Generation 40s – 四十世代

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Why inching forward on traffic fines and parking fees won’t halt Hong Kong’s congestion woes

CommentInsight & Opinion
2018-01-23

Paul Stapleton says the government’s reluctance to substantially raise penalties for traffic violations and parking meter fees indicates a lack of commitment to curbing congestion and pollution. However, the unrestricted growth in the number of private cars on the roads is the core problem

Two news items last week illustrated the perverse logic of Hong Kong legislators regarding the realities of moving around the city. The first was the news of the 25 per cent increase in fines for five traffic violations.

On June 1 this year, drivers who violate one of the five, such as illegal U-turns, will pay a fine of HK$400, up from HK$320. The last time the fine was raised was in 1994. In other words, with the increase, the new fine hardly reaches 21st-century pricing levels once inflation is taken into account.

The government originally proposed a more reasonable, but still paltry and overly generous 50 per cent increase, which included several more infractions; however, a Legislative Council subcommittee of both pro-democracy and pro-establishment members, balked at this so the government had to settle for a measly 25 per cent.

The second item was about a proposed increase in parking meter fees. Similar to the increase for driving violations, the government proposed doubling the maximum metered parking fee, in existence since 1994, to at least HK$4 or HK$5 for every 15 minutes.

Once again, however, our elected officials found this increase too high and proposed a much smaller rise.

This myopic view held by our elected representatives in opposing reasonable increases in driving fines and fees is yet another example of legislators failing to see the forest for the trees. Here, the “trees” are the supposedly unfair penalties imposed on drivers.

The lawmakers’ rationale is that a large increase will only punish the poor, and commercial vehicle drivers. Instead, they argue that the solution is to increase the number of parking spaces. But this completely ignores the larger forest, which is the fact that car owners in Hong Kong represent less than 10 per cent of the population, yet they contribute a staggeringly oversized proportion to congestion and air pollution that is suffered innocently by the other 90 per cent.

Just what is wrong with penalising drivers of private vehicles in a city that has arguably the best public transport system in the world?

Most Hong Kong commuters use public transport, such as the MTR and public buses. Photo: Edward WongWith private vehicle growth at about three per cent a year (against negligible growth in the number of roads), why shouldn’t drivers of private vehicles be heavily penalised?

Higher fines and fees could act as an incentive for drivers to take public transport, which in turn would reduce congestion, all to the benefit of the eco-warriors taking the bus.

In effect, however, the raising of traffic fees and fines is a stopgap measure that does little to address the real problem, which is obviously that there are no controls on the number of private cars on the road. With thousands more cars on our roads each year, more creative solutions are called for.

Here, our lawmakers need not reinvent the wheel. Both Singapore and London have successfully reduced congestion through electronic road pricing. The model has been tried and tested. All we need is the leadership to take the first steps.

Several years ago, when I moved into a New Territories flat that overlooks an expressway, traffic jams below my apartment were rare. In the past couple of years, casual glances out of the window inform me they are much more frequent during rush hour, and almost guaranteed when the weather is wet. With dozens more cars coming on our roads every single day without any new roads being constructed, this is both unsurprising and unsustainable.

Driving in this city is not a necessity; it is a privilege, and the makeshift increases in fines and parking fees do nothing to address the underlying problem.

Isn’t it time for our leaders to consider the other 95 per cent who stand on motionless buses during their daily commute while breathing in the exhaust of all those private cars?

Paul Stapleton comments on local social and environmental issues

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From Uber to e-payments and drones, can Hong Kong laws keep up with changing technology?

CommentInsight & Opinion
2018-01-19
Bernard Chan says Hong Kong’s legal framework is lagging behind its smart city aspirations. The challenge will be crafting laws that protect the public while encouraging innovation

Technology is now changing so rapidly that Hong Kong’s laws are unable to keep up. This threatens to hinder the development of new business models and services and the vision of a smart city. The best known example in Hong Kong is ride-hailing apps like Uber, which connect people who want a ride with car drivers willing to offer one.

Behind the technology, we are basically talking about car owners moonlighting as unlicensed taxi drivers. This has always been illegal, as some operators do not have hire-car permits and proper insurance. Needless to say, the licensed taxi industry opposes competition and wants the authorities to clamp down.

