Civil Unrest, Law and Order in Hong Kong: In the Name of Justice [Hardcover ed.] 1138689971, 9781138689978

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Civil Unrest and Governance in Hong Kong

This book examines important social movements in Hong Kong from the perspectives of historical and cultural studies. Conventionally regarded as one of the most politically stable cities in Asia, Hong Kong has yet witnessed many demonstrations and struggles against the colonial and post-​colonial governments during the past one hundred years. Many of these movements were brought about in the name of justice and unfolded against the context of global unrest. Focusing on the local developments yet mindful of the international backdrop, this volume explores the imaginaries of law and order that these movements engendered, revealing a complex interplay among evolving notions of justice, governance, law and order and cultural creations throughout the under-​explored history of instability in Hong Kong. Underscoring the apparently contrasting discourses on the relationship among the rule of law, law and order and social movements in Hong Kong, the contributors emphasise the need to re-​examine the conventional juxtaposition of the law and civil unrest. Readers who have an interest in Asian studies, socio-​political studies, legal studies, cultural studies and history would welcome this volume of unique interdisciplinarity. Michael H.K. Ng is Assistant Professor and Director of the Centre for Chinese Law at the Faculty of Law of the University of Hong Kong. John D. Wong is Assistant Professor of Hong Kong Studies at the Faculty of Arts of the University of Hong Kong.

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Routledge Studies in Asian Law

Asian Law in Disasters Toward a Human-​Centered Recovery Edited by Yuka KANEKO, Katsumi MATSUOKA and Toshihisa TOYODA Judicial Review of Elections in Asia Edited by Po Jen Yap Rethinking South China Sea Disputes The Untold Dimensions and Great Expectations Katherine Hui-​Yi Tseng Civil Unrest and Governance in Hong Kong Law and Order from Historical and Cultural Perspectives Edited by Michael H.K. Ng and John D. Wong

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Civil Unrest and Governance in Hong Kong Law and Order from Historical and Cultural Perspectives Edited by Michael H.K. Ng and John D. Wong

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First published 2017 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2017 selection and editorial matter, Michael H.K. Ng and John D. Wong; individual chapters, the contributors The right of Michael H.K. Ng and John D. Wong to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Ng, Michael H.K., editor. | Wong, John D. (Historian), editor. Title: Civil unrest and governance in Hong Kong: law and order from historical and cultural perspectives / edited by Michael H.K. Ng and John D. Wong. Description: Abingdon, Oxon; New York, NY: Routledge, 2017. | Series: Routledge studies in Asian law | Includes bibliographical references and index. Identifiers: LCCN 2016055254 | ISBN 9781138689978 (hardback) |  ISBN 9781315537252 (ebook) Subjects: LCSH: Social movements– China–Hong Kong–History. | Hong Kong (China)–Politics and government. | Public law–China–Hong Kong–History. Classification: LCC HN752.C58 2017 | DDC 303.48/4095125–dc23 LC record available at https://lccn.loc.gov/2016055254 ISBN: 978-1-138-68997-8 (hbk) ISBN: 978-1-315-53725-2 (ebk) Typeset in Galliard by Out of House Publishing

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Contents

Notes on contributors Acknowledgements Introduction: negotiating the legitimacy of governance

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J O H N D .   W O NG A ND MICHA EL H .K. NG

PART I

The past matters: governance, coloniality of power and law 1 Rule of law in Hong Kong history demythologised: student umbrella movement of 1919

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M I CH AEL H . K . NG

2 ‘Our best trump card’: a brief history of deportation in Hong Kong, 1857–​1955

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C H RI S TO P H E R MU NN

3 Exclusion as oppression: a quest for extra-​legal status for Chinese medicine in colonial Hong Kong

46

Y U XI U -​L I N G

4 How the 1967 riots changed Hong Kong’s political landscape, with the repercussions still felt today

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G AR Y KA-​WAI  CH EU NG

5 ‘Flying MPs’ and political changes in a colonial setting: political reform under MacLehose’s governorship of Hong Kong LU I TAI -​L O K

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6 Between two episodes of social unrest below Lion Rock: from the 1967 riots to the 2014 Umbrella Movement

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J O H N D .   W O NG

PART II

The art of argument: justifications and expressions of civil unrest

115

7 Social movements and the law: the case of Hong Kong

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ALBERT H . Y. CH EN

8 Civil disobedience and the rule of law

141

BEN N Y Y I U -​T ING TA I

9 From civil disobedience to institutional politics: conflict over the Public Order Ordinance in 2000

163

AG N E S S H UK-​M EI KU

10 The artwork of Hong Kong’s Occupy Central Movement

179

M ARCO   WAN

11 Who speaks for Lion Rock? Pro-​Cantonese campaign (or lack thereof ) in Hong Kong

196

CH U Y I U -​WA I

Index

213

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Contributors

Albert H.Y. Chen received his legal education at the University of Hong Kong and Harvard University. He began his academic career in 1984 at the University of Hong Kong, and is currently the Cheng Chan Lan Yue Professor of Constitutional Law there. His publications include over 190 articles and book chapters and several books, including An Introduction to the Legal System of the People’s Republic of China, The World of Legal Philosophy (in Chinese), and The World of Constitutional Law (in Chinese). He is also the editor or co-​editor of the following books: Human Rights in Asia; Administrative Law and Governance in Asia; Legal Reforms in China and Vietnam; Public Law in East Asia; and Constitutionalism in Asia in the Early Twenty-​First Century. Gary Ka-​wai Cheung has been a journalist for more than two decades. He worked as a reporter at Sing Tao Daily, Yazhou Zhoukan and the South China Morning Post. He is currently Assistant Editor-in-Chief of Ming Pao. He has been studying the 1967 riots since the middle of the 1990s and is author of several books on the topic, including《六七暴動內情》   , Hong Kong’s Watershed: The 1967 Riots (Hong Kong University Press, 2009) and its Chinese edition 《六七暴動 : 香港戰後歷史的分水嶺》(Hong Kong University Press, 2012). In 2013, the Chinese edition of Hong Kong’s Watershed: The 1967 Riots won the Hong Kong Book Prize co-​organised by RTHK and the Hong Kong Publishing Federation. Chu Yiu-​wai is Professor and Director of Hong Kong Studies Programme, School of Modern Languages and Cultures, The University of Hong Kong. His research interests focus on Hong Kong culture, globalization and post-​colonial discourse. He has published academic essays in, among others, Social Analysis, boundary 2, Inter-​Asia Cultural Studies, Visual Anthropology, Popular Music, Journal of Chinese Cinemas and International Journal of Cultural Studies. His most recent monographs are Lost in Transition: Hong Kong Culture in the Age of China (SUNY Press, 2013) and Hong Kong Cantopop: A Concise History (Hong Kong University Press, 2017). Agnes Shuk-​mei Ku is Associate Professor of Social Science at the Hong Kong University of Science and Technology, as well as Faculty Associate in the

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viii Contributors Center for Cultural Sociology of Yale University. Her research interests are cultural sociology, civil society, Hong Kong culture and politics, gender issues, and urban space in Chinese cities. Her recent publications include Hong Kong Mobile: Making a Global Population (Hong Kong University Press, 2008), and Remaking Citizenship in Hong Kong: Community, Nation, and the Global City (Routledge, 2004). Lui Tai-​lok is the Chair Professor of Hong Kong Studies with the Department of Asian and Policy Studies (APS) of the Faculty of Liberal Arts and Social Sciences (FLASS) and concurrently Vice President (Research and Development), Director of the Academy of Hong Kong Studies and Director of the Centre for Greater China Studies at the Education University of Hong Kong (EdUHK). Before joining the university, he was Professor (2009–​2014) and Head of Department of Sociology (2011–​2014) and Associate Dean of Social Sciences (2010–​2011) at the University of Hong Kong. He has researched widely and published on topics including class analysis, economic sociology, urban sociology and Hong Kong society. Christopher Munn is the author of Anglo-​China:  Chinese People and British Rule in Hong Kong, 1841–​ 1880 (Curzon, 2001)  and a co-​ editor of the Dictionary of Hong Kong Biography (Hong Kong University Press, 2012). He served as an administrative officer in the Hong Kong Government 1980–​1992 and in various positions in the Hong Kong Monetary Authority 1998–​2010. He received his PhD from the University of Toronto in 1998. He is now an Honorary Institute Fellow of the Hong Kong Institute for the Humanities and Social Sciences and an Honorary Associate Professor of the History Department, the University of Hong Kong. Michael H.K. Ng is a legal historian at the Faculty of Law of the University of Hong Kong. Author of Legal Transplantation in Early 20th Century China: Practicing Law in Republican Beijing (1910s–​1930s) (Routledge, 2014), he specialises in legal history of nineteenth-​and twentieth-​century China and Hong Kong. His works have appeared in leading international r­ efereed journals such as Law and History Review, Law and Literature, International Journal of Asian Studies, Business History and Journal of Comparative Law, among others. Benny Yiu-​ting Tai is an Associate Professor of Law at the University of Hong Kong. He was one of the initiators of the Occupy Central with Love and Peace campaign (2013–​2014), a civil disobedience movement to exert pressure on Chinese government officials to permit equal and universal suffrage in Hong Kong. He specialises in public law and interdisciplinary study of law. His main research areas include law and religion, law and politics, rule of law and legal culture. Marco Wan is Associate Professor of Law and Honorary Associate Professor of English at the University of Hong Kong. His research focuses on the

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Contributors ix intersection of law and the humanities, with a particular focus on law and literature and law and film. He is the Managing Editor of Law and Literature. John D. Wong is a business historian teaching in the Hong Kong Studies Programme in the Faculty of Arts at the University of Hong Kong. His research focuses on the transnational flow of people, goods, capital and ideas, with Hong Kong and the Pearl River Delta as a major nexus. His book, Global Trade in the Nineteenth Century: The House of Houqua and the Canton System (Cambridge University Press, 2016), demonstrates how China trade partners sustained their economic exchange on a global scale long before Western imperialism ushered in the era of globalisation in a Eurocentric modern world. Yu Xiu-​ling is a civil servant carrying out researches on Hong Kong’s legal and political affairs. Her personal academic interests however mainly rest upon Hong Kong’s legal history. She obtained her LLM from LSE and PhD from SOAS, University of London. Her new book Transplanting British Public Health Law to Colonial Hong Hong: Control, Resistance and Co-​operation, 1840–​1940 is forthcoming. Based upon abundant archives, this book argues that during the so-​called modernization process of Hong Kong’s public health system, the transplanted Western style laws had played an important role in oppressing and marginalising Chinese sanitary and medical traditions.

