Political Censorship in British Hong Kong

By Jerome A. Cohen

Michael Ng's new book looks like an important contribution to the study of free speech in Hong Kong under British rule; Mr. Ng's upcoming book talk on October 27th will be an interesting program. I wonder whether the establishment of the Universities Service Center by the Carnegie Corporation in Hong Kong in 1963-4 is mentioned in the book. The Hong Kong Government was very slow to give its approval, Carnegie’s representative was very cautious about finalizing arrangements for fear of offending the Brits and ultimately was sacked for being too ineffective.

The HKG was worried about offending the PRC and suspected that USC was going to be a CIA plant rather than a good faith home for visiting scholars of events in China. Carnegie asked me to take over arrangements for setting up the Center since I was in HK for a year of research, needed a place to work, and was a friend of several higher-ups in the UK administration as well as Lord Lawrence Kadoorie, a leading figure in the business community.

Lucian Pye, also in HK that academic year and already an established China scholar, would have been the obvious choice to lead the Carnegie effort but was deemed too close to the US Government, as he himself agreed. I recall how the seating at a dinner party was arranged so that the HKG’s foreign affairs chief could interrogate me for an evening of apparent sociability. It would be interesting to know whether HKG files reveal any of this.

Bail for Some, Denial for Most

By Jerome A. Cohen

Only 15 out of 47 Hong Kong opposition figures were granted bail after a marathon hearing lasting four days. As one protester observed, this decision could be characterized as “sheer political calculation,” something for everybody. Bail for roughly one-third of this extraordinary pack – throwing a bone to the democracy campaigners ­­– and denial for roughly two-thirds, which should keep the Beijing forces from running amok against the courts.

But what was the basis for the judge’s decisions? Why did some defendants win bail, but most did not? Will the public ever know? Why has it been denied this critical knowledge? The judge’s explanation of why he rejected defendants’ request to suspend the usual prohibition against media reporting is ludicrous. He told the defendants he was rejecting their request in order to safeguard the defendants’ interests! How thoughtful! I wonder why the defendants’ able lawyers did not think of this before making their request!!

This SCMP report is faulty in failing to state that the usual prohibition is permitted to be suspended whenever the court believes that it is in the interests of public justice to do so. This is what Judge Anthea Pang decided in the most recent Jimmy Lai bail case. Why did Chief Magistrate So not make the same decision in a case that involves not merely one person but 47? Again, the public is not allowed to know how he differentiated all these cases from Lai’s.

There are many things still unknown about this weird prosecution. For example, we know the government appealed the granting of bail. Did none of those denied bail appeal? If not, why not? Apparently some 25 have appealed.

In the meantime, the bail appeals will now be heard in the next day or two. Will the public also be denied knowledge of the reasons for the outcome?

What a great charade this is for the government! In the name of protecting the rule of law it prosecutes a huge number of democratic politicians for exercising the political rights that the Basic Law system prescribed for conducting LegCo affairs and free elections. Eventually, if the courts have any backbone left, the government may lose its case. But in the interim the government can inflict horrendous punishment on these democratic politicians, silencing even those who may be allowed to remain on bail for the next three months while the government completes its investigation before trial and probably for the years required for completing the judicial process.

Neither these unfortunate 47 nor Jimmy Lai will be able to protest this week’s NPC transformation of Hong Kong’s electoral system. And have we heard from Martin Lee, Margaret Ng and the many other lawyers and democrats who would normally be playing an active role in opposing this oppression? What bail restrictions are they suffering?

My Thoughts on the Proposed HK Electoral Reforms

By Jerome A. Cohen

It has recently been reported that Beijing plans to “reform” Hong Kong’s election system, expanding the membership in the local legislature and the Election Committee that selects the Chief Executive in order to assure its control. This is obviously the end of the political democracy envisioned by One Country Two Systems as agreed in the Joint Declaration and the Basic Law. It is the comprehensive culmination of a piecemeal process that has been under way for some time. Hong Kong will still have a governmental system called 1C2S, but its content has now dramatically changed. The forms of government in HK will continue to be distinct from those on the Mainland but the substance will plainly be the same – the Chinese Communist Party will call the shots and its minions in HK will loyally implement this new manifestation of socialist democracy with Chinese characteristics and be rewarded as “patriots”.