Yet the public wants more choice and better quality hire-car services. The technology makes such services easy to offer – and it is difficult to ban in practice. At some stage, the government needs to accommodate ride hailing within a legal framework.

Another example of disruptive use of technology is Airbnb, which enables people to rent out rooms to travellers. Like ride hailing, it is in theory about sharing but, in practice, it is mainly used by commercial landlords to compete with hotels and guest houses without complying with permits or paying taxes. While popular with tourists, it can harm residential neighbourhoods. In some cities, it is reducing the supply of long-term rental housing. And, in Hong Kong, more residents are complaining about strangers in their buildings and privacy concerns. The government is looking into this. How does it balance different interests while having laws that are enforceable?

Many commentators claim Hong Kong is lagging behind in e-payment systems, especially compared with the mainland where cash transactions are becoming old-fashioned. People are also complaining that Hong Kong officials appear to be uncertain about policy on electric vehicles and have been unprepared for bicycle-sharing services. The government is also being very cautious about self-driving vehicles, which are already being tested on the streets in some cities.

Further ahead, policymakers face big long-term changes. Urban transport will be revolutionised by shared self-driving electric vehicles (taking e-payments, of course). The distinction between cars, taxis and even minibuses might disappear, offering the possibility of far cleaner and more space-efficient transport.

The government also needs to keep up with new transport technology in the air. Within a few years, drones have gone from small remote-controlled toys to professional-quality flying cameras. Online videos show hobbyists in Hong Kong using drones to deliver chocolate bars and cans of beer, and the news media have found drones useful in news gathering. The technology raises concerns to do with privacy and safety. But it offers significant possible commercial and other applications like filmmaking, surveying and security, and transport. Manufacturers are already developing unmanned aircraft that could move large quantities of goods around urban environments.

Hong Kong does not currently have specific regulations for this sort of unmanned aircraft. However, the Civil Aviation Department is carrying out a consultancy study. The number-one issue is safety. The other priorities are to avoid inconvenience for people who fly small drones for fun, but to ensure sensible regulation of commercial drone operations.

A public engagement exercise is due to take place in the coming months. One issue is basic regulation of how drones can be used – for example, how high and how close to buildings they can fly. Then there is registration of drones. Many stakeholders favour a system where small recreational drones do not need to be registered. Bigger models and commercial users would be subject to more regulation – possibly including insurance and training requirements. While many people will see this from the hobbyists’ point of view, the real challenge is whether we can establish a framework that enables and encourages commercial applications for this new technology.

Drones are perhaps a test case. With our unique urban environment, we could be at the cutting edge of some new technological applications. The question is – can our laws make Hong Kong friendly to innovation and tech start-ups?

Bernard Chan is convenor of Hong Kong’s Executive Council


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If Chris Patten truly cares for Hong Kong, he should fight for equal rights for British National (Overseas) passport holders

CommentInsight & Opinion
2017-10-06
Albert Cheng says the BN(O) passport is a grievous wound inflicted by the British government, a betrayal of the people of Hong Kong. The test of the former governor’s fine words will be whether he can help right that wrong

Hong Kong’s last governor, Chris Patten, was recently in town to promote his new book, First Confession. Patten is a charming, energetic and experienced politician, and his polished speeches hold great fascination for his audience. This time, he praised Chief Executive Carrie Lam Cheng Yuet-ngor for doing a better job than Leung Chun-ying, and eulogised the new generation for adhering to their principles.

Patten’s pertinent comments on Hong Kong’s political environment have won him worldwide applause. However, at a lunch organised by the Hong Kong Democratic Foundation, Patten seemed rather baffled by an issue raised by veteran democrat Emily Lau Wai-hing. She asked if Patten, a member of the House of Lords, would raise in Parliament the issue of giving the right of abode to British National (Overseas) passport holders. Patten promised to raise the matter when the issue of whether to count foreign students in the government’s immigration target was tabled again, but also reminded Lau not to overestimate the influence of the upper chamber. The underlying message was that there was nothing he could do.

