Local lawyers and judges have for many years enjoyed the opportunity – at the ceremonial opening of the Legal Year – to tell us all how lucky we are to have them. This is always marked by assurances from sundry legal bigwigs that the rule of law is vital to our stability and prosperity, alive and well, etc.
In the last three years we have also had a Legal Week, held in November, when much the same people can sing much the same song. Cue speech from the chief justice which you can read here.
The one point I agree with (he said it twice) was that “the rule of law is not static.” Hear, hear. The description of it is wonderful, but seems to have little connection with what happens in local justice factories.
Consider the case of Ms Paula Leung, who appeared last week in a Kwun Tong magistrates’ court, with acting Principal Magistrate Amy Chan as the woman with the whistle, charged with insulting the national anthem.
Ms Leung was in a shopping mall in July last year (only 16 months ago; this is the new normal) where a large number of people were watching the Olympics, and enjoying the success of Hong Kong’s gold medal winner. After the medal ceremony the PRC national anthem was played.
At this point Ms Leung waved a copy of the old colonial flag and then draped it over her head. There was booing, about which accounts differ. The more patriotic media suggested that the booing was directed at the colonial flag; others suggested it was directed at the national anthem.
Some of those present called the police, but by the time they arrived it was of course impossible to establish who had booed or why. Ms Leung, however, had been asked to identify herself by mall staff, and instead of recommending the pleasures of self-taxidermy had complied. So in due course she was arrested and charged with insulting the national anthem.
Readers of a legal disposition may have some doubts at this point about whether an entirely silent symbolic act in front of a giant television really meets the requirements of this offence, but Ms Leung prudently pleaded guilty so we shall not explore that.
However Ms Chan was not left to consider this point without assistance. The Standard’s man in the press box wrote:
According to an expert report from Lingnan University history professor Lau Chi-pang, the colonial-era flag is a connection between Hong Kong and the United Kingdom and had not been used since the handover in 1997. Waving the flag is an insult to the national anthem, Lau said in the report presented at the hearing.
The Standard, November 11
And I am now going to protest again at the sloppy legal thinking which allows non-experts to supply “expert reports.”
To start with, history is a wonderful subject to study but it simply does not produce the hard nuggets of scientifically certifiable fact which you get from a forensic pathologist, or the lab which analyses your suspicious white powder. Historians should not be giving “expert evidence” about anything.
If you were looking for an expert historian, moreover, you would not choose Professor Lau. He is not currently a professional historian at all, being laudably engaged in the administration of Lingnan University where he is, according to the university’s web site: Associate Vice President (Academic Affairs and External Relations), Lingnan University; Professor, Department of History, Lingnan University; Co-ordinator, HK & South China Historical Research Programme, Lingnan University; Director, Jockey Club Hong Kong History Learning Programme, Lingnan University; Director, Hong Kong Local Records Office.
The History Professor title is now apparently a bit of an ornament. Indeed, the university also notes other hobbies.
He had served the Tuen Mun District Council, Heung Yee Kuk, Antiquities Advisory Board, Advisory Committee on Revitalisation of Historic Buildings, Town Planning Board, History Museum Advisory Panel, and the Lord Wilson Heritage Trust. He is currently a member of the Legislative Council, Chairman of the Advisory Committee on Built Heritage Conservation and a member of the Advisory Council on the Environment.
Clearly Professor Lau is regarded as a safe choice by the government’s seat-filling machinery, but what does he know about colonial flags?
Professor Lau’s academic interests include the intellectual history of the Song, Yuan, Ming and Qing dynasties, Hong Kong history, as well as the study of Chinese Local Records. He has focused on the research and teaching of local history in recent 20 years, publishing more than 20 books on a wide range of topics such as: the development of Tuen Mun, the New Territories and other places; oral history records of residents from So Uk Estate and Chung Ying Street, local artists from 1960 to 1975, Shandong policemen in the last century, Hong Kong people during Japanese Occupation, etc.; as well as the history of the bar-bending industry, Ta Teh Institute, Hong Kong International Airport, Tung Wah Group of Hospitals and so on.
I fear that Prof Lau’s supervisor, when he had one, would have worried that he was spreading himself rather thin. Some historians would regard the intellectual history of the “Song, Yuan, Ming and Qing dynasties”, which span nearly 1,000 years, as enough to keep a man busy. Or might say the same thing about the history of Tuen Mun.
The result is a shortage of outputs. When I was in the academic business we were encouraged to produce at least one refereed journal article a year. Prof Lau has six to his name, the last one appearing in 2014. Since then he has produced two refereed book chapters, both on the Hong Kong maritime industry. Well, I suppose ships have flags.
Regular consumers will recall that I was not happy with Prof Lau’s appearance in the case of Tong Ying-kit, the motorcyclist with banner who was accused in Hong Kong’s first national security law case. But at least on that occasion Prof Lau had been asked to research and pronounce on a specific point: the meaning of “Liberate Hong Kong, revolution of our times.”
This seemed to me an elusive concept – phrases rarely have exact and indisputable meanings – but they are least more subject to learned interpretation than the act of waving a flag. And if it were to be interpreted, one might have more confidence in the result if it came from someone without another of Prof Lau’s side hustles: he is an Executive Member of the Chinese Association of Hong Kong and Macao Studies, a well-known venue for professorial pro-Party pompom-waving.
We now come to Ms Chan’s contribution to the proceedings which, in the light of the guilty plea, was limited to passing sentence of three months’ imprisonment.
Ms Chan thought the accused could have brought about a “dangerous situation” by waving the flag. The thought behind this, I suppose, is that rival members of the yellow and blue camps might have come to blows over it.
This is not very plausible, but even if it were likely the general rule in these matters is that non-violent expressions of opinion should be protected, and violent reactions to them suppressed, not the other way round.
Ms Chan went on to show a worrying tendency to imitate one of the worst features of recent political cases: a mysterious compulsion to dismiss at length and in detail anything offered by way of mitigation.
Ms Leung, according to her lawyer, has autism and a low IQ. She attended a school for children with special needs and left it after Form 3. She had worked as a security guard for ten years but had recently been unemployed. Not an easy life, you might think.
But (Standard again) “Chan said she would not impose a lenient sentence since Leung did not suffer from illness, but had a different mental and physical condition compared to other people.”
And at this point I don’t know whether to laugh or scream. After all if you are run over by a truck and lose both legs you are not ill, but have a different physical condition. Most people would still regard this as a decent claim to leniency. A chronic problem is still a problem, and mental problems can be just as disruptive as physical ones.
It is true that autism covers a wide range. Some “high-functioning” autistics have compensating advantages, and indeed may not discover that they are autistic until adulthood, like neurologist and financial guru Michael Burry, one of the heroes of “The Big Short”, or like the owner of this interesting Youtube channel.
The advantages may include a flying start in the academic obstacle race: the other day I read that 80 per cent of early readers are autistic, a disconcerting thought for anyone who was an early reader before autism was discovered. Like me.
However, lucky or less unlucky though some autistic people may be, the fact that Ms Leung needed to attend a school for children with special needs and was diagnosed as having a low IQ suggests that she is at the unlucky end of the autism spectrum and describing her condition as “different” doesn’t do justice to her situation.
Ms Chan’s thoughts on this topic may have been more nuanced than the (legitimately) compressed version offered to newspaper readers. Still, she would do well to try harder to avoid giving the impression that she is arrogantly prone to jumping to conclusions about matters on which she is ill-informed.
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