An all-out war of words: Where does free speech start and end in Hong Kong?

The school year had barely begun when two incidents—both testing the limits of free speech on campus—unfolded at Chinese University and Education University and sent management scrambling for a response.

On Monday, at least three large banners bearing the words “Hong Kong independence” were spotted in various locations at Chinese University, including one that draped across the famous “Beacon” sculpture outside the school’s main library. Within hours, the banners were removed by the school authorities.

A few days later, a sign “congratulating” Education Undersecretary Choi Yuk-lin on her son’s recent suicide appeared on Education University’s Democracy Wall, a public bulletin board for students to express opinions and exchange views. Likewise, the sign was taken down shortly thereafter.

That could have been the end of the controversies had university management not succumbed to the temptation to say a few choice words of their own. In the end, it was the reaction from the school authorities that added fuel to the squabble and escalated them into an all-out war of words that questions how far free speech should go on campus.

When pressed to explain the removal of the pro-independence banners, Chinese University President Joseph Sung punted the question but hinted at the notion of illegality, remarking that “as long as [an expression of opinion] is not illegal or disruptive to other people’s learning, we will not have too big of a reaction.”

The accusation of unlawfulness wasn’t explicitly articulated until the following day. In a letter addressed to the student union, a university management committee pontificated that the discussion of independence “violated Hong Kong’s laws and also violated the school’s constant stance of absolutely opposing Hong Kong independence.” The language was so absolute and unequivocal that it left one wondering whether a police crime unit should have been dispatched to Sha Tin.

 Joseph Sung

In an equally absolute and unequivocal tone, Education University President Stephen Cheung decried the sign mocking the death of Undersecretary Choi’s son. At a press conference, an irate and almost teary-eyed Cheung called the behaviour “shameful” and “offensive” and said it “overstepped our moral boundaries” and “rubbed salt in another’s wound.”

Cheung went on to apologise to Choi’s family on behalf of the entire university. He also told reporters that an investigation was underway and that a disciplinary committee would decide on the appropriate punishment for the perpetrators. Intentionally or not, the school authorities later leaked CCTV footage of the individuals allegedly responsible for posting the sign.

Any constitutional lawyer will tell you that no right is absolute—not even the freedom of expression. In much of the common law world, courts have come to similar conclusions over the limitations of free speech. Libel, pornography, incitement of violence and hate speech are but a few areas where the freedom of speech is deemed in conflict with other rights and freedoms and therefore may be curtained.

In the United States, the First Amendment guaranteeing free speech is perhaps the most argued provision in the Bill of Rights. A series of high profile Supreme Court decisions have carved out seven permissible encroachments on expression: obscenity, child pornography, defamation, incitement to riot, fighting words, copyright infringement and false advertising.

basic law

In Hong Kong, freedom of expression is enshrined in Article 27 of the Basic Law. Limits on free speech by and large follow English case law and are for the most part consistent with the classic exceptions enumerated earlier.

When Chinese University management slammed the pro-independence banners as “illegal,” they were alluding to Article 1 of the Basic Law which stipulates that “[t]he Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China.” The banners supporting Hong Kong independence, according to the university, contravene Article 1 and are therefore unconstitutional.

But that’s where the school authorities got confused and hopelessly wrong. Even though the act of secession itself is unlawful, supporting it isn’t—at least not until an anti-subversion law is enacted. Every day, citizens, lawmakers and government officials debate matters that are potentially or in fact unconstitutional. There is no common law prohibition on the “discussion of illegal acts.”

For instance, the government’s joint checkpoint proposal at the West Kowloon railway terminal is in clear violation of several provisions of the Basic Law. At least two judicial reviews have been filed to challenge its lawfulness in local courts. But that hasn’t stopped Carrie Lam and her cabinet from hard-selling the plan to the public like used car salesmen. Following Chinese University’s argument, then every television advert and MTR poster promoting the co-location proposal ought to be taken down for illegality.

express rail link train

If the West Kowloon comparison is too obscure, there are plenty of other examples to look to. Activists fighting for marriage equality or access to medical marijuana should be free to wave rainbow flags or hand out leaflets explaining the health benefits of cannabis. Neither same-sex marriage nor marijuana use is legally permissible, but that’s precisely the point of free speech: to debate whether they should be.

Can you imagine the upheaval if university management starts removing rainbow flags from campus for “promoting the currently unlawful act of same-sex marriage”? By the same token, any reasonable person should be equally outraged by Chinese University’s misguided—if not altogether anti-intellectual—decision to take down the students’ pro-independence banners, regardless of one’s personal views on that issue. For a respected institution that has long been regarded as a vanguard of the city’s liberal ideals, the latest turn of event is a shocking disappointment.

What about President Cheung’s righteous indignation toward the distasteful sign at Education University?

Without a doubt, the sign making light of a suicide was mean-spirited, juvenile and cruel. But free speech isn’t about being nice or mature or kind—it is about the freedom to be all of those things as long as we don’t violate someone else’s rights. The sign fell far short of a “hate speech”, which refers to offensive words targeting a person or group on the basis of a collective attribute such as race, religion, ethnic origin or sexual orientation. Even though the behaviour in question was hateful, it is nonetheless legitimate free speech.

Cheung’s high-profile condemnation of a single insensitive sign is nothing short of an overreaction. It also begs the question as to whether he would have made so much fuss had the sign not been directed at a senior government official. For if a university president were to apologise for every silly post on an open forum, or if he has to convene a disciplinary committee to punish every student for an unpleasant comment, he would be a very busy man.

Liu Xiaobo Education University EdUHK Liu Xia

Sure enough, the day after the incident, another pain-in-the-neck put up a sign slighting the death of Chinese dissident Liu Xiaobo in retaliation of the anti-Choi post. Will Cheung call another press conference and put on the same indignant face? If he doesn’t, why not?

There is no denying that some speech is more tasteful than others—the one that appeared in Education University clearly wasn’t. Many also believe independence to be a pipe dream and a path to disaster. To the average Hong Konger, both acts by university students this week were schoolboy antics that shouldn’t be encouraged. But while they may be bad ideas, they are constitutionally-protected bad ideas.

By Jason Y. Ng

Article originally appeared in Hong Kong Free Press on 10 September 2017

Attacks on Hong Kong’s legal aid system show breathtaking creativity and imagination

By Craig Choy

After reading certain recent press articles, one would be forgiven for wondering if one had schizophrenia.

In a recent article, conservative columnist Christine Wat Wing-yin (屈穎妍) accused the legal aid system of working to enrich senior counsel Philip Dykes and other barristers. Around the same time, another article referred to the dramatic decline in income of foreign counsel after the handover – with one of the interviewees being Dykes. So which is it: has Dykes been fattened up or has he had to tighten his belt?

Wat’s article contains numerous errors of fact, which lead to misleading and ungrounded conclusions.

First, relatively few barristers and solicitors specialise in judicial review. Wat questioned how grassroots applicants of limited education (such as elderly Lo Siu-lan, who challenged the Link REIT, and public estate resident Chu Yee-wah, who brought legal action against the Hong Kong-Zhuhai-Macau Bridge) could seek out Dykes to represent them.

However, media reports of important cases now frequently refer to the legal representatives of both sides; further information about them is only a few mouse clicks away. Thus, for instance, would it be surprising if Kwok Cheuk-kin (a pensioner who is nicknamed the “king of judicial review”) was acquainted with the lawyers referred to by Ms Wat?

Second, under Hong Kong’s legal system, a citizen who wishes to litigate would usually engage a solicitor, who will then engage a barrister to appear in court. The solicitors representing Lo Siu-lan and Chu Yee-wah were highly experienced; would it be difficult for them to know which barristers are experts in human rights or judicial review?

Christine Wat Wing-yin leftist communist

Third, judicial review cases often involve policies with society-wide impact, such as whether prisoners have the right to vote, or whether secondary school places should be assigned by sex. Both applicant and the government alike often need to retain specialists to consider the constitutionality of the laws and policies at issue. As a result, the government itself also frequently turns to the same handful of barristers for judicial review cases.

Fourth, legal aid cases are not profitable for lawyers. Legal aid is paid for using public funds. It is widely known within the legal profession that both barristers and solicitors typically receive 30-40 per cent less on legal aid cases than they do on other cases. The amount that solicitors can earn on legal aid cases is trivial compared to what they could earn on an IPO.

In addition, the small number of judicial review cases (particularly compared to criminal cases) would not be enough to sustain – let alone “enrich” – barristers and solicitors who specialise in judicial review.

Fifth, the Director of Legal Aid is empowered under the Legal Aid Ordinance to appoint independent counsel to determine if a legal aid application involving judicial review has a reasonable prospect of success. In May 2017, Under-Secretary for Home Affairs Florence Hui Hiu-fai cited the following statistics in the Legislative Council:

Thus, over the past five years, only a fifth of applications for legal aid in judicial review proceedings have been approved. Those approved applications are considered by the Director of Legal Aid to have a reasonable chance of success. If there are just and reasonable grounds for a judicial review, why not let it proceed?

As Chief Justice Geoffrey Ma declared at the ceremonial opening of the 2016 legal year: “In the important area of public law, legal aid has played its part in ensuring that Hong Kong’s public law and constitutional law have properly developed, thus helping us to reach a greater understanding of our system of law.” At this year’s ceremonial opening, Chief Justice Ma added that judicial review cases “enable the community to see the rule of law at work and to test the confidence which the public will have in the rule of law.”

From Wat’s article, it is apparent that a trend, or perhaps an undercurrent, has emerged in Hong Kong – of commentators whose relentless attacks on the legal aid system display breathtaking creativity and imagination. They have now moved from attacking applicants for “abuse” to direct attacks on the legal professionals representing them.

Hong Kong people who continue to trust and defend Hong Kong’s judicial system should remain vigilant in the face of these developments.

Craig Choy is a convener of the Progressive Lawyers Group. He is an in-house lawyer specialising in data protection law. He is also an Internet freedom advocate.