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Acknowledgements

The idea of this volume emerged from a discussion as Hong Kong society became agitated in the summer of 2014. The two editors, both historians by training, one with a background in law and the other in business, felt ill at ease with the power various parties derived from less-​than-​fair narratives of Hong Kong’s past. Precipitated as a rift between certain Hong Kongers and authorities in Beijing, the civil unrest that ensued implicated ‘foreign powers’ on Hong Kong in a manner that did not seem to acknowledge the international dimension of the city. In a bid to provide a more balanced historical perspective and to situate the discussion in the context of global development, the editors reached out to colleagues whose work exhibited an intellectual passion for this city. The enthusiastic response they received resulted in the impressive array of contributors in this volume, which underscores the interdisciplinary scholarship on civil unrest and governance from historical and cultural perspectives. Thanks to the generous support of the China-​West Strategic Research Theme (SRT) at the University of Hong Kong, the group entered into a robust discussion of their scholarly contributions which should hold significance well beyond the confines of academia as their findings inform debates on current issues. Edwin Chow, Elizabeth Sinn and Scott Veitch enriched the discussions with their astute observations. In addition, the editors would like to express their gratitude to Michael Palmer for his insightful comments in the critical finishing stages. The timely appearance of the present volume owes much to the prompt response and ready support Routledge has offered. In particular, the editors would like to acknowledge the sound advice Simon Young provided throughout the publication process. We hope that this volume would inspire informed discussions of the current situation of Hong Kong and encourage creative thinking on how Hong Kong should position itself to handle the challenges and seize the opportunities in the years ahead.

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 Introduction Negotiating the legitimacy of governance John D. Wong and Michael H.K. Ng

This volume examines a number of important periods of civil unrest and social movements in Hong Kong through the lens of law and order and from the historical and cultural perspectives. It highlights the cultural meanings of, and power structure behind, these movements over the past hundred years of Hong Kong’s history. The phrase ‘law and order’ is defined, according to the Oxford English Dictionary, as ‘a situation characterised by respect for and obedience to the rules of a society’. When the words ‘law’ and ‘order’ are used separately, however, they reveal a more complex political, historical and cultural context in which power is played out beyond mere obedience to the rules. ‘Law’ and ‘order’ exist in a mutually constitutive relationship that can lead to the maintenance of ‘law and order’ or to its breakdown. On the one hand, the law constitutes an important policy tool for defining the boundaries of law and order within which the ruling authority maintains the particular economic ordering of society it desires. On the other hand, such an imagined vision for the law as social justice enables the ruled to justify trespassing those boundaries to challenge or overturn an existing political-​economic ordering that is thought to be unjust. Such justification has been the major ideological force behind such influential instances of civil unrest as the US civil rights movement, Indian independence movement, and global communist revolutions of the twentieth century and the anti-​capitalism movements of today. The volume does not regard the law as a static rulebook or system. Instead, it treats the law as a historical and cultural process whereby the different parties involved in social movements assert and justify their desired social, economic and political order over time. An important aim of the chapters herein is also to revisit a number of conventional narratives about politics and law in Hong Kong by examining the major episodes of civil unrest in the past century from fresh perspectives. The first narrative we revisit is that of political stability. Conventionally regarded as one of the most politically stable cities in Asia, Hong Kong has in fact witnessed numerous demonstrations and movements against the colonial and post-​colonial governments over the course of the past one hundred years. Hence, the recent Occupy Central Movement, which became popularly known

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2  J.D. Wong and M.H.K. Ng internationally as the Umbrella Movement, actually followed in the footsteps of, among other events, the strikes of the 1920s, the 1967 riots and the 2003 demonstration that prompted the city’s first chief executive of the post-​colonial era to step down. The legitimacy of the ruling authorities has been seriously called into question by protesters in many of these events. This volume challenges the prevailing image of the Hong Kong people as politically apathetic and of Hong Kong prospering because of its relative political stability portrayed in previous scholarship.1 Instead, it showcases Hong Kong’s growth despite the ongoing political instability and political activism that have been underplayed in that scholarship. The second narrative we revisit is that of the widely praised rule of law that Hong Kong has been said to enjoy throughout its history. Whilst the governance of Hong Kong in both the colonial and post-​colonial periods has very often been criticised in both newspapers and the academic literature, very few people have questioned the practice of the English rule of law. That rule of law is still widely accepted as Hong Kong’s most important colonial legacy and as the core value upon which the city’s prosperity has been built.2 What this volume reveals instead is that Hong Kong’s colonial rule-​of-​law legacy perhaps tells us more about the shameful record of colonialism and hegemony than it does about the glories of safeguarding civil liberties and justice. The legal history of Hong Kong informs us that regardless of how the rule of law is idealised as transcending the governing authority, its operation never takes place in isolation from politics, geopolitics and power structures. In addition to revisiting these conventional narratives, and to a large extent turning them on their head, this volume also makes an important contribution by analysing issues of governance and law and order from interdisciplinary perspectives. The chapters contained herein, whilst focusing on local developments, remain mindful of the wider international backdrop. They explore the imaginaries and cultural meanings of law and order that various social movements have engendered, revealing the complex interplay among evolving notions of justice, law and order, and cultural creations throughout the underexplored history of instability in Hong Kong. Many of the movements recorded in this volume were launched in the name of justice, and unfolded in the context of global unrest. The volume places scholars who analyse these topics from the perspective of political science and legal theories into dialogue with those who approach them through literary analysis and the interpretative frameworks of cultural studies. Together, the contributors underscore the apparently contrasting discourses on the relationship among the rule of law, law and order, and social movements in Hong Kong, emphasising the need to re-​examine the conventional juxtaposition of the law and civil unrest. Benny Tai attempts to reconcile civil disobedience that advocates for an ‘intentional act of breaking the law’ with the rule of law. He argues that the two share the common goal of ‘doing justice’. Tai views the rule of law as a spectrum spanning a thin description that stresses compliance with legal rules to a thick one that encompasses the right to change the political system and the

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Introduction 3 law through civil disobedience, as espoused by the demonstrators involved in the 2014 Occupy Central Movement. Approaching these issues from the perspective of legal theories, he admits that the attitude and culture of the people are of equal import. Citing Tamanaha’s argument that commitment to the rule of law ‘is not itself a legal rule’, but rather ‘amounts to a shared cultural belief’, Tai espouses the belief that breaking the law through civil disobedience produces the cultural effect of dramatising the ‘injustice of the system’. Albert Chen engages in this dialogue by demonstrating that the law has been closely tied to social movements in both the colonial and post-​colonial eras, acting as both an arena for and means by which those movements have taken place. He provides an overview of how social movements in Hong Kong from the 1970s to 2014 became entangled in the evolving legal system and popular awareness of civil liberties. As Hong Kong moved from a relatively stable city to a ‘city of protests’, Chen argues, the law played an important role in both constraining (through legal rules such as the public order ordinance) and facilitating (by challenging government policies through judicial review proceedings) social movements. Citing McCann’s supposition that the ‘law is mobilized when a desire or want is translated into an assertion of [a]‌right or lawful claim’, he concludes that ‘the Occupy/​Umbrella Movement of 2014 demonstrates that there can be a close, complex and ambivalent relationship between law and social movements that deserves a multi-​dimensional analysis’. Moving beyond the theoretical underpinnings of social movements, Agnes Ku explores the discursive field of civil society in post-​handover Hong Kong. Focusing on the conflict over the Public Order Ordinance in 2000, she examines the turn of events in the ‘theatre’ outside the courtroom and legislative chamber. The case study she presents underscores the contrast between the notion of ‘law and order’, which privileges a more authoritarian style of governance, on the one hand, and the rights-​based concept of ‘the rule of law’ on the other. The high drama over the hotly contested issue of the ordinance imbued the political discourse with symbolic power, accentuating the tension over (il)legality and (il) legitimacy. Ku’s chapter reminds us that the process of political development pivots not only on the substantial arguments of legal debates and the rhetorical aptitude of the key participants but also on the spectacle unfolding in a world of ever-​expanding multimedia coverage. In his chapter on the artwork that appeared during the Umbrella Movement, Marco Wan echoes Ku’s key theme. The efflorescence of creative representations during the 79-​day protest movement, and their swift clearance thereafter, prompted participants and observers alike to catalogue significant items. Wan argues that the movement’s street art offers a useful lens for studying the issue of Hong Kong identity that took shape as this momentous event progressed. The collection of artwork he surveys expresses no singular notion of self among Hong Kongers but rather a multifaceted representation of identities. Similar to Ku’s drawing of our attention to the dramaturgy of protest movements, Wan’s interpretation of the multiple, sometimes disjointed, identities of Hong Kongers invites us to consider whether the Umbrella Movement

