Beijing’s ‘distortion’ of Hong Kong Basic Law greatly undermines rule of law, legal experts warn

On Wednesday, China’s top legislature – the Standing Committee of the National People’s Congress (NPCSC) – approved the plan following a unanimous vote and months of controversy. Hong Kong will effectively surrender its jurisdiction across a quarter of the new West Kowloon terminus, where immigration procedures will be performed by mainland law enforcement agents.

‘Lacks legal foundation’

Some of the city’s top lawyers – Philip Dykes, Lawrence Lok and Johannes Chan – said in a joint statement on Thursday that the decision failed to justify the controversial plan with a sound legal basis.

“The current co-location arrangement is in direct contravention of the Basic Law and if implemented would substantially damage the rule of law in Hong Kong,” they said.

Legal scholars have long warned that the arrangement potentially violates the city’s mini-constitution. Article 18 states that Chinese laws are not to be applied in Hong Kong aside for those listed in Annex III, such as the national flag and emblem law.

The NPCSC decision stated that the plan would not violate the Basic Law because it concerned only part of Hong Kong, while Article 18 refers to situations where the whole of Hong Kong is affected by Chinese law. Therefore, it said, Article 18 does not apply to the mainland port of the terminus, allowing China to have full jurisdiction over the area.

The barristers’ joint statement said Article 18 was clearly written and leaves no room for any interpretation which would allow Chinese law to apply in a certain part of the SAR.

Philip dykes' list

The decision also cited a number of Basic Law articles to support the arrangement, such as socio-economic provisions and the provision that guarantees Hong Kong a high degree of autonomy.

But the barristers said the articles were taken out of context. They said these general provisions are insufficient to override “specific and clear provisions” such as Articles 19 and 22, which state that Hong Kong has independent judicial power and that mainland personnel in Hong Kong are subject to its law.

“The rule of law will be threatened and undermined if the clear meaning of the Basic Law can be twisted and the provisions of the Basic Law can be interpreted according to expediency and convenience,” they said.

Rule of law

On Wednesday, NPSCS Deputy Secretary General Li Fei said NPCSC decisions are final and “cannot be challenged.”

In response, the former Bar chair Paul Shieh said: “No provision in the Basic Law states that anything the NPCSC decides is law in Hong Kong – if that is the case, it will be very frightening. It will be One Country, One System.”

Describing China’s view on the rule of law as “premature,” Johannes Chan said on a Commercial Radio show on Thursday that Beijing believes it can interpret the law – including its own constitution – however it likes to suit its purposes.

“This is the characteristic of Chinese law, and is exactly what we worried the most about when the Basic Law was being drafted,” the law professor said.

“The One Country, Two Systems principle was created to maintain our confidence in Hong Kong’s legal system, and the Basic Law must be interpreted according to objective standards. But now Li said there is no need to follow any rules.”

johannes chan erik shum

Barrister Chris Ng of the Progressive Lawyers Group told HKFP that his group was “very angry” at Beijing’s handling of the matter and at the Hong Kong government for allowing it to happen.

“None of the arguments are sound. The language and the way [Beijing] dealt with the issue goes against the spirit of the rule of law,” he said. “This is rule by law, or rule by decree – their words are the law, and you must accept it without question.”

“This will not only damage the rule of law, but it will also have a profound impact on the Basic Law.”

He also criticised the government for working in a black box. “Li Fei said the plan is supported by Hong Kong people, but this is not true. there hasn’t been any widespread discussion and the plan cannot realistically be said to have wide public support.”

‘Don’t take the train then’

Critics have voiced concerns over the application of Chinese criminal law in the mainland port of the West Kowloon terminus, with some worried that the Chinese authorities may take dissidents away and try them on the mainland.

Barrister Erik Shum said the scenario is not impossible. He also criticised Li Fei for telling critics to not take the train as a solution.

“The issue concerns a significant question of law, and this kind of argument is not conducive to the debate,” he said. “The main issue is not whether the arrangement is a good thing. The key is the plan must comply with the Basic Law.”

Shenzhen Bay

The government has also compared the plan with the Shenzhen Bay Control Point, an immigration checkpoint between Hong Kong and China. Part of the control port was leased to Hong Kong, thereby allowing Hong Kong law to apply in areas belonging to China.

Shenzhen Bay control point

But Chris Ng said that the current plan is a “completely different story” and is incomparable to the Shenzhen Bay example.

Article 20 of the Basic Law allows the NPCSC to give Hong Kong additional powers, such as the power to exercise jurisdiction outside Hong Kong. Local courts have also affirmed this application of the law.

“However, the same cannot be said about China exercising jurisdiction in Hong Kong, which is not supported by any provisions in the Basic Law,” Ng said.

He said the only proper way of implementing the West Kowloon checkpoint mechanism is to amend the Basic Law in accordance with Article 159, a power that Beijing has never invoked in the history of Hong Kong SAR.

“I don’t know why Beijing doesn’t want to go through this route, but it must admit that the arrangement is incompatible with the Basic Law framework unless it is amended,” he said.

But the barrister, who represents his professional group in an alliance of around 100 civil society groups against the plan, said the fundamental issue is that Hong Kong people do not trust the Chinese legal system and its understanding of the rule of law.

“The One Country, Two Systems principle is why people are still living and doing business in Hong Kong. Without the rule of law, this policy will collapse,” he said.

Article originally appeared in Hong Kong Free Press on 28 December 2017

下月8日提訊 料親身上庭

民政事務局前局長何志平將於明年1月8日於紐約提訊(arraignment),屆時控方將宣讀控罪,何志平須回答是否認罪。法政匯思成員、美國執業律師Jason Y. Ng表示,除非出現健康問題,否則被告一般要親身出席提訊。

他又指,由於提訊的主要目的是詢問被告是否認罪,控辯雙方不會詳細辯論案情,所以整個過程歷時很短,可能只需10多分鐘。若被告不認罪,法官會再訂審訊日期;即使被告認罪,法官一般也會押後宣判。

美國聯邦法院自1946年起,全面禁止傳媒在訴訟期間於法庭內拍照及廣播,1972年起更禁止錄音錄影。1996年,當局決定讓上訴法院自行決定是否容許拍攝,但地區法院維持不變。2010年當局推行試驗計劃,容許地區法院拍攝某些民事案件聆訊,並可將影片放上法院網站。不過,本案是刑事案件並在地區法院進行,所以過程將禁止拍攝。

(原文載於2017年12月22日《蘋果日報》)

依法限提訊後70日開審 律師指變數仍多

根據美國法例,控方提交起訴書後,案件一般需在70日內開審,但若法官認為有理據,可暫停計算70日限期。有美國執業律師估計,案件開審前仍有可能因安排外國證人到美國出庭等原因而申請豁免計算70日限期,有律師甚至預計案件至少一年後才會正式審訊。

官有權豁免計時延開審

美國《快速審判法》(Speedy Trial Act)是源於美國憲法第六修正案,要求控方在拘人30日內提出起訴,法庭亦要在起訴後70日內開庭審理,令整個程序在100日內完成。不過亦有例外情况,以今次何志平案為例,控方申請豁免計算檢控至提訊期間的21日,就是引用了《快速審判法》當中的條文,容許法官豁免計算部分時間,但前提是法官考慮了被告及公眾利益後,仍認為豁免計時更符合公義。至於今次法庭接受的原因,是認為此案有大量文件,控辯雙方需時準備,因此豁免計時。

法政匯思成員、美國執業律師Jason Y. Ng表示,該案正式開審前,估計法庭仍可能基於其他原因豁免計時,「例如若控方有一名有力的證人身在非洲,控方需要為其申請簽證到美國出庭作供,亦可提出豁免計時,案件開審時間則會再次被延遲」。

紐約律師料至少延一年

紐約律師Robert Precht甚至估計,案件或至少拖一年以上才會正式審訊,但辯方通常會反對延遲開審。

(原文載於2017年12月21日《明報》)

Free speech, selective enforcement and opacity: Problems with the ‘dishonest use of computer’ offence

In 1999, a man named Tsun Shui-lun, a technical assistant at Queen Mary Hospital, retrieved the medical records of the then-Secretary for Justice, Elsie Leung, and proceeded to share them with his friends, family, and the media.