Article originally appeared in Hong Kong Free Press on 31 July 2017

Chinese Version (中文版)

FAQ: How might the ejection of 4 more pro-democracy lawmakers alter Hong Kong’s political landscape?

By Jason Y. Ng

The slow-motion disaster that is Oathgate has now spread from the pro-independence firebrands to the mainstream pro-democracy camp.

After the High Court disqualified localist lawmakers Yau Wai-ching and Baggio Leung nearly nine months ago, four more members of the Legislative Council (Legco) lost their jobs last Friday. Nathan Law, “Long Hair” Leung Kwok-hung, Lau Siu-lai and Edward Yiu had all strayed from the prescribed oath during the swearing-in ceremony. According to the supreme decision handed down by China’s National People’s Congress Standing Committee (NPCSC) in November, that minor infraction was enough for all of them to each get a pink slip.

Pro-democracy pan-democrat

If you are wondering how the loss of six seats has affected the balance of power in Hong Kong, you are not alone. The following FAQs are designed to answer that question and posit what is to come.

Walk me through the numbers before and after Oathgate?

There are a total of 70 seats in Legco, half of which are called “geographical constituencies” (GCs) and other half “functional constituencies” (FCs).

All 35 GCs are directly elected by a broad base of registered voters, which means GC lawmakers are mostly good folks who are accountable to their constituents. By contrast, most of the FCs (30 out of 35) are not democratically elected – they are handpicked by a small circle of committee members within a particular trade group, such as real estate, food and beverage, and retail. With the exception of a number of politically liberal groups like medical professionals, lawyers and social workers, the FC is stacked with pro-Beijing, pro-establishment businessmen who march in lockstep with the government.

Before Oathgate, the opposition held a total of 29 seats in Legco: 19 GCs and 10 FCs. Although the opposition was in the minority in Legco at large (29 out of 70) and within the FC (10 out of 35), they enjoyed a majority in the GC (19 out of 35). After losing six seats in two rounds of disqualification, the opposition is down to 23 seats: 14 GCs and 9 FCs. For the first time since the handover, they have lost their GC majority.

The following table summarises the impact of Oathgate to date:

The opposition has never enjoyed a majority in Legco even before Oathgate. What difference does losing six seats make?

Under the Basic Law, any bill introduced by the government (except for those relating to constitutional issues such as electoral reform or any amendment to the Basic Law) requires a simple majority vote in Legco. With or without Oathgate, the pro-establishment camp has enough votes to rubber stamp any government-led initiatives, such as an anti-subversion bill under Article 23 of the Basic Law or a funding proposal for the high-speed rail link to Shenzhen.

The only thing standing between us and bad government bills is the filibuster (which thwarted C.Y. Leung’s attempt in 2012 to create new ministerial positions to, critics say, enrich his political friends) and public outcry (which forced Tung Chee-hwa to withdraw the controversial anti-subversion bill in 2003).

While Oathgate has not affected the overall balance of power in Legco vis-à-vis government-proposed bills, it has tipped the balance by handing the GC majority to the pro-establishment camp.

Why does losing the GC majority matter?

The Basic Law contains a bizarre voting rule called the “separate vote count.” Unlike government-proposed bills that require a simple majority vote by all 70 Legco seats voting together, any bill introduced by an individual lawmaker must go through two rounds of voting: it must first be passed by the GC before being separately voted on by the FC.

Oathgate has created an opening for the pro-establishment camp to wreak havoc by proposing dangerous bills. Without its GC majority, the opposition has lost the ability to defeat bad bills introduced by their opponents. Going forward, any proposal floated by a lawmaker from the dark side will sail through both the GC and FC during the separate vote count.

lawmaker DQ

One of the first things that the pro-establishment camp will do with its new GC majority is propose an amendment to voting procedures—a motion that only a lawmaker on the Committee on Rules of Procedure can initiate. The goal is to put an end to the filibuster by, for instance, putting a cap on how long or how many times a Legco member can speak when debating a bill or enabling the chairman to cut short the session and proceed to a vote. With both the GC and FC now controlled by Beijing loyalists, there is nothing to stop that amendment from being passed and the opposition can kiss the filibuster goodbye.

The filibuster is currently the opposition’s only effective weapon to delay or derail bad government bills such as funding requests for infrastructure projects that squander billions of taxpayer dollars. Thanks to Oathgate, we stand to lose the only checks and balances against the government led by a chief executive whom we play no part in choosing.

Does it mean the government can now pass an anti-subversion law without any resistance?

Remember, any bill introduced by the government, including the anti-subversion bill under Article 23 of the Basic Law, requires only a simple majority vote of all 70 LegCo members voting together. Since the pro-establishment has always enjoyed a majority in Legco at large, the opposition never has sufficient votes to block that bill from being passed whether or not they have those six seats.

As mentioned earlier, the only things stopping the pro-establishment camp from passing the much-dreaded bill are the filibuster – which is now in jeopardy – and public pressure. The latter remains an effective deterrence because the SAR government cannot afford a repeat of the political crisis that rattled the city in 2003.

Why don’t the disqualified lawmakers simply appeal the court rulings?

First, the chances that the High Court rulings will be reversed or set aside are slim. NPCSC decisions are meant to be the ultimate interpretation of the Basic Law and binding on all levels of local courts. As much as appellant court judges may be sympathetic to the opposition’s arguments, their hands are tied.

Second, appeals are costly. Already, the disqualified lawmakers owe millions in counsel and court fees, and because the annulment of their office is retroactive, they may be on the hook for millions more if the government goes after them for paid salaries and expense disbursements. For some of the ousted lawmakers, bankruptcy is the only way out.

yau wai ching baggio leung oath

Appeals are also time-consuming. It takes months, sometimes years, for a case to move through the court calendar. By the time a ruling is handed down, the pro-establishment will have already completed their handiwork and killed the filibuster by amending the Rules of Procedures using their new GC major.

Wouldn’t order be restored if voters send those lawmakers back in the Legco in the by-elections to fill the vacate seats?

One of the biggest hurdles facing the ousted lawmakers is their eligibility to run for Legco again. In August 2016, the Returning Officers -bureaucrats who have enormous power and discretion to decide whether an individual is eligible to run – banned several localist candidates from the Legco race on the basis that their declarations of allegiance to the SAR government were “insincere.” There is a high chance that the same political screening will be applied or even tightened in the upcoming by-election to prevent the ousted lawmakers from returning to Legco.

Moreover, any individual who has filed for bankruptcy or received a sentence of three months or more is subject to a five-year moratorium on a Legco run. Nathan Law and “Long Hair” Leung Kwok-hung, for instance, both face potentially stiff prison terms for their involvement in the occupy movement in 2014 as well as imminent bankruptcy for reasons explained earlier. That means the two will likely not be able to run again until 2024, a political eternity away.

Nathan La

Finally, the earliest that the by-elections can be held is this winter. Even if the unseated lawmakers somehow get over the above hurdles and win back their seats, they may be returning to a very different legislature. By then, the pro-establishment camp will have declawed the opposition by taking away the filibuster.

What can we do now? Are we doomed?

Things are expected to get much worse before they get better.

In the coming months, the High Court is expected to unseat two more lawmakers, Eddie Chu and Cheng Chung-tai, both of whom had embellished their oaths. The opposition will be mere seats away from losing the critical number in Legco to veto damaging amendments to the Basic Law. Once the pro-establishment camp secures a super-majority it has been salivating over for years to change the constitution as they see fit, the consequences can be catastrophic.

Article originally appeared in Hong Kong Free Press on 18 July 2017

HK20: Hong Kong’s fourth estate at stake – Trials of the city’s free press

By Jason Y. Ng

An independent press is called the fourth estate because it holds accountable the ruling class – from the clergy and the noblemen in medieval times to the three branches of government in modern democracies.

In Hong Kong, the press plays an especially critical role because citizens are deprived of a democratically elected government. Both the chief executive and nearly half the legislature are appointed by small committees stacked with pro-Beijing loyalists, which gives ordinary people little leverage over politicians they play no part in choosing. Going to the press is often the most effective, if not the only, recourse available to those who want their grievances heard or injustices righted.

Article 27 of the Basic Law protects freedom of the press, as does the Bill of Rights Ordinance which guarantees broad rights to “impart information and ideas.” While the letter of the law is clear, the reality in which journalists operate tells a different story.

Since the handover, Hong Kong’s ranking on the World Press Freedom Index has been in freefall, slipping from 18th in 2002 to 73rd in 2017 and lagging behind countries such as Haiti, Bosnia and El Salvador.

Has the city’s free press become the first casualty in the “one country, two systems” experiment?

Overt suppression

In Hong Kong, direct encroachment on press freedom can take many forms. The Apple Daily, the only broadsheet newspaper that remains openly critical of Beijing, bears the brunt of the onslaught.

During and since the Umbrella Movement, the paper has come under repeated cyber-attacks, its parent company Next Media has had its headquarters firebombed, and its outspoken founder Jimmy Lai Chee-ying has been harassed.

But Apple Daily is hardly alone and its woes are merely the tip of the iceberg.

apple daily jimmy lai protest

First, there is outright censorship. Since 2015, online-only news media outlets such as Hong Kong Free PressInitium and Stand News have been barred from attending government press conferences. Just last week, the government’s Information Services Department extended the ban to official events related to the 20th anniversary of the handover.

“Online media make bureaucrats nervous because they are hard to control,” says Lau Sai-leung, a former government information coordinator and co-founder of House News, the predecessor of Stand News.

“Unlike most traditional print media outlets which are owned by big businesses, online outlets are independently owned.” Lau tells me. “They are targeted because they aren’t part of the unholy alliance between the government and the establishment.”

Defamation suits are another effective tool to silence the independent press. On at least three occasions between 2013 and 2016, chief executive Leung Chun-ying threatened litigation against Hong Kong Economic Journal (HKEJ) and Apple Daily for reporting his alleged ties with Triads, abuse of power and undeclared business dealings.

