斯諾登(Edward Snowden),在2013年曾匿藏香港近一個月。攝:imaginechina

背後是北京?

下午一點左右,文打電話給提伯,提伯告知兩人下一步在聯合國難民署(UNHCR)見面,午休時間他們將獲得與工作人員單獨見面的機會。隨後斯諾登與柏翠絲告別,跟著文繞到美麗華酒店地下停車場再返回到地面,一路上不斷向周圍張望,然後坐上的士來到油麻地一棟殘舊的樓房前。下了車,兩人穿過菜市場,穿過街市,兜兜轉轉,才進入難民署辦公室。

提交了一張難民身份緊急申請表格之後,三人進入裏間,第一次正式商議接下來的行動。

「其實他沒有一個計劃,」文浩正說,他認為斯諾登選擇香港是「靠一個香港印象」,這個印象包括「香港的法治制度」、「國際性傳媒的質素」。「當然他對香港的印象已經很舊了,現在的人對香港都不會這麼想了。」文說。

等到6月20日星期四晚上,華府公開起訴斯諾登並要求香港政府將其引渡的前夕,他的律師安排了一場會面,商議是否還要留在香港。這一晚恰好是斯諾登生日的前一夜和文律師生日的後一夜。長談間隙,他們用披薩、雞翼、可樂一起慶祝了生日,整個過程非常小心,手機放在冰箱裡,「一張selfie都沒有拍過」。

當天晚上,何俊仁(Albert Ho)加入了斯諾登和律師的會議。何作為文的上司,第一天就知曉文在處理斯諾登的案子,但直到斯諾登傾向於離開香港時,與香港政府更為熟絡的何俊仁才以斯諾登的代表律師身份出面與政府溝通,「想它給一個保證」。

星期五早上,斯諾登請何俊仁向香港政府求證兩個問題,一是如果應美國要求將他拘留,他能不能獲得保釋,二是如果他設法離開香港,會不會在機場遭到阻止。

何回憶他約保安局局長黎棟國見面的情況,當時對方有三五個官員隨行。據何的講述,整個見面時間不長,每次他提出問題,黎只是將他的話逐個字記錄在紙上,「就像一個秘書一樣」,然後表示不能即刻答覆,要回去考慮。至於如何考慮、是否需要向上級以及內地請示,這些內容黎沒有向何表明。

星期五晚上,何了解到斯諾登決定離開香港,但非常心急想要知道政府的回覆。第二天他一直打電話給黎棟國,但沒有回音。直到星期日下午,斯諾登已經離開香港,何才再次聯繫上黎。那時,何問政府的立場是什麼,黎的答覆仍然是「沒話可以講」。

何俊仁曾以斯諾登的代表律師身份出面與政府溝通。
何俊仁曾以斯諾登的代表律師身份出面與政府溝通。攝:盧翊銘/端傳媒

黎棟國非常小心、謹慎的態度讓何俊仁感覺到「整件事是北京處理的」,「我相信北京是希望這個燙手山芋離開的。」

雖然他沒有直接證據證明北京政府涉入斯諾登案,但他確定整個事件超出香港政府處理能力範圍,是由北京在操控的。

何俊仁表示,星期五晚上有自稱代表北京政府的「中間人」繞過代表律師,直接聯繫到斯諾登,告知港府樂意看到他離開香港,並保證當局不會在機場阻擋。 「為什麼政府不直接和我說,應該是不信任我。」何俊仁說。他相信斯諾登是通過維基解密(Wikileaks)的朋友接觸到一些中間人,與高層溝通,但他拒絕透露中間人的身份。

獲悉當局會對他離境開綠燈(greenlight)之後,斯諾登與代表律師、維基解密工作人員薩拉·哈里森(Sarah Harrison)制定離開香港的周詳計劃。6月23日星期天,提伯送斯諾登和哈里森到機場,斯諾登用真實護照購買了機票。為了能入閘確保斯諾登順利離開,文律師購買了當時能找到的最便宜機票——一張飛往上海的機票,在他們後方一路護送。入閘之後,文律師表示,能看到很明顯是執法人員的人。當他送走斯諾登,返回退票時,他看到那些站在閘口的人在向上司報告斯諾登離開的消息,因此更加確定。