The BN(O) issue has inflicted a long-lasting and grievous wound on the Hong Kong people. Originally, there were about 3 million British Dependent Territories Citizen (BDTC) passport holders (including people born before July 1, 1997 in Hong Kong, and naturalised British subjects). However, due the handover, the British government amended its constitution, changing the BDTC classification to BN(O), who do not have the right of abode in the UK.

The British government went back on its word and betrayed the Hong Kong people. In fact, after the June 4 incident in 1989, due to strong community pressure, it reluctantly granted 50,000 right of abode places for Hong Kong families. But people instead flocked to emigrate to the US, Canada, Australia, New Zealand, Singapore, and so on. The arrogant attitude of the UK government caused an apathetic response to the “right of abode” scheme and it ended up being underutilised.

The idea of a BN(O) passport is absurd. It comes with the same cover as any British passport but can be used only as a travel document. Holders have no right of abode in the UK and are not treated equally when passing through immigration. I visited Britain recently and, from my observation, British customs officers have absolutely no idea what a BN(O) passport is. They direct holders to the European passports line, where they have to queue at the “foreigners” counter.

If Patten truly cared about Hong Kong people, as he claims, he would spend more effort fighting for equality on behalf of BN(O) passport holders. In fact, in February 1997, now-deceased House of Lords member Lord Avebury put forward a private member’s bill – the British Nationality (Hong Kong) Act – proposing that BN(O) passport holders who did not hold Chinese citizenship could register to be British citizens. At that time, Patten strongly urged the government to support the bill, which was subsequently passed. In 2009, Lord Avebury proposed an amendment to the British Nationality Act Section 4B, that any BN(O) who involuntarily lost the citizenship of other countries would automatically become a British citizen. The proposal was accepted by the Labour government.

In the past 50 years, tens of thousands of Hongkongers have gone to Britain to study, bringing huge economic benefits to the country. However, this summer, students bound for Britain were stranded in Hong Kong due to some errors made by the visa service provider. It has been a painful procedure.

It has been 20 years since Hong Kong’s return to China; “one country, two systems” has been deformed and the promised “ high degree of autonomy” has diminished. The Chinese government has been acting against the Sino-British Joint Declaration, sparking concerns among Hong Kong people. Many have already applied for extensions of their BN(O) passports as a last resort. Patten should keep his promise and join hands with other House of Lords members who are concerned about Hong Kong people’s rights, to allow BN(O) passport holders to be treated equally with other British passport holders. This is the least Patten can do.

Albert Cheng King-hon is a political commentator.


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With Hong Kong’s young faces of democracy in jail, is civil society being put in chains?

CommentInsight & Opinion
2017-08-24
Michael Davis says the political symbolism of locking up young activists over excessive zeal is telling, and the lack of prosecutorial restraint may put at risk the reputation of Hong Kong’s independent judiciary

Last Thursday may qualify as one of the darkest days in Hong Kong’s history. The tragedy of young civic activists being dragged off to jail is bad enough. The political symbolism of Hong Kong’s three “faces of democracy,” being thrown in jail is even more telling. It is as if Hong Kong’s civil society is being jailed.

One can only wonder what the Department of Justice was thinking in pushing the courts to lock up so far 16 of Hong Kong’s dedicated young men and women, over moments of excessive zeal. Is Hong Kong on its way to joining other unsavoury regimes in filling its jails with political prisoners, as the international response suggests? Would prosecutorial restraint have been warranted?

The only logic offered by the government and accepted by the Court of Appeal is “deterrence”. There are deeper social and political issues at stake. Deterring the occasional excess in an otherwise non-violent movement also deters the exercise of valued free expression rights.

To understand the importance of such risk, it is important to know how the Hong Kong political system works. The “one country, two systems” model under the Sino-British Joint Declaration provided Hong Kong with an open rule-of-law-based society, but without the democratic constitutional tools to defend it.

This open autonomous region is lodged under a hardline regime with a strong political ethic of control as a fundamental principle of national security. This regime in its normal practice shows little inclination to exercise restraint.

The executive and legislative branches of the local “autonomous” government are effectively under the appointment and control of the central government, in a largely authoritarian system.