“Leung’s threats bear the hallmarks of the intimidation tactics in Singapore, where senior government officials are known to use legal action to inhibit dissent,” William Nee, a Hong Kong-based researcher at Amnesty International, tells me.

CY leung chun ying

If all things fail, however, adversaries resort to the blunt instrument of physical violence. The Hong Kong Journalists Association documented a significant surge in the number of cases of attacks on frontline reporters during and since the Umbrella Movement by pro-Beijing groups and, in some instances, law enforcement.

Among the long list of documented physical assaults committed against journalists, the most egregious one occurred in 2014 when Kevin Lau Chun-to, the former editor-in-chief of Ming Pao, was stabbed six times in broad daylight outside a restaurant. The news sent shock waves across the media industry and remains one of the most frequently cited incidents of violence against journalists in the region.

Lau and his colleagues spent weeks after the attack sifting through hundreds of news reports he had worked on, trying to identify individuals or organisations he might have upset. It was a sobering exercise for him and his staff.

“The chilling effect on investigative journalism and the news media at large is immediate and far-reaching,” said Lau. “A student came up to me after a public event recently,” he recalled, “and told me her parents had been talking her out of majoring in journalism at university because they think that line of work is no longer safe. That broke my heart.”

Kevin Lau.

When asked whether the knife attack was an isolated incident or part of a worrying trend, Lau said, “A single attack is one too many. The uncertainty of not knowing when the next strike will happen or what may trigger it is enough deterrence to journalists.”

Indirect pressure

The post-handover era has witnessed a series of ownership changes in the media industry. In 2001, pro-Beijing businessman and CPPCC member Charles Ho Tsu-kwok took over the Sing Tao Daily and The Standard. Five years later, HKEJ was sold to Victor Li Tzar-kuoi, deputy chairman of CK Hutchison Holding and son of tycoon Li Ka-shing. In 2015, Jack Ma’s Alibaba bought the South China Morning Post (SCMP) and other media assets for HK$2 billion.

“China has been mobilising the local business elite and making them do much of its dirty work,” Chip Tsao, columnist, radio host and opinion leader, told me last month. “Beijing bedazzles them with economic possibilities in the new China and asks for their ‘understanding’ and ‘cooperation’ when implementing its political agenda in Hong Kong. It is part of the ‘United Front’ campaign that began long before the handover.”

According to Tsao, United Front is a series of coordinated efforts orchestrated by the Communist Party and carried out by the Liaison Office – the de facto Chinese consulate in Hong Kong – to tighten control on the city, most notably by recruiting prominent business leaders in Hong Kong and op-opting them as CPPCC members or unofficial advisers to the central government.

“Buying up newspapers and making senior editors pull their punches when covering the mainland are all part of that scheme. Once Beijing has these local businessmen on a leash, self-censorship is just a phone call away,” Chip explained. He used that to explain controversial editorial decisions such as the one reportedly made by SCMP to reduce and bury its report on the alleged suicide of mainland activist Li Wangyang.

scmp

Other than editorial decisions, self-censorship can also take the form of personnel changes, including management reshuffling in the newsroom and discontinuation of influential columns.

In 2012, CPPCC member Wang Xiangwei was made SCMP’s editor-in-chief after top management discussed Wang’s appointment with the Liaison Office, according to Asia Sentinel. In 2014, Ming Pao replaced its chief editor Kevin Lau Chun-to with a more Beijing-friendly candidate from Malaysia. Two years later, the paper removed its executive chief editor Keung Kwok-yuen on the same day that an investigative report on the Panama Papers – one that would implicate the Beijing leadership – was to be published.

In 2015, SCMP terminated a number of outspoken columnists including Philip Bowring and Frank Ching. In the following year, HKEJ fired Joseph Lian Yi-zheng, a no-holds-barred columnist on mainland and cross-border issues.

Whatever the motive behind these decisions, they resulted in the dual consequence of removing critical voices and perhaps sending a message to the rest of the staff that they need to fall into line.

Just as media companies are pressured to self-discipline and in some cases self-mutilate, so are advertisers who want to stay on Beijing’s good side. “China is the world’s fastest growing market, and big businesses naturally think it wise to avoid placing ads in publications that are deemed ‘unfriendly’ to Beijing,” says Dorothy Wong, a seasoned marketing executive in the media industry.

Self-censorship by local corporations, such as banks and property developers, can have a devastating impact on traditional news media outlets that rely heavily on advertising revenue. For multinationals and international labels, much of the self-censorship is done by the advertising agencies.

“The Chanels and the Guccis of the world rely on local advertising agencies to advise them on local culture and faux pas,” Wong tells me. “These agencies will always err on the side of caution. If they already have a tight budget to work with and a large number of publications to choose from, why would anyone stick their neck out and make recommendations that could ruffle feathers for them or their clients?”

Industry disrupted

All of the foregoing come at a time when the press media is already under tremendous financial stress. Social media has fundamentally changed the way the world receives and disseminates information, and the ability for traditional news media to retain readership is now a matter of survival.

Whereas pro-Beijing media outlets are either run by deep-pocketed businesses or bankrolled by the Liaison Office, those that refuse to play ball with Beijing will need to find inventive ways to sell more papers to stay afloat.

The Apple Daily, for instance, does so by going the way of the Daily Mail and blurring the line between information and entertainment. In addition to giving generous coverage to celebrity gossip, it frequently pushes the boundaries of professional ethics. In 2000, an Apple Dailyreporter was convicted for bribing police officers to obtain information about active criminal investigations. In 2016, the paper was ordered to pay BaWang Shampoo HK$3 million in damages for making unsubstantiated statements about the safety of BaWang’s products.

File Photo: Next Media Building

Apple Daily’s “supermarket tabloid” business model has called into question the paper’s credibility. Moreover, it reinforces the perception that, for a news media outlet to survive in Hong Kong, it either needs to go red or go over the top – neither approach does much to close the industry’s image gap.

“The media industry has an identity crisis. It seems to have lost its way in the age of Facebook and Instagram,” said Wong. “No wonder circulation is way down. In the hey day, newspapers used to sell tens of thousands of copies every day. Now we are talking about hundreds, sometimes dozens. Circulation is so low that we have stopped using that word,” she said. “We talk about ‘readership’ instead because those numbers are less scientific and more easily fudged.”

The tough business environment has created a vicious circle that makes the industry more vulnerable to direct and indirect clampdown on press freedom, which in turn affects the quality of reporting and hurts readership.

“Political pressure has always existed – it existed long before the handover,” Kevin Lau Chun-to tells me over coffee. “The difference between now and then is that in the 1980s and 1990s, the media industry was much more robust than it is today. Back then, if the authorities managed to dissuade one newspaper from publishing an unfavourable story, other papers would step up. And if one advertiser decided to drop a newspaper, other companies would fill the spot. The industry was in a much better position to withstand political pressure. Since the handover, however, the balance of power has completely shifted in the authorities’ favour.”

When one rooster dies, another crows

From direct suppression and self-censorship to the media industry’s own existential crisis, the walls are closing in on the city’s fourth estate. While these issues are not unique to Hong Kong, their impact is magnified by China’s new economic might and its ability to marshal the local business elite. What’s more, the looming threat of an anti-subversion law continues to hang over the head of every journalist like the Sword of Damocles.

hong kong journalists association press freedom

But all is not lost. The rapid growth of online media outlets in Hong Kong, spurred in part by the the Umbrella Movement and the political awakening it engendered, offers a glimmer of hope.

“There is a common perception that Hong Kong’s news media is doomed, but it is only a perception,” Johnny Lau Yui-siu, veteran commentator and China relations expert, tells me. “I believe the industry is merely going through an evolutionary cycle. Traditional media is shrinking, but it has opened doors to new players. As the Cantonese saying goes: ‘when one rooster dies, another crows.’”

He pointed to the proliferation of online-only news sites, Facebook pages, podcast and YouTube channels. “Many of the newcomers are extremely successful in attracting clicks and eyeballs,” said Lau. “Their influence on public discourse, especially among young people, is growing exponentially. This is happening even when economic and political odds are stacked against them. I find that very encouraging.”

When asked how much longer independent media outlets, regardless of their format, can stand up to the crushing political pressure from Beijing, Lau was positively defiant. “We need to press ahead despite—and because of—the tremendous challenges facing us. All we need to do to look at what is going on north of the border—journalists on the mainland put their lives in grave danger every day. We need to work all the harder to defend the freedom we have and make the best of it while it is still there.”

“I’m not overly optimistic about what will happen in the short term, but I refuse to be overly pessimistic about the long term,” said Lau.

Article originally appeared in Hong Kong Free Press on 9 July 2017

HK20: Why Hong Kong’s July 1 democracy march isn’t ‘just another protest’

By Jason Y. Ng

It was less than a month ago when citizens wrestled with the dilemma of whether to take part in the Tiananmen candlelight vigil at Victoria Park.

Naysayers argued that the annual ritual, in its 28th iteration this year, had devolved into a night of sing-along and group therapy, as well as a thinly-veiled excuse for political parties to hit up participants for money. Those arguments had traction, especially among the youth, and many chose to stay home on June 4. The turnout was the lowest in years.

1989 Tiananmen Massacre vigil

Call it the Vic Park déjà vu. Three weeks after the raucous Tiananmen debate, Hongkongers once again find themselves ruminating over yet another “should I stay or should I go” decision, this time about the July 1 march.

In Hong Kong, taking to the streets on Handover Day has been something of a tradition. The march typically begins at Victoria Park, inches down Hennessy Road and finishes at the government headquarters. It is an annual outing for the public to vent their anger over a host of political and social issues, from the call for universal suffrage to the withdrawal of bad government bills and the protection of a free press.

Over the years, the Handover Day protest has taken on a carnival atmosphere. The entire westbound Hennessy Road and Queensway from Causeway Bay to Admiralty are turned into a pedestrian zone. Opposition political parties and advocacy groups set up colourful fund-raising booths along the route, handing out paper fans and selling paraphernalia.