斯諾登離開香港的消息一經披露,奧巴馬政府對香港當局放走斯諾登表示強烈不滿。行政長官梁振英星期一與媒體見面時表示,香港沒有阻止斯諾登離開的法律依據,又主動回應「中間人」的說法:「在『一國兩制』的大原則底下,當然涉及到外交的事件,我們一定要與中央溝通和磋商。至於什麼『中間人』,這個我完全不知道。」

文律師表示,雖然他不會天真地認為整件事與政治完全無關,但他認為這件事「不是foreign affairs,那時沒去到這個層面」。無論是到香港申請難民庇護,還是香港政府與美國之間的引渡協議,都屬於香港法律可以處理的事情,所以他認為此事不應該提升到外交的層面,而按照法律,大陸「無權插手」 。

2013年6月23日之後,文律師對客戶斯諾登的責任原則上結束了。在這將近兩週的時間裡,按照律師和客戶之間的保密協議,提伯和文律師三緘其口,沒有出面接受媒體採訪,「因為越講越多,越講越麻煩」。

三年之後,文律師表示接手這一案件是「一個很難為的經驗」,他評價斯諾登是「一個很勇敢的告密者(whistleblower)」。

何俊仁感覺30歲的斯諾登是個孩子,他更喜歡可樂而不是葡萄酒。文律師評價, 他「絕對不是一個小孩」。雖然他對自己的飲食、居住表現得無所謂,但對待他人時他有禮貌、尊重人,與他相處「很舒服」,是一個「很成熟、很有想法」的人。

斯諾登離開香港前曾告訴文律師,不會介意他把這段經歷寫成書,但文笑稱自己文筆不好。

斯諾登案的複雜性和曝光率不同尋常,但文表示與處理很多其他案件一樣沒什麼顧慮,「始終當他是一個在香港需要尋求法律協助的人」,要以律師的專業身份「幫他做到底」。

文浩正2005年加入何謝韋律師事務所,長期參與維權案件。他曾在電台訪問中表示,深受過世的母親影響,從當教師的母親身上學到遇事不平則鳴,對不公之事不會坐視不理。

斯諾登當年因為看中香港的自由、法治而來到這個城市,文律師認為,當香港給國際社會留下的印象中還有這些核心價值時,「我們真的要維護,不要太看小自己」。

「行多一步,就會改變整件事,不要太小看自己那一步,」文律師說:「我希望他在香港的時間沒有令他失望。」

難民天使守護

2013年6月10日,斯諾登走出位於尖沙咀的美麗華酒店,隨後人間蒸發,直到6月23日從香港國際機場搭乘俄羅斯航空飛往莫斯科的班機,此後的行蹤才得以曝光。三年之後,斯諾登告知世界,在這段主動失蹤的時期,他被三個滯留在香港的難民家庭輪流收留,躲過了政府的搜尋。一時間,一段驚險歷程多了令人唏噓的元素,各地媒體紛紛轉載,「尋求庇護的人們庇護了斯諾登」,在香港的貧民區,有世界頭號通緝犯的「守護天使」。

這場趕在電影上映前的採訪是由提伯代表斯諾登安排的。兩人的結識可以追溯到2013年6月10日上午,斯諾登離開美麗華酒店房間之前。實際上,正是提伯和文浩正提出了讓斯諾登藏身難民家的方案,他們是斯諾登消失期間為數不多的掌握他行蹤的人。

「這個案子的情況是所有的因素一直都在發生變化,」提伯回憶當時說:「我們必須非常迅速地動起來,比普通案子要迅速得多。」

提交難民申請後,根據香港法律和國際法律,斯諾登可以暫時留在香港而免受「被移除」的危險。提伯和文的第二個迅速決定是為斯諾登找到一個藏身地點,保證交流不被打擾,行蹤不被政府察覺。