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4  J.D. Wong and M.H.K. Ng boasted sufficient cohesion, at least in the iconography of its visual images, to galvanise its participants’ energy towards a common goal. His analysis calls on us to rethink the poignancy of iconic pieces, whether visual or acoustic, in the making of historical moments. As noted, the Umbrella Movement is part of a long history of social movements in Hong Kong. The rifts that the movement has engendered in Hong Kong society allow us to look for the continuities as well as ruptures in Hong Kongers’ understanding of ‘the rule of law’ and ‘law and order’. The chapters by Michael Ng and Christopher Munn debunk the myths of legal equality and an ironclad judicial system in colonial Hong Kong. Through his examination of a 1919 court case in which a number of schoolboys were arrested and convicted for carrying out a peaceful protest against the Japanese occupation of Shandong in mainland China, Ng challenges the narrative that the rule of law, often cited as an important British legacy bestowed upon Hong Kong, consistently safeguarded individual liberty throughout the colonial period. Rather than protect freedom of expression, he argues, the common law system transplanted and practised in Hong Kong in the early twentieth century bolstered the authoritarian power of the colonial administration and contributed to cementing Britain’s control over its imperial territories overseas. The chapter casts serious doubt on the widely accepted narrative of the rule of law as a colonial legacy. Munn’s chapter further demythologises the illusion of the consistent enforcement of the law in colonial Hong Kong. In his analysis of deportation, Munn reveals a disturbing government policy that sought to banish from the colony any elements deemed dangerous or suspicious without affording them any opportunity for a hearing. Deportation was an executive act, not a judicial process. Munn’s findings raise the question of whether the rule of law can be divorced from representation in the government. During much of its colonial rule of Hong Kong, the British government controlled, directly or indirectly, the executive, legislative and judicial branches. In the case of deportation, which afforded the colonial government a means to suppress social movements without recourse to the judiciary, the judiciary provided no protection for individual freedoms. The unequal power between the coloniser and colonised in Hong Kong not only determined the latter’s physical mobility but also delimited cultural boundaries of modernity in science and medicine. Yu Xiu-​ling writes about the way in which Chinese medicine and medical practitioners were marginalised and even suppressed during the early twentieth century through their legal exclusion from the definition of ‘modern scientific methods’ under the Medical Registration Ordinance and other related rules. The law turned doctors of Chinese medicine, who were once popular medical practitioners widely trusted by the Chinese population of Hong Kong, into unlicensed herbal masters who were prohibited from treating certain diseases and even using the title of doctor, a privilege reserved for practitioners trained in Western medicine. Yu tells a story of the forceful transplantation of a Western cultural order through the law during a period of widespread Orientalism infused with belief in ‘the modern West and the backward rest’.

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Introduction 5 Turning to an episode from the more recent past, Gary Cheung draws our attention to the 1967 riots. He argues that these riots were the offspring of the Cultural Revolution in the mainland and that the actual social ills of Hong Kong served only to amplify the expression of discontent in the protesters’ violent actions. To re-​establish control over Hong Kong, the colonial government tightened its restrictions on individual freedoms by importing a tougher ordinance from African territories under British control. In the aftermath of the riots, communist power in Hong Kong waned, whilst the business community and mainstream society sided with the colonial government in its efforts to restore order. Mainstream society’s backing of the colonial government in the name of stability reflects the high value that Hong Kong residents place on law and order and their abhorrence of violence. Cheung’s analysis of this earlier episode of social unrest has considerable implications for the situation in which Hong Kong finds itself today. Are businesses, as well as the members of what can be construed as mainstream Hong Kong, agnostic about political ideology as long as there is stability in the city? How much agitation will Hong Kongers bear in their demands for change? The 1970s witnessed a change in governance in Hong Kong, with the colonial regime instituting a variety of social reform measures that Lui Tai-​lok argues resulted not from local pressure on the government but from concerns in the metropole. In his analysis, the British colonial regime’s change of course represented more of a tug of war between domestic political interests in Britain on the one hand and fear of PRC rejection of constitutional reform in Hong Kong on the other. Its reasons aside, the colonial government strove to shed its alien image and foster the perception that it was the protector of local interests. Judging from the nostalgia that Hong Kongers continue to express for the golden era of MacLehose (Hong Kong’s governor during the reform period), the colonial government largely succeeded in these efforts. In the course of the 1970s, Hong Kongers came to understand that they enjoyed the rule of law, as opposed to the chaos that continued to plague the mainland during the Cultural Revolution. In the decades following the 1967 riots, Hong Kongers acquired the vocabulary to articulate their desire for stability. The ability of the British regime to deliver the rule of law, at least as perceived by the residents of Hong Kong, conferred political legitimacy upon it. If the British colonial government made itself more local and less alien to the people of Hong Kong, the Special Administrative Region (SAR) government appointed by Beijing seems to have reversed that trend in the post-​handover period. In his study of the increasing use of Putonghua as the medium of instruction in Hong Kong schools, Chu Yiu-​wai points to an attempt to mute the expression of a local identity in Hong Kong as the SAR government promotes the language of the mainland at the expense of Cantonese, the mother tongue of the vast majority of the Hong Kong population. Chu laments that parents and educators alike are succumbing to the lure of a rising mainland China market and disregarding the presence in Hong Kong of literature and other cultural forms articulated in Cantonese Chinese.

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6  J.D. Wong and M.H.K. Ng Finally, extending the current unravelling beyond language policies, John Wong explores the reversal in fortune that post-​handover Hong Kong has experienced by comparing economic development in the 1970s with that in the SAR today. In sharp contrast to the economic miracle of post-​riot Hong Kong in the 1970s and early 1980s, post-​handover Hong Kong has registered lacklustre economic growth in most years, and growing income inequality is only exacerbating the situation for the average Hong Konger. Just as mindful of the power of iconography as its colonial predecessor, the SAR government has sought to reinvigorate morale by invoking the spirit of Lion Rock,3 Wong writes. However, the recent economic climate in Hong Kong is dramatically different from that in the so-​called Lion Rock era, resulting not only from differences in governance but also from the seismic geopolitical shifts that have occurred in the intervening years. The initiatives of the SAR government have backfired, with protestors reclaiming the stage. They recast the Lion Rock narrative during the Umbrella Movement both through the communal spirit exhibited in Admiralty and the other protest sites as well as in such theatrical manoeuvres as mounting yellow banners demanding ‘genuine universal suffrage’ on the iconic Lion Rock. Socio-​ economic developments have conditioned the mindset of Hong Kongers as they express their political aspirations in dramatic demonstrations, Wong argues. Such comparisons of today’s Hong Kong governed as a SAR to the late colonial decades from the 1960s to the 1997 handover do not suggest a simple binary. After all, many of what Hong Kongers consider the achievements of the British colonial government did not emerge until after the United Nations acceded to the PRC’s request, upon its admission to the UN, that Hong Kong be removed from the UN’s list of colonial territories on 2 November 1972.4 Developments in Hong Kong reflect external pressures and factors. The wider Chinese context asserted great influence on Hong Kong not only via cross-​strait relations and local situations in Taiwan but also the image of Singapore as an alternative model of development. Beyond the Greater China region, political changes in the UK (as Lui explains in his chapter), as well as other global factors such as the oil crisis of the 1970s, also steered the transformation of Hong Kong at the crossroads of international currents. These external factors, combined with local conditions, shaped the development of Hong Kong. Many aspects of what is commonly construed as good governance in Hong Kong appeared rather late in the colonial era. The Independent Commission against Corruption (ICAC) was established only in 1974, 132  years after the founding of Hong Kong as British territories, as colonialism put on a kinder façade. First established in 1969 as the Department of Law, the Faculty of Law assumed its current form in the University of Hong Kong only in 1984. Its establishment furthered the localization process of the legal profession in Hong Kong as lawyers practice not English law per se, but rather a transplanted version of English law the meaning of which having inevitably been negotiated in the process of transplantation and decolonisation. Any discussion of ‘law and order’, or political stability, that many Hong Kongers seem eager to preserve, if not restore, needs to be situated in an informed understanding of this history.

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Introduction 7 Social movements in Hong Kong, as well as efforts to suppress them, draw energy from narratives of the city’s past. The chapters in this volume debunk some of the myths of those narratives and call for a re-​examination of today’s situation through a more nuanced understanding of Hong Kong’s history. People of various political persuasions articulate their hopes for the city by appealing to the dissimilar, but often confused, notions of the ‘rule of law’ and ‘law and order’. Extending the discourse beyond the arena of law and politics, opposing voices take on the form of cultural representations. Good governance requires attentiveness to expressions of (in)justice in various forms. The mediation of various interests can succeed only if we reach consensus on what the law and the past mean for the future of Hong Kong. The chapters in this volume point us in the right direction. Notes 1 For the narrative of political stability of colonial Hong Kong and political apathy of Hong Kong Chinese under British rule, see Lau Siu-​kai,Society and Politics in Hong Kong (Hong Kong: Chinese University Press, 1982); Lau Siu-​kai and Kuan Hsin-​Chi, The Ethos of the Hong Kong Chinese (Hong Kong: Chinese University Press, 1988). Challenge to such narrative was first raised in Lui Tai-​lok and Stephen Wing-​kai Chiu, ‘Introduction: Changing Political Opportunities and the Shaping of Collective Action’, in The Dynamics of Social Movements in Hong Kong, ed. Stephen Wing-​kai Chiu and Lui Tai-​lok (Hong Kong: Hong Kong University Press, 2000), 1–​20. 2 For acknowledgement of rule of law in Hong Kong as an important colonial legacy, see Steve Tsang, ‘Commitment to the Rule of Law and Judicial Independence’, in Judicial Independence and the Rule of Law in Hong Kong, ed. Steve Tsang (Hong Kong: HKU Press, 2001), 1, at 1; also Ming Chan, ‘The Legacy of the British Administration of Hong Kong:  A  View from Hong Kong’, China Quarterly 151 (1997):  567–​570, at 567. 3 The symbolism of the Lion Rock originated from a television series called Below the Lion Rock, which featured the everyday struggles of Hong Kongers. The 1960s and 1970s witnessed a difficult but vibrant era in the history of Hong Kong. The many Hong Kongers who lived in the resettlement areas, housing estates, and squatters at the foot of Lion Rock in that era woke up to the iconic landmark each morning and braved each day with resilience. Against that backdrop, the television series Below the Lion Rock channelled the grievances of the people, while providing an avenue for the government to communicate with the people its policy. At the same time, the series promoted the Chinese virtue of mutual aid (RTHK, ‘Reviewing the Classics: Below the Lion Rock’, accessed 11 October 2015, programme.rthk.hk/​rthk/​tv/​programme. php?name=tv/​belowthelionrockclassics). 4 John M. Carroll, A Concise History of Hong Kong (Hong Kong: Hong Kong University Press, 2007), 176.