As a result, the march shares many of the same criticisms levelled against the Tiananmen vigil. This year, with C.Y. Leung out of the picture and chief executive elect Carrie Lam yet to reveal what kind of villain she will be, march organisers are struggling to find a cause célèbre to fire up the public. A good turnout looks doubtful.

CY Leung Chun-ying Carrie Lam

So in case you need a nudge to get off the couch and head over to Victoria Park on Handover Day, here are a few reasons why you should.

First, when it comes to large-scale demonstrations, numbers speak and size matters. In Hong Kong, protester turnout is one of the most reliable and closely watched barometers of public sentiment, which is why the police routinely underreports the numbers to downplay dissatisfaction toward the government.

Since the handover, big rallies have resulted in major concessions from the authorities, most notably in 2003 when half a million citizens forced then chief executive Tung Chee-hwa to withdraw an anti-subversion bill, and in 2012 when 120,000 parents and students staged a sit-in in Tamar to thwart a patriotic education curriculum.

A strong showing on this Handover Day will deliver a clear message to Carrie Lam that we are here to hold her and her rogue gallery of unpopular cabinet members to account. A low turnout, on the other hand, will give Lam plenty of bragging rights in front of her bosses up north.

July 1 march rally democracy numbers figure

Second, it is often said that a right not exercised is a right lost. Already, civil liberties in Hong Kong have been under threat on all fronts, from press and academic freedoms to the freedom to publish and protest.

This year, the Victoria Park football pitches—the traditional starting point for the July 1 march—have been “pre-booked” for pro-Beijing celebrations, forcing marchers to convene on the nearby lawn, which may cause confusion and potential run-ins with the Chinese flag-waving revellers. Similarly, the Tsim Sha Tsui clock tower, a popular meeting place where the fringe localist group Hong Kong National Party has planned a vigil on June 30, is suddenly off limits due to “public maintenance works.”

If we choose to self-censor by staying home on Handover Day, we may be complicit in the government’s effort to curtail our constitutionally protected right of assembly.

Victoria Park

Third and most importantly, this year marks the 20th anniversary of the handover and President Xi Jinping is expected to grace us with his presence. The entire foreign press corps will descend on the city to cover the pomp and circumstance. What better occasion is there for Hong Kongers to make maximum noise and draw maximum attention to our grievances and demands?

With the help of law enforcement, our government is determined to turn Xi’s visit into a tightly-controlled, Pyongyang-style tour by locking down large swaths of the city to keep out pesky protesters and filling the streets with minders and rent-a-crowds. We don’t need another North Korea, and we owe it to ourselves to show the Paramount Leader the real Hong Kong—one that our ruling elite don’t want their top boss to see.

If none of these reasons are enough to persuade you to join the march, then consider this: if Carrie Lam has her way and passes an anti-subversion bill within her first term, we might not, by the time the next milestone anniversary rolls around, have a chance to march down Hennessy Road chanting anti-Beijing slogans without risking arrest and prison.

Article 23 demonstration

So enjoy your right while you still can.

Jason Y. Ng is a Hong Kong-based lawyer, university professor, writer and member of the Progressive Lawyers Group.

Article originally appeared on Hong Kong Free Press in 27 June 2017

The Victoria Park Tiananmen vigil debate: Should you go, or stay at home?

 

Today marks the twenty-eighth anniversary of the Tiananmen Square Massacre, known more delicately in this part of the world as the June 4th Incident. Members of the so-called ‘June 4th Generation’—people born in, or before, the 1980s who feel a deep connection with the thousands of student protesters murdered that summer—have always felt a sense of duty toward them: to vindicate their death, and until then, ensure that the younger generations do not forget what happened.

The second duty is what compels parents to take their children to the Victoria Park candlelight vigil year after year, come rain or shine. The annual sit-in, organised by the Alliance in Support of Patriotic Democratic Movements of China, fills several football pitches and features impassioned speeches, songs and prayers. Just like marching down Hennessy Road on July 1st and sweeping grandpa’s grave on Ching Ming Festival, it is one of those things that people do out of habit and respect.

Since the Occupy Movement of 2014, every year in the lead-up to the massacre’s anniversary, university students will debate fiercely whether they should continue to partake into the Victoria Park memorial. Most of these discussions end in a decision to withdraw. Just today, the Chinese University Student Union issued a statement declaring the ‘end of the road for June 4th commemoration’. They argue that the annual ritual has become a ‘tick-the-box’ exercise: participants show up at the park, post a sad-faced selfie on Facebook and feel good about themselves for having ‘done something’ when all they have really achieved is group therapy. They also believe that the pan-democratic parties have turned these memorials into fundraising campaigns and political shows.

Some students have gone further then that. Social media and online forums are plastered with memes and status posts with the rhetorical question: ‘What the F does June 4th have to do with me?’ Their point is that Hong Kongers have nothing to gain from redressing the wrongs of the massacre, and to put less diplomatically, whatever happened in 1989 happened on the mainland to mainlanders and is therefore irrelevant to them and outside their agenda. Hong Kong people have enough on their plate fighting for greater autonomy and even independence from China. They won’t and can’t be bothered with what goes on north of the border.

Expectedly, these sentiments draw outrage and condemnation from older politicians, parents and teachers. The June 4th Generation pounced on the students, calling them sacrilegious and heartless. Likewise, the students hit back with their own name-calling, accusing the adults of being “Greater China plastic”—an epithet for those who talk incessantly about ending one-party rule in China without doing anything about it and who still believe that a better China will mean a better Hong Kong.


So who is right and who is wrong?

The best way to arbitrate the dispute is to go back to one of our earlier examples: sweeping grandpa’s grave on Ching Min Festival. Doing so will allow us to isolate the two issues at hand and deal with them separately.

The first issue concerns whether one should attend the Victoria Park memorial. Here, the students have a point. If they are not interested in speeches and prayers, then why force them? If your kids don’t want to travel to faraway Wo Hop Shek Public Cemetery and trek up the hills just to burn incense in front of grandpa’s grave, then leave them at home. Yelling at them for not respecting their ancestors will only backfire. For all you know, your children have their own ways of remembering grandpa that don’t involve posing a fire hazard in Fanling or benefiting greedy florists who jack up the price of chrysanthemums every Ching Ming. Mom and dad should just take a chill pill and get on with their trip without the kids. Both sides are better off.

HKFS June 4 Vigil

The second issue, however, is altogether different—it is a question of ideology and basic human decency. Asking ‘what the F does June 4th have to do with me’ is no less morally repugnant than saying ‘I don’t care if the Holocaust happened’ or ‘the Paris terrorist attacks don’t matter to me’. Any liberal-minded person should take a stance against evil, murderous acts, whether you are Chinese, Hong Konger, French or Jewish. The isolationist approach to history and current events—the thinking that what happens elsewhere is irrelevant to me—is naïve and irresponsible. It is Donald Trump.

Worse, denying that Hong Kong is a part of China and that the city’s fate is intricately linked to that of the mainland is to think that the Earth is flat or to call global warming a hoax. The notion that Hong Kong can somehow have meaningful electoral reform and genuine democracy without a more politically open China is mind-boggling. Put more bluntly, university students and young politicians who talk night and day of achieving autonomy and independence without ever proposing a concrete plan or a viable path is simply another kind of ‘plastic’—the localist plastic.

So what I have to say is this: if you find the whole Ching Ming routine pointless and banal, all you have to do is stay home. You don’t need to say ‘who the F care about grandpa?’ just because the old man died before you were born.

Jason Y. Ng

Article was originally published in Hong Kong Free Press on 4 June 2017

Vitriolic reactions to pro-independence National Party only increase the attraction of independence

By Alvin Y.H. Cheung

The Hong Kong National Party (HKNP) has drawn no shortage of vitriol in the short time since its foundation.  Liaison Office chief Zhang Xiaoming blustered that its formation “far exceeded the topic of freedom of speech.”  Chief Secretary Carrie Lam was equally bombastic, suggesting that “the suggestion [of independence]… violates the Basic Law”.

hong kong independence

Secretary for Justice Rimsky Yuen also got in on the act, insisting no fewer than three times in a single paragraph that the mere suggestion that Hong Kong should become independent violated the Basic Law – and adding for good measure that freedom of expression was irrelevant when it came to “suggestions… contrary to the fundamental principle expounded in the Basic Law.”  As officials and sycophants in Tamar, Western, and Beijing fall over each other to out-harangue the HKNP, it’s become increasingly obvious that their responses obscure three very simple principles – two legal, one political.

No Crime Without Law (nullum crimen sine lege)

Notably, neither the government’s statement on 30 March nor Secretary Yuen’s comments on 1 April were able to identify any specific provisions criminalising the mere suggestion that Hong Kong should become independent.

Rimsky Yuen. File Photo: Gov HK.

When pressed, Secretary Yuen gave a distinctly mealy-mouthed response – one conspicuously devoid of any reference to substantive law:

What we are saying is, since someone has openly come out to suggest that they are going to act contrary to our Basic Law, therefore, I think as a responsible government and insofar as the Department of Justice is concerned, as a responsible department administering the issues concerning the law, I think we would have to closely monitor the situation. As to what we would do, we would follow the same procedure as in other cases, namely, when things happen, the law enforcement agency would decide whether or not to conduct investigation and if they have the results, they would pass on the investigation results to DoJ. We would look at it. My colleagues would consider the applicable law and the evidence and then will decide what to do. So at this stage, we would not be commenting whether we would be taking what actions.