那天下午,三人考慮過未來的幾種選擇。其一留在香港繼續申請難民庇護,但文承認「不是一個現實的打算」。也曾想過找信得過的人將斯諾登藏在工業區的貨倉,一個人想要在香港以這種方式失蹤「說易不易,說難不難」。但最後兩個律師選擇讓斯諾登藏身難民家中,「他們有同路人的感覺,所以會毫不猶疑幫手」。三個收留斯諾登的難民家庭是兩個律師的長期客戶,「後來也都變成朋友」。

加拿大人權律師羅伯特·提伯(Robert Tibbo)曾安排斯諾登住在斯里蘭卡難民Supun Thilina Kellapatha位於荔枝角的家中。
加拿大人權律師羅伯特·提伯(Robert Tibbo)曾安排斯諾登住在斯里蘭卡難民Supun Thilina Kellapatha位於荔枝角的家中。攝:imaginechina

根據《國家郵報》的描述,斯諾登在6月10日當天晚上住進斯里蘭卡難民Supun和Nadeeka位於荔枝角的小空間裡,過了大約一週時間,轉移到深水埗的菲律賓難民Vanessa家,待了四個晚上,又在另一位斯里蘭卡難民Ajith位於堅尼地城的劏房中度過一晚,最後在律師家中度過在香港的最後一夜,第二天踏上流亡俄羅斯的路程。

但提伯在接受端採訪時,指出這一轉移路線和時間分配是《國家郵報》「自己決定這樣報導」,而他拒絕透露更多細節,包括為什麼在眾多客戶中選擇這三家難民。「這件事不只涉及斯諾登,也涉及三個家庭。這些客戶是非常脆弱的,」提伯說:「我只能說從6月10日開始,斯諾登先生大部分時間都在三個家庭的照料之下。」

「我們都有想過在哪個時間住哪個地方,」文律師說。

他透露,斯諾登基本足不出戶,需要食物或儀器時靠律師或者屋主,比如他們曾到深水埗鴨寮街幫忙買software,不過斯諾登看上去很習慣不出門,「都算一個宅男」。

文律師承認,讓難民家庭收留斯諾登是兵行險招,但人權律師家附近有記者出沒,而他又認為「生活在一個安逸的社會」裡的香港人無法對斯諾登的危險處境感同身受。相反,難民一方面是香港社會裡被忽視的群體,較少獲得注意,另一方面,他們同情斯諾登,理解他的處境艱難。

滯留在香港的難民都曾在自己的國家受到不同程度的虐待、政治迫害,他們當中有很多人曾經是「很厲害的人物」,因此文律師認為,難民理解斯諾登一旦落到美國政府手中將要面臨的危險。

「他們自己的政府都已經那麼衰了,更何況是美國政府」,所以他們甚至沒有考慮自己的安全便對斯諾登伸出援手。

(原文載於2016年10月5日《端傳媒端傳媒》 )

 

Hong Kong’s latest strong-arm tactics are fueling a growing independence movement

Article was originally published in Quartz on 3 August 2016

An independent Hong Kong—an idea which barely existed two years ago—is suddenly a regular topic of discussion in this city of seven million, with philosophy student Edward Leung the movement’s de facto recognized leader.

That’s because in recent days, ahead of the Legislative Council elections in September, Hong Kong’s Electoral Affairs Commission has banned six candidates from standing, ostensibly based on their pro-independence views. The rising political tension could lead to another protracted period of political instability in the city two years after the pro-democracy Occupy protests and as a new chief executive comes into office in 2017.

Leung, a 25-year-old student at the University of Hong Kong, is the most high-profile of these to be barred from running. His disqualification was announced yesterday (Aug. 2)—despite the fact that he stood in a district by-election in February and has pledged to not push for independence if elected, even though he’s done so in the past.The disqualification has sent shockwaves through the city, and particularly through its politically charged younger generation who are rallying around the idea, however far-fetched, of an independent Hong Kong. For the pro-Beijing camp, Leung’s rising reputation has provided further proof that Hong Kong independence supporters are dangerous separatists that need to be quashed.

Banning the localists

Hong Kong’s electoral commission recently stipulated that candidates standing in the legislative elections must sign a form pledging to accept three articles in the city’s mini constitution, the Basic Law, that each reinforce that Hong Kong is a part of China.