Local officials and appointees depend on Beijing’s approval and have little incentive or inclination to defend Hong Kong’s autonomy or core values.

Rather, the incentives favour a well-developed tendency to lecture Hong Kong on Beijing’s concerns.

The difficult task of defending Hong Kong’s autonomy, rule of law and basic freedoms has been largely left to civil society. Seeking a government that will perform its autonomous role, civil society activists have long promoted democracy as the key to sustaining Hong Kong’s autonomy and associated rule of law, and have kept the drumbeats of freedom alive on the streets by resisting government encroachment.

The local courts have backed this up as the legal guardians of civil liberties. In the common law tradition, this has included restraint in convicting or punishing civil society activists where fundamental rights are at stake. The courts have long distinguished themselves as the only independent branch of government. Will the government’s resorting to the courts to exclude and lock up its political opponents put that reputation at risk?

In protests over Article 23, the high-speed rail, national education, development projects and democracy, civil society activists have long represented core concerns of Hong Kong people.

In the face of countless lectures about how grateful people should be for Beijing’s kindness in giving Hong Kong its freedoms, Hong Kong people have stood their ground to defend those freedoms, as they did again over the past weekend.

Given the complicity of the Hong Kong government in assisting Beijing’s efforts at control, one can only wonder what sort of Hong Kong we would have today without this pushback from civil society. Alternatively, if Beijing had fulfilled its Basic Law promise of democratic reform, would Hong Kong have been more peaceful and less contentious?

Hong Kong civil society has faced a parade of difficult challenges. In Beijing’s 2014 white paper on “one country, two systems”, Hong Kong lawyers and activists were accused of a “confused and lopsided” view. We were told all guarantees in the Joint Declaration and the Basic Law come from Beijing and can be taken away by Beijing.

The local parade of challenges have included Beijing’s foot-dragging over promised political reforms, years of pressure on the media through economic rewards and intimidation, the emergence of corruption as Beijing-friendly businesses and elites are favoured, efforts at national education aimed at brainwashing youngsters in Hong Kong schools, and efforts to stack university councils to vet appointments and bring world-class universities to heel.

With the “umbrella movement”, Hong Kong’s civil society stood up against this degradation, to defend the solemn commitments to democracy and the rule of law. While non-violent civil disobedience involves breaking the law, as recognised by the trial judges in both of this past week’s cases, it has a long tradition as a noble last resort. The common law encourages judicial restraint in overseeing prosecutions where such precious rights are involved.

It seems our politicians have not learned the lesson that repression and unwarranted interference under the undemocratic Hong Kong system will invariably encounter civil society resistance. A government that repeatedly does this has only itself to blame for the increased resistance that follows.

Over the many years since the handover, civil society activism – involving hundreds of thousands of protesters – has, with rare exception, been non-violent.

Now three young civic activist leaders have been given six to eight months in prison for essentially, as found by the magistrate at the trial, climbing a fence to claim the “Civic Square”.

In lockstep with Beijing, the Hong Kong government has now taken to using the courts to eliminate its political opposition.

Through the oath-taking saga, with the assistance of a timely Beijing interpretation, it first took control of the legislature. Now it has gone back to the courts to lock up its civic opponents.

It is in this volatile context, in the shadow of Hong Kong’s rich civil society tradition, that locking up the youthful “faces of democracy” in Hong Kong looks pretty much like an attempt to lock up Hong Kong’s civil society.

Professor Michael C. Davis specialises in constitutional law and human rights


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Joshua Wong, Nathan Law and Alex Chow are in jail because Hong Kong law demands it

CommentInsight & Opinion
2017-08-24
Rimsky Yuen explains the legal basis behind the judgment, as those seeing ulterior or political motives, and fearing for the independence of Hong Kong’s courts, may not have grasped the basic facts of the case

On August 17, the Court of Appeal delivered its judgment on the ­application to ­review the sentences involving Joshua Wong Chi-fung, Alex Chow Yong-kang and Nathan Law Kwun-chung. The court sentenced the defendants to immediate custodial sentences of six to eight months.