The bluster from Yuen and his colleagues distracts from a non-trivial hurdle: to convict HKNP of anything, there has to be an underlying offence – one that Yuen et al. seem to be either unable or unwilling to identify.  Although District Councillor Maggie Chan has suggested that sections 9 and 10 of the Crimes Ordinance would prohibit any advocacy for Hong Kong’s independence, the enforceability of these sections is open to question – for the very reason that Secretary Yuen so casually dismisses: freedom of expression.

hong kong localist independence

Exceptions should be interpreted narrowly

To be fair to Secretary Yuen et al., freedom of expression is not without limits.  But his claim that the mere suggestion that Hong Kong should be independent is not protected because it is “contrary to the fundamental principle expounded in the Basic Law” is fanciful at best.  So, too, is Maggie Chan’s suggestion that the advocacy of independence is itself a national security threat.

It is a basic proposition of statutory and treaty interpretation – almost as basic as nullum crimen sine lege – that exceptions to general propositions should typically be interpreted narrowly.  The Bill of Rights Ordinance, for instance, states that restrictions on the freedom of expression “shall only be such as are provided by law and are necessary (a) for respect of the rights or reputations of others; or (b) for the protection of national security or of public order (ordre public), or of public health or morals.”  The Bill of Rights is based on the International Covenant on Civil and Political Rights (ICCPR) – an instrument which has legal force in Hong Kong by virtue of the Basic Law and the Joint Declaration.

Nor can Yuen or his colleagues seriously argue that the mere suggestion that Hong Kong should be independent engages the national security exception.  In interpreting the ICCPR (and by extension the Bill of Rights), the Siracusa Principles – the product of a 1984 conference involving professors, practitioners, and other human rights experts – lay down clear limits on how far such exceptions can go.  In relation to national security exceptions, the Siracusa Principles declare:

29. National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.

30. National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order.

31. National security cannot be used as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exists adequate safeguards and effective remedies against abuse.

32. The systematic violation of human rights undermines true national security and may jeopardize international peace and security. A state responsible for such violation shall not invoke national security as a justification for measures aimed at suppressing opposition to such violation or at perpetrating repressive practices against its population.

Whether the Hong Kong National Party – whose members have mooted punch-ups and releasing tear gas in Legco – falls foul of these exceptions is up for debate.  But to assert – as Yuen et al. have done – that the mere suggestion that Hong Kong should be independent triggers the national security exception is a rhetorical bait-and-switch.  More importantly, however, the overreaction from officials in Hong Kong and Beijing reflects not just a legal error, but a political one.

barbra streisand

The Streisand Effect

The Streisand Effect – named for the American singer – refers to how an attempt to suppress information can draw even more attention to that information, thwarting the would-be censor.  The spittle-fest over the HKNP represents merely the latest example of a whole series of ham-fisted attempts by Beijing to suppress politically inconvenient speech – attempts that, as we have seen, encompass the kidnapping of pot-boiler authors from Hong Kong soil.

One might sensibly dismiss the notion of independence for Hong Kong as difficult – if not impossible – or have grave misgivings over the HKNP’s political judgment.  But, far from defending “One Country, Two Systems”, the invective from Beijing and its local apparatchiks could not have been more effective at highlighting the underlying fears that have led some to consider secession at all.

Alvin Y.H. Cheung is a non-practicing barrister and member of the Progressive Lawyers Group. He is also an affiliated researcher at the US-Asia Law Institute at NYU.

Article was originally published in Hong Kong Free Press

Hong Kong judges under fire: Do critics want accountability ‘watchdogs’ or political rottweilers?

By Alvin Y. H. Cheung

Hong Kong’s judges have frequently found themselves pilloried by political talking heads of late, and the past few weeks have been no exception.  Former ICAC Deputy Commissioner Tony Kwok Man-wai called on Internet users to “hunt down” the judge who granted bail to Hong Kong Indigenous leader Ray Wong Toi-yeung and dig up dirt on judges’ “relationships with pan-democratic parties.”

Although Kwok has since apologised for his comments, his subsequent op-ed in the South China Morning Post suggests he has no intention of backing down from the idea of civilian “watchdogs” to exert pressure on the judiciary.  Nor is Kwok alone amongst Beijing’s apologists in making bilious criticisms of the Bench.  Peking University’s Rao Geping and former Secretary for Justice Elsie Leung, both members of the Basic Law Committee, have repeatedly made statements blaming “foreign” judges – a racist dog-whistle if ever there was one – for “misunderstanding” the Basic Law.

Tony Kwok Man-wai

Tony Kwok Man-wai.

Even if we leave aside the largely transparent race-baiting by Rao, Leung et al., or Kwok’s now-recanted suggestion that judges should be “doxed” for democratic sympathies, the claim Kwok makes in his op-ed – that such bodies would advance “public accountability” – should be viewed with a jaundiced eye.  Kwok names five specific examples of such “watchdogs” in his op-ed.  Of these, all but one are located in the United States and Canada, both of which have had lengthy experience with democratic government.

The one example Kwok raises that is a recent democracy – Poland – is a much more meaningful comparison, for reasons that Kwok might prefer not to emphasise.  Its ruling Law and Justice Party has been strongly criticised for its continuing “blitzkrieg” against the Constitutional Court, for nakedly partisan political reasons.

The Polish example gets at the heart of the matter – the role of courts, especially in states with emerging or fragile democracies.  As NYU Professor Samuel Issacharoff argues in his study of constitutional courts in weak democracies, robust constitutional courts are necessary to safeguard such democracies, for instance to ensure that the democratic process results in genuine accountability to the electorate, or to destroy “a lock up of power by self-interested incumbents.”

In the case of Poland, the ruling Law and Justice Party had control of both the executive and legislative branches; its constitutional court was the only institution standing between Poland and the path to “illiberal democracy” blazed by Hungary.

Nor are the American examples Kwok cites reassuring.  Washington State, Illinois, and Louisiana – the three states from which Kwok draws his examples – all feature judicial elections.  Washington State and Illinois in particular have, as the National Center for State Courts explains, struggled with the influence of money in judicial elections.

hong kong courts judiciary

Viewed in that light, the involvement of the Business Council of New Orleans in criticising judicial decisions – which Kwok holds up as wholly benign – seems far less innocuous.  A system in which judges “compare themselves to prostitutes and live in constant fear of tractors” is not one that should be held up as a model for emulation.

Ultimately, the verbiage of “political accountability” for judges should be seen for what it is – a stalking horse for the politicisation of the judiciary, and the gutting of the final institution able to act as a counterweight to the executive and legislative branches.  If Kwok and others are concerned about political accountability and emulating the consolidated democracies, they would do well to concern themselves with political accountability in the political branches.

Alvin Y.H. Cheung is a non-practicising barrister and member of the Progressive Lawyers Group. He is also an affiliated researcher at the US-Asia Law Institute at NYU.

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

The politics of language could spill on to the streets

By Taylor Wong, Progressive Lawyers Group.

On the first day of the Lunar New Year, Hong Kongers watched in shock as a series of unfamiliar images unfolded on their screens: a policeman firing two gunshots, burning tyres, and masked men hurling bricks. Such aggression – from civilians as well as police – was unseen on local soil since the 1967 leftist riots.

Hopefully, such an escalation of violence was a one-off event. However, the fact is that the incident was merely a reaction – albeit an unusually aggressive one – to a drawn out, ongoing war that pro-establishment powers have been waging against ordinary Hong Kong citizens: the war to suppress calls for democracy, to quash local culture and customs, and to silence public dissent against those powers.

mong kok fehd riot protest

Stories of Hong Kong’s local culture, values, and way of life being chipped away are proliferating beyond our capacity to count. To name just a few recent headlines: the disappearance of the Causeway Bay booksellers, Alibaba’s purchase of the South China Morning Post, and the Arthur Li HKU Council debacle.

It was against that backdrop that the Mong Kok protest initially began: as a localist campaign to protect street hawkers, who in recent years have endured harsh clampdowns during the public holiday (in previous decades, public health officers would generally turn a blind eye in acknowledgment of the local festival tradition).

It is clear that this war over the very soul of the city is being fought on many fronts. The latest battle in the spotlight is one waged over the minds of Hong Kong’s future generations – through language.

Last December, the Education Bureau announced a proposal for renewing the curriculum of local schools. On the question of the subject of Chinese, the bureau proposed to teach students from Primary 1 to Form 6 how to read simplified Chinese (purportedly, only after they had mastered traditional Chinese). The objectives outlined within the proposal were particularly eye-catching, including: to support exchanges and improve communications between Hong Kong people and Mainland people; cultivate students’ national identity (that is to say, a ‘greater Chinese identity’ in contrast to a ‘Hong Konger identity’); and foster their affection for the motherland (no, I am not making this up).

The proposal seems innocuous enough; after all, if students know how to read simplified Chinese, they can consume texts in simplified Chinese, which would complement their Mandarin studies. However, when considered with other factors, it is obvious that this proposal is part of the ‘Sinofication’ policy of Hong Kong’s local education system and its pupils. Consider the suggestions made in the proposal regarding the area of “Personal, Social and Humanities Education”: it advocates removing key topics in the curriculum such as “the importance of justice in society” and “the scope and function of local society”, and replacing them with topics like “the importance of rules and complying with the Basic Law”.

occupy central

Although teaching students to identify simplified Chinese characters would not threaten the dominant position of traditional Chinese, at least in the short term (and the city’s lingua franca of Cantonese), the proposal is rightly viewed with great suspicion by educators, parents, and pro-democracy groups. The Education Bureau’s blatant suggestion to remove topics that foster civic responsibility while adding ones that explicitly nurture national identity appears to be a clear political manoeuvre. The fact that the level of trust between citizens and government is at its lowest point in years only makes it worse.

Political considerations aside, teaching students how to read simplified Chinese is not sound policy from a practical standpoint. First, Mandarin has been a core subject in local primary and secondary schools since 1998/99, and simplified writing is taught in that subject. Second, as Professor Shek Kam Tse (a Chinese language teaching expert at HKU) has explained, most students begin reading simplified Chinese texts by Primary 5, and since simplified Chinese “can be easily picked up after reading a few times”, adding simplified Chinese reading to the curriculum is unnecessary. Third, as Legislative Council President Jasper Tsang pointed out, the current proposal lacks detail in terms of how it will be effectively implemented. Without actually determining how the programme would be taught and how students will be assessed, it is no wonder that the proposal has elicited negative reactions.