He was subsequently found guilty of section 161 of the Crimes Ordinance, a charge which cameinto effect in 1993 and criminalises “access to a computer with criminal or dishonest intent.” 

Almost two decades later in 2016, a 22-year-old man was arrested on suspicion of the same charge – for posting erotic writing involving rape, even though the story had been marked as a “work of fiction.”

dishonest use of computer crime

The Secretary for Security, during the second reading of the bill, said the intent of the offence was “to penalize access to a computer for acts preparatory to but falling short of the commission of a fraud.” Two cases that took place last month – the theft of customer information in a travel agency and the hacking of a school’s computer system – may fit the bill as such.

But in recent years, the offence has gained notoriety for the broad range of cases it was utilised for. The police have invoked the section for “online fraud, illegal intrusion into computer systems, clandestine photo-taking using smartphones in such non-public places as toilets or changing rooms, online publication of obscene or threatening information, as well as inciting others on the Internet to engage in illegal acts.”

There also appears to be a gradual broadening of the terms in the offence: following a 2013 case, mobile phones fell under the definition of “computer” in section 161. One of the most controversial areas is the extension to prosecuting under the section for online speech, which has led activists to decry an infringement on freedom of expression.

‘Thoughtcrime’

In 2014, a man surnamed Tam posted on the popular HKGolden forum, calling for protesters to “paralyse the railway system by gathering on railway platforms in an attempt to create chaos” during the pro-democracy Occupy protests. Tam was also arrested under section 161.

 

hkgolden

Tam’s case is not an isolated incident. According to the Hong Kong Transparency Report, at least 19 people have been arrested for comments made online from June 2014 to August 2016.

The Progressive Lawyers Group’s Choy Ki questioned whether the case was a case of “thoughtcrime,” meaning one could be found guilty merely by having an “intention” of committing a crime while using a computer.

“People rant, and when they talk on the internet, they don’t mean what they say… we should not restrict speech in the online world unless someone takes action to do something, such as when they already have a plan,” he told HKFP. “Most of the time, when people speak online, they’re really just venting… Should even our freedom to vent be restricted?”

Another problem is that the question of whether a person has committed a crime in a particular situation may come down to the device – or lack thereof – used in an act. IT sector lawmaker Charles Mok questioned whether the law now criminalises any behaviour remotely connected to a computer, and not purely the behaviour of using a computer as a tool to commit fraud.

“If I am on the streets and I put up flyers, you can’t charge me because you don’t know who I am – besides, are you going to argue that because I used the computer to print them out, I dishonestly used the printer? And if I wrote it out by hand or screamed on the streets, then you can’t charge me?”

“The problem is when there are offences where you won’t prosecute when a computer is not used, but because… of the fact that a computer is used, it is convenient to use this catch-all law to charge them,” Mok said.

charles mok

Choy shares similar sentiments. “The most outrageous and ridiculous is its application to cases involving taking upskirt pictures. If I use an iPhone, it could fall under section 161, but if I use a ‘lomography’ film camera then it doesn’t.”

Sentencing

Choy, who is also a former counsel for advocacy group Keyboard Frontline, said that the biggest problem with the deviation from the legislative intent was that the sentencing – currently set at a maximum imprisonment of five years – does not reflect the present application of the law.

Because the original legislation was drafted to deal with problems such as unauthorised access to computer and fraud, the criminality of the present situation is in fact not considered in the current sentence, Choy said. This means that both the premeditated theft of credit card information and online posts made in the state of heightened emotions are both subject to a maximum sentence of five years in jail.

In justifying this deviation from legislative intent, the government has often cited the judge in Tsun Shui Lun, who said that “It is clear from the section that it catches acts preparatory to the commission of a crime or fraud. But I do not agree that it is restricted to such acts.”

Judge Barnabas Fung also said that in construing provisions involving technology, the statute should be “always speaking” – meaning the interpretation of the language should take into account the changing situation, unless it is absurd. As a result, for example, “with rapid development in scientific technology, the definition of “computer” is “broad, evolving and non-exhaustive.”

“The law is indeed not dead, and there are occasions when there will be a deviation from the legislative intent, and [the law] would be broadened in a judgment,” Mok admitted. But Mok said the criticism was not directed towards the judge, but rather the prosecution process. 

police umbrella lung wo road unrest Occupy Central, Sunday 30 (361) (Copy)

Another Occupy-related incident saw Tong Wai-leung, 20-year-old defendant, uploading the personal data of a police officer and that of his family onto the internet, then claiming that someone had been directed to assault said family members. While the government said that Tong was arrested for “criminal intimidation,” during trial he pleaded guilty to obtaining access to a computer with criminal intent, SCMP reported.

Tong’s case is an illustration of situations that worry both Choy and Mok, where the law enforcement uses the section or offence that has the greatest likelihood of fetching a conviction – something then-Secretary for Security Lai Tung-kwok admitted to doing in 2014.

Charging a defendant with multiple offences means that the arrestee or defendant will be scared, Choy said. When there is a plea bargain the heavier charge will be dropped when the defendant confesses to dishonest use of a computer. “They are more inclined to admit that they used the computer, and the prosecution can rely on that admission in charging them,” he added.

Choy said this is especially so in the dishonest use of computer offence, where it is difficult to prove the identity of the perpetrator, because of the ease of hiding the IP address nowadays – meaning that unless there is a confession, there may not always be enough evidence to result in a conviction.

‘Selective’ enforcement

For Mok, the possibility of these scare tactics means that there could be “selective” enforcement of the law. Mok said that many people who are charged become scared and plead guilty, and they won’t appeal even in cases when there may be grounds to do so. “They won’t use the offence to charge someone like Joshua Wong, because he would appeal for sure. They would charge those that don’t – regular people,” Mok said.

For example, with the Occupy cases, Mok said, “You can say that it’s [incitement] of unlawful assembly, but it’s been going on for months, and every night there are individuals who ask others to come out, but you only target one in charging them. The selective nature is wrong.”

craig choy

But both Mok and Choy said that while they have these concerns, they had no way of confirming whether law enforcement employed these tactics, because of the lack of transparency. “This is how the chilling effect arises,” Mok said.

Meanwhile, the number of people arrested under the offence increases every year. In 2004, there were 30 prosecutions and 23 convictions for the offence; these figures have risen to 93 and 77 respectively in 2016, according to the government.

But details of these cases are not known. For years now, Mok and other pan-democratic lawmakers have pressed the police to provide classifications of cases relating to section 161 – such as how many of them relate to online speech – and they have refused to do so, citing a lack of resources.

While platforms such as Hong Kong Transparency Report and Keyboard Frontline have kept databases dedicated to such categorisation and fill the information gap, “It’s hard for us to prove whether it’s the situation we see now on the surface,” Mok said. This is especially so because the majority of the case are dealt with in Magistrates’ Courts, and go unreported.

Mok said he would like to know the details of arrests, prosecutions and convictions: “The police often use reasons to first arrest you, and then slowly decide, and may not charge you in the end… sometimes they use section 161 to charge you, and it’s like they would just conveniently charge you with another. It’s not clear where they draw the line with regards to whether to charge.”

section 161

Choy believes that the debates concerning section 161 involve a broader issue in that there is a need for the government to become more transparent and keep better records. One way of achieving this on the legislative level is with freedom of information and archive laws – both of which are currently being studied by the Law Review Commission. Choy said that there should also be a push for the judiciary to make trial records public on even the magistrate’s court level.

More transparency needed

Although Mok’s motion to review section 161 was voted down in the Legislative Council on February 2015, as of October the government has stated that the Law Reform Commission has plans to review laws in relation to cyber crimes, and it has started the relevant preparatory work.

Mok also called for clearer prosecution guidelines on the matter and more transparency in data in order to prevent abuse and to ascertain a better picture of the present situation.

While Mok acknowledged that a review is much-needed, it may not necessarily work to the benefit of Hong Kong people. Mok said that while he agreed the law in Hong Kong has some catching up to do, one issue that would definitely come up is surveillance, and where one draws the line. ‘To a large extent it goes back to the old question: if we don’t trust the government, then what can we do?”