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Part I

The past matters Governance, coloniality of power and law

01

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1  Rule of law in Hong Kong history demythologised Student umbrella movement of 1919 Michael H.K. Ng

In the 2005 Common Law Lecture, a prestigious annual seminar in which distinguished jurists address senior lawyers and law academics in Hong Kong, Sir Anthony Mason, former Chief Justice of the High Court of Australia and then Non-​Permanent Judge of the Hong Kong Court of Final Appeal, spoke about the role of common law in Hong Kong: The common law also stands for a set of concepts, interests and values which it has protected during the course of its long history. They include the rule of law, the independence of the judiciary, access to the courts, the separation of the powers of government, liberty of the individual, freedom of expression, freedom of association … These values have both generated and informed legal principles including the rules of statutory interpretation. The common law supports the rule of law. Under the rule of law, the law is supreme, so that everyone, including those who exercise power, must conform to the law, a concept memorably captured in the celebrated aphorism ‘a government of laws, and not of men’ … The common law stands both as a symbol and as link between Hong Kong’s past, its present and its future.1 English law is central to the history of colonial Hong Kong. Traditional colonial historians conceptualise it as a gift to the colonised, and it is still widely acknowledged by Hong Kong citizens today as a core contributing factor to the city’s continued growth and prosperity. The traditional narrative, which Sir Anthony reproduces above, is that the rule of law, which embraces the principles of judicial independence and offers such safeguards of individual liberty as freedom of expression, is the most important legacy of British colonial rule in Hong Kong, a legacy that is very often cited to distinguish the legal and societal development of Hong Kong from that of its neighbour across the border, mainland China.2 This chapter challenges this widely accepted narrative, thereby severing Sir Anthony’s link between common law’s legal past and present in Hong Kong. It argues that the traditional narrative simply does not stand up to scrutiny of the archival research. On the contrary, that scrutiny casts serious doubt on the weight afforded such liberal notions as the separation of powers, independence of the judiciary, and assurance of individual freedom of expression and association in the

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12 M.H.K. Ng common law legal system practised in Hong Kong in the pre-​Second World War twentieth century, particularly in trial hearings in the Magistrates’ Courts, the courts that heard the majority of criminal cases in colonial Hong Kong. Through discussion of a widely reported court case concerning students’ anti-​ Japan movement in 1919, the chapter further argues that the common law system practised in early twentieth-​century Hong Kong played a more important role in reinforcing an authoritarian form of colonial law and order to achieve the British Empire’s strategic aim of maintaining its overseas territorial and economic possessions than in safeguarding individual liberty and the impartiality of the judicial process. Only a very limited number of scholarly works have addressed the prevalence of anti-​ Chinese legislation in nineteenth-​and early twentieth-​ century Hong Kong, and no work to date has questioned the operation of the highly famed rule of law in the trial process of the latter period.3 This chapter thus constitutes a first attempt to demythologise the well-​rehearsed history of common law in Hong Kong told by Sir Anthony Mason and like-​minded historians through a close reading of trial hearing record. Owing to space limitations, only the aforementioned 1919 trial case, which was widely reported in both Hong Kong and overseas newspapers of the day, is used to make the case for the foregoing arguments. However, it should be emphasised that it is not the sole such case in the legal history of early twentieth-​century Hong Kong (or at least up to the outbreak of the Second World War as far as my current research is concerned). Many similar judicial cases have been recorded in my ongoing research project, the output of which will be published in due course.4 Trial of students involved in the patriotic Umbrella Movement The story told herein is part of the larger story of the large-​scale May Fourth movement that broke out in mainland China in 1919 against the Japanese acquisition of Qingdao with the support of the Western powers. When news of the Chinese government’s failure to recover Qingdao under the terms of the Treaty of Versailles arrived in China, nationwide demonstrations, strikes and boycotts against both the government and Japan broke out in many Chinese cities. The movement also garnered support from the Chinese populace in Hong Kong, and boycotts of Japanese stores and products were launched across the colony. Newspapers reported these patriotic activities in great detail, and teachers in vernacular schools discussed them with students and promoted nationalistic and patriotic sentiments.5 Around noon on 3 June 1919, nine schoolboys aged between eight and 17, from Ying To College on Gough Street in the Central District of Hong Kong Island, walked westwards along Queen’s Road Central clad in their school uniforms and holding open oil-​paper umbrellas made in mainland China. The umbrellas featured Chinese characters in white paint that read ‘Chinese [people] should buy native goods’ or simply ‘Native goods’ (guohuo 國貨). The group of young boys carrying umbrellas attracted the attention of passers-​by who began

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Rule of law demythologised 13 to stop and watch or even follow the boys as they walked down the street. More than 100 people joined the impromptu parade. Within less than an hour, a police inspector with the surname Brazil (Inspector Brazil hereafter) who was patrolling the area intervened and stopped the crowd near the Central Fire Station. He asked one of the students whether he had obtained a permit to organise such an activity. The student said no, but that one of their teachers had instructed them to march. Inspector Brazil arrested the nine students on the spot and then went to the teacher’s residence to arrest him as well. All of those arrested were taken to Central Police Station, where the students were charged with the offence of organising a procession without having obtained a permit from the Secretary for Chinese Affairs under the Regulation of Chinese Ordinance and remanded for trial. The teacher was charged with aiding and abetting the organisation of an illegal procession.6 Given the involvement of young boys in a nationalist movement, the subsequent four-​day trial in the Magistrates’ Court was widely reported in Chinese-​ and English-​language newspapers in Hong Kong. Many people attended the trial as spectators, and the courtroom quickly became overcrowded, prompting police to guard the front door to prevent additional numbers from entering. The newspapers reported that a large number of audience members were students.7 This early ‘umbrella movement’ not only demonstrates the shared nationalism between the Chinese population of Hong Kong and their mainland counterparts. Equally important is that a record of the trial hearings reveal how the suppression of political activity and maintenance of authoritarian law and order were juridified, legalised and justified in a common-​law setting. The case was treated very seriously by the government, and hence the prosecution was conducted by Captain Superintendent of Police Edward Wolfe (CSP Wolfe hereafter), the head of the entire colonial police force in Hong Kong. The defendants were represented by a solicitor of Portuguese ethnicity named Leo d’Almada. As noted, the students and teacher were charged under the Regulation of Chinese Ordinance (Ordinance No. 3 of 1888). The critical issue at the heart of the case was whether the students’ action amounted to a ‘procession’ under the terms of the Ordinance, Part V of which reads as follows under the heading ‘Religious Ceremonies and Theatrical Performances’: Section 22: (1) Except as by this Ordinance provided, no person shall, in any public street or road within the City of Victoria, play any musical instrument or beat any drum or gong in connection with any religious ceremony (except a funeral or marriage) or with any annual or other festival. (2.) No person shall, within the City of Victoria, play the Chinese reed pipe (except in connection with a funeral or marriage), or bear any drum or gong within any premises, or knowingly suffer or allow any such instrument to be played or beaten upon his premises between the hours of 11 p.m. and 6 a.m. Section 23:  (1.) Except as by this Ordinance provided, no person shall organize, equip, or take part in any procession [emphasis added] with or without music, in any public street or road in the City of Victoria. (2.) This

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14 M.H.K. Ng section shall not apply to any funeral or marriage procession, whether with or without music, except in cases where the Governor may so direct. Section 53: Every person convicted of an offence against this Ordinance for which no penalty is specially provided shall be liable for a first offence to imprisonment for any term not exceeding two months and to a fine not exceeding one hundred dollars.8 Although anyone reading the word ‘procession’ in the context of this ordinance would agree that it was meant to govern Chinese religious and theatrical activities, the colonial government attempted to use it in this case to suppress a nationalist movement by unreasonably expanding its meaning to cover any group activity that could possibly lead to disorder. The following widely reported record of the interrogation of Inspector Brazil by the prosecuting and defence solicitors reveals the colonisers’ anxiety over the rise of a nationalist movement in Hong Kong, as well as their determination to ease that anxiety at the expense of due process and freedom of expression for the Chinese population. The record also shows that judicial independence was blatantly disregarded during the trial hearing in one of Hong Kong’s Magistrates’ Courts, which were responsible for trying over 90 per cent of criminal cases in the first century of British rule in Hong Kong.9 Finally, it also shows how the law and prosecution were used to pursue the geopolitical interests of the British Empire. Political prosecution camouflaged as law Leo d’Almada, the solicitor acting for the defendants, starts his defence by examining Inspector Brazil, who had arrested the students and their teacher. In his examination, d’Almada attempts to confine the term ‘procession’ to the original statutory meaning intended by the legislature in formulating the Regulation of Chinese Ordinance: D’ALMADA:  You have been in Hong Kong for quite a long time? INSPECTOR BRAZIL: Twenty years. D’ALMADA:  I have taken you know the meaning of the word ‘procession’ in the

usual sense? … Not have a legal definition of the word, I put to you, as a gentleman residing in the Colony for over twenty years that [Regulation of] Chinese Ordinance is intended to mean the usual Chinese processions seen in Hong Kong. [All errors throughout appear in the original transcript.] MAGISTRATE ROGER LINDSELL INTERRUPTS: Surely Mr. d’Almada, this is a point which a Magistrate should decide? THE DEFENCE SOLICITOR DOES NOT GIVE UP:  I am sorry, sir; I think that the Inspector is worthy of an answer. He continues:  Would you call boys of St. Joseph’s College marching in file a procession? INSPECTOR BRAZIL: Certainly. D’ALMADA:  And would you call that illegal? INSPECTOR BRAZIL:  Under certain circumstances, not ordinary circumstances. D’ALMADA:  Even if they had umbrellas?