The judgment has attracted ­extensive attention and discussions. Since the defendants have indicated an ­intention to appeal, it is not ­appropriate to go into matters which may affect the intended appeal. However, since some of the comments display a lack of understanding of the basic facts of the case or our legal system, it is important that there should be an explanation of the different stages of the legal and judicial process.

The first stage is prosecution. The defendants were prosecuted for offences involving unlawful ­assembly, which is defined in ­section 18 (1) of the Public Order ­Ordinance as follows: “When three or more persons, assembled ­together, conduct themselves in a disorderly, ­intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so ­assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace, they are an ­unlawful assembly”.

Unlawful assembly is not concerned with the ideas (whether political or otherwise) that the people who organised or participated in the assembly sought to advocate. Rather, it focuses on whether the conduct of the people during the assembly was unlawful. Accordingly, the defendants were not prosecuted for their political ideas.

The second stage is the trial. There can be no doubt that the ­defendants were convicted after a fair and open trial. The defendants were legally represented, and they had every opportunity to make such submissions as they saw fit. At one stage, they lodged appeals against their convictions. However, they subsequently abandoned their ­appeals. Thus, they no longer take issue with their convictions.

The third stage is the review of sentence. The first review took place before the magistrate who convicted the defendants, pursuant to ­Section 104 of the Magistrates Ordinance. The second took place ­before the Court of Appeal, pursuant to section 81A of the Criminal Procedure Ordinance. Such a ­review can only be lodged if the sentence imposed by the trial judge “is not authorised by law, is wrong in principle or is manifestly excessive or manifestly inadequate”.

All these grounds for review only concern legal issues. Political considerations do not come into play, whether at the stage when the prosecution sought the review or when the Court of Appeal dealt with the application for review.

The hearing of the review was also open and transparent. All the submissions made by the prosecution were legal (as opposed to political). The defendants, again, were legally represented, and had every opportunity to advance such submissions as they saw fit.

If one reads the judgment (in particular, the leading judgment by Justice ­Jeremy Poon Shiu-chor), they will see that the reasons leading to the conclusion that imprisonment is appropriate are legal reasons, not political ones.

Further, as is made crystal clear in paragraph 171 of the judgment, the defendants were convicted and sentenced not because they exercised their right of assembly, demonstration or freedom of speech; but because they had overstepped the line allowed by the law and that they had committed serious unlawful acts.

Hong Kong has all along upheld judicial independence. The Hong Kong judiciary is well-known for their independence and quality. It is regrettable that some of the comments (including some by overseas media) sought to attack our judiciary. As I have repeatedly said, the public has a right to discuss judicial decisions, but no discussion should seek to undermine the integrity or impartiality of the judiciary.

As observed in an Australian decision: “The authority of the law rests on public confidence, and it is important for the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges (Gallagher vs Durack, 1983)”.

Some have queried the timing of the review applications, and alleged that there was an ulterior motive.

The timing of the review applications before the magistrate and the Court of Appeal are regulated by the relevant statutes. In the present case, the prosecution lodged the ­review applications within the relevant time prescribed by the statutes. The only reason it took almost a year for the Court of Appeal to hear the ­application was that it could not deal with the review of sentence until after the defendants’ appeals against conviction were disposed of (see section 81C (1) of the Criminal Procedure Ordinance).

The defendants’ appeals against conviction were scheduled to be heard on May 22. It was only after they abandoned their appeal on April 19 that the prosecution could proceed to fix a date for the hearing of the review of sentence, which eventually took place on August 9. In other words, the timing of these steps is not within the control of the prosecution, and any suggestion of an ulterior ­motive on the part of the prosecution [6] is simply groundless.

The law in Hong Kong protects people’s fundamental rights, ­including the right to assembly, demonstration and freedom of speech. However, any exercise of such rights should be in a lawful manner (see paragraphs 110-112 of the judgment). From the start of the prosecution up to the review of sentence by the Court of Appeal, the defendants were dealt with strictly in ­accordance with the law.

The defendants were convicted and sentenced for their unlawful conduct, not for their political ideas.

With these explanations, I hope the public and the international community will continue to respect our independent judiciary and ­refrain from baseless attacks.

Rimsky Yuen, SC, is Hong Kong’s secretary for justice