“I don’t know if this is a philosophical or practical issue, but when we’re pushing the government to review section 161, don’t be too happy if they really propose changes. Even if it was found that the government and law enforcement had abused section 161, they might come up with something that’s even more comprehensive and gives the police or the government even more power in a more defined way,” Mok said.

“Nine out of ten times, the problem arises due to a distrust in the government – even when the issue itself isn’t problematic, you worry that there will be abuse.”

Article originally published in Hong Kong Free Press on 17 December 2017

The naked truth on drones Watching people in bath is OK, lawmaker mocks

Want to be a Peeping Tom and get off scot-free? Try using a drone.

A no better authority than lawmaker Michael Tien Puk-sun says its all right to drone-peep, so long as you’re not making a recording, a point in law he got straight from the Office of the Privacy Commissioner for Personal Data.

Tien revealed this during a radio talk show after three men were picked up for flying drones during the Formula E race over the weekend.

He also said there was a case in Sham Tseng, Tsuen Wan, where a drone was often seen buzzing windows of a private estate.

In a post on his Facebook page, Tien said he had received complaints from Sham Tseng and Tsing Lung Tau that drones were buzzing homes. Residents were worried for their privacy.

Hearing about the law from the Privacy Commissioner, Tien said: “If you watch a person live through the drone and do not save the video, you won’t violate anyone’s privacy. If you save it and send it to others then you have violated privacy.”

Additionally, if a video did not show any distinctive characteristics that others recognize, such as the face or body tattoo, then it was not a violation of privacy, he added.

Tien had also asked police how a report should be made if a drone operated outside his window while he took a bath.

Under current regulations, the drone owner would not commit an offense if the drone was lighter than seven kilograms, there were few people around, and there was no threat to anyone’s safety, police told him.

He urged the Civil Aviation Department and the Privacy Commissioner to review laws relating to drones as soon as possible.

Reaffirming Tien’s comment, barrister Craig Choy Ki said drone-peeping at someone bathing without recording did not violate the privacy law. “In a legal context, the definition of personal data requires the data to be recorded in a format. Also, the person involved has to be identifiable in the data,” said Choy who is convener of the Progressive Lawyers’ Group.

However, current regulations had not caught up with the technological advances like streaming that makes no recordings, he said.

Although a drone-owner would not breach the privacy law, he added, the person might be charged with “using a computer with dishonest intent” if the drone was connected or controlled by a computer device including mobile phone, or if the drone has a CPU or structures of a computer device.

In three separate cases, police had received reports of drones present during the Formula E race.

According to article 48 of the Air Navigation (Hong Kong) Order 1995, a person shall not recklessly or negligently cause or permit an aircraft to endanger any person or property. Offenders are liable to prosecution and upon conviction face a fine and up to two years’ jail.

This article originally appeared in The Standard on 4 December 2017

Looming national security laws raise fresh fears for Hong Kong’s freedoms

Amid calls from Hong Kong’s pro-Beijing elite for sweeping new national security laws, government advisers and lawyers say the legislation is likely to be tougher than proposals shelved 14 years ago, raising fears about the city’s cherished freedoms.

Those demanding urgency for the long-delayed Article 23 are using a fledgling independence movement in the former British colony as justification – even though the independence debate would have been allowed when Article 23 was first proposed in 2003.

Lawyers, diplomats and activists fear the new pressure could lead to legal “overkill” in an open city already struggling with increased interference from Beijing’s Communist Party rulers.

“We can see an intolerance from the central authorities over any kind of independence discussion,” said Simon Young, a professor at the University of Hong Kong law school.

“In this atmosphere, there is a concern that we could end up with something that criminalizes even the advocacy of independence, something that goes much further and is tougher than the previous proposals.”

Kevin Yam, of Hong Kong’s Progressive Lawyers Group, said it was vital to win the argument against independence by persuasion and debate, rather than a sweeping new law that curbs freedoms.

“If the government goes too far, it will undoubtedly have a chilling impact on Hong Kong,” he said. “This is of great concern.”

PRESSURE MOUNTS

The government, in response to Reuters’ questions, did not provide information on when or how it would kick-start legislation, but said it “will seek to create a favorable social environment for the community to handle this constitutional obligation … in a positive manner.”

Hong Kong, a free-wheeling global financial hub, has been ruled under a “one country, two systems” formula since Britain handed it back to China in 1997, guaranteeing freedoms not enjoyed on the mainland, including an independent judiciary and freedom of expression.

Those freedoms are outlined in the Basic Law, a mini-constitution that also demands the city pass its own law covering treason, secession and subversion against Beijing.

But many see Beijing increasingly involved in Hong Kong’s affairs, such as the shadowy detention in 2015 of five Hong Kong booksellers who sold gossipy material critical of Beijing, and a legal interpretation from the Chinese parliament that eventually led to the disqualification of six democratically elected lawmakers. The calls to enact Article 23 follow that pattern, they say.

Previous government proposals outlawed incitement to violence but sought to protect political debate. Hundreds of thousands took to the streets to protest against Article 23 in 2003, forcing the government to shelve it. Months-long pro-democracy demonstrations in 2014 further heightened political sensitivities surrounding the legislation, and the government has not set a firm timetable to re-introduce it.

But now pressure is mounting on Hong Kong to push through the laws after mainland officials expressed concerns in both public and private meetings.

“POTENTIAL HAZARDS”

Senior Chinese parliamentarian Li Fei used a visit to Hong Kong last week to warn that Article 23 was a “duty that can’t be shirked” while the chief of China’s Liaison Office in the city also called for action.

“Many risks and potential hazards that would affect or even threaten national sovereignty, security and developmental interests have not been effectively eliminated or prevented,” Liaison Office chief and Communist Party Central Committee member Wang Zhimin told pro-establishment lawmakers, according to his office’s website.

Chinese President Xi Jinping took what some saw as a harder line on Hong Kong’s future during his visit in July to mark the 20th anniversary of the handover from the British. Challenges and threats to China’s sovereignty and power, or the use of Hong Kong as a base for infiltration and sabotage, were acts that crossed “the red line” and were “absolutely impermissible”, Xi said.

Two members of Hong Kong’s executive council – effectively the cabinet of leader Carrie Lam – have told Reuters that the 2003 bill would almost certainly have to be updated to reflect the fresh concerns.

The city’s independence movement, which has largely gone underground after most of its young leaders were charged for their roles in various protests, did not exist in 2003.

Executive Council member Regina Ip – who pushed the previous bill as Hong Kong’s then-security chief – said she could not say if the old proposals were sufficient in 2017.

“We must review any proposed legislation against the evolving security situation… that is only natural,” she said.

Her colleague and moderate democrat Ronny Tong said he believed, realistically, any new laws could draw the line at organized efforts to promote independence.

“If the last version were to be passed, in fact it would not stop … what is done by the students, because they are not advocating violence,” he said.

“Hong Kong people are getting more and more intolerant of Beijing, and they (Chinese rulers) don’t like that at all. Even short of independence, they feel that something needs to be done … to try to make people more respectful to Beijing.”

This article originally appeared in Reuters on 24 November 2017

All parties deny involvement after US arrests ex-Hong Kong top official Patrick Ho on multi-million dollar bribery charges

All parties involved in the alleged bribery scheme engulfing former Hong Kong official Patrick Ho have denied any involvement, after the Ugandan foreign ministry said it was erroneous to link its minister to Ho.

Ho, 68, was arrested in New York last weekend. He stands accused of facilitating multi-million dollar bribes destined for top officials in Chad and Uganda. The funds were transferred via Hong Kong and New York on behalf of a Chinese company to allegedly secure oil rights. If convicted, he faces 20 years in jail.

He allegedly facilitated a further US$500,000 (HK$3.9 million) to be wired as a bribe to an account designated by the Ugandan foreign minister Sam Kutesa, who had recently completed his term as the president of the UN General Assembly.

A former Hong Kong home affairs secretary, Ho held several titles at the United Nations. He was representing the Hong Kong-based NGO China Energy Fund Committee, which was funded by the company CEFC China Energy.

The NGO, the company, and the Chadian government have all denied bribery allegations.

Uganda’s Foreign Affairs ministry also issued a statement saying that it was “erroneous to insinuate or infer that Kutesa, from references made to him and CEFC in the said media stories, is linked to the bribery allegations”.

