Generation 40s – 四十世代

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Next Hong Kong chief executive must implement Article 23 national security laws without delay

CommentInsight & Opinion
Grenville Cross says Beijing’s faith in leaving national security legislation up to the city has been misplaced and the next leader must make this a priority, to avert serious consequences


In 2012, when former president Hu Jintao (胡錦濤) visited Hong Kong, he said: “It is essential to put into practice each and every provision of the Basic Law.”

However, almost five years on, and nearly two decades after reunification, Hong Kong has still not, as the Basic Law requires, implemented the national security laws. This is a significant failure, with potentially serious consequences.

The central authorities have placed great faith in Hong Kong by allowing it, in Article 23’s words, to “enact laws on its own” for national security. In most places, national security legislation is dealt with through national parliaments, and not left to regional legislatures.

Of course, China could simply have extended its own national security law to Hong Kong but trusted the city to deal with this within a reasonable time. Its faith, unfortunately, has been misplaced.

There is, however, not a complete vacuum. The old colonial laws on treason, sedition and theft of state secrets could still, at a stretch, be deployed, while the Societies Ordinance enables the secretary for security to control the activities of foreign political organisations. But Hong Kong also needs its own tailor-made laws to cover secession and subversion, which are lacking.

While this might suit some people, it makes a mockery of Hong Kong’s constitutional obligations to the rest of China.

Although Macau, China’s other special administrative region, was ­reunified with the mainland in ­December 1999, as many as 30 months after Hong Kong, it nonetheless managed to enact its own national security legislation by 2009, and the sky has not fallen in.

While Hong Kong’s first secretary for justice, Elsie Leung Oi-sie, valiantly supported the ill-fated attempts by Tung Chee-hwa’s government to turn Article 23 into reality in 2002-03, her two successors, Wong Yan-lung and Rimsky Yuen Kwok-keung, simply sat on their hands. Beijing’s patience must by now have worn very thin, and who can blame them.

Then Hong Kong chief executive Tung Chee-hwa is flanked by his chief secretary and later successor Donald Tsang and justice secretary Elsie Leung – both members of the constitutional reform task force – as he speaks to the media about the National People’s Congress Standing Committee’s interpretations of the Basic Law, at the central government offices in April 2004. Photo: Dickson Lee

In 2015, China’s legislature adopted a comprehensive national security law, far tougher than anything envisaged by Article 23. Its ­Article 40 specifically requires Hong Kong and Macau to fulfil their responsibilities “for the preservation of national security”. While Macau has already acted and need not worry, alarm bells should by now be ringing loudly here.

Although the mainland’s new security law does not apply to Hong Kong, this could easily change. If Hong Kong continues to shirk its duty under Article 23, there must be a real possibility that the hardliners in the Standing Committee of the National People’s Congress will gain the upper hand, and impose it on Hong Kong.

This is entirely feasible, as the Basic Law’s Article 18(3) entitles the Standing Committee to add laws to the list of national laws applicable to Hong Kong in Annex III.

Crowds in Causeway Bay take part in a 500,000-strong rally from Victoria Park to the Hong Kong government headquarters in protest against Article 23, on July 1, 2003. Photo: Edward Wong

Since the 2003 debacle, when Tung’s government abandoned its Article 23 legislation after mass protests (and a stab in the back from one of its own), there has been ­paralysis throughout government at the very mention of national security, but this must change. Anyone wishing to become the chief executive must commit themselves not only to implementing Article 23, but to doing so sooner rather than later, without prevarication. The time for pussyfooting around has long since gone, and the next chief executive must ensure that Hong Kong discharges its duty to the nation, and shows that it can be trusted.

To allay public concerns, however, the new security laws must be narrowly drawn, and respectful of human rights guarantees. The whole emphasis should be on proscribing violence, disorder or illegality as a means to an end, as already reflected in our current treason and sedition laws.

The new secession law must, therefore, be construed in terms of withdrawing a part of China by force or serious criminal means, or ­engaging in war. Subversion should be defined as disestablishing, ­intimidating or overthrowing the central government by using force or other serious criminal means.