Long-established democratic-leaning professionals in Hong Kong said it was a targeted move. “It’s pretty obvious that this is directed against the pro-independence or localist candidates, on the basis that these articles are ones that these candidates are likely to disagree with,” said Wilson Leung, a lawyer and convenor of the pro-democracy Progressive Lawyers Group.

Unlike most of the other five candidates who were disqualified—a ragtag group of activists—Leung signed the form. But according to documents he posted on his Facebook page (link in Chinese) Tuesday night, the electoral commission said that he was ineligible to stand because there was ample evidence on social media showing that he trumpeted pro-independence views in the past, and no reason to suggest that he had changed those views. Hong Kong’s Secretary of Justice Rimsky Yuen said today (Aug. 3) that the reason Leung was permitted to run in February was he had not espoused pro-independence views at that time.

The aggressive action by the election commission, normally a box-ticking group of civil servants, has raised questions about whether they have overstepped their role. The legality of the situation is being challenged through judicial reviews.

“Some people signed this new form, some didn’t. But some of the ones who didn’t were still confirmed. Some of the ones who signed it were rejected, so it’s a complete mess,” said lawyer Leung. “The returning officers are supposed to be civil servants who check your eligibility and be politically neutral,” he added.

Inspired by the French

Banning Edward Leung from running has left many of his young supporters bereft.

Popsy Gu, 24, an English tutor, said she cried for about half an hour after Leung’s disqualification was announced before going to meet her friends. “We all feel very helpless and are not really sure not to do,” she said. “The most devastating thing is that we have always believed in values like the rule of law, and now we realize that that doesn’t exist in Hong Kong anymore. We all feel very shocked.”

Kristy Cheung, 18, a recent high school graduate, said she is a supporter of Leung because as a university student he “is a symbol of young political power.”

“This kind of political censorship is not reasonable… the government should give the public a chance to vote for their representatives. I am really angry at the government’s decision,” she added.

The student union of the Chinese University of Hong Kong responded by vowing on Facebook to essentially recreate the French Revolution, and “regain our true liberty.”

Meanwhile in recent days, a video warning of the calamitous effects of independence movements in Taiwan, Hong Kong, Xinjiang, and Tibet has been circulated around various Chinese state Weibo accounts—including those of the Chinese Communist Youth League, provincial police bodies, and the Supreme People’s Procuratorate—using a hashtag that translates to “beware of color revolutions.”

The video warns that independence movements could foment chaos and create the kind of instability in China seen in Iraq, Syria, and Ukraine. Oddly, it features Hong Kong protest leader Joshua Wong, who has never advocated for the independence of Hong Kong.

Like asking for the moon

There’s no dispute on the facts—Hong Kong was handed back to China in 1997 from Britain, and is, as the Basic Law says, “an inalienable part of China.”

Although 17.4% of people in Hong Kong support Hong Kong independence, only about 4% of people feel that it is possible, a survey released in July by the Chinese University of Hong Kong shows. But young voters say they are embracing the movement anyway, because they’re finding little else to believe in in their local government.

In some cases, Hong Kong’s government appears to be inadvertently fanning the flames. Interest in independence took off after Hong Kong’s chief executive CY Leung in his 2015 policy address—where the city’s leader lays out his policies for the next year—name-checked a hitherto little-known HKU student union magazine, Undergrad. He blamed the publication for fanning the flames of self-determination in Hong Kong and spreading “anarchy.” Interest in the publication spread like wildfire, as people rushed to share PDF versions of the relevant articles and the student union reprinted copies.

Some quip that CY Leung is “the father of Hong Kong independence.”

Edward Leung came to prominence as the face of localist group Hong Kong Indigenous, which was instrumental in organizing protests against mainland Chinese shoppers at border towns last year. Protesters say large numbers of shoppers from the mainland are emptying stores of basic goods such as infant formula and clogging up neighborhoods. Leung was also arrested and charged with rioting following the so-called Fishball Revolution at the beginning of this year, which saw a protest over the right of street hawkers to sell local snacks such as fishballs turn into a violent confrontation between protesters and police.

