Hong Kong Government Seeks Harsher Sentence for Democracy Activists

Left to right: Joshua Wong, Nathan Law and Alex Chow, outside Eastern Court in August 2016. Photo: Sam Tsang/SCMP

Left to right: Joshua Wong, Nathan Law and Alex Chow, outside Eastern Court in August 2016. Photo: Sam Tsang/SCMP

The Hong Kong Government is pressing the judiciary for much harsher sentences for Joshua Wong, Nathan Law and Alex Chow. Immediate imprisonment and 5-year disqualification from office are likely.

The court case against these leading activists has just taken a turn that surprised the accused. The Hong Kong Department of Justice, dissatisfied with the original court sentence to “community service”, appealed for a much harsher, immediate prison sentence. Defendants may now get sentenced to between two and six months by the appellate tribunal. The length of the sentence is crucial not only because of the duration of the physical and mental punishment inflicted but also because a sentence of three or more months will disqualify the convicted from standing for office for the next five years! Hong Kong’s judges are coming under increasing political pressure. The outcome in this appeal will tell us more about their response.

Beijing is going all out to destroy the democracy movement and the Hong Kong courts are increasingly under pressure. Those who haven’t seen the Netflix video “Joshua: Teenager versus Superpower” may want to do so before the outcome, which is imminent. In October Joshua may be marking his 21st birthday in prison!

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

Photo: Voice of America, January 2016

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?  

China’s nuclear power plants

The news about China’s dangerous nuclear power plants built near Hong Kong has somehow slipped from public attention. The article published in the South China Morning Post on Jan. 9, “Hong Kong fallout from China's reckless nuclear ambitions feared,” is surely one of the most important articles published by the company. It deserves our most careful but urgent study. Congratulations to the author, Stuart Heaver, whom I don’t know, and the SCMP for publishing the article, although it is unlikely to get the attention it deserves since it only appeared in the magazine. Surely the article deserves to be translated into Chinese and published in the Mainland either by SCMP or some other prominent source such as Financial Times Chinese.

I have had some passing acquaintance with the issues of nuclear power from a legal perspective. As a young lawyer in Washington, DC in 1957-58 I worked at a law firm that represented Detroit Consolidated Edison in its application for US Government approval of what I believe was to be the nation’s first nuclear power project. I briefly was assigned to the case and became increasingly concerned about the risks that various interest groups had cited in their efforts to block approval. While working late at the office on the project on Christmas night 1957, while my wife was at home in our first house with our new-born first child, I recall saying to the senior partner in charge who was nearby reviewing one of my memoranda: ”Graham, my consolation in being here on Christmas night is that at least I know we are working hard to blow up a better world.” He saw little humor in my remark and said: ”I don’t think you’re meant for private practice.” I agreed and soon left the firm to join the US Attorney’s office!

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Guangdong nuclear power plant. (Guangdong, China) Photo Credit: Hong Kong Nuclear Investment Co.

Nevertheless, in 1983, having returned to private practice in order to interact with China, I found myself in the strange, apparently contradictory position of agreeing to represent China Light & Power, Lord Kadoorie’s major HK electric company, in its literally groundbreaking negotiations to establish China’s first nuclear power plant at Daya Bay, mentioned in the Heaver article. At the time it was by far the biggest Chinese-foreign joint venture yet planned, to be built a mere 70 km from HK. My rationalization was that, since the project was virtually sure to be approved (it had the backing of the PRC leadership, with then Vice Minister of Power Li Peng as the main supporter, and South China had little coal), I should try to make sure it would be as safe as possible.

The contract negotiations went on for some 18 months in the Shekou district of Shenzhen. The key issue, at least to our side, was which safety standards were to be adopted – the more confidence-inspiring, stricter French standards that at the time had already proved so valuable to many projects in France or the less precise, more relaxed international standards sought by the PRC side. We had some tense discussions against the daily background of popular concern in HK over the then newly-signed Sino-British Joint Declaration on the future of HK. One day, when the Chinese seemed especially obdurate about the safety standards, I said to their chief negotiator across the table: “Well, if we take your standards, at least that might resolve the problem of Hong Kong’s future!” Mr. Shen, a highly intelligent man with a quick and usually pleasant manner, darkened visibly at my implicit reference to the possibility of anuclear disaster that would obliterate Hong Kong, and said: ”I don’t like your humor.” Fortunately, a few weeks later the Chinese side agreed to accept the French standards.

So far those standards have stood the joint venture parties and Hong Kong in good stead despite the nagging doubts that both sides shared about how those standards would be applied in practice by mostly Chinese employees embarking on a novel and potentially dangerous task. The Heaver article points out all the factors that need to be appreciated in assessing the risks of the current, very different situation. One can only hope that it is taken seriously by China’s leaders and that they will slow the pace and adopt the most careful methods of proceeding with the many new projects that constitute such a challenge as well as maximize the possibilities of alternative, less risky sources of electric power.

Random Thoughts on the reach of China’s law enforcement – lawlessness – across borders

Photo source:&nbsp;inmediahk, flickr

Photo source: inmediahk, flickr

How far is the reach of China's law enforcement or lawlessness? All eyes, particularly those of Hong Kong people, are now on the case of the five missing Hong Kong publishing company managers. Among them, Mr Lee Bo apparently was secretly taken away in Hong Kong and transported to Shenzhen. If indeed the PRC secret police kidnapped this fellow and played similar illegitimate roles in detaining some of his publishing colleagues, one would want to know what caused the police to take such daring and unwise measures. Was this "bookstore" about to come out with a book PRC officials are desperate to prevent?

This incident makes me recall the infamous Jiang Nan murder case (Gangnam murder) when Taipei mobsters, in cahoots with the Republic of China's Ministry of National Defense intelligence chief, rubbed out the Chinese-American journalist Henry Liu on Oct 15, 1984 in San Francisco because he was preparing a book that would have come out with more dirty laundry about the Chiang Kai-shek family. That case added to the pressures for political reform of the Chiang family dictatorship in Taiwan. The current Lee Bo abduction case also has potentially broad implications possibly going beyond its great importance to Hong Kong.

It was reported that Lee Bo sent a handwritten note back to HK claiming that he had voluntarily returned to the mainland and was "assisting" in related investigations If the HK police believe this one, perhaps the famous - now crushed - human rights lawyer Gao Zhisheng should write a letter to his wife telling her that he has been cooperating with an investigation all these years and is really in splendid shape. I have been advisor in a number of PRC criminal cases where the Lee Bo technique has been used not only in an effort to squelch publicity abroad but also to circumvent the PRC criminal procedure protections that are supposed to come into play if someone is formally detained under the criminal law rather than "volunteering" to cooperate. Kidnappers often use a similar technique to communicate with the victim's family.

We should ask why the PRC occasionally succumbs to the temptation to kidnap its citizens from HK or even foreign countries. It is because there are legal procedural barriers to transferring alleged offenders from Hong Kong or foreign jurisdictions to the Mainland. Even thoughHong Kong was returned to the Motherland in 1997, no agreement for "rendition" of wanted suspects between the two jurisdictions has yet been concluded. Hong Kong, like the US and many democratic countries confronted by the PRC's desire for an extradition-type agreement, has not found it politically possible to consent to send people to the Mainland for criminal trial because of the failure of Mainland justice to reach international due process standards. In the absence of an extradition-type formal agreement, sometimes the PRC and other jurisdictions are able to work out mutually acceptable ad hoc arrangements of an informal, but legal, nature. (See the recent ChinaFile discussion of this very current problem between the PRC and the US.) When that proves impossible, the PRC, and not only the PRC (cf. some US CIA "renditions" and kidnappings and remember Israel's pursuit of Eichmann), resorts to cruder techniques of various kinds, as Lee Bo's case demonstrates.

Alibaba, Joseph Tsai and the Future of South China Morning Post: Will the New Management Make Things Better or Worse?

by Jerome Cohen

In response to various queries about the background of Alibaba’s Joseph Tsai, I have a few tidbits of possible interest. Joe is a very able, dynamic lawyer turned businessman. I have only met him a few times very superficially when he was a young lawyer fresh out of Yale Law and working for a major American international law firm, Sullivan & Cromwell. His father, Paul, was my contemporary at Yale Law and a friend who returned to Taiwan from New Haven to work in government and then practice law with the family law firm in Taipei, the well-known firm of Tsar&Tsai founded by Paul’s father after he moved to Taiwan from Shanghai following Chiang Kaishek’s defeat on the mainland. Joe’s grandparents gave a dinner for me and my wife Joan during our first visit to Taipei in 1961. Although they had never yet visited the U.S. at that time, they spoke excellent English, probably as a result of missionary schooling in Shanghai before “Liberation”, and were charming people. Paul, Joe’s father, was always rather impatient with my interest in studying the PRC’s legal system and urged me to focus on Taiwan instead, something that I only began to do in the late ‘70s. My ties to Paul withered after I became active in supporting normalization of relations with Beijing. Joe obviously had a different attitude from his father’s, turning to business involving the Mainland not long after Deng’s Southern Tour in early ’92, and made Hong Kong his base. He also acquired Canadian nationality.

Joe apparently will take major responsibility for running the SCMP, at least initially. What he will do with it is unclear. A few sentences in his recent extensive public statements are worrisome, of course, to those who fear that he may make the SCMP merely a more influential version of the China Daily. For years even before Alibaba’s purchase, the SCMP’s reporting has been under ever greater Beijing influence. Some reporting, however, has continued to be quite feisty. The editorials have also often been punchy, and, until recently at least, the regular op ed writers have seemed diverse and quite free to express their opinions. For the past seven plus years, I have been writing controversial op eds for SCMP once or twice a month on an ad hoc basis and have never met any attempt to censor my views or deflect me from my choice of a sensitive subject.

Will the new management make things better or worse? Some current staff members who have been unhappy with their editors’ efforts to go easy on the PRC may finally give up the ghost and leave, as many predecessors have. Since the current news editors have already been leaning towards Beijing, the new owner need not replace them and can comfortably pledge not to interfere with editorial policy, at least as far as reporting goes. But reporters who have sought to resist editorial restrictions may now find less support than ever for their cause, and some are surely discouraged.

Yet Joe Tsai may surprise people. Although inexperienced in the news game, he might seize what is plainly an historic opportunity to create a world-class enterprise that will earn the praise of even liberal critics of the media and become prestigious enough to resist most pressures from the PRC. He surely has the ability to do this. One question concerns the future influence of Shanghai-based financier Eric X. Li, reported by David Barboza of the NY Times to have played an influential role in the acquisition. Li has been a strong and articulate supporter of PRC policies in the media and in political circles.

Having just seen two excellent films this week about the struggles of American media – “Spotlight” and “Truth”, I wonder whether there will someday be a comparable movie about the SCMP and Alibaba! 

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!