See also: Explainer: Patrick Ho’s bribery allegations – from top Hong Kong official to US police custody

Sam Kutesa

The ministry said Kutesa interacted with Ho in his official capacity as the President of the UN General Assembly. It said that, during the time, Kutesa also interacted and engaged with numerous organisations including civil society, media and the private sector.

“This engagement, a role undertaken by all the presidents of the General Assembly, is necessary for promoting the core objectives of the UN in the areas of development, peace and security as well as human rights.”

Bail application

In the alleged scheme to bribe the president of Chad, Cheikh Gadio, a former Senegalese top diplomat acted as a middleman. According to the Associated Press, Gadio remained incarcerated on a US$1 million (HK$7.8 million) bail. He will face electronic monitoring and is to remain under house arrest.

US court records showed that an order for medical treatment was approved for Ho on Monday, who is staying at the Metropolitan Correctional Center in New York.

A preliminary hearing date was set on December 20. Hong Kong’s Ming Pao newspaper cited sources as saying that Ho will apply for bail.

Metropolitan Correctional Center

Jason Y. Ng, a New York-qualified attorney and member of the Progressive Lawyers Group, told HKFP that bail condition depends on several factors, including his danger to the community, previous convictions and risk of flight.

“Depending on how vigorously the prosecutor and the defense attorney argue, the federal judge will decide whether to ask the defendant surrender travel documents and/or be subject to electronic monitoring, curfew, etc.”

He said the trial will be a lengthy process: “Federal courts are notorious for delays due to mounting caseloads. [It is] not uncommon for defendants to wait for months or even longer.”

Ho was arrested using the Foreign Corrupt Practices Act partly because he used New York’s banking system to wire money. Ng said the act has enormous extraterritorial reach and one can run afoul of US law by conducting discussions or other business activities on US soil or transferring funds via the US financial system.

“This case is a sobering reminder to everyone involved in infrastructure initiatives for the Chinese government… That you don’t need to be a US citizen or run a US-registered company to be caught by the FCPA,” he said.

‘Civil diplomacy’

Ho served in the Hong Kong government between 2002 and 2007 during the Tung Chee-hwa and the Donald Tsang administration.

Patrick Ho Tung Chee-hwa

Both Tung and Ho spent a lot of time in the US conducting “civil diplomacy” after their terms in local government. Tung’s trusted aide Andrew Lo is the vice-secretary-general of Ho’s NGO.

Tung, now a state leader, appeared on the red carpet to welcome US President Donald Trump when he visited Beijing this month.

After an anniversary event of his Our Hong Kong Foundation, Tung did not directly respond to reporters’ questions surrounding Ho.

“Think of what I just said,” he said. His speech mentioned that China had achieved a lot in fighting corruption over the past five years.

Tung Chee-hwa Donald Trump

Brian Fong, associate director of the Academy of Hong Kong Studies at the Education University of Hong Kong, said Ho’s arrest formed part of a story of “collaborative politics” among Hong Kong elites over the past century.

“From the consultative structure in the British days, to the chief executive election committee and functional constituencies in the Chinese days – these are merely the carriers of such collaborative politics in different eras,” he told HKFP. “There is no autonomy in Hong Kong if these elites do not have any independent consciousness.”

Fong also said the incident may hint at a policy change of the US towards China.

Article originally appeared in Hong Kong Free Press on 23 November 2017

Transport chief defends transparency of co-location plan

Secretary for Transport and Housing Frank Chan Fan said the government has been doing its best to make the co-location deal between Hong Kong and mainland China as transparent as possible.

He dismissed criticism that the co-location arrangement is a “black box” operation, the Hong Kong Economic Journal reports.

Chan’s defense of the controversial plan came after Chief Executive Carrie Lam Cheng Yuet-ngor and Ma Xingrui, governor of Guangdong province, signed a co-operation arrangement in Hong Kong on Saturday on the establishment of the port at the West Kowloon terminus of the Guangzhou-Shenzhen-Hong Kong Express Rail Link.

It marked the start of the “three-step process” designed to implement the plan.

The three steps include reaching a co-operation arrangement between Hong Kong and Beijing, which has been completed, gaining approval and endorsement from the National People’s Congress Standing Committee (NPCSC), which is scheduled to happen next month, and legislating the proposal in Hong Kong.

However, some lawmakers and groups are criticizing the government for lack of public consultation and failing to reveal details of the deal.

The co-location plan allows part of the terminus to be under the jurisdiction of mainland border control officials after the rail link begins operations in the third quarter of next year. Some have described it as “ceding land” to China.

Chan said the government explained the proposed framework of the plan to the Legislative Council immediately after an initial agreement between Hong Kong and Beijing was reached.

Explanations were also made to citizens and groups on a number of occasions, Chan said.

The government did not provide the complete details of the co-operation arrangement signed on Saturday and only made public eight key points.

Lam said after the signing ceremony that the government will only disclose the full text of the arrangement for public information after the NPCSC approves and endorses it.

She expressed hope that the legislative process will begin in February next year

During a protest organized by the Co-location Concern Group outside Government House on Saturday, Tanya Chan Suk-chong, convenor of the group, called the signing of the arrangement tantamount to selling out Hong Kong because there was no public consultation, no details and no legal basis for the move.

The Civic Party lawmaker demanded the government immediately make public details of the arrangement to allow discussions by Legco and the public.

Barrister Chris Ng Chung-luen, a spokesperson for the Progressive Lawyers Group, said Hong Kong courts might refuse to accept any challenge against the plan once it is approved and endorsed by the NPCSC, to the detriment of ”one country, two systems”.

Article originally appeared in EJ Inight on 20 November 2017

法律界倡電視停播國歌免擾民

內地版本的《國歌法》要求奏唱國歌時,在場人員應當肅立。現時本港多個電視頻道都會定期播放國歌,法政匯思召集人蔡騏指,若聽見國歌便要肅立,「好似『123、紅綠燈』咁,過馬路都要停,唔realistic(現實)」,認為法例應規定播放國歌及需要肅立的場合,「泰國睇戲前會播國歌,遊客都會企起身,如果唔想就遲啲入場」。

本地多個電視頻道都有定時播放國歌,不少食肆均有電視。蔡騏說,要求整間茶餐廳或酒樓的侍應和客人都要起身敬禮並不可行,建議日後本地電視台停止播放國歌,以避開爭議。

即使《國歌法》在內地生效,也有同胞表示不知情。珠海的林先生說,不知道內地已實施《國歌法》,他指內地每星期升國旗,大家都習慣站立跟着唱,但不會太認真,有時更會忘記歌詞。記者邀請他試唱時,他忘記了旋律,笑言平時習慣跟音樂哼幾句。但他不忘補充自己喜歡國歌,「始終是自己國家的歌曲嘛」。

市民:噓國歌未必不愛國

來自廣東的賓女士則表示,從小就會唱國歌,又立即示範唱完一整首國歌,身旁團友都為她拍手以示鼓勵。她又指,內地人都對國歌很尊重,不會亂唱,孫兒幾歲時候已經懂得唱國歌。她又提醒記者,唱國歌時要嚴肅,亦要表現得熱愛國家,「想着我們中華民族……望着國旗,就算看不到國旗,心裏亦要想着」。

港人態度則大相逕庭,健身教練魏先生批評,在港立《國歌法》根本無意義,強迫市民作形式上的尊重,聽到國歌要肅立敬禮「好黐線」,還笑言「想人愛國應該叫人加入民建聯呀嘛,立《國歌法》都冇用」,更認為當日噓國歌的球迷亦未必不愛國,「可能佢哋係憎共產黨啫」。

(原文載於2017年11月5日《蘋果日報》)

Tsang boosts high-powered legal team

The high-powered legal team of former chief executive Donald Tsang Yam- kuen appears to be ready with a strong argument against a second retrial on a graft charge being ordered at the High Court today.

The effort has been bolstered by the involvement of white-collar crime expert Peter Duncan, who was consulted on Friday shortly after the first retrial ended with a hung jury.

That left Justice Andrew Chan Hing-wai with the task of dismissing the jury and preparing to resume today to decide on the next step.