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Rule of law demythologised 15 INSPECTOR BRAZIL:  An ordinary umbrella does not attract much attention. It is

used for [the] purpose of keeping the sun and the rain away. D’ALMADA:  The reason then for arresting these boys is because the umbrella[s]‌

they carried excited curiosity? INSPECTOR BRAZIL CONSIDERS THIS QUESTION WITH CAUTION:  I don’t think

I could answer that question, it is … merely a matter of opinion … What I had in mind at the time was that it would lead to disorder if permitted. D’ALMADA:  In what way do you suggest disorder? INSPECTOR BRAZIL: They might have a couple of hundred persons following them and later on obstruct traffic. D’ALMADA: As a matter of fact, but for those two Chinese characters on the umbrellas you would not have arrested them? INSPECTOR BRAZIL:  I should certainly have dispersed them. D’ALMADA:  You would not have arrested them? INSPECTOR BRAZIL: No. D’ALMADA: But because of the circumstances you do not take the trouble to disperse them, you arrest them; you did not warn them? INSPECTOR BRAZIL: No. D’ALMADA:  In fact, these two characters were objects of curiosity to the crowd? INSPECTOR BRAZIL: Yes. SOLICITOR D’ALMADA SEEKS TO REVEAL THE POLITICAL MOTIVE BEHIND THE PROSECUTION AT THIS POINT:  To put it plainly, you thought that it was an

attempt to boycott … Japanese goods? INSPECTOR BRAZIL DOES NOT GIVE A STRAIGHTFORWARD RESPONSE:  I would

not say that. I am not prepared to give you my opinion. I don’t think, with all respect, that my opinion counts. MAGISTRATE LINDSELL AGAIN INTERVENES AT THIS JUNCTURE, AND POSES THE QUESTION IN A FRIENDLIER MANNER:  Surely at the time you thought

it was in connection with the Japanese? INSPECTOR BRAZIL SAID:  I certainly did. D’ALMADA: Supposing instead of the characters ‘native goods’ they had the

words ‘British goods’; would you have done the same? INSPECTOR BRAZIL: I certainly would have dispersed them, although I  could

have arrested them under the circumstances. D’ALMADA:  But it was really because of the Chinese characters and not because

of the procession that you arrested them? INSPECTOR BRAZIL:  As I said before, that had a great deal to do with my actions.10

Judicial independence: myth or reality? Prosecutor CSP Wolfe begins his examination of his colleague Inspector Brazil with an attempt to bring the students’ actions under the definition of ‘procession’ in the Regulation of Chinese Ordinance: CSP WOLFE:  I understand you to say they were walking in file? INSPECTOR BRAZIL: Yes.

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16 M.H.K. Ng CSP WOLFE:  They were not going along the road as if going for a walk? INSPECTOR BRAZIL: No. CSP WOLFE:  Is it usual for [the] boys of St. Joseph’s or other colleges to walk two

deep with umbrellas? INSPECTOR BRAZIL:  I have never seen them. CSP WOLFE:  Would not an umbrella of the kind [the] defendants were carrying

attract attention? INSPECTOR BRAZIL: Yes. CSP WOLFE:  Was no obstruction actually caused in the street? You saw a large

crowd following? INSPECTOR BRAZIL:  The street was almost blocked.

At this point, CSP Wolfe tells the court that the defendants have given a statement, but refuse to testify in court. He further points out that only recently the Roman Catholic Union had sought permission to appear in fancy dress in the streets because this type of procession is bound to attract attention and is likely to cause an obstruction and disorder and that permission had been duly granted. Therefore, he submits, in the case under trial the procession in question was bound to lead to disorder, and the organiser should have obtained a permit before proceeding under the terms of the Regulation of Chinese Ordinance. In response, d’Almada submits that it was not the intention of the Ordinance to regulate the type of demonstration in question and that the prosecution is using the Ordinance to camouflage its political intention to curb an anti-​Japanese demonstration: D’ALMADA:  Section 23[(1)] of the Regulation of the Chinese Ordinance [states]

that no person shall organize, equip or take part in a procession, with or without music, except under the conditions provided by the Ordinance. It [is] unfortunate that the Ordinance [does] not specifically give the definition of the word ‘procession.’ It [is], therefore, for the Magistrate, sitting as Judge and Jury, to go into the matter and if possible find out what was the intention of the Legislature when they framed that Ordinance. The Magistrate [has] been in the office of the Chinese secretariat for a considerable time [emphasis added] and [has] resided in the Colony for a long period. Therefore, I  [think] he [will] agree with me that the intention of the Legislature … was quite clearly to indicate those processions in which the Chinese indulged from time to time on the festival days … It was not the intention of the Legislature that a crowd of ten boys going along two deep and carrying umbrellas should be made the subject of a criminal charge in that court. If that was the intention of the Legislature it seem[s]‌quite clear that the boys of St. Joseph’s College or the girls of the Italian convent would be committing an offence in every walk they took. The learned CSP [has] stated that processions of that sort would not attract attention but there [has] been occasions on which they [have] been objects of great curiosity and admiration to the Chinese as they [walk] along the streets. It [is] for the Magistrate

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Rule of law demythologised 17 to decide whether the Legislature [has] intended that section to apply to boys, no matter whether they [are] carrying Chinese or German flags …11 Assuming the boys of St. Joseph’s College carried red umbrellas and that a crowd collected, would they be liable? Certainly not. The prosecution is merely camouflaging this charge. There is no shadow of doubt, as the papers put forward in large headlines, that this is in some way connect[ed] with what is known as the Japanese boycott.12 CSF WOLFE:  I concede that point. It is noteworthy that Magistrate Lindsell is trying a case concerning an alleged failure to obtain a permit from an office (the Secretary for Chinese Affairs) that he himself had previously held for a considerable period of time, presenting an obvious conflict of interest according to our current understanding of the principles of judicial independence. It is revealing that not only does he continue to hear the case despite his questionable impartiality, but the defence solicitor does not even object to his hearing the case in the first place. Instead, d’Almada publicly acknowledges the magistrate’s previous role in the government for the sole purpose of supporting his argument that the students’ action did not amount to a procession under the sitting magistrate’s governance of the Secretary for Chinese Affairs. The defending solicitor’s failure to object in this instance shows that such conflicts of interest in the administration of justice in colonial Hong Kong were a generally accepted phenomenon by the legal community at large despite the potential for injustice to the (primarily Chinese) defendants who appeared in the Magistrates’ Courts. The defence solicitor continues his interrogation by stating that he fails to see why the boys were not charged under the Boycott Ordinance instead: D’ALMADA:  The law provides for that [a charge under the Boycott Ordinance]

I believe. The reason why the prosecution do not proceed with that charge is because they are not in a position to prove a boycott. I  am perfectly at liberty to carry an umbrella with the characters ‘native goods’. I may imply to the public that ‘you should support local industries’; it may also imply to the public that ‘these umbrellas are better than foreign made umbrellas.’ It may mean many things.13 The Boycott Ordinance states that anyone who persuades or induces another person not to trade with any other person is in breach of the law and subject to a maximum fine of HK$1,000 and imprisonment for one year. It seems in this case that the students’ actions and the characters appearing on their umbrellas may not have provided the prosecution with a sufficiently strong case under this ordinance, as the defendants’ solicitor explains. At this juncture, CSP Wolfe puts pressure on the magistrate to make a quick ruling: CSP WOLFE: [G]‌ iven the defendants [chose] not to speak for themselves, Your

Worship can, under the Magistrate Ordinance … enter a conviction on the facts.

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18 M.H.K. Ng Magistrate Lindsell reiterates that the whole case rests on a legal point, that is, whether the defendants’ actions constituted a procession within the meaning of the Regulation of Chinese Ordinance and whether those actions were calculated to cause an obstruction by becoming an object of curiosity, meaning that a permit should have been obtained from the Secretary for Chinese Affairs. Defending solicitor d’Almada responds by submitting that there is no sufficient fact on which the magistrate can enter a conviction and that Inspector Brazil has not produced a shred of evidence to prove an illegal procession. Boys carrying umbrellas cannot be regarded as an illegal procession under the regulation in question, he avers, and their actions did not in fact cause an obstruction. He also puts further pressure on the magistrate at this point by remarking that the case has caused a considerable amount of public discussion and ill feelings, and he would therefore like to obtain a written judgment in which the magistrate’s reasoning would be clearly understandable to the public. This request serves to antagonise CSP Wolfe, presumably because he knows that if the magistrate acquiesces, his plan to draw the trial to a quick close will be defeated because a carefully written judgment free from error could take weeks given the controversy the case has attracted. The resulting public discussion and media coverage would also be prolonged, and possibly in the defendants’ favour, given the nationalistic sentiments involved. The government’s anxiety is revealed in the prosecutor’s remarks: CSP WOLFE:  I must protest against that [a written judgment]. I really think the

solicitor for the defence is trying to make a mountain out of a molehill. It is a paltry case and he is trying to work it up into something of paramount magnitude in asking Your Worship to give a written decision. Mr. d’Almada is condemned out of his own mouth. Is it a reasonable use of highway when there is a tension of feeling between two nationalities? I think there is little doubt that Your Worship will consider the carrying of umbrellas with the Chinese characters complained of is not a reasonable use of the highway.14 D’ALMADA:  The CSP said the case was paltry, yet because the boys were carrying umbrellas they were arrested and forced to bail themselves out at $25 each.15 Magistrate Lindsell now tries to reconcile the two by reducing the defendants’ bail to $10 each (except for student Wu who led the ‘procession’ and whose bail is thus maintained at $25), but refuses to hand down a judgment on the spot, whether oral or written. Instead, he makes a statement that appears totally contrary to the principle of judicial independence in the administration of justice as it is commonly understood in the common-​law system: MAGISTRATE LINDSELL:  I think the legal point is of sufficient importance to jus-

tify my adjourning this case. I shall see the Attorney-​General about the point.16 If one were to believe Sir Anthony Mason’s assertion at the beginning of this chapter that the rule of law principle (including but not limited to the principle