However, the peaceful discussion of independence should not be criminalised, and nor could it, so long as Hong Kong subscribes to the International Covenant on Civil and Political Rights, which guarantees freedom of expression and the right to hold opinions without interference. As Elsie Leung wisely noted in 2002, provided force, violence or serious unlawful means are not used to try to effect change, “we should not use criminal sanction against people from discussing, expressing opinions and even to strive to achieve such an objective”.

Since 1997, the central authorities have done much to uphold the Basic Law, thereby ensuring the success of “one country, two systems”, and for this we must be grateful.

Hong Kong, for its part, must now demonstrate its own bona fides. If Article 23 is not enacted, then, quite apart from the Annex III danger, the prospects of a “through-train” in 2047, when the Basic Law’s “50 years unchanged” expires, will be significantly diminished.

Grenville Cross SC is a criminal justice analyst

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Prisoner rehabilitation is a job for Hong Kong’s community at large

South China Morning Post
CommentInsight & Opinion

Grenville Cross

Grenville Cross says the Correctional Services Department is doing an exemplary job to reform and rehabilitate inmates, but greater corporate and community support can take it much further

Chief Justice Geoffrey Ma Tao-li rightly noted in June that the Correctional Services Department has “earned the respect and confidence of the community”. It has done much to promote criminal justice in Hong Kong, not just by removing criminals from society but also by rehabilitating them.

As of September 30, there were 8,786 persons in the custody of the department – 7,060 of them convicted of offences, and the rest being held on remand, pending trial. Its correctional facilities  include not only prisons but also centres for drug addiction treatment, training, detention and rehabilitation, and a psychiatric centre.

The overall prison population, which stood at 10,073 in 2010, had fallen to 8,438 by the end of 2015. Although this is due in part to the courts making greater use of alternatives to imprisonment, such as community sentencing, it also reflects lower recidivism rates, for which the department can take credit.

Recidivism, or readmissions to correctional services institutions within two years of discharge, fell from 36.5 per cent in 2004 to 27.1 per cent in 2013. The department places great emphasis on rehabilitating offenders, but also liaises with NGOs to ensure inmates have a smooth transition back into the community.

While in custody, inmates are not only taught specific skills, such as IT, carpentry and metal work, but are also encouraged to enrol in study courses , with some even achieving master’s degrees from the Open University of Hong Kong. For inmates due to be released shortly, the department recently arranged a job fair and also organises market-oriented vocational training courses, for which they may volunteer. To help them find jobs after release, it provides briefings on interview techniques and labour legislation, and has also set up a “caring employers” network.

Within the system itself, inmates are encouraged to be productive, through more vocational training, and this has borne fruit. In 2014, for example, the value of goods and services provided by prisoners reached HK$461 million, up from HK$395 million in 2010 (when the prison population was higher). Apart from doing laundry work for government departments, inmates produce office furniture, uniforms, metal railings and laminated books for public libraries – acquiring skills that can be put to good use on the outside.A visitor gets into costume as part of the Correctional Services Department’s activity themed “Passion; Appreciation; My Hong Kong”, at the department’s Staff Training Institute on March 19. Photo: Dickson Lee

The department also works hard to promote an environment that is conducive to rehabilitation, and intolerant of crime. Inside the institutions, violence, whether among inmates themselves or towards staff, is strictly contained, and dealt with severely by internal disciplinary measures, with the more serious cases going to court. Opportunities for crime are minimised, officers foil numerous attempts each year to smuggle drugs into correctional facilities. Inmates are closely supervised, and the staff-to-inmate ratio is high, with 6,907 officers managing 29 facilities (including correctional institutions, halfway houses and custodial wards of public hospitals), which contributes to good order.

The department’s facilities, if not always state of the art, are more than adequate, and modern amenities, including libraries, workshops and sports grounds, are generally available. Morale among officers is reportedly good, and there have been few of the problems which, for example, erupted in Britain in November, when thousands of prison officers walked out  following a rise in violence and self-harm incidents in a crowded and underfunded penal system. England and Wales  currently have 85,000 prisoners, and the Howard League for Penal Reform recently reported  that a prisoner commits suicide every three days, whereas in Hong Kong the average is 10 to 20 a year.

Some inevitably reoffend upon release, but this certainly does not reflect on the department, which will have done its best to rehabilitate them. Recidivists often lapse because they can’t find a job, are unable to readjust to life, or simply lack the will to renounce crime and its easy pickings. Private corporations can do much more to assist ex-inmates, particularly those detained for a long time and facing a now-unfamiliar world.