Senior counsel Duncan defended Tsang at his first trial in January, and it is understood he has already prepared a brief and been instructed to stand by should a retrial be ordered.

But Duncan is currently involved in a manslaughter trial and will not be in the High Court today.

Legal experts see a strong possibility the Tsang case could be dropped as prosecutors are generally not given more than two attempts in pressing a charge. In this case it is one of a chief executive accepting an advantage worth HK$3.5 million.

“If a verdict cannot be reached after two trials it really says something about the quality of evidence and the nature of the charge,” said barrister Randy Shek of the Progressive Lawyers Group.

However, he added, it is not a formal rule and there could be an exception given Tsang’s status as a former top official and the gravity of the charge.

Law professor Eric Cheung Tat- ming said a second retrial would be exceptional “and require the most careful consideration by a judge.”

In any event, the defense has obviously decided not to slacken off.

“The family is very anxious about whether the prosecution will press for a third trial,” an insider said. “It’s not over yet.”

Within an hour of Friday’s action finishing, the Tsang family headed to Duncan’s chambers. To avoid intruders, the office’s main doors and lobby were secured by Tsang’s security officers from the elite G4 police unit.

Although Duncan is unable to represent Tsang today, it is understood a full-blown preparation for arguments against a re-retrial was in progress as family members left the chambers at 6.45pm.

A Department of Justice spokesman said yesterday it had still to decide whether to apply for a retrial.

In the first trial, both sides were led by queen’s counsels – senior barristers appointed on the recommendation of the Lord Chancellor in the United Kingdom. That saw David Perry for the government and Clare Montgomery for Tsang.

While Perry remained the government prosecutor in the 25-day retrial, Tsang’s team underwent a major shakeup as Montgomery was unable to defend Tsang due to her schedule.

Duncan, who was one of the ICAC’s first “in-house” barristers, was also unavailable, and Selwyn Yu, SC, was appointed to help out.

Outlays to date, Standard sister newspaper Sing Tao Daily reported, include Tsang facing a cost of at least HK$20 million.

Article originally appeared in The Standard on 5 November 2017

法律界料一般不重審 身分特殊有變數

前特首曾蔭權涉收受利益的控罪經過兩次審訊,陪審團均無法達至大比數有效裁決,以致要兩度解散陪審團。案件將於下周一提訊,讓控方交代解散陪審團的後續。有法律界人士認為,根據基本的法律原則,除特別情况外,不會再重審。但亦有律師指,本案牽涉的人物本身地位和行為較為特別,故控方要求重審亦可理解。

港大法律學院首席講師張達明昨回應本報查詢時指,控方會視乎證據等方面研究是否申請重審,但相信即使控方提出申請,辯方必然反對,屆時法官便須聽取雙方陳辭再作決定。但他強調根據基本的法律原則,除非有特別例外情况,否則不會再重審。若控方不再申請重審,事情便會告一段落。

法政匯思成員、大律師石書銘則指,控方須考慮公眾利益、重審會否對被告造成不公及控罪嚴重性等,再決定是否申請重審。他指,一般而言案件兩次未能達至有效裁決,控方都不會申請重審,惟這並非法例,沒有約束力,加上本案所牽涉的人物本身地位和行為相對特別,若控方申請重審亦可理解。

 

(原文載於2017年11月4日《明報》)

【國歌法】馬恩國引述立法五核心 法律組織︰只是自說自話

  • 全國人大常委會即將審議將《國歌法》納入《基本法》附件三,香港政府發言人今午(2日)表示,準備以本地立法方式實施《國歌法》,未立法前不會執法。不過,正隨團訪京的民建聯執業大律師馬恩國引述基本法委員會主任李飛稱,港府要處理刑事部分,並指《國歌法》至少有五點「核心要素不能少」。

  • 有本地法律組織認為,由於須經本地立法,所謂核心要素,都只是自說自話。有律師質疑,民政事務局轄下委員會所製廣告截取國歌並穿插對白,都屬「二次創作」。

  • 資深大律師、行政會議成員湯家驊認為,尤其牽涉刑法問題,須按照「一國兩制」框架,港府在落實條文時,須分清楚政策指令及刑事法。

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今早(2日)在北京拜訪全國人大香港基本法委員會的馬恩國引述委員會主任李飛指,香港為《國歌法》本地立法時,「核心要素不能少」。(資料圖片)

 

法政匯思︰牽涉多個定義問題 冀港府公眾諮商

法政匯思召集人文浩正認為,《國歌法》須透過本地立法方式實施,所以原則上,馬恩國引述李飛所謂的要點,都只不過是自說自話,港府在本地立法上「可以完全不用理會」。他認為,本地立法最重要,是令公眾清楚明白自己的權利及責任,尤其《國歌法》較複雜,當中有不少細節須斟酌,如何謂「場合肅穆」、「站立」等要有清晰定義。

不過,文浩正認為,即使原則上李飛是自說自話,但相信部分政黨都會參考,正正是市民所擔心。由於中港法律不同,希望政府就該法律實施情況諮詢公眾意見。他又質疑,民政事務局轄下的公民事務委員會所製作的廣告,有截取國歌並穿插對白,都屬「二次創作」,按馬恩國的引述,質疑政府做法是否都屬於踩界,「又有無權使用?」。

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資深大律師湯家驊認為本港不能將「政策指令」與「刑事」混為一談,所有刑法必須按照「一國兩制」的框架。(資料圖片)

 

湯家驊︰刑法須按「一國兩制」框架

湯家驊關注,馬恩國引述李飛指,應處理如何以刑事處罰代替行政拘留,同時又提到五點要素,包括強制性中小學國歌教育,擔心會混淆視聽,令人質疑是否學校不播國歌就是觸犯刑事法。湯家驊認為,中港法律有「相當不同的地方」,他雖然不評論內地法制,但認為本港不能將「政策指令」與「刑事」混為一談,所有刑法必須按照「一國兩制」的框架,希望港府在落實條文時,須分清楚政策及刑事法。

人大常委審刑法草案辱國歌可囚3年 律師:難效國旗法照抄引入香港

全國人大常委會今日審議《刑法修正案》,建議在《刑法》第299條侮辱國旗、國徽罪中增加一款規定,「在公共場合,故意篡改中華人民共和國國歌歌詞、曲譜,以歪曲、貶損方式奏唱國歌,或者以其他方式侮辱國歌,情節嚴重的」,依照侮辱國旗的規定,處3年以下有期徒刑、拘役、管制或者剝奪政治權利。香港的《國旗及國徽條例》在臨立會年代以「照紙搬字」的形式,直接引入內地的《國旗法》,但有法律界人士認為,《國歌法》不能和《國旗法》相提並論。

內地《國旗法》的相關罰則為「依法追究刑事責任;情節較輕的,由公安機關處以15日以下拘留」,而內地《刑法》關於侮辱國旗的罰則為「處3年以下有期徒刑、拘役、管制或者剝奪政治權利」。不過當年臨時立法會自行制定《國旗及國徽條例》時,採與內地刑法相近的罰則,即最高判囚3年,另加最高罰款5萬。如今香港要把《國歌法》透過《基本法》附件三引入香港,又能否採當年的做法?

法政匯思成員黃鶴鳴接受《852郵報》查詢時表示,《國歌法》難和《國旗法》直接比較,因所有在港實行的刑事法律,用字都要十分清晰,以免市民誤墮法網,而《國旗法》規限的屬具體行為,如燒或剪爛,甚至倒插國旗等,但唱國歌則有所不同,例如以不同曲風演唱國歌、奏國歌時的神情肢體動是否算侮辱,都是含糊有待澄清之處,故不能《國旗法》直接類比《國歌法》。

(撰文:皇甫清)(圖片來源:政府新聞網及蘋果日報)

(原文載於2017年10月31日《852郵報》)

‘Co-parking’ in Tsuen Wan: HK$1,500 for 12 days

With the limited supply and soaring prices of parking spaces in Hong Kong, some owners have adopted the sharing economy model to rent out their parking lots on specific days for a fee.

In Tsuen Wan’s industrial area near the Sha Tsui Road and Chai Wan Kok Street, hk01.com has discovered that some parking lot owners have posted advertisements for motorists to “co-park” at their spaces.