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Rule of law demythologised 19 of judicial independence) links Hong Kong’s past to its present, he/​she would be very surprised indeed to see a judge consulting the attorney-​general, the chief legal advisor to the executive branch of government, in private before handing down a final judgment. He/​she would no doubt also be surprised at the defence solicitor’s failure to object to the judge’s intention, indicating that it was common practice at the time. Due process unduly influenced The trial resumes two days later on 7 June 1919, possibly after the magistrate has consulted with the attorney-​general, as was his stated intention. Magistrate Lindsell remarks that he has come to the conclusion that the definition of the word ‘procession’ in the Regulation of Chinese Ordinance and in the legal sense is ‘a going forth in some kind in formal order’. Whether the procession was legal, he continues, depends on whether what the boys had done on Queen’s Road Central was appropriate and reasonable in the circumstances. He then says that he cannot regard their actions as reasonable and legal.17 Defence solicitor d’Almada stands up in response and argues that the students had merely walked in single file along the street, had not breached any law and that their actions should not be regarded as a procession under the Regulation of Chinese Ordinance. He then requests a further adjournment to allow him to summon additional witnesses to give testimony on what they had seen the students do. CSP Wolfe immediately objects, and then goes further. To deter the defence from calling more witnesses and prolonging the trial, and perhaps the political and diplomatic crisis for the colonial government, Wolfe threatens, in blatant disregard for the principle of due process essential to a fair trial, to bring additional charges against the defendants if more witnesses are summoned: CSP WOLFE:  Your Worship, what more evidence has Mr. D’Almada to give? D’ALMADA:  In the prosecution there is a word ‘procession’ and it is my duty on

behalf of my client to prove it was not a procession. MAGISTRATE LINDSELL:  Do you want to call your client[s]‌? D’ALMADA:  Yes, I will satisfy your Worship that there was no procession. CSP WOLFE:  It is ridiculous and absolute rubbish for Mr. D’Almada to obtain

any evidence. I should like to point out to your Worship that … if he [Mr d’Almada] … doubted the facts given [by Inspector Brazil] he was entitled to call everybody in the Colony as his witnesses. D’ALMADA:  I hope Mr. Wolfe will consider what is he saying. It was owing to the circumstances brought up by his Worship’s decision.18 The prosecution then maintains that the case is not sufficiently important to warrant an extension, and uses a legal threat to press for a halt to the trial: CSF WOLFE:  In that case I have a further charge against your clients. D’ALMADA:  Whatever charge you may have to add, I am prepared to answer it.19

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20 M.H.K. Ng CSP Wolfe then announces that he will bring an additional charge against the defendants for not obtaining a permit from the Secretary for Chinese Affairs before exhibiting a public notice in public. He explains the rationale for such a charge by stating that the umbrellas displaying Chinese characters were meant to attract attention and thus should be regarded as a matter that requires approval under section 50 of the Regulation of Chinese Ordinance: Section 50.-​(1.) No person shall post up or exhibit, or cause to be posted up or exhibited, in or near any street, any public notice or proclamation in the Chinese language without the permission of the Secretary for Chinese Affairs. The magistrate stops CSP Wolfe at this point: MAGISTRATE LINDSELL:  It is not fair to add [a]‌charge at this late stage of the

proceedings.20 Despite the judge’s indication of possible unfairness to the defendants, CSP Wolfe insists on his stance: CSP WOLFE:  Your Worship will set apart a few afternoons? My evidence will be

exactly the same as in the prior case.21 The magistrate at this point seems to bend to the prosecution demands, and adjourns the hearing for two days to hear the new charge brought by the prosecution in addition to the original charge. A guilty verdict At the adjourned hearing, the defence calls an accountant named Tam who was working in the Sun Yu Bank on Bonham Strand in the Central District to tell the court what he saw on the day in question. D’ALMADA:  What first attracted your attention on the day in question? TAM:  I was coming out at the door of the bank at that time … I saw two to three

persons walking along the street carrying umbrellas. D’ALMADA:  In what order were they walking along the street? TAM: In two’s or in three’s. That was not what you would call any order in

particular. D’ALMADA:  That’s the case for the defence your Worship. I have other witnesses

but they have not turned up.22 Defence solicitor d’Almada then concludes his case by reiterating his argument that the students’ actions on Queen’s Road Central did not fall under the definition of a procession within the Regulation of Chinese Ordinance under which a

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Rule of law demythologised 21 procession is intended to apply solely to a customary or festive procession by the Chinese community. D’ALMADA: His Worship would see from the Ordinance of 1888 that certain

Regulations were applicable to Chinese and to Chinese concerns which had to do with registration of householders, district watchmen, religious and theatrical performances. It was clear and conclusive that the word ‘procession’ in the Ordinance simply meant in the strict sense of the term, a religious or festive ceremony.23 The students’ actions in this case, d’Almada continues, cannot be regarded as any form of procession in this sense, particularly because their walk was not accompanied by music, which is a normal feature of Chinese processions. In his concluding remarks for the prosecution, CSP Wolfe chooses not to shy away from the British Empire’s anxiety over the recent geopolitical situation in the Far East, which ostensibly motivated the prosecution. He states that it is not the prosecution’s aim to impose a heavy penalty on the students. What it is asking for instead is an appropriate punishment sufficient to deter further similar movements. A wave of similar anti-​Japanese protests, he continues, has got out of control in many mainland Chinese cities, including Beijing and Tianjin, with the Chinese government there practically overrun by students. As a British colony, Hong Kong had to adopt preventive measures. Otherwise, activists could use the Hong Kong government as a shelter to cause mayhem on the mainland. In addition, he points out, he also fears that there would be bloodshed and disorder in Hong Kong if such a public protest were allowed to continue unchallenged. Finally, he avers, students are expected to focus on their studies rather than become involved in social movements.24 At the end of the trial, Magistrate Lindsell lays down a judgment against one of the defendants, student Wu, who had headed up the so-​called procession without obtaining a permit from the government. He states his belief that the students would not have taken such action had they not been incited by others. However, he continues, the students should have known that Hong Kong as a British colony is under the protection of the British Flag and does not allow any actions contrary to law. He then sentences Wu to pay a fine of HK$10, but discharges the other students with just a warning. Finally, he acquits the teacher, as he does not find the evidence sufficiently strong to support the allegation that he had aided the procession.25 Geopolitics of law and order in early twentieth-​century Hong Kong An interesting and revealing after-​trial conversation about how to deal with the umbrellas nevertheless continues in the courtroom. After the sentencing, the defence solicitor requests on behalf of the students that the umbrellas seized by the police be returned to them. Magistrate Lindsell replies that the question is entirely a matter for the police. CSP Wolfe’s reply adds a further political flavour

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22 M.H.K. Ng to the hearing, revealing the colonial government’s anxiety about what constitutes acceptable law and order in a colony situated between China and Japan, a British ally: CSP WOLFE: If Mr. D’Almada would send up a scraper, to scrape off the two

Chinese characters, and give the umbrella quite a different outlook, certainly, they may be taken.26 A newspaper article on 11 June reports that, possibly instigated by this trial, Hong Kong students have begun to purchase Chinese oil-​paper umbrellas similar to those used by the defendants, but without the Chinese characters reading ‘Native goods’, in large quantities. The paper reports that the students of one school have bought several hundred from Guangzhou and that mainland Chinese students have also travelled from Guangzhou to join the students’ action in Hong Kong. The report further states that students could be seen carrying these umbrellas individually, albeit in large numbers, on rainy days to avoid being charged with taking part in an organised demonstration, as the trial outcome had cautioned them against doing.27 The trial also attracted considerable attention from the Japanese press. Newspapers in Japan paid attention not only to how anti-​Japanese movements had developed in mainland China during this period, but also to how they had spread to Hong Kong, a British colony. The way in which the ‘umbrella procession’ had been dealt with in the Magistrate’s Court of Hong Kong was credited as a friendly (to Japan) precedent of suppression shown to an ally. The following report that appeared in one of the leading English-​language newspapers in Japan, the Japan Chronicle, which adopts a highly racist and strident tone if viewed from today’s perspective, is typical of the Japanese coverage. Nine Chinese students have been arrested by the Hongkong police for the offence of walking around the street with umbrellas bearing the words ‘Don’t Buy Japanese Goods’ or something of that sort. The legality of such [a]‌proceeding is very doubtful, though of course it may be wrapped up in phrases about the impossibility of allowing the commerce of the port to be at the mercy of agitators, and all that sort of thing … [A]ll British authorities must do everything they can to protect Japan from even its most remote consequences. This action on the part of Hongkong authorities enormously strengthens the hands of the Japanese diplomatic officials all over China. They … compel [the] Chinese to suppress newspapers which denounce [the] Shandong settlement in too heated terms and to forbid indignation processions and every manifestation of popular [will]. So far they do not appear to have gone to such lengths as the Hongkong Police, but armed with this precedent, Japanese Consuls will be able to demand practically anything they desire. The boycott is obviously an ineffective weapon, but like a strike, it may be carried out in a legal way. However, as Marquis Okuma said, racial equality is not for uncivilized people like [the] Chinese.28

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Rule of law demythologised 23 This snapshot of reactions to the trial outcome shows the difficult situation of the colonial government in the broader historical context of Hong Kong, China and the British Far East in the early twentieth century. The British colonisers began to encounter legitimacy issues in their colonies and concessions in this period, triggered in part by nationalist and communist movements in mainland China and elsewhere. It was well known that the Western powers, Britain included, backed Japan’s claim to Qingdao under the terms of the Treaty of Versailles. Japan was also putting increased pressure on the Western powers owing to its territorial ambitions. Britain’s alliance with Japan did not do justice to its ruling role in Hong Kong, where there was mass resentment against Japanese aggression in China.29 In the absence of a strong government in China, suppressing anti-​Japanese and anti-​colonial movements seemed to be the best way of easing the Empire’s anxiety over its questionable legitimacy in Hong Kong and the troubling geopolitics throughout the Far East. In this respect, the common-​law system of Hong Kong became an accomplice in the pursuit of an authoritarian form of colonial law and order to achieve the colonial power’s strategic aim of maintaining its overseas territorial and economic possessions. Conclusion: common law as an accomplice to colonial law and order The current website of the Department of Justice of the Hong Kong Government describes the present legal system of Hong Kong by again linking it to the past of the common law tradition as follows. In historical terms … The rights relating to freedom of speech, freedom of assembly, and freedom from arbitrary arrest or imprisonment have been spelt out in cases which were decided more than three centuries ago. As we have seen, these have now been underpinned by provisions in the Basic Law.30 Such a description privileges a legal view of the past that is based on an idealised English notion of the rule of law over one based on the historical facts, as the trial case discussed herein has shown. The practice of common law in Hong Kong during most of its colonial era did not share such tradition. What is more, such description is a view that is widely held by both legal professionals and the general public in Hong Kong and one that has faced surprisingly little scrutiny. Few, if any, scholars have asked how and when the rule of law evolved into its current form in Hong Kong. Even fewer have questioned whether and to what extent the rule of law we enjoy today bears any relation to that practised in the colonial past. In other former colonies, such issues have been raised and discussed in a flourishing body of scholarship. For example, similar colonial narratives of former British colonies in North America, the West Indies, Africa, Australia and India have been subjected to critical review in the past decade in scholarly works assessing the practice of English law and its impact on indigenous communities.31 The story of Hong Kong, the last of these colonies to be given up and one of the