Secondary students get an inside look at Ma Hang Prison in Stanley under the Correctional Services Department’s “The Reflective Path” Rehabilitation Pioneer Project, in September 2015. Photo: K.Y. Cheng

When discharged inmates get individual support and jobs, their chances of recidivism are significantly decreased. It is, therefore, up to the community at large to complement the excellent rehabilitative service already provided by the department.

Grenville Cross SC is a criminal justice analyst

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Crackdown on tax havens is just another way to ensure citizens can’t escape the clutches of big data

South China Morning Post
Comment›Insight & Opinion

Niall Ferguson

Niall Ferguson says the trend of government and business tracking our every move – in some cases, in an attempt to deter crime – exposes us to another kind of danger, that of surveillance

In Notes from Underground, Dostoevsky fired a broadside against all the Victorian do-gooders who dreamt of a perfectly rational society. “You seem certain that man himself will give up erring of his own free will,” he fulminated. He foresaw a ghastly future in which “all human acts will be listed in something like logarithm tables … and transferred to a timetable … [that] will carry detailed calculations and exact forecasts of everything to come”. In such a world, his utilitarian contemporaries believed, there would be no wrongdoing. It would have been planned, legislated and regulated out of existence.

We are nearly there. Or so it seems.

Yes, I know. Corruption is impure. Crime is a felony. And illegal immigration is against the law. Altogether: Sin is wicked! So I should have cheered British Prime Minister David Cameron’s international anti-corruption summit last week. I should be a paid-up supporter of the campaign to close down tax havens. I should be glad to see the back of 500-euro bills. And I should feel a thrill of patriotic pride when I hear Boris Johnson pledge to regain control of Britain’s borders.

And yet every one of these steps towards a more perfect world makes me feel Dostoevsky’s disquiet.

Now, I do not condone corruption, tax evasion, organised crime or unregulated migration. Nevertheless, I am deeply suspicious of the concerted effort to address all these problems in ways that markedly increase the power of states – and not just any states but specifically the world’s big states – at the expense of both small states and the individual. What makes me especially wary is that today, unlike in Dostoevsky’s time, the technology exists to give those big states, along with a few private companies, just the kind of control he dreaded.

Consider some of the most recent encroachments on liberty. The British government announced it will set up a publicly accessible register of beneficial owners (the individuals behind shell companies). In addition, offshore shell companies and other foreign entities that buy or own British property will henceforth be obliged to declare their owners in the new register. No doubt these measures will flush out or deter some villains. But there are perfectly legitimate reasons for a foreign national to want to own a property in Britain without having his or her name made public. Suppose you were an apostate from Islam threatened with death by jihadists, for example.

Or consider the phasing out of the 500-euro bill, fondly known in the underworld as the “bin Laden”. I have little doubt that when someone elects to transfer one million dollars by putting the equivalent in “bin Ladens” into a small bag and handing it to someone else, both parties are up to no good. Yet getting rid of bin Ladens is the thin end of a monetary wedge.

Economist Ken Rogoff is one of a number of economists who want to get rid of banknotes altogether. They argue cash is an anachronism, heavily used in the black and grey economy, and easily replaced in an age of credit cards and electronic payments. But their motive is not just to shut down the mafia. It is also to increase the power of government. Without cash, no payment can be made without being recorded and potentially coming under official scrutiny. Without cash, central banks can much more easily impose negative interest rates, without fearing that bank customers may withdraw their money.

The state wants data. What you earn. What you spend. Where you are. But what the state knows is just a fraction of what Facebook knows about you. The reason Mark Zuckerberg is a billionaire is that, as you blithely share your likes and dislikes with family and friends, you tell Facebook almost everything there is to know about you. Advertisers will pay Facebook vast sums for that information. But do you really think advertisers are the only people who want Facebook’s data? (Fact: it was one of the internet companies named as collaborators in the US National Security Agency’s leaked Prism surveillance programme.)

We thought it was Big Brother we had to worry about. It turned out to be Big Data.