One of the parking spaces on offer is at One Midtown on Hoi Shing Road, where the owner has decided to rent out the space from Tuesday 2 p.m. to Friday 2 p.m. every week.

This means if another car owner is willing to pay HK$1,500 per month he or she will be able to use the parking space for 12 days a month.

When hk01.com reporters contacted the owner about the co-parking space, the owner told them that it has already been rented out.

Parking lots in Tsuen Wan are commanding high prices because there is just one public car park near the Tsuen Wan MTR station and it is always full.

A monthly parking lot at One Midtown can fetch up to HK$3,800 per month and there is no vacancy.

A private parking space at the Cable TV Tower nearby could cost up to HK$4,800 a month, while a space at the TML Tower is around HK$3,500.

As prices soar, paying HK$1,500 a month to secure parking space for 12 days seems a great deal.

According to security guards at One Midtown, the parking spaces consist of hourly-parking lots while those on the first to third floor are all designated for flat owners at the property development.

The guards have a map to record all car license plates, and some parking spaces do have more than one license noted down.

When asked about “co-parking spaces”, a guard said that he has not noticed any so far.

A spokesperson for the One Midtown management office said as long as the owner can give valid information on the cars for registration, it is not illegal to park multiple cars in their parking lot.

The management office would give each car owner at most three Octopus cards for access to the carpark, but only one car can use the space at a time.

Duncan Ho Dik-hong, barrister and a member of the Progressive Lawyers Group, said the owner of the space should tell renters of the penalties for parking beyond the time limit and the limitations for co-parking in the lease.

He urged people who want to rent co-parking space to pay attention to the land lease and the rules at the parking lot to ensure that the lease is legal.

It is also best if the person renting the parking lot can confirm that the owner has the right to rent out the space to avoid possible disputes.

Article originally appeared in EJ Insight on 19 October 2017

Hong Kong gov’t urged to enact freedom of information law after 20 years of delays

IT sector lawmaker Charles Mok has said that civil groups will look into drafting a freedom of information law after criticising the government for making slow progress over the past two decades.

Mok said the Chief Executive signed a Hong Kong Journalists Association charter during her election campaign promising to enact the law.

More than 100 countries and territories have enacted such rules, including China. The Law Reform Commission formed two subcommittees in 2013 to look into whether to legislate an archives law and access to information law, but they have yet to publish any reports.

An official Code on Access to Information has been in place in Hong Kong since 1995. The public can cite it when asking for information, but the Code does not have any legal effect, nor does it apply to all public organisations. In July, the Ombudsman said there were 85 complaints relating to access to information in the year 2016/17 – a new high.

Mok said government departments often misunderstand the process when rejecting information requests, mistakenly thinking that the files requested are internal documents or require third-party approval before release.

He will raise a verbal question at the Legislative Council meeting on Wednesday enquiring about the progress of the freedom of information law.

The Archives Action Group, led by former director of the Government Records Service Simon Chu, along with the Progressive Lawyers Group, and lawmakers including Mok will look into drafting a bill.

“Only the government will oppose this bill,” Mok said. “To be honest, if the government supports it, the pro-establishment camp will not oppose it.”

Fu King-wa

Fu King-wa, an associate professor at the Journalism and Media Studies Centre of the University of Hong Kong, said the Ombudsman has twice asked the government to amend the Code.

“It’s difficult to find another case whereby the government refused to amend the law after the Ombudsman raised the issue twice,” he said.

Fu said he spent 14 months obtaining figures of injuries that occurred on the MTR system.

“These are not sensitive numbers… if the numbers are made public, we can do more to improve society,” he said, adding that open data can also create business opportunities.

Consultation on archives law

The government has said in documents submitted to the Legislative Council that bureaus and departments had approval to destroy 89,000, 61,000 and 56,000 metres of documents in 2014, 2015 and 2016 respectively.

Kitty Choi, director of the Administration Wing under the chief secretary, said on Monday at the Legislative Council that many of the destroyed documents were unnecessary to keep. For instance, 60 per cent of those of the Immigration Department were arrival or departure cards of tourists.

She also said the Law Reform Commission plans publish a set of consultation papers earlier next year asking for opinions over whether to legislate the archives law.

Simon Chu

Simon Chu said he was not satisfied with the progress: “I must condemn the Law Reform Commission’s subcommittee. Are you kidding me? They are still studying after four years,” said Chu.

“Our group only has several people, but we have done all the research needed – comparing [Hong Kong] with many jurisdictions in the world, we have even written the bill. But now four years have passed, and it is still conducting a consultation?”

Article originally appeared on Hong Kong Free Press on 18 October 2017

Asia’s world city? Hong Kong ethnic minorities feel targeted by police stop and search actions

British teacher and performer David Allen had just got on his motorbike on a busy street in Ho Man Tin last month when he was suddenly stopped by three police officers asking for his identification papers.

It was not the first time he had been stopped by police. But this time, Allen decided to record the exchange because he wanted to show others the prejudice he has faced from police. “Based on my own personal experience, on occasion I have been singled out because of my skin colour. There seems to be a racial bias in policing,” he told HKFP.

In the video that would later go viral on social media, Allen asked the officers why they intercepted him and not any other pedestrians, who appeared to be ethnically Chinese.

“We have the power. We can suspect anyone,” one of the officers said. Another used his phone to look up the law enabling police to stop and search citizens.

“I agree. That’s good,” Allen replied. “Why did you stop me?”

He continued to press on, and the officer finally explained that there was some crime committed by a “black guy riding a bike” earlier that morning. “So we saw you on the street riding a bike, and you are [a] black guy, so we suspect you,” the officer said.

Allen, who has been living in the city for more than four years, said he has been stopped more in Hong Kong than in the UK. He added that British police were “slightly more polite and patient” than their Hong Kong counterparts in his experience.

No official data

Allen is not alone in feeling targeted due to his skin colour. He said that after posting the video, he was flooded with messages from people who are non-white and non-Chinese sharing similar experiences. One of them said he had been stopped as many as five times a week, according to Allen.

But it is difficult to even question whether racial profiling exists in Hong Kong, because the police force does not keep track of the ethnicity of stop and search targets.

The force only records the total number of stop and search operations. Last year, 1.6 million stop and search/question actions were conducted in Hong Kong, a city with a population of around 7 million. In comparison, New Yorkers were stopped 12,404 times last year, according to the New York Civil Liberties Union.

Despite the large number of stop and frisk actions in Hong Kong, only around 17,000 offences were detected as a result of over 1.9 million stop and search/question actions in 2012. Such figures are not available in the following years.

“Without the data, it is difficult to tell for sure whether there is a trend. But on the other hand, you have these stories. It’s hard to piece together what’s happening,” Puja Kapai, law professor at the University of Hong Kong and author of research paper The Status of Ethnic Minorities in Hong Kong 1997-2014, told HKFP.

Nonetheless, Kapai observed a tendency for people of certain ethnicities to be targeted disproportionately. For example, men from the South Asian community are more likely to be singled out, Kapai said. It is also not unusual for asylum seekers to be stopped seven times a day.

puja kapai

But there are other factors at play, such as different policing methods in different districts. Kapai cited the example of Yau Tsim Mong, where police work closely with ethnic minority residents to keep an eye on gangster activities. The professor said there appears to be mutual trust between police and ethnic minorities in the area.

Longtime resident and teacher Akin Jeje, a Canadian citizen of African descent, thinks that class and race are intertwined.

He finds himself a more frequent target than his white friends, who are rarely – if ever – stopped by police.

“It’s also the assumption of who is well off and who is not,” he said. “A lot of people assume white people are more likely to be better educated, better off and more respectable, so [whites] are less likely to be harassed and more likely to be deferred to.”

Though Jeje’s encounters with police usually ended smoothly as soon as he produces his identity card, he has seen others having a hard time with police.

“I’m a middle-class teacher. Can you imagine what it would be like if you look poor or your status is not as solid as mine, or [if you are] someone who’s learned to fear the authorities? That sort of interaction may not go so well,” Jeje said.

Kapai agrees that class is “very visible” in policing. “For men, if they haven’t shaved that day or dressed nicely, they are aware that they are more likely to be stopped,” she said.

“If they wear religious dress, there is also a higher chance to be stopped,” she said, adding that it is probably because these people are perceived as belonging to the working class and more likely to have pending immigrant status.