A protester carrying a rod walks past a fire at a junction in Mongkok in Hong Kong, China February 9, 2016. Riot police used batons and pepper spray early on Tuesday to quell fights after authorities tried to move illegal street vendors from a working-class Hong Kong district, the worst street clashes since pro-democracy protests in late 2014.

Alvin Yeung, a lawyer who ran against Leung in the February by-election and won, said that though independence isn’t supported by most Hong Kong people, the idea is gaining traction, especially among young people frustrated by the old pro-democracy political parties and their non-violent means of resistance.

“Even if you know it’s like asking for the moon, it’s still very core to a lot of people, especially the younger generation. If you ask any one of them, ‘If there’s no cost to going independent, would you?’ Of course they would say yes,” said Yeung. “[Edward Leung] represents the new way of doing politics. [His vote share] was very, very significant.”

Leung has been open about his determination to be involved in governing Hong Kong.

“Those in power do not want me in Legco [the legislative council], but even if I need to crawl into it or roll into it, no matter how, I have to enter the system. I want to run in September… I want to be a legislator,” he wrote on his Facebook page on July 28 (link in Chinese). He also warned that even though he is barred from running, “there will be others that come after me.”

No legal ground to bar candidates: lawyers’ group

A barrister said on Monday that the government has no legal grounds to stop people running in the September Legislative Council elections just because they refuse to sign a new declaration stating Hong Kong is an inseparable part of China.

The new form, which also asks candidates to declare their support for the Basic Law and allegiance to the Hong Kong Special Administrative Region, was announced by the Electoral Affairs Commission (EAC) last week.

This drew strong criticism from some candidates and lawyers. They see the form as a tool to suppress free speech and the “politically incorrect”.

The latest to find the declaration a politically motivated tool is Linda Wong, a spokeswoman from the Progressive Lawyers Group.

She told RTHK’s Candice Wong that the government’s move was excessive as the original forms candidates have to submit already include provisions stating the support of the Basic Law.

Some pan-democratic parties have scheduled a meeting with the chairman of the EAC, Barnabas Fung, on Tuesday.

Article was originally published in RTHK on 18 July 2016

Woman guilty of assaulting Hong Kong police officer ‘with her breasts’ appeals

Four anti-parallel protesters found guilty of police assault and obstruction – including a woman was said to have attacked a police officer with her breasts – appeared before the High Court on Wednesday morning to appeal the conviction and sentence. One of the defendants has asked to submit a new video clip to the court.

Thirty-year-old Ng Lai-ying and her three co-accused, nicknamed the “Yuen Long Four,” were arrested after taking part in an anti-parallel trading protest in Yuen Long at the beginning of March last year.

high court

Ng and a 14-year-old boy were convicted of assaulting Chief Inspector Chan Ka-po, while Kwong Chun-lung, 20, and Poon Tsz-hang, 22 were found guilty of obstruction. Ng was sentenced to three months and 15 days’ imprisonment. All of them are lodging an appeal.

At the High Court on Wednesday morning, the youngest defendant, now 15-years-old, made a request to submit new footage to the court.

ng lai ying

Barrister Randy Shek, representing the defendant, said that the new video clip clearly shows what happened on the day of the incident, and that it differed from how it was described in two officers’ testimonies.

When asked why the video was not submitted to the court last year, Shek said that following the ruling, many members of the public helped look for the clip, and the one which they wish to submit was found by the first defendant’s father, Sing Tao Daily reported.

The Honourable Justice Madam Barnes said that the case had caused public uproar, with many pointing out that Ng had initially accused the officer of indecent assault and saying that it was not possible to assault a police officer using breasts. However, the judge said that if the attack was hostile, it was not impossible under the law.

Barrister Lawrence Lau Wai-chung, who represents Ng and Kwong, agreed that it was not impossible for breasts to be a weapon, but Ng said that witnesses exaggerating their testimonies was a more deadly weapon and questioned why the first instance judge did not deal with the inconsistencies in the two officers’ statements, Ming Pao reported.