Therefore, even if we ignore the cultural and historical arguments that support the idea of traditional Chinese writing as inherently superior to simplified (e.g. the argument that traditional writing represents the pinnacle of Chinese culture while simplified writing was only adopted in the Mainland in the 1950s to improve the literacy rate) teaching students how to identify simplified Chinese is a redundant exercise. The Bureau’s resources would be better spent on addressing far more pressing issues, such as the Territory-wide System Assessment (TSA) debacle and the implementation of the Chief Executive’s promise of free kindergarten education.

chinese cantonese simplified

Language, in its spoken and written forms, is the cornerstone of every community’s culture. It not only shapes how people speak, but how they think. Given the actual and perceived encroachments of Mainland cultural practices over those in Hong Kong, any government proposal that may upend the dominant position of traditional Chinese writing and Cantonese would inevitably be met with denigration and scepticism. If the comparatively trivial cultural symbol of street hawkers could trigger the actions and emotions we saw in Mong Kok, I shudder to imagine the consequences if the government attempts to force Hong Kongers to surrender one of the most important and symbolic characteristics of the city’s soul.

Taylor Wong is a legal eagle who likes to think, observe, and write about social issues, but still occasionally wishes to become a professional cat whisperer.

Article originally appeared in Hong Kong Free Press on 2 March 2016

Let’s stick to the facts: The strange case of superintendent Chu King-wai

By Earl Deng, Progressive Lawyers Group

Just to recap: Superintendent Franklin Chu King-wai, the former commander for the Sha Tin Division, was filmed hitting pedestrians unwittingly caught up in a protest in Mong Kok on November 26, 2014. Some pedestrians were in the path of the said baton and obstructed the baton in the due execution of its duty.

According to media reports, Chu explained his baton was an “extension of his arm“, and that he “unintentionally touched” pedestrians. Osman Cheng, a passer-by who received a few “unintentional” touches, lodged a formal complaint that he was unlawfully assaulted. The Independent Police Complaints Council (IPCC) voted in favour of substantiating Cheng’s complaint last month.

Outraged by the IPCC’s regard for common sense, the Complaints Against Police Office requested the IPCC to reconsider its ruling. After a re-vote, the IPCC upheld its original decision.

It has now been reported that the internal police investigation report to the Department of Justice for legal advice concluded that Chu did not commit any criminal offence for the following reasons: (i) “an appropriate extent of physical force” was required that night; (ii) Chu was on duty; and (iii) Chu did not target any specific individuals.

If the media reports are accurate, Hong Kong residents should be very alarmed. Those who exercise powers of coercion in the name of the law must always be accountable for their actions. Closing ranks to defend the indefensible undermines the very core values of Hong Kong and erodes public confidence in the ability of Hong Kong police to serve and protect.

Civil Human Rights Front protest

As a matter of law, those three reasons, individually or collectively, do not constitute a good defence to a criminal allegation of “assault”. Here is why:

First, when a police officer applies any physical force, it must be for a lawful purpose. Examples include effecting an arrest, entering a premise, searching a person or preventing a breach of peace. Such powers cannot be lawfully exercised without genuinely reasonable suspicion.

On the night of the incident, Cheng had never been arrested for any crime nor suspected of breaching the peace. A video clearly shows that he was being cooperative and moving in the direction as instructed by police.

Secondly, the mere fact of a police officer being on duty is not an excuse for unlawful use of force. For example, a strip search in a police station is unlawful if there is no justification for such intrusion. The video does not show why Cheng was specifically targeted. He was not confrontational nor a participant of any illegal activity.

Thirdly, the law does not require an assailant to have a specific target in mind before the mental element of a criminal offence is established. To say so is absurd. Take the example of random mass stabbings: The law only requires proof of recklessness to establish the requisite intent.

In other words, the court will consider whether Chu was aware that he struck or would strike any person by acting as he did; whether he was aware of this risk; and whether it was unreasonable for a person of his age, experience and personal characteristic to take such a risk.

Properly analysed, perhaps the police investigation report’s conclusion that Chu — a former commander for the Sha Tin Division — did not commit any criminal assault makes complete sense if one believes that Chu’s age, mental awareness and experience is equivalent to that of a young child.

How Kids Play Star Wars

How Kids Play Star Wars. Photo: via Youtube.

Earl Deng is a barrister who spends his spare time pretending to be a barista.

Article was originally published in Hong Kong Free Press on 7 August 2015

Confessions of a feminist in law – Part 2: The solution (and why “leaning in” is only part of it)

By Taylor Wong, Progressive Lawyers Group. Click here for part 1.

When I raise the question with women (and some men) about what could be done to address gender discrimination in the workplace, the first response is always: women just need to “lean in.”

In her book “Lean In: Women, Work, and the Will to Lead”, Sheryl Sandberg exhorts women to devote themselves to work in order to shatter the glass ceiling. Sandberg, who was Chief of Staff to Larry Summers at the US Treasury, a Vice President at Google, and now Chief Operating Officer of Facebook, is also a mother of two. Sandberg asserts that, despite the gender biases in the workplace, a woman can juggle work and family as long as she is persistent and dedicated enough. Leaning in creates a cycle of success: if a woman acts to balance her work and family life, she will not edge herself out of plum assignments, she will succeed professionally, and as she rises up the ranks, she will have more bargaining power to ask for what she needs to accommodate her schedule as a mother.

While Sandberg’s words and achievements are no doubt inspiring, insufficient commitment is only one reason why there are few women at the top.  In reality, women who successfully “lean in” are generally well-off, highly educated, and/or self-employed women who are in the privileged position to have the choice in the first place. Sandberg herself fulfils such criteria, but women like her are the exception, not the norm. Many working women cannot afford to choose for whom, for how many hours, and under what circumstances they work. For example, many single mothers and less educated women struggle to find jobs with good career prospects; some women have to work to support their spouse; and domestic helpers may be too expensive.

Even for the women who manage to achieve great career success and have children, this does not necessarily mean that they spend sufficient quality time with them. In Hong Kong, where hiring domestic helpers is commonplace, many career-focused women rely heavily on domestic helpers to act as the primary carer at home.

Lean inClearly, “leaning in” is not a solution for the vast majority of working women, and at most can only be part of the solution even for those in the most advantageous circumstances. How, then, can women of all income and education levels combine their professional aspirations with a real commitment to (and satisfaction with) their families?

First, there needs to be greater female representation on the top rungs of government, corporations and the judiciary. While this may sound like a circular argument, the “leadership gap” must be closed in order for women to be equally represented alongside men in both the private and public sectors. To achieve greater female representation, a combination of strategies should be implemented, such as alternative fee structures, telecommuting, and more flexible working hours.

If working women are to really “lean in”, that necessarily means that their male counterparts will have to take up more of the family-caring duties that are traditionally seen as the woman’s responsibility. If men are incentivized to take on more of what is traditionally considered “women’s work”, this can only be a good thing; men, like women, have been restricted by sexist social expectations for too long. Men can, and should, be given opportunities to contribute towards their families in ways other than merely being the “main breadwinner.”

In theory, one of the most direct methods to address the skewed male-female distribution of labour is paternal leave. If men have the option of taking leave before and after their wives give birth (or after they adopt an infant), it could help the woman get back to work sooner, while allowing the man to spend more precious time with his newborn. However, in order for this to be effective, the leave period must be long enough to have an impact in the first place, and incentives need to be put in place to encourage families to take advantage of paternal leave.

Convention No. 183, published by the International Labour Organization, calls for at least 14 weeks of paid leave for women, at least two-thirds cash benefits of previous earnings while on leave, and the benefits to be paid for by social insurance or public funds.  If we use this measure as a guideline, Hong Kong fails to meet this standard. Under the Employment Ordinance, women get only ten weeks of leave, while men get a pitiful three days (both with 80 per cent of their average daily wages). Curiously, male public servants get five fully paid days.

pregnant woman

Photo: Greyerbaby, via Pixabay.

In contrast, Finland, Iceland, Lithuania, Portugal and Slovenia offer leave periods of over two weeks for men; Iceland, Finland and Slovenia lead the pack at 90 days. Furthermore, several countries such as Sweden, Germany and the UK adopt “parental leave” policies in which a bulk number of weeks are provided to a household, and the couple can decide how to allocate their time. Certain countries also provide incentives for men to take their leave days. For example, in Germany and Portugal, a mother gets bonus leave if the father takes a minimum amount of leave. In Sweden, parents are entitled to 480 days of paid parental leave, of which 60 days are reserved for fathers. If the father does not use those days, the mother cannot take advantage of those lost days.

The dated view of man as breadwinner and woman as homemaker is not an exclusively Chinese concept; many cultures around the world have similar views.. However, with progressive policies and incentives, there has been a paradigm shift in countries that are willing to create more cooperative and equitable environments for working and parenting.

While hard work on an individual level could pay off for some women, Hong Kong needs its own paradigm shift to make gender equality a reality.

Taylor Wong is a legal eagle who likes to think, observe, and write about social issues, but still occasionally wishes to become a professional cat whisperer.

Article was originally published in Hong Kong Free Press on 2 August 2015

Confessions of a feminist in law – Part I: The problem

By Taylor Wong, Progressive Lawyers Group. Click here for part 2.

Hong Kong is generally perceived as one of the more progressive corners of Asia on the matters of gender and racial acceptance. However, traditional gender roles are still expected of and imposed on women, implicitly and explicitly, in varying degrees.

While gender discrimination and rigid gendered expectations for both men and women are widely prevalent, my personal experiences in Hong Kong’s legal industry — where I experienced first-hand the most blatant as well as more subtle forms of discrimination — was a crude but necessary awakening that not even the most privileged and well-educated among us are exempted from gender discrimination, whether as victim or as perpetrator.