Niall Ferguson is Laurence A Tisch professor of history at Harvard and a senior fellow of the Hoover Institution, Stanford

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Hong Kong taxpayers have a right to know all the details about Polytechnic University’s secretive offshore ventures

South China Morning Post
Comment›Insight & Opinion

Stuart Lau

Stuart Lau says management at the publicly funded university, which had already come under fire previously for its financial dealings, must come clean about its two joint ventures with BVI registrations, following the Panama Papers revelations

Transparency is a concern for all public institutions.“There is more info.” A few weeks ago, within an hour of hearing those four words, I found myself sitting across from two people who were about to divulge reams of data that would link the explosive “Panama Papers” to the rich and powerful in Hong Kong.

Before the meeting ended, I had thousands of files transferred to a memory stick, the best part of which was to end up in the South China Morning Post.

The two sources connected to the International Consortium of Investigative Journalists and I sat that morning drinking coffee at a top-floor restaurant overlooking Victoria Harbour. As I surveyed the citadels of commerce that define our city’s iconic skyline, I wondered what kind of people behind those gleaming windows in this affluent city would try so hard to hide in far-flung tax havens.

Were they some businessmen with money to hide or even a few politicians, perhaps? The revelation, however, was more startling.

The so-called Panama Papers are leaked documents detailing the secretive financial dealing of the world’s rich and powerful. Hong Kong’s Polytechnic University, as the documents showed, was found to be the ultimate owner of two firms registered in the British Virgin Islands. The evidence: a signature of Secretary for Innovation and Technology Nicholas Yang Wei-hsiung, who was PolyU’s executive vice-president when the firms were set up in 2012 and 2013.
Taxpayers have a right to know what their tax money is being spent on, and where

PolyU was advised in 2010 to close down its tangled web of companies that was not just losing money, but was slipping past the oversight of management and risked all manner of issues involving conflict of interest.

Yet, the publicly funded institution went on to set up two joint ventures with BVI registrations – known for their opacity – adding to the absurdity of the situation it pledged to clean up.

PolyU explained that the move was a “last alternative” to carry out the “exit strategy” – in an oblique reference presumably to the business partners’ unwillingness to wind up the companies so that they could continue to make use of the university’s brand name for their own commercial purposes.

Transparency is a concern for all public institutions. Taxpayers have a right to know what their tax money is being spent on, and where. Even if PolyU insisted it did not inject a cent of its public funding into these BVI firms, legitimate questions are being asked about whether it is appropriate at all for it to venture into tax havens and deal with the kind of business partners it has taken on.

PolyU has indicated that it has nothing to hide – indeed, no one is alleging illegal wrongdoing. But the way it has conducted itself has been less than reassuring.

While the University of Hong Kong and the Chinese University were later found to have also opened BVI firms, they at least disclosed their existence one way or another – as opposed to PolyU, which upheld complete secrecy. Its defence that its accounting mechanism complied with professional standards – by meeting just the bare minimum requirements – has been criticised as complacency.

The public relations teams of the different institutions involved also exhibited different attitudes. An HKU public relations officer called the Panama Papers reports a “timely reminder”. “I think it’s good for us in the sense that we are now aware of the problem and the need to clear up those offshore companies that are already dormant,” she told me. Her PolyU counterpart, on the other hand, reminded me to produce “balanced” reporting, and issued its response close to our printing deadline.

Her former boss was even less subtle. When approached by a fellow Post reporter about the issue, Yang declined outright to engage, questioning why he should face media questions when PolyU had already given a statement.

His press secretary was similarly blunt. After saying three times that it was a matter for PolyU rather than the bureau, she simply hung up the phone.

Shutting out the media is not the answer to fair questions. Why would Yang, the one in charge of the BVI deals, choose not to report them in PolyU’s annual reports? Is there no obligation for universities to disclose secret dealings of this sort to the University Grants Committee? Is the Education Bureau at all happy that it was uninformed about these offshore moves intended not just for ease of business, but for potential tax avoidance?

If things that happened before one comes to office are no public matter, Britain’s Prime Minister David Cameron wouldn’t have been busy addressing questions about an offshore fund created by his late father and sold before he walked into 10 Downing Street.

“There is more info” – it’s now the turn of the universities, and Yang, to reveal it.

Stuart Lau is a political reporter and the only journalist in the English-language media in Hong Kong to be given access to the “Panama Papers” database of the International Consortium of Investigative Journalists