This is not only a huge defeat for the people of HK but also a huge embarrassment to Xi Jinping and the CCP before the world. It is also implicit disrespect for one of Deng Xiaoping’s landmark achievements, which is consistent with other efforts by the Xi regime to downgrade Deng’s status.

Moreover, the Xi regime will not stop at transformation of the electoral system. It will next accelerate the efforts it has been making to rein in the courts and the legal profession. All branches of government must be brought to heel in a totalitarian system. And these “reforms”, of course, are only part of the broader effort to transform Hong Kong society through reshaping education from kindergarten through university, from dominating the media and via other means.

Hong Kong Makes a Farce of Procedural Fairness

By Jerome A. Cohen

What is taking place in Hong Kong’s Magistrates’ Court regarding bail hearings for the 47 democratic politicians is already an unthinkable travesty of justice and apparently is about to get worse.

The defendants were locked up Sunday, roughly a month earlier than scheduled, in an obvious effort to prevent them from being able to comment in public when, in a few days, the NPC imposes major changes in Hong Kong’s electoral system. Moreover, in order to try to show their eligibility for bail, some of the most prominent political figures have now felt coerced into abandoning their democratic political party and even firing their lawyers.

The unprecedented marathon, almost around-the-clock, four-day hearing makes a farce of procedural fairness. No single magistrate can fairly deal with the individual circumstances of 47 different bail applications in such a short time. The court system should never have arranged such a chaotic judicial review that has made Hong Kong’s formerly revered judicial system look like the willing instrument of the police and prosecution. Did only one magistrate have the confidence of the new NSL regime? At least five should have divided the work load and dealt with these cases in an orderly environment that did not put such strain on the magistrate as well as the abused defendants.

And now it looks as though the prosecution is seeking to persuade the magistrate NOT to reveal the bases for the bail decisions he is about to render. This would be a shocking restriction on the public’s right to know what the proceedings have been about and what the justification allegedly is for keeping these defendants locked up for at least many months to come. This dangerous and specious argument was rejected on February 18 by High Court Judge Andrea Pang for the reasons stated in her February 23 opinion in the most recent Jimmy Lai bail case. She found that the usual restrictions on informing the public do not apply, as the law makes clear, when it appears that the interests of public justice require otherwise.

It would be scandalous if in the cases of the 47, which are far more important than even the landmark Jimmy Lai litigation, the court were to conceal the reasons for its controversial decisions.

The government’s actions in this case are outrageous. On the one hand, it claims urgency and the need to keep these democratic leaders locked up immediately. On the other, it at the same time tells the court that it is a long way from completing its investigation and needs a three-month delay in further proceedings—all while the accused rot in jail awaiting trials that may well ultimately acquit them since the charge of conspiring to subvert is based on their exercise of the political rights provided by the rules regulating the affairs of the Legislative Council. Hong Kong is becoming a judicial “never never land”!

Pressure Mounts on the Hong Kong Bar Association

By Jerome A. Cohen

Here is an important report summarizing the many efforts being made by Beijing and its Hong Kong minions to press Paul Harris into resigning from his new post as chairman of the Hong Kong Bar Association. This is only part of the broader campaign to try to neuter the Bar Association. If that proves successful, it will limit the capacity of independent courts to fulfill their duties. Judges need the help of good litigating lawyers in all controversies.

I don’t know Mr. Harris, but by all accounts, he is a very able lawyer, a dedicated law reformer, and a vigorous proponent of human rights. Beijing and the Hong Kong  government see him as a force to be crushed, especially after he began his tenure as Bar chairman by suggesting that certain provisions of the new National Security Law for Hong Kong be amended in order to make them consistent with Hong Kong’s constitutional values, the Basic Law, and the International Covenant on Civil and Political Rights that the Basic Law makes applicable to Hong Kong.

Harris, as the article points out, has the confidence of most members of the Bar Association. No one ran against him in the chairmanship election. One has to ask, however, why once again is the Bar chair not a local ethnic Chinese, as so often was the case in earlier years?  Is it because the Bar is already feeling intimidated by Beijing’s political pressures and abilities to restrict the professional prospects and even the personal freedom of even the ablest barristers in the city? We should note that the great legal light Martin Lee and Margaret Ng, another able lawyer and liberal political leader, stood trial today on charges of organizing and participating in unauthorized assembly. Both pleaded not guilty, and the trial has been adjourned until next month. At least they, unlike Jimmy Lai, are out on bail.

Fight or Flight? Hong Kongers Debate Whether to Leave for the UK

By Jerome A. Cohen

Here is an important and largely encouraging story. A Perfect Storm is brewing in both Hong Kong and the UK over emigration to the UK, and it has major lessons for all other liberal democracies that are, rightly, concerned about Beijing’s oppression and the plight of Hong Kong people. 

This is Boris Johnson’s finest hour, and I hope that he and his Cabinet can follow through on not only welcoming people who wish to flee PRC dictatorship but also working hard to resolve the many challenges these newcomers face in a UK beset by the pandemic and its long-existing economic and sociological problems in dealing with racial minorities.

The US should immediately follow suit, as should the other obvious preferred destinations of self-exiling Hong Kongers. Here is a huge potential role not just for governments but for charitable foundations like Ford and Rockefeller and the newer ones spawned by immense wealth in America and elsewhere.

Here is also a great opportunity for the many foreign observers of the tragedies being inflicted by Xi Jinping who feel frustrated by their apparent inability to respond in opposition. We can reach out in our own communities to facilitate the arrival and assimilation of the newcomers. This will also belatedly sensitize us to the need to reach out to immigrants from other countries who have done so much to contribute to our domestic welfare.

Perhaps the most encouraging recent report from the UK is the one that demonstrates the net economic and talent benefits that Hong Kong arrivals will contribute to Britain’s struggling economy.

Simon Young Response Regarding Freezing Assets in Hong Kong

Here is an informed expert analysis by Associate Dean Simon Young of the HKU Faculty of Law. He said that I can make it available to interested parties.

Under our anti-money laundering laws, the police have a wide power to effectively freeze funds in bank accounts by writing a letter to the bank.  The letter will normally state the police reasonably suspect the funds to be proceeds of an indictable offence and, unless the police grant the bank consent, the bank may be guilty of money laundering if they allow the customer to deal with the funds.  This effectively freezes the funds and the bank cannot tell the customer why (as there is a tipping off offence in the legislation).  One might think this is a police power that could be abused especially since there is also a power for prosecutors to apply to a court to restrain property reasonably believed to be proceeds of crime.  However, our Court of Appeal has upheld the constitutionality of this ‘no consent’ police power so long as it applies only during the investigatory stage, which must proceed without unreasonable delay and only on the basis of reasonable suspicion.  Here is the link to the decision: https://www.hklii.org/eng/hk/cases/hkca/2019/70.html

Hong Kong's New Secret Police "Hotline"

By Jerome A. Cohen

This article helps put flesh on the bare bones of the initial announcement of the unprecedented secret, anonymous HK “hotline” for reporting suspected NSL violations to Hong Kong’s new secret police. For the first week of implementation, harvesting an average of 1,400 pieces of information per day seems to be a promising start for the Mainland-dominated national security unit.

There is evident Hong Kong Government interest in seeing whether this local equivalent of the former East German “Stasi” secret police “hotline” might soon equal or surpass the “hotline” HK police established last year for tips concerning alleged acts of violence, which is now up to 3,000 tips per day!

Yet this HK secret police innovation need not look to the practice of the discredited and overthrown East German regime. As the report points out, the PRC’s Ministry of State Security (MSS), which controls the new HK unit, has been successfully running a similar operation throughout the Mainland since 2017. However, that institution has apparently been so troubled by the receipt of many “malicious reports” that it issued a warning in April that such anonymous accusations could result in “legal consequences”. Nevertheless, the MSS does not want to discourage would-be tipsters and has begun to pay cash rewards to reliable informers. It would be good to know the criteria for compensating informers.

I wonder how long it will be before the HK counterpart offers similar cash rewards and follows another MSS precedent by establishing “a reporting platform” like the one the MSS established in the Mainland soon after it began operating the national “hotline”.

The Telling Resignation of Hong Kong’s Director of Public Prosecutions

By Jerome A. Cohen
David Leung has resigned as Director of Public Prosecutions (DPP) and will leave on December 31, citing disagreements with the Secretary of Justice. The most important functions of the Office of Hong Kong’s Secretary of Justice are carried out by the DPP and his staff. With respect to HK’s rule of law, that job has been more important than any judgeship or other judicial work. The DPP’s office is the most important place where discretion has to be exercised regarding whether or not someone in HK should be punished and, if so, for what offense. Prosecutors often have enough evidence to technically justify a conviction, but, as the head of the HK Bar Association recently recognized, there are often good reasons for not bringing a prosecution. Courts and even juries often have little discretion in deciding the cases brought before them. That’s why, once prosecutors decide to indict, conviction rates are generally very high not only in dictatorships like China and Russia but also in democracies like Japan and the United States (where plea bargaining generally prevails in practice rather than trial on the merits).

David Leung’s resignation as DPP tells us a lot about the changes required in HK justice under the National Security Law. Although during his leadership his office successfully carried out many unpopular prosecutions because, after independent examination of each case, he decided, rightly or wrongly, that respect for the rule of law, including the exercise of discretion, justified prosecution. He steadfastly argued against police or politicians influencing the decisions to prosecute. That independence apparently led Beijing and its local minions to lose confidence in him. The NSL removes NSL prosecutions from the DPP’s consideration and places them under special Beijing-controlled arrangements. The new regime refuses to allow him to even know about the operations of the new unit within the DOJ for the handling of NSL offenses. This is a pathetic situation. We are not yet told who is making the decisions about whether to prosecute alleged NSL violations. Who has been appointed to head the new special NSL office within the DOJ, and what influences is that person subject to? This is the real crux of the struggle for judicial independence, although the NSL has also taken steps to curb the powers of HK judges and juries to the extent they will still be allowed to handle NSL cases.

To Stay or to Go: Hong Kong Academics Face an Uncertain Future

By Jerome A. Cohen

Following the passage of the Hong Kong National Security Law, it was announced that educational materials will be subject to government “guidance,” and some libraries have begun to pull books by pro-democracy activists off the shelves. This bleak turn of events is obviously worrying to the academics living and teaching in Hong Kong and has been the subject of much discussion with some wondering if they should leave, or if it is even more important now that they stay.

These events have made me think of 1949-1950 when many able Chinese returned amid the excitement of creating a new and stronger China. Others returned later, especially during the optimistic 1953-57 period. Some important and talented people were not permitted to leave the US for China for several years after “Liberation,” especially Qian Xuesen, the Cal-Tech rocket scientist who later became famous for his role in PRC nuclear development. Some intellectuals even chose to go back in the 1960s just before the Cultural Revolution broke out. The great Harvard-based scholar Ch’u Tung-tsu, who in 1962 published Local Government in China Under the Ch’ing and who welcomed my interest in China during our brief meeting, had the misfortune to return not long after the book’s publication. I next heard of him when my wife bumped into him and a small group of Shanghai scholars climbing Huang-shan in mid-September 1979. Life would have been pleasanter and more productive for him had he remained at Harvard’s East Asian Research Center. 

My hope is that people stay if possible and continue to teach and research as they have previously done. As an example, before Hong Kong was returned to the PRC in 1997, China News Analysis chose to leave Hong Kong for Taipei, leading to the demise of the publication. Father Ladany, its editor when I was breaking into the field in the ‘60s, was a shrewd observer and critic of the PRC’s efforts to develop a legal system, and it is a shame that the publication left when it did. Of course, we all hope that those foreigners who stay on to teach sensitive subjects like history and law in HK will not suffer the fate of French academics who decided to stay on in Shanghai after “Liberation.” In a long piece that is about to be published and that is already on SSRN, I discuss, among other things, the PRC’s criminal punishment of Dean Andre Bonnichon of the Aurore University Law School in Shanghai. Fortunately, he was ultimately released and later vividly described the long incommunicado detention and coercion that he suffered, which hopefully will not happen to those who wish to stay in Hong Kong. Whatever happens, those on the outside will surely learn from the experiences of those who stay. We must wish them bonne chance! 

China’s miraculous recent efforts to reform people into “socialist new men”!

Photo: Voice of America, January 2016

Lee Bo, one of the Hong Kong Publishing Five whose disappearances last year have been widely reported, now says he will never publish banned books again.

Let’s try to look at the possible bright side to the PRC’s recent successful attempts to insult our intelligence and challenge our credulity. One of the more idealistic aspects of the Bolshevik Revolution was the honest aspiration of Lenin’s first Minister of Justice to create a new, truly revolutionary system of punishment that would transform criminals into “new socialist men”. Chairman Mao’s first decade in national power prominently featured a similar goal, one that gradually, almost imperceptibly, yielded to the reality that it is easier for governments to kill people than transform them.

But is it now possible that Xi Jinping has outdone his much-admired Helmsman by miraculously transforming, in jig time, the Hong Kong Publishing Five and other alleged offenders who have recently confessed their sins in public, even without being prosecuted, not to mention convicted? By the time we mark the 100th anniversary of the Bolshevik Revolution next year, will there be further evidence that it has belatedly achieved one of its most ambitious goals?  

Johannes Chan appointment rejected by Hong Kong University Council: A Scandal

Originally posted on September 29, 2015 (reposted on September 30 due to technical issues)

by Jerome Cohen

The Hong Kong University Council has voted to veto the appointment of pro-democracy scholar Johannes Chan Man-mun as pro-vice-chancellor. This is very sad news for Hong Kong’s autonomy and freedom. “Zhengzhi guashuai (政治掛帥)” is a slogan frequently invoked in the Mainland, but it is tragic to see “Politics in Command” in Hong Kong’s educational sphere. The Council is hiding behind the fig leaf of confidentiality and privacy because it cannot afford to be transparent and give the reasons for its decision. This is a scandal!

• Related: Jerome A. Cohen & Alvin Cheung, Delay in HKU appointment of Johannes Chan makes a mockery of Beijing's pledged support for rule of law, South China Morning Post, September 25, 2015

Threats to academic freedom in Hong Kong

Jerome Cohen

Here is an article by David Matthew today on how Hong Kong academics critical of Beijing have been put under pressures, subtle or flagrant. It reports, “Press attacks and council control…have been the weapons of choice against the most prominent academic figures in Hong Kong’s pro-democracy movement. But some believe that the highly politicised environment in Hong Kong is also beginning to affect the climate for day-to-day teaching and research.”

Johannes Chan Man-mun (Photo by Voice of America Tang Huiyun, 美國之音湯惠芸)

This further development is disturbing. The current struggle over the appointment of former law school dean Johannes Chan as pro-vice chancellor at University of Hong Kong is a more visible litmus test. HK is no longer a safe haven for holding conferences or even informal exchanges with scholars and lawyers from China, as again illustrated by today’s news that five Mainland human rights lawyers have just been stopped from leaving for HK.

On his impending visits to the US and UK, Xi Jinping should be questioned on every occasion about this as well as his vicious repression of human rights lawyers, IF any of his hosts – official or unofficial – have the wit and guts to insist on allowing unscripted questions.

Today’s very moving BBC interview with the wife of LI Heping, a genuinely great human rights lawyer and friend, only adds fuel to what may become a bonfire. Xi Jinping is evidently putting into practice his belief that China should be guided by the ancient dictatorial philosophy of its notoriously repressive Legalists rather than by the “universal” legal values reflected in the 25 international human rights documents to which his predecessors voluntarily committed the PRC. Beijing’s new slogan for governance might be “Leninist Legalism”. Or should it be “Legalist Leninism”?