I am fortunate to be raised by two loving and (by most standards) open-minded Chinese parents. Since a young age, they impressed upon me that the only person who could stop me from achieving whatever I set my mind to is myself. My mother, who for years ran her own successful business, took pains to remind me and to demonstrate with her own actions that I shouldn’t assume, nor expect, a spouse to support me. I must be financially and emotionally independent, and stand on my own two feet.

Imagine, then, my confusion when I returned to Hong Kong after completing my undergraduate studies in a Western institution. Suddenly, my personality traits that were acceptable and endearing when I was younger — being opinionated and tomboyish — were considered inappropriate for a woman my age.

My mother took on a newfound interest in my appearance and dating life. She believes, among other things, that I am too outspoken and individualistic, which scares away prospective suitors, and my boyish hair is a turn-off to most men. She frets that I wouldn’t be desirable in the eyes of the opposite sex.

I was both confused and hurt: why did my parents invest so much effort and money into my education and tell me to dream big, when in the end what my mother most wanted for me was to become a man’s Mrs? In retrospect, she would not have said any of this to me if I were male.

Still, nothing could have prepared me for the sexism I encountered since joining the legal field. I have observed the daily workings of some of the top multinational corporate law firms in Hong Kong, where some of the best and brightest local and foreign (read: white) legal professionals congregate. There, sexism is not the exception; it is the norm.

Sexism comes in many forms. It is not limited to isolated incidences of misogynistic men who are overtly derogative towards women (although, an instance of a male lawyer telling a young female lawyer-to-be that she would not be hired over a male of the same calibre, since women cannot be as committed to their careers once they are married and have children, comes to mind). It also rears its ugly head in the throwaway comments, blithe insults, and backhanded compliments made by both genders, whether they were aware of it or not. It is found institutionally in our law firms, barristers’ chambers, and courts.

What is a female junior lawyer supposed to think when her male supervisor casually tells her that while she is smart, she would be better off finding a lawyer or banker to marry so she herself can “take it easy”? How is she supposed to feel when a male superior tells her she should marry before thirty, because after that she would no longer be “quality goods”?

hong kong women work stats gender equality

A research on women’s statistical profile conducted by The Women’s Foundation in 2012.

Am I supposed to concur when a brilliant female Cambridge-graduate ex-lawyer tells me matter-of-factly that the most important things for any woman are marriage and children, and that her career must always be secondary to her familial duties? Am I supposed to feel apathetic about the fact that the Court of Final Appeal, Hong Kong’s highest court, has never had a single female judge?

I could go on, but the above instances sufficiently illustrate the current scenario for a woman practicing law in Hong Kong, and I suspect in numerous other industries. There is a fundamental understanding in our society, engrained in both genders, that a woman’s domestic obligations are more important than the pursuit of goals that are independent from the family.

Therefore, even for women who do not want to get married or put their careers on the back burner (or drop out of the workforce completely), others often assume they eventually would. As a result, many women are not considered for senior positions within the legal hierarchy. They are too often written off by their superiors, their colleagues, their family, and by themselves, even before they first set foot inside the office.

patriarchy feminism

I am not saying that women who decide to forsake their careers are less independent or capable than women who are more career-oriented. The issue lies not in what a woman chooses to do with her life, but whether she is given a real choice at all; and when she is, whether she is given full opportunity to pursue that choice. Further, I am aware that I cannot speak for all women, as experiences of sexism are varied and complicated by issues such as class, race, age, and poverty. However, these differences should not divide us; rather, it unites us all, women and men, as a call to action.

All of us can contribute to the conversation through our words and actions. Whenever we experience or witness an act of gender discrimination, we should speak up. We should make the discriminator aware that his or her words or actions have no place in our pluralistic society, while reminding ourselves to be vigilant of the same. We should engage in conversations about gender discrimination in the workplace, but also in the family and in education, and how we can address inadequacies. In refusing to stay silent and becoming agents of change, we all have the power to take a stand against gender discrimination.

Taylor Wong is a legal eagle who likes to think, observe, and write about social issues, but still occasionally wishes to become a professional cat whisperer.

Article was originally published in Hong Kong Free Press on 2 August 2015

With HKU under fire, who is meddling with Hong Kong’s academic freedom?

By Virginia Chang, Progressive Lawyers Group

I still remember how I became concerned about academic freedom for the first time. I was studying abroad, contemplating whether I should take a class that touched upon the sensitive subject of the Tiananmen Massacre. In the first lecture, a fellow classmate said to me, “Apparently someone went around campus telling other Chinese students not to take the class. So yeah, I’m having second thoughts about whether I should take this class or not.”

Call me a rebel – I signed up for the class as quickly as I could.

Although I could not verify my friend’s words, the incident got me thinking about the importance of academic freedom – a topic that has been on my mind lately in light of the recent attacks on my alma mater, the University of Hong Kong.

The controversy surrounding Professor Johannes Chan’s delayed appointment as pro-vice-chancellor — the post oversees academic staffing and resources — has been well reported. More than seven months ago, a search committee unanimously recommended Chan to the post. Yet, in an “absolutely ridiculous” turn of events (in the professor’s own words), on June 30, the HKU Council decided to delay the appointment, citing the need to first appoint a new deputy vice-chancellor.

The controversy has also been studded with episodes of political interference in academic affairs. Back in February, former Ming Pao chief editor Kevin Lau Chun-to wrote that “some extremely influential people in the government” had telephoned HKU Council members, telling them to reject Chan’s candidature.

A top advisor to the Chief Executive, Sophia Kao Ching-chi, also admitted to discussing Chan’s suitability for the position with unidentified individuals. Ta Kung Pao and Wen Wei Po featured full-paged Cultural Revolution-esque attacks on Chan — the latter even obtained a confidential University Grants Committee report and attempted to scapegoat Chan as the cause of the university’s “alleged” nosedive in research quality.

Part of the problem lies in HKU’s governing structure. Under the current system, seven out of 24 — just under a third — members of the HKU Council, including the chairman, are appointed by the chief executive, who also happens to be ex officio chancellor of all eight universities. This makes it easy for him to interfere with HKU’s affairs if he chooses to do so.

The controversy has led more than 1,400 HKU alumni and members of the public to sign a petition titled “Safeguard HKU”, which calls for the safeguarding of the university’s independence, and the speedy resolution of Chan’s appointment.

The incident of the government interfering with academic affairs is certainly not the first one. In 2000, Dr. Robert Chung was pressured by former chief executive Tung Chee-hwa to discontinue a public opinion research project that tracked Tung’s (declining) popularity.

July 1st HKU alumni

What is surprising, however, is the difference in the level of public backlash: while Chung’s case was met with strong outrage, leading to the resigning of two top university officials, public concern surrounding Chan’s appointment — which involves multiple attacks on HKU’s academic freedom— seems to have been relatively mellow.

The continued deferral of Chan’s appointment comes as a worrying blow to academic freedom in Hong Kong. Academic freedom is of utmost importance to our society because it allows scholars to pursue the truth where it takes them, regardless of political correctness or current orthodoxies, and without any fear of repression by the government. For good reason, it is constitutionally protected under Article 137 of the Basic Law.

What is more unsettling is the pressure on members of the academia to self-censor their research. Apart from attacks on Chan, pro-Beijing media have also targeted other members of the HKU law faculty, accusing professors of trying to “brainwash” their students by assigning “pro-Occupy Central” reading assignments.

These allegations are, of course, profoundly disturbing. By default, class readings are meant to be starting points of discussion, open for debate and challenge. But personal attacks on certain professors also mean that members of the academia may feel pressured to downplay certain controversial topics in the name of political correctness, or in order to maintain “harmony” in classroom discussions.

HKU protest

Infringement of academic freedom, of course, also comes in other subtle ways. I am reminded again of the incident with my history class. The pressure of self-censorship felt by members of the academia also means that there may be pressure for students not to take a particular class — as it was the case with my friend, and perhaps other Chinese students on campus.

Students may also be less willing to share their opinions or explore politically controversial topics. “Harmonised” classroom conversations cannot be conducive to critical thinking or effective learning.

Suppression on academic freedom is problematic because I am aware of the transformative and constructive power of the free flow of ideas, many of which played a significant role in shaping our societies. An example is the New Culture Movement, which saw the inception of democratic values, women liberation, and modern Chinese literature. Even the Chinese Communist Party was founded by two intellectuals during that time.

Yet, I am also reminded of the importance to speak out for what I believe in. The series of attacks on HKU bring me back to my alma mater’s motto: sapientia et virtus, wisdom and virtue. The quest for both wisdom and virtue involves diving, head-first, into discourses where one can – free from any concerns of political correctness – challenge and be challenged, inspire and be inspired, and agree to disagree. HKU has given me the freedom to question what is established, the tenacity to explore what I questioned, and most importantly, the audacity to stand up for what I believe in. This is why I decided to speak out now.

Virginia Chang is a law student who enjoys watching TV crime shows.

Article was originally published in Hong Kong Free Press on 25 July 2017

I am a Christian and I support legalising same-sex marriage

By Earl Deng, Progressive Lawyers Group

The views and opinions expressed in this article are those of the author only and do not necessarily reflect the position of the Progressive Lawyers Group.

I am a Christian and a lawyer, and I support the legalisation of same-sex marriage.

As a Christian, I understand the solemnity and sanctity of a marriage ordained by God, and the theological views on homosexuality. As a lawyer, my spiritual heart is given to protecting all marginalised members of society. I do not intend to “convert” anyone from their personal beliefs but I would like to explain how I reconcile the two seemingly conflicting views.

I believe that same-sex relationships or marriage should be given secular legal recognition. This is not because my reading of the Bible condones such relationships. It is because legalising same-sex marriage does not harm or undermine my faith. As Richard Posner, a noted American judge and legal scholar has written, “Unless it can be shown that same-sex marriage harms people who are not gay (or who are gay but don’t want to marry), there is no compelling reason for state intervention, and specifically for banning same-sex marriage.”