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24 M.H.K. Ng world’s most important international centres of trade and finance, remains largely missing from this scholarship. The trial case discussed in this chapter, which constitutes a first attempt to fit the story of Hong Kong into this larger narrative, shows that many people, including lawyers and judges, have imagined the historical practice of the common law system in Hong Kong differently from its practice in reality. In fact, as the case clearly shows, the courts of early twentieth-​century Hong Kong featured elements that are very often used by common-​law practitioners and supporters to describe the rule-​of-​man (or rule-​by-​law) legal systems of authoritarian regimes: the use of the law to camouflage the suppression of political activities; a lack of judicial independence and impartiality in trial hearings; threats by the prosecution to deny defendants’ right to summon further witnesses; and disrespect for freedom of expression and assembly. As noted, my ongoing collection of court cases from early twentieth-​century Hong Kong until its fall to Japan in 1941 shows that these elements were far more widespread than this single case, representing continuing and collaborative efforts on the part of the legislative, executive and judicial branches of the colonial government to deny freedom of expression and assembly.32 In the process of such collaboration, judicial independence and the impartiality of the trial process do not seem to have been a priority, certainly not when compared to the political pursuits of the colonial government in the midst of rising geopolitical anxiety over the future of the British Empire. The efforts of the judiciary, like those of the legislature and executive, did not, and were never intended to, serve the rule of law, at least in its ideal form, but rather to maintain a colonial form of justice that served the Empire’s objective to maintain and exert strong control over its colonies in the Far East. Acknowledgements This chapter has been published as an article in Hong Kong Law Journal 46(3) (2016). The author thanks the publisher of the journal for consenting to its republication in this volume. Notes 1 Anthony Mason, ‘The Role of the Common Law in Hong Kong’, in The Common Law Lectures Series 2005, ed. Jessica Young and Rebecca Lee (Hong Kong: University of Hong Kong Faculty of Law, 2005), 1–​2, emphasis added. 2 For how English law is conceptualised in colonial narratives, see Sally E. Merry, ‘Law and Colonialism’, Law and Society Review 25(4) (1991):  889; for acknowledgement of the rule of law in Hong Kong as an important colonial legacy, see Steve Tsang, ‘Commitment to the Rule of Law and Judicial Independence’, in Judicial Independence and the Rule of Law in Hong Kong, ed. Steve Tsang (Hong Kong: Hong Kong University Press, 2001), 1; see also Ming Chan, ‘The Legacy of the British Administration of Hong Kong:  A  View from Hong Kong’, China Quarterly 151 (1997): 567–​570. 3 Peter Wesley Smith, ‘Anti-​Chinese Legislation in Hong Kong’, in Precarious Balance: Hong Kong Between China and Britain, 1842–​ 1992, ed. Ming K.  Chan (Hong

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Rule of law demythologised 25 Kong:  Hong Kong University Press, 1994), 91–​106; for use of the law to supress political dissent from the 1920s to 1980s, see Richard Klein, ‘The Empire Strikes Back: Britain’s Use of the Law to Suppress Political Dissent in Hong Kong’, Boston University International Law Journal 15(1) (1997): 1–​70; for injustices in nineteenth-​ century courts, see Christopher Munn, Anglo-​ China:  Chinese People and British Rule in Hong Kong 1841–​1880 (Hong Kong: Hong Kong University Press, 2009), ­chapters 3–​5. 4 For example, freedom of expression was suppressed through a systematic and pervasive press censorship system run under the auspices of the Secretary for Chinese Affairs in the twentieth century. Major Chinese newspapers were subject to stringent censorship procedures and were prosecuted for criticising the colonial government, the metropole or allies of the British Empire. See ‘When Silence Speaks: Press Censorship and Rule of Law in British Hong Kong (1850s–1940s)’, Law and Literature (2017 forthcoming). 5 For details of the movements as a series of mass mobilisations in the 1910s to 1920s, see Ming K. Chan, ‘Hong Kong in Sino-​British Conflict: Mass Mobilization and Crisis of Legitimacy 1912–​1926’, in Chan, Precarious Balance, 32–​36. For a detailed discussion of the political impact of the May Fourth movement in Hong Kong, including a description of the prosecution of the students involved in the Umbrella Movement in this context, see Chan Hok-​yin, Wusi Zai Xianggang [May Fourth in Hong Kong] (Hong Kong: Chunghwa, 2014), 102–​115. 6 South China Morning Post (SCMP hereafter), 4 June 1919; China Mail, 4 June 1919, Wa Tsz Yat Po (WTYP hereafter), 4 June 1919. 7 WTYP, 9 June 1919. 8 Regulation of Chinese Ordinance, No. 3 of 1888. 9 Christopher Munn, ‘The Court System of Hong Kong’, 2016 (unpublished, on file with author). 10 China Mail, 6 June 1919. 11 Ibid. 12 Ibid. 13 Ibid. 14 Ibid. 15 Ibid. 16 Ibid. 17 SCMP, 9 June 1919. 18 Ibid. 19 Ibid. 20 Ibid. 21 Ibid. 22 China Mail, 12 June 1919; WTYP, 13 June 1919. 23 Ibid. 24 SCMP, 13 June 1919; WTYP, 13 June 1919. 25 Ibid. 26 Ibid. 27 SCMP, 11 June 1919. 28 SCMP, 20 June 1919. 29 Diplomatic relations between Britain and Japan were governed by the Anglo-​Japanese Alliance, which was signed in 1911 and lasted until 1921. 30 ‘Legal System in Hong Kong’, Department of Justice, Hong Kong Special Administrative Region, accessed 8 April 2016, www.doj.gov.hk/​eng/​legal/​index.html. 31 See, for example, Elizabeth Kolsky, Colonial Justice in British India (New  York: Cambridge University Press, 2010); Hussain Nasser, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2003). 32 Ng, ‘When Silence Speaks’.

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2  ‘Our best trump card’ A brief history of deportation in Hong Kong, 1857–​1955 Christopher Munn

On 18 May 1922 the Hong Kong Supreme Court sentenced Lee Yau to three years’ hard labour for breaching a banishment order. It was his fourth conviction for this offence. In 1915 he had been imprisoned for three months for receiving stolen property. On release he was banished for five years. He was caught in Hong Kong the next year and given six months for breach of a banishment order, at the end of which he was banished for life. Unable to resist ‘the lure of Hong Kong’, Lee returned again and again and again. Each time he was caught, his sentences for breaching the banishment orders grew longer. He also received six months for a second case of receiving stolen goods. By May 1922 he had accumulated seven-​and-​a-​half years of imprisonment for breaching banishment orders, on top of nine months for his more substantive crimes.1 Lee’s case was extreme but not unique.2 A total of 918 convicted prisoners and other ‘undesirables’ were banished in 1922 by order of the Governor in Council under Hong Kong’s Deportation Ordinance. A further 7,447 deportees from other colonies –​vagrants, time-​expired labourers and other undesirables –​ were processed in Hong Kong and sent on to China, usually after a brief spell in Victoria Gaol.3 In 1922 the courts also tried 112 ‘returned banishees’. Nine repeat offenders, including Lee Yau, were tried by the Supreme Court, which could sentence returned banishees to up to five years’ imprisonment. The rest were dealt with by magistrates, who could impose sentences of up to a year and could order flogging in some cases. The number of deportees rose to a peak of 17,714 in 1937. In some years during the 1920s and 1930s returned banishees formed the largest category of offenders tried by the Supreme Court. Governors, officials and legislators believed deportation (or banishment or repatriation as it was variously called4) to be an essential tool for maintaining order. It was ‘our best trump card’, said one chief of police in 1904, the easiest way of disposing of the troublemakers who infested the colony.5 Although it came to serve a similar purpose, deportation was distinct from the old punishment of transportation, which had been imposed extensively by the courts in the early years of the colony. And, although officials sometimes confused the two, deportation also differed from extradition, the process of returning a fugitive requested by another jurisdiction after a judicial hearing. Applied to various categories of convicted criminals, deportation worked as an additional punishment, helping to