Judge Barnes said that she will take a look at the new clip before determining whether it can be submitted to court.

The defendants have been released on bail pending appeal.

Article originally appeared in Hong Kong Free Press on 13 July 2016

Customs officer facing assault charge uploads photos, videos taken inside courthouse to Facebook

A customs officer has uploaded photo and videos taken inside the Eastern Law Courts Building to his public Facebook profile, in a possible breach of laws.

Paul Fong Fu-pong appears to have taken two of the photographs – one a “selfie” and another of a barrister – inside the courtroom. He has not removed them despite warnings from friends that he may get in trouble for them.

Under the Summary Offences Ordinance, it is an offence to take photographs inside any courthouse. Offenders are liable to a fine of HK$250.

Barrister Chris Ng of the Progressive Lawyers Group told HKFP that the act may also constitute contempt of court. Convictions in Hong Kong are rare as judges or magistrates tend to deliver initial warnings.

“However, the judge is entitled to convict the person in question for contempt,” said Ng. “It did happen in the United Kingdom, where a teenager was jailed for two months for taking a photograph of a courtroom from the public gallery.”

Alleged assault

According to Apple Daily, 43-year-old Fong attended a hearing last Thursday on charges of common assault and criminal intimidation for allegedly slapping a man during a spat.

Fong conducted his own defence, arguing that he was a customs officer who received training on legal responsibilities, and would not assault or threaten others.

Ming Pao reported that the magistrate criticised Fong for speaking about irrelevant things and wasting the court’s time. “You are a customs officer – I expect you to be better behaved,” said the magistrate.

The magistrate also criticised Fong for his attitude while examining witnesses.

eastern magistrates court

Series of photographs

Thursday afternoon, he uploaded four photographs that he took inside the Eastern Law Courts Building to his Facebook profile.

Two of them appear to have been taken inside the courtroom – one was a photograph of prosecuting counsel Annie Lai from behind, and the other was a selfie. The others appear to have been taken inside the court bathroom and the hallway.

On Saturday, Fong uploaded screenshots of messages from a friend, who advised him to remove the photographs. “I suggest you delete your posts about this case on your FB [Facebook] account. The posts may constitute contempt of the court.”

“But the proceeding was proceeded [sic] in open court system and had been reported by media reporters,” replied Fong.

On Sunday, Fong uploaded a 20-second video of a quarrel between himself and another man inside the Eastern Law Courts Building to Facebook.

https://www.facebook.com/v2.3/plugins/post.php?app_id=&channel=https%3A%2F%2Fstaticxx.facebook.com%2Fconnect%2Fxd_arbiter%2Fr%2FXBwzv5Yrm_1.js%3Fversion%3D42%23cb%3Dfc367432534554%26domain%3Dwww.hongkongfp.com%26origin%3Dhttps%253A%252F%252Fwww.hongkongfp.com%252Ff12484000c032a4%26relation%3Dparent.parent&container_width=775&href=https%3A%2F%2Fwww.facebook.com%2Fphoto.php%3Ffbid%3D10210724523762015%26set%3Da.1526060944266.78394.1016927085%26type%3D3%26theater&locale=id_ID&sdk=joey&width=750

“Sir, you are not allowed to take photographs here,” shouted a voice in the background.

Introducing the video on Facebook, Fong mocked the person with whom he was quarrelling: “Not allowed to take photographs? Then who would believe that this is not [psychiatric hospital] Castle Peak?”

He then uploaded screenshots from the same video to Facebook on Monday.

See also: Pro-Beijing lawyer Junius Ho will not be prosecuted for taking ‘selfie’ inside courthouse

Last month, police told pro-Beijing lawyer and lawmaker Junius Ho that he would not be prosecuted for taking a “selfie” inside the High Court.

A Department of Justice spokesperson told HKFP that it would follow up with Fong’s case, but that it would not be appropriate to disclose any further details at the current stage.

The spokesperson added that the department did not maintain statistics on the number of people prosecuted for taking photographs in court.

Article originally appeared in Hong Kong Free Press on 24 April 2016