Another equally important reason is this: A function of the legal system in an open democratic society (which Hong Kong aspires to be) is to protect and guarantee the fundamental freedoms of each individual, and to treat each person with equality, respect and dignity irrespective of their age, sex, race, gender identity, or sexual orientation. This is distinct from God’s law (as set out in the Bible) which functions as a gift of redemption and grace that is freely given to all who believe in the Christian message.

supreme court rainbow flag lgbtq same sex marriage

Where minority groups are discriminated against, and the legal system fails to protect them, it tends to reinforce, validate and promote prevailing discriminatory attitudes, with devastating results. Around the world, Christians who live as minorities in such jurisdictions suffer, and continue to suffer, persecution, discrimination and death.

Christian groups have sought to justify their opposition to the legalisation of same sex marriage in various ways. The main reason is theological, in that because the Bible’s text expressly condemns homosexual behaviour as sin, and since sin is harmful, a Christian cannot support sin, and so a Christian must oppose same-sex marriage.

But such reasoning disregards the fact that there is no theological principle that requires secular law to be always consistent with or informed by God’s law. Christians are called to be in this world, but not of this world. When secular law is inconsistent with God’s law, the Bible does not say “Thou shalt amend thy statute.” It does however require Christians to live and act by faith and not by sight, whatever the secular law is.

So for example, whereas secular law protects the freedom of religion (which allows all persons to practice any religion), God commands us to have no other gods. It would be repugnant for Christians to advocate laws to criminalise or ban the practice of all other religions.

Another example: divorce is legally permitted in Hong Kong, but is expressly forbidden in the Bible as it is said that “what God has joined together, let no man tear apart.” Yet many Christians understand and accept that divorce may be necessary as a matter of last resort to end an abusive relationship. The mere fact that homosexual buggery is not a crime between two consensual persons aged 16 years does not mean that Christians can indulge in such acts without God’s judgment.

Therefore, to oppose the legalisation of same-sex marriage because “it is against God’s law” is more than offering a loving rebuke or spiritual admonishment. It is unneighbourly conduct because it validates society’s continuing discrimination and marginalisation of this minority group and it deprives such persons of all the civic rights and status that a married couple enjoys.

I therefore welcome the recent US Supreme Court decision, which follows that of other jurisdictions, because it has given the debate in Hong Kong much needed impetus. While the rest of the world is moving towards granting full legal recognition to sexual minorities, it seems Hong Kong has gravitated to the opposite direction. It took the government seven years to amend the Crimes Ordinance to change the words “21 years old” to “16 years old” for the offence of buggery. The legislative changes to the Marriage Ordinance to allow post-operative transgender persons to marry in their chosen genders have not been implemented despite the Court of Final Appeal’s landmark ruling in 2013.

Dr. York Chow Yat-Ngok, chairman of the Equal Opportunities Commission, also remarked in a recent interview that he will probably not see the legal recognition of sexual minorities rights in his lifetime – a far cry from his initial optimism on his appointment in 2013, when he suggested that Hong Kong should implement civil unions for same-sex couples.

The sad reality is that while marriage for same-sex couples is the current hot-button topic, it is only one facet in which LGBTQ persons have suffered discrimination. Equally pressing is the enactment of anti-discrimination legislation for sexual minorities, which the government has refused to entertain.

The road ahead to achieve equality for sexual minority groups in Hong Kong will be long and arduous. It is therefore my sincere hope that we can all engage in this discussion with more compassion, understanding and openness.

Earl Deng is a barrister who tries to slow down the process of erosion observed in Hong Kong through legal practices.

Article was originally published in Hong Kong Free Press on 16 July 2015

Are July 1 marches still relevant?

By Leanne Liu, Progressive Lawyers Group

Turnout for this year’s July 1 protest was sparse. The organiser said there were 48,000 marchers, while the police’s figure was only 19,000 at its peak.

I did not participate this year. My friends arranged a gathering on that day to plan an upcoming trip. I struggled a bit and then decided to join the gathering on July 1.

Although it was expected that fewer people would turn out for the protest this year, it was somewhat surprising that the number would be at the third lowest ever. On the following day, radios and newspapers discussed this fairly disheartening “record”.

Some commentators believe the reason for the low turnout was that the public feels that, notwithstanding the strong demand for political changes over the past year, their voices have received no response from the government and it would be difficult to achieve any changes through marches. Others said it was because since lawmakers have voted down the electoral reform, there was no imminent or urgent need for a mass rally.

I asked myself – have I lowered the July 1 march on my priority list for the reasons above? The question sent me down memory lane.

july 1 march hong kong

July 1 march in 2015. Photo: Ryann Chan.

Since 2003, the July 1 rally has been one of the signature events on Hong Kong’s political calendar. In 2003, former chief executive Tung Chee-hwa pushed for the implementation of Basic Law Article 23, leading to a massive July 1 rally in which over 500,000 took to the streets. Over the years, the July 1 march has always been the single most powerful rebuke by Hong Kong people to the authorities and the clearest expression of their political sentiments.

Twelve years on, has the social and political landscape changed? Yes, it has.

Undoubtedly, there are now more ways to express one’s political sentiment compared to 2003. Back then, there was no Facebook or “keyboard fighter”. New media – especially online news sites – have provided us with more platforms to make our voices heard and share our views with others. In addition, there has been an increase in protests, including, most notably, the Umbrella Movement. There have been more heated discussions on Hong Kong’s political future.

Coupled with the increased number of channels, the views of the public have become more diverse as well. The message of the July 1 march has become rather unclear in recent years. Unlike in 2003, when everything seemed gloomy and most people shared the same discontent, people today hold a wide spectrum of views on Hong Kong’s democracy and autonomy. For instance, some people support the re-writing of the Basic Law while some do not. (My personal view is that our constitution should be the basis for Hong Kong’s democratic development, but that is a topic for another day.)

Another example is the government-backed electoral reform proposal. A large part of the population opposed the proposal, but at the same time, many of us also know people who sincerely supported the idea of “pocket it first” (including people whom we respect greatly).

Our society has changed a lot over the last 12 years, but has there been any progress in our pursuit of democracy? I would answer in the negative.

It is time to rethink the July 1 marches, not only about how to mobilise more people on the day, but also about their aims and purposes.

When more high-profile protests such as the Umbrella Movement failed to bring real changes to our political system, what should we realistically aim to achieve through the July 1 marches? When the proliferation of new media allows us to express our political sentiments and views more easily, are protests or marches still relevant? When society is filled with diverse voices, is it still possible to deliver clear and strong messages through rallies?

The July 1 march has its unique and symbolic meaning to us. However, if we want to keep on fighting, what is the way forward?

Leanne Liu is a lawyer. She speaks Cantonese as her third language and calls Hong Kong home.

Originally published in Hong Kong Free Press on 10 July 2015

The law of defamation – friend or foe of journalists?

By Alexa Stone, Progressive Lawyers Group

A few weeks ago, Beijing-friendly columnist Chris Wat Wing-yin (屈穎妍) issued a letter through her lawyers to radio host and columnist Tsang Chi-ho (曾志豪), alleging that his article titled “The Wat Wing-yin Phenomenon”, published in Apple Daily, had caused her harm. Wat demanded Tsang publish an apology and clarification. Although the exact contents of Wat’s letter are not publicly available, it is a fair guess that her demands were based on an accusation of defamation.

As a reporter-turned-lawyer, my first encounter with the study of law happened when I was a journalism undergraduate at the Chinese University of Hong Kong. One of our compulsory subjects was media law, and my lecturer was former Ming Pao editor-in-chief Kevin Lau Chun-to (劉進圖).

Before talking about the “what” of media law, Lau talked about the “why” – the reasons why journalists should study media law. Lau explained that journalists have to understand the law to know the boundary of what can be said, so that they will not abuse the power and the freedom of the press. An equally important reason was for journalists to avoid being sued for innocent mistakes.

Freedom of speech, like all other freedoms, is not unlimited. While we have the right to freely say whatever we want, we also have the right to enjoy the good reputation that we deserve. The objective of defamation law is to protect the latter.

To establish defamation, three elements must be proved. The first is that words in dispute must have a “defamatory meaning” – that is, they tend to lower the victim in the estimation of right-thinking members of the society generally. The second element is that the defamatory words must be conveyed to a third party. Thirdly, the defamatory words must refer to a particular person.

At first glance, it might seem that the law of defamation is the journalist’s foe rather than his friend. When a newspaper publishes negative news about an individual or when a columnist makes critical comments against a person, there is a risk that they could be sued for defamation. That being the case, wouldn’t the threat of lawsuits deter journalists from engaging in bold reporting and commentary?

The law does not work that way – thankfully. As long as what is said is factually true, there is a defence known as “justification”. Furthermore, if the article concerns a matter of public interest and follows the principles of responsible journalism, the journalist could invoke a defence known as “Reynolds privilege”.

kevin lau press freedom hong kong

Concerned Hong Kongers rallied for veteran journalist Kevin Lau, who was attacked on the street, in Feb, 2014. Photo: Benson Tsang via Occupy Central with Love and Peace Facebook.

Then there is the defence of “fair comment”, which applies when a journalist’s comments relate to a matter of public interest, are based on true facts, and are comments that an honest person could have expressed.

Telling the truth and making honest and fair comments – aren’t these the basic qualities required of a journalist anyway? Thus, journalists who perform their job properly, according to their conscience, should have little reason to see the law of defamation as an enemy.

Just as our right to good reputation is protected by the law of defamation, freedom of speech and of the press is guaranteed by the Basic Law. The court, when called upon, will fairly decide how to balance the conflicting rights based on the facts before it.

This echoes something that Lau said after he was attacked by a knife-wielding assailant in February 2014: freedom comes hand-in-hand with truth, selflessness, and bravery. Therefore, fellow journalists and media workers, keep following your conscience. As long as you do so, the law will be your friend.

Alexa Stone is a journalist-turned-business manager-turned-lawyer who loves observing people.

Article originally appeared in Hong Kong Free Press on 4 July 2015