Unchecked power?

While keeping better statistics may enhance transparency, critics warn of the lack of accountability owing to legal loopholes.

Police are granted stop-and-search powers under several ordinances, including the Police Force Ordinance, the Public Order Ordinance and the Immigration Ordinance.

Barrister Chris Ng of the Progressive Lawyers Group said these ordinances give officers broad powers, partly out of the need to combat illegal immigration. In practice, he said, it is very difficult to refuse to be stopped.

“I think we should agree that police need to have the power for doing their job. But this power should be exercised reasonably,” Ng said.

police

But there are doubts over whether citizens can challenge police actions on grounds of racial discrimination, even if they feel that the power has been misused.

Rights advocates have criticised a recent court decision ruling that policing is not bound by the Race Discrimination Ordinance. The high-profile case concerned child prodigy Arjun Singh, who alleged police unlawfully arrested him in 2011 based on his race after a woman accused him of assault. Singh was 11 at the time of the incident.

It marked the first case brought against a public authority under the anti-racism ordinance since it came into effect in 2009, and the area covered by the ordinance was a key issue.

Unlike three other anti-discrimination laws in Hong Kong which scrutinise government “functions” and “powers,” the Race Discrimination Ordinance does not explicitly cover the exercise of functions and powers by public authorities.

Singh lost the case. The District Court held that police acts do not amount to the provision of “service” and are therefore not subject to the ordinance. It also rejected evidence tendered to suggest there was racial profiling in the case.

Phyllis Cheung, executive director of NGO Unison, said the case highlights the ineffectiveness of the Race Discrimination Ordinance in protecting ethnic minorities from discriminatory acts by the government.

“It is a systemic problem. We cannot sue the police or file complaints to the [Complaints Against Police Office] over racial discrimination allegations, because legal protection is nonexistent,” Cheung told HKFP.

Last year, the Equal Opportunities Commission recommended amending the ordinance so that government functions will also come under scrutiny. However, Cheung said the government has not yet said when it will implement the suggestion.

Police training

While law reforms may not be in sight, efforts to change the culture of policing are underway.

Social worker Jeffrey Andrews runs cultural sensitivity training for police officers. Andrews, who was born into an Indian family in Hong Kong, said he used to be stopped monthly until he became more high-profile for his advocacy work recently. But he said some of his clients were stopped at least twice a week.

“Youngsters come and tell me that it’s an everyday occurrence and it’s very humiliating to them,” he said. “[The officers’] tone can be a bit rough and I think that needs to be changed.”

Andrews added that officers’ attitude usually softens if he responds in Cantonese. Meanwhile, he said the situation could become tense if people ask questions in English, because many officers lack English proficiency.

“Law enforcement agents are to serve, not to antagonise or target any group, and that’s very important for community building,” he said.

While Andrews said he felt encouraged by the positive response from the officers he worked with, uncertainty remains over whether the management has plans to change the force’s policy in the near future.

Jeje, the Canadian teacher, also did not blame police officers. “Hong Kong has not been politically correct. The whole idea of racial profiling may not be obvious to some officers,” he said.

He would like to see officers show more courtesy when approaching people. He also believed that upgrading the force’s English language skills and hiring more non-Chinese officers could help bridge the gap with the public.

But these changes may mark only a small step towards an inclusive society. Andrews said everyday racism extends beyond policing. In particular, he expressed concerns over growing hostility against “South Asians” and “Africans” that appears to be fuelled by sensational media reporting and politicians in recent years.

refugees

“It is very, very sad. The government [should] play a crucial role in condemning this trend, but they haven’t done that,” he said. “When someone said something about the death of the education official’s son… immediately the chief executive condemned it. But why is it that when it comes to [racial discrimination], no one wants to step up?”

See also: Off the agenda? Ethnic minorities feel shut out of Hong Kong’s political conversation

For others, the prejudice they experienced has left them with an unpleasant image of Asia’s “world city.”

“You can’t help but be disappointed,” Allen said. “My friends or family ask me what it’s like here, the first thing I say is no one comes here for the people… It’s not just the way people treat foreigners; it’s also how they treat each other.”

“Coming from the UK, it’s hard to compare. People there are generally respectful to strangers and have better manners like holding the door open for others. It’s a small thing but it makes a difference. It is about treating a person like a person, even though you may not know them.”

Article originally appeared in Hong Kong Free Press on 8 October 2017

Three Years After Occupy, Hong Kong Democracy Movement Stalled, ‘Divided’

Hundreds of democracy activists protested outside government headquarters in Hong Kong on Thursday, marking the third anniversary of the start of the Occupy Central campaign for fully democratic elections that brought hundreds of thousands onto the city’s streets at its height.

Protesters stood in silence at 5.58 p.m., the exact moment that police fired the first round of tear gas into unarmed crowds of student-led protesters, who defended themselves with umbrellas, giving the Umbrella Movement its nickname.

Audio clips of the tear gas firing were played at the rally, while clouds of steam were produced to imitate the firing of the gas.

Three years on from the start of the movement, democracy activists say they have seen scant progress, with widespread complaints that the city’s promised autonomy is already eroding in favor of heavy handed interference by Beijing.

Former pro-democracy movement student leader Fanny Cheung said internal disagreements about the overall strategy for the protest had split the movement, making it less effective, and dividing activists ever since.

“I don’t know if we will be able to achieve the ultimate goal [of the Occupy movement],” Cheung told RFA onThursday. “Since the umbrellas came down, it seems there has been a political awakening, but internal divisions mean that it will be very hard to find a way around the obstacles in front of us.”

She said “mismanagement” of the main speakers’ stage at the Occupy site in the downtown business district of Admiralty had sparked divisions between different factions, some of whom believed that the protesters should have hung on until their demands for universal suffrage were met.

Today, I came out to the rally with the feeling that at some level, this was an atonement, because we made a mess of it, and wondering about my own responsibility for those divisions,” she said.

A protester surnamed Wong, 73, said he had been at the Admiralty camp on an urban expressway for the entire during of 79 days, until protesters were cleared from the area by police.

“I didn’t really do anything — I’m old — but I felt as if we would have to live with it for the rest of our lives if we didn’t come out onto the streets,” Wong said. “So I thought I should come out too; that we all should have come out to support them.”

Student leaders jailed

Others said they were at the rally to show support for three former leaders of the movement who were jailed last month.

Former Occupy leaders Joshua Wong, Nathan Law and Alex Chow who were jailed in August by the city’s Court of Appeal after the government requested a review of their community service sentences on public order charges linked to their storming of an area outside government headquarters at the start of the Occupy protests.

Kevin Yam, convenor of the pro-democracy Progressive Lawyers Group, said the struggle for democracy in the former British colony was unlikely to be achieved quickly, however.

“This isn’t a flash in the pan; it’s going to take a lot of ongoing, hard work from everyone,” Yam said. “We will have to swallow our anger and work patiently.”

“I think the initial enthusiasm of the Occupy movement will gradually be forgotten.”

Yam hit out at Beijing for tightening its grip on the city in recent years, and alienating the younger generation.

“Revenge, violence and cold-bloodedness are easy to let in, but much harder to get rid of,” Yam warned. “The most important thing is that we don’t forget the original intention … which is not just the power to choose our political representatives; it’s also a whole set of values like love, peace and tolerance.”

Meanwhile, Hong Kong justice secretary Rimsky Yuen hit at a declining ranking given to Hong Kong by the World Economic Forum for judicial independence, following a string of high-profile legal interventions by China’s parliament.

Yuen said he couldn’t see any “objective factors” affecting judicial independence in Hong Kong, although “some events in society” could have affected a more subjective view, but gave no further details.

Declining judicial independence

The WEF cut Hong Kong’s ranking for judicial independence from 6.3 out of 7 last year to 6.1 this year.

Eric Cheung, law scholar at the University of Hong Kong, said the changes in rankings were “cause for concern.”

“We had a major interpretation [from China’s parliament] recently, right when a Hong Kong court was deliberating on a case, which was a big blow to Hong Kong’s judicial independence,” Cheung said. “I hope that Beijing won’t use its power lightly in the future, to avoid damaging it.”

“The rule of law and judicial independence in Hong Kong are its bedrock, and any changes could have an impact on the commercial environment.”

Hong Kong was promised a “high degree of autonomy” under the terms of its 1997 handover from Britain to China, but many say the city’s traditional freedoms are now a thing of the past, as Beijing seeks to wield ever greater influence over the city’s media, publishing, and political scene.

Calls for independence were rare in the city until the failure of the 2014 pro-democracy movement to overturn a decree from Beijing insisting that all electoral candidates for chief executive in 2017 be vetted by China’s supporters.

Leaders of the 79-day civil disobedience movement rejected the Aug. 31, 2014 decree by the National People’s Congress (NPC) as “fake universal suffrage.”

But Hong Kong courts recently stripped six directly elected pan-democratic legislators of their seats following an NPC interpretation invalidating their oaths of allegiance to China.

The government-requested review into the sentencing of Wong, Chow and Law has also been criticized as part of a politically motivated retaliation instigated by Beijing.

Reported by Lam Kwok-lap for RFA’s Cantonese Service, and by Gao Feng for the Mandarin Service. Translated and edited by Luisetta Mudie.

Article originally appeared in Radio Free Asia on 28 September 2017

‘A landmark judgment’: Legal experts and banks react to Hong Kong’s key LGBT court ruling

Legal experts have hailed the Court of Appeal’s “landmark” decision on Monday to rule in favour of a lesbian expatriate who was previously refused a spousal visa by the Immigration Department.

The applicant, QT, entered into a civil partnership with another woman, SS, in the UK in 2011. But when SS came to Hong Kong for work, Immigration only allowed QT to enter the city on a tourist visa. QT then challenged the decision by filing a judicial review.

Her solicitor, human rights lawyer Michael Vidler, told HKFP that it was a great decision not just for QT and her family, but also for many others in Hong Kong who are in a similar situation and were waiting for a positive decision.

Vidler said that it was also a good decision for the LGBT community, because the chief judge noted that hallmarks previously considered to be exclusive to heterosexual marriage also applied to same-sex partnerships.

“It was the first time that the Hong Kong court made such observations, and there were references in the judgment that we have to keep up with the times. That was something that heartened me and made me optimistic for the future,” he said.

Vidler further said that the ruling will “keep Hong Kong as the top provider of financial services in the world,” noting that the financial industry has had difficulty recruiting and maintaining talent coming to the city.

Step towards equality 

Although the court earlier rejected an application by 12 financial institutions to intervene in the case, there was an opportunity for QT’s legal team to put forward their arguments. As one of the major employers and contributors to the city’s GDP, Vidler said that the benefits to the financial industry meant that the judgment was also good for Hong Kong as a whole.

In a press statement on Tuesday, the 12 institutions said they were pleased with the ruling: “This is a major victory for Hong Kong—it is not just about diversity and inclusion but also equality. We believe the ability to attract world class talent, regardless of their gender, sexual orientation, gender identity or background, is essential for maintaining Hong Kong’s competitiveness as a preeminent global financial centre. We will continue to advocate policies and practices that facilitate this.”

high court

Geoffrey Yeung, member of Progressive Lawyers Group, told HKFP: “[The] judgment is an important step towards equality for same sex couples in Hong Kong. It is a recognition that same sex relationships in Hong Kong are valid relationships,”

Yeung added that it was a “landmark judgment” as the Court of Appeal ruling confirmed what the Court of First Instance said in a case involving Angus Leung, a Hong Kong civil servant who registered a same-sex marriage in New Zealand and fought the government to obtain civil service welfare benefits for his husband. There, the court had ruled that differential treatment in marital status in granting of spousal benefits would be discriminatory.

However, he also said that there is a “catch” in that one of the judges said that there is a difference between core and non-core rights, and classified immigration as a non-core right. However, the court did not fully consider arguments relating to core rights such as divorce, inheritance and adoption, leaving questions open as to whether challenges involving core rights by same sex couples will inevitably fail.

lgbt gay

“Future challenges to these core rights remain to be determined,” Yeung said, adding that the court will reconsider whether the distinction is satisfactory.

Article originally appeared in Hong Kong Free Press on 26 September 2017

【一地兩檢】研討會將討論七方案 陳帆表明拒出席

一地兩檢關注組聯同大專學界,本周六將於香港大學舉行一地兩檢替代方案研討會,當日會提出7個高鐵邊檢方案,由不同專家講解各方案利弊。

關注組專家小組代表梁啟智指,研討會上討論的7個方案,包括「兩地兩檢」,「內地車站實行一地兩檢」,西九站只實行內地邊檢相關法律的「簡化版一地兩檢」,「北上預檢」,「車上檢」,「不做高鐵」及「政府版一地兩檢」。目前已邀請法律學者陳文敏,張達明,法政匯思及立法會議員譚文豪等,在研討會介紹相關方案。關注組召集人陳淑莊指,政府未能提供足夠數據去解釋其他方案不可行,只是便捷去推銷一地兩檢,研討會目的是希望進行無前設的討論,故將坊間曾提出,所有可行的方案安排都討論。她指,關注組曾就研討會,去信運房局局長陳帆,律政司司長袁國強及建制立法會議員梁美芬,邀請出席研討會介紹政府方案。惟袁及梁俱未回應,陳帆則回覆表明拒絕出席,質疑政府迴避諮詢陳淑莊續指,在研討會後,關注組在本月24日將舉行內部商討日,關注組內100多名成員,會分組討論,最後經投票選出,關注組認為最可行的方案。「邊度檢 喺度揀」研討會資料:

日期:9月16日
時間:下午2時至5時
地點:港大明華綜合大樓T1演講廳
報名方法:電郵至cg.colocation@gmail.com ; whatsapp短訊至9881 9846 或填寫google form: https://goo.gl/Lq5wWK

(原文載於2017年9月12日《蘋果日報》)

中大再現港獨橫額 校方斥違法

中大文化廣場昨再現「香港獨立」的橫額和單張,校方斥港獨言論「違反香港有關法律」及有違校方立場,表明會清拆。傍晚約20名學生收到消息後聚集廣場守護橫額。學生會斥校方以權欺壓學生,會視乎情況考慮下一步行動。

中大學生會斥校方以守法為名,打壓言論自由為實,表示極度遺憾,要求現任校長沈祖堯及候任校長段崇智表態。中大文化廣場屬學生會管理,前天保安未有按慣例詢問學生會,就擅自拆走港獨橫額。昨天清早港獨橫額再現。

學生會副會長李振勇向《蘋果》否認橫額由學生會掛上,事前也不知情,但收到消息校方將會清拆橫額,連同他在內,下午約4時約20名學生聚集廣場,盼阻止保安拆橫額。他斥校方以權力欺壓學生,漠視學生會對廣場的自治權。對於資深大律師湯家驊指張貼港獨宣傳品或觸犯《刑事罪行條例》,李振勇反指,若校方認為學生行為犯法,大可報警處理。

疑似內地女生撕傳單

記者昨現場所見,入黑後聚集的學生減少,僅餘數名學生會成員。一名操普通話的疑似內地女生傍晚撕破民主牆的港獨傳單,遭學生會成員阻止後離去。

學生會昨收到中大師生中心管理委員會信件,內容指有關橫額和傳單違反香港法律和中大校方一貫「絕對不贊成」港獨的立場,要求學生會立即清除傳單和橫額,否則會有相應行動。

律師兼法政匯思召集人任建峰反駁,有關橫額純粹討論港獨,非煽動他人武裝或暴力推翻政權,認為不算違法。他強調,大學是充滿自由的地方,即使是不受歡迎的言論都可以討論,「但中大(校方)咁劃條線好值得商榷」。中大發言人稱,基本法訂明香港是中國不可分離的部分。校方絕不贊成港獨,已發信提醒中大學生會將有相應行動。

港大學生報學苑昨日傍晚發佈照片,顯示該校民主牆貼出「香港獨立」及「支援中大學生會」標語,該校學生會會長黃政鍀確認校內民主牆出現相關橫額,相信是同學自發掛上。至於教大昨日晚上亦有出現港獨橫額,據了解昨晚約8時半已經被移走。

(原文載於2017年9月6日《蘋果日報》)