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‘Our best trump card’ 27 relieve pressure on prison accommodation. It was also used, where no offence had been proved, to rid the colony of nuisances large and small –​from gangsters and revolutionaries to ‘loafers’, fortune-​tellers and others vaguely classified as ‘bad characters’. In the absence of immigration controls, which were not effectively imposed until after the Second World War, deportation was combined with other schemes of expulsion as the authorities sought to balance the demand for labour with the need to hold in check the large numbers of predatory and unproductive persons drawn to the city. Deportation was an executive act, not a judicial procedure, although the courts might recommend deportation, and their decisions might trigger it. For brief periods, in 1847–​1862 and 1948–​1949, the courts also had powers to order deportation for certain offences.6 Otherwise, they became involved only when a deportee was prosecuted for returning prematurely or, more rarely, when a person challenged a deportation order through a writ of habeas corpus or some other procedure. Because of the wide powers granted to the governor and his official-​ dominated Legislative Council to ‘make laws for the peace, order, and good government of the Colony’, the courts were usually powerless in such cases. During the half-​century of war, revolution and protest from the late nineteenth century up to the Second World War the government gradually extended its powers of deportation to plug legal loopholes and to cover, in some circumstances, not only ‘aliens’ (most of the population) but also naturalised British subjects and British subjects born in Hong Kong. After the war, radical figures increasingly viewed the threat of deportation –​and of its successor, detention without trial –​as a facet of the ‘non-​citizenship’ of the majority of Hong Kong’s inhabitants and one of the reasons why people dared not openly criticise the government. Among the tens of thousands of people deported from Hong Kong in the near-century from 1857 to 1955 were French and Russian prostitutes, Japanese and American convicts, German and Austrian prisoners of war, and Vietnamese and East Indies revolutionaries. However, the great majority of deportees were Chinese men and women whose presence was deemed detrimental to peace, order and good government. Other colonies used deportation powers for immigration control and a variety of other purposes. Forced displacements of entire populations –​from the Acadians in British North America to the Chagos Islanders in the Indian Ocean –​were a fact of empire. Yet lawyers acting for deportees in Hong Kong claimed that the routine powers accumulated by the government were far in excess of those used elsewhere. Officials in London were sometimes surprised by what Hong Kong had been allowed to get away with. Governors defended the practice on the grounds that the population was unsettled and mobile and that the ordinary mechanisms of justice –​from the courts to the prisons –​were incapable of handling the crime and disorder that plagued the colony. The origins of deportation 1857–​1885 Deportation began in the turbulent early years of the colony with periodic clearances of beggars, hucksters and other nuisances. Before the establishment of a

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28 C. Munn formal system of justice, the first governor, Sir Henry Pottinger (1843–​1844), and his chief magistrate, William Caine, added expulsion –​along with flogging –​ to the prison sentences imposed on thieves and pirates. Even after the opening of the Supreme Court in 1844, officials continued to hand over difficult cases to the Chinese authorities or ship suspicious characters to remote places. For example, Governor Sir John Davis (1844–​1848) handed over the pirate Chan A-​tai, wanted in Hong Kong for robbing a British army treasure boat, because ‘there would be no sufficient evidence according to the technicalities of English law to condemn him on the first opening of the Supreme Court’.7 For similar reasons, in 1857 Governor Sir John Bowring handed over 73 alleged pirates seized in the harbour to the Kowloon authorities for summary execution because, he said, the Supreme Court did not have the capacity to try them. His reasoning shocked officials in the Colonial Office, who remarked that it was tantamount to saying that Chinese in the colony were ‘never to be tried at all’.8 In another exercise, Bowring chartered a ship to deport 167 minor offenders and men of the ‘suspected classes’ to remote Hainan Island, where they were dumped on a beach and left to fend for themselves.9 These were extreme measures in difficult times. In 1857 the colony was besieged by rebels, pirates and enemy agents during an acute phase of the Second Opium War. Yet the hastily enacted legislation used to send the 167 men to Hainan became the foundation of a permanent system of deportation. Under Ordinance No. 2 of 1857, ‘for better securing the peace of the Colony’, the Governor in Council could order the deportation to any place in China, by force if necessary, of ‘any Chinaman’ arrested on the authority of a justice of the peace on suspicion of being an abettor of Her Majesty’s enemies or of pirates ‘or otherwise dangerous to the peace and good order of this Colony’. Later, in 1857, on instructions from the Secretary of State, the ordinance was suspended and replaced by a new enactment (No. 9 of 1857), which, among other things, substituted ‘non-​British subject’ for ‘Chinaman’ and restricted deportation to a maximum period of five years. A further ordinance in 1858, however, ‘for regulation of the Chinese People’, empowered a magistrate or justice of the peace to require any Chinese person to find security for his appearance in court within the next 12 months, failing which he would be deemed to be a person dangerous to the peace of the colony and therefore liable to deportation under the 1857 ordinance.10 In 1871 the power of forcible detention was replaced by a new offence of disobedience to an order of deportation, which carried a maximum penalty of one year’s imprisonment.11 The 1857 ordinance contained ‘the most extraordinary powers “granting away the ordinary rights of the subject” I ever saw conferred by any enactment anywhere’, said Chief Justice Sir John Smale in 1877 in declaring invalid a deportation order made under it. It was passed in a season of fearful panic, immediately after the taking of Canton, when an attempt at general poisoning was in part successful and the Chinese were suspected of conspiracy to sack Hongkong. It was a time of war. Still the power was excessive even then.12

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‘Our best trump card’ 29 Smale had assumed that the 1857 ordinance was a dead letter. In fact, it was now being used to banish Chinese prisoners who, having served their terms, were required to find security, failing which they were deemed to be dangerous to the peace of the colony and therefore subject to deportation. In addition, under a different scheme introduced in 1866 by Governor Sir Richard MacDonnell (1866–​1872), hundreds of prisoners were released early and deported under conditional pardons, some before even a third of their sentence had expired. Prior to deportation they were tattooed on one ear with an arrow and, if found in the colony during the term of their banishment, flogged and re-​imprisoned. Later, after some deportees took to cutting off their earlobes, the tattoo was applied to the neck instead.13 MacDonnell initially arranged these conditional pardons through ‘voluntary’ petitions from prisoners after the Colonial Office had objected to a legislated scheme. Eventually, in 1872, when doubts were raised about its legality, the scheme was authorised by legislation during one of the colony’s periodic crime panics.14 A part of MacDonnell’s ‘great experiment’ in social control, the aim of ‘branding and deportation’ was to save money on prison accommodation and send a signal of deterrence to the ‘moving mass of crime and vagabondage’ that confronted the respectable inhabitants of the colony.15 It applied only to Chinese prisoners. Although it gave rise to many abuses, its effectiveness was doubtful, to judge from the large numbers of marked men who returned to the colony and who formed, as Chief Justice Smale put it, ‘an enlarged criminal community from which the Colony has never since been freed’. In the decade after its introduction, hundreds of prisoners were subjected to the scheme.16 Allowed to select their destinations, many opted to board steamers as emigrants to Singapore or Australia, a practice that alarmed the New South Wales authorities when they eventually found out about it.17 Some officials, including MacDonnell’s successor, Sir Arthur Kennedy (1872–​ 1877), had reservations about the branding and deportation scheme. Kennedy’s successor, Sir John Pope Hennessy (1877–​1882), abolished it altogether, having concluded that it defeated the ends of justice by taking out of gaol men who should have been serving out their sentences and, by branding them, prevented them from earning an honest living. Henceforth, prisoners were expected to serve out their full sentences, with remission only for good behaviour. The ‘almost total abolition of the system of deporting habitual criminals’ was among the complaints put forward by colonists in their public meeting on the dire state of law and order during another crime panic in 1878.18 In 1882 Hennessy consolidated and amended the legislation on deportation, replacing the provisions in the 1857 and 1858 ordinances. In keeping with his philosophy of racial equality, all remaining references to ‘Chinamen’ were removed. Magistrates were empowered to order any person convicted of a second imprisonable offence within 12 months of being released from prison for a first offence to find security, failing which he would be deemed a dangerous person (a modification of the 1857/​1858 arrangements, which could also be applied to first offenders who were Chinese). The expansion of the ‘dangerous person’

03

30 C. Munn mechanism to cover non-​Chinese, made at the prompting of legislator and barrister Ng Choy (Wu Tingfang), caused anxiety in the Colonial Office, which instructed Hennessy to confine deportations in practice to Chinese.19 Although the 1882 ordinance re-​enacted the general powers first introduced in 1857 to enable the Governor in Council to deport non-​British subjects, the practice for the next few years was to deport only repeat offenders who were unable to produce security when ordered to do so by magistrates or as part of a conditional pardon. These powers appear to have been used only infrequently. In 1885, however, the government introduced a policy of deporting all non-​British subjects who had been twice convicted of a felony at the end of their second sentence. In addition to disconnecting the process of deportation from magistrates, who were instructed not to make recommendations for deportation in future, this policy had an immediate effect on sentencing. Within less than a year, the Captain Superintendent of Police W.M. Deane was complaining that magistrates were now giving repeat offenders under the Larceny Ordinance short sentences followed by deportation instead of committing them for trial in the Supreme Court, where they could be sentenced to up to ten years. The new policy of deporting felons became established practice for the next 70 years. It was part of a general revival of deportation, which was now also increasingly applied to persons other than convicted criminals.20 The net widens, 1885–​1911 During the Sino-​ French War of 1884–​ 1885, Chinese dockworkers in Hong Kong boycotted French shipping, and the police fired on rioters. The Legislative Council passed a temporary Peace Preservation Ordinance empowering the Governor in Council to issue a ‘proclamation of the peace’ whenever the peace of the colony appeared to be under threat. While a proclamation was in force, the police had special powers to disperse riots. They could also detain persons subject to deportation orders until arrangements could be made for them to leave the colony. A permanent version of the ordinance, enacted in 1886, empowered the Governor in Council to order the banishment of both naturalised British subjects and non-​British subjects while a proclamation of the peace was in force and to suspend their naturalisation.21 Together with various emergency regulations issued from the 1920s onwards and curfews under Public Order Ordinance 1948, the Peace Preservation Ordinance provided powers for dealing with public disorder until a newer, more comprehensive Public Order Ordinance was enacted in 1967. In 1911, when disturbances broke out after the collapse of the Qing Dynasty, the Peace Preservation Ordinance was expanded to allow magistrates to impose whipping for a wide range of offences while a proclamation was in force. The last proclamation of the peace was made during the Star Ferry riots in 1966.22 The government believed the Triad Society to have been behind the 1884 riots. Police estimated there were about 20,000 triad members in the colony. The Governor in Council issued orders of banishment against 38 of their leaders,

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‘Our best trump card’ 31 most of whom quickly left. Only seven could be found in Hong Kong. Some of them, facing the prospect of decapitation if turned over to the Chinese authorities, were given the option of a year’s hard labour in Victoria Gaol instead. Some months earlier, Governor Sir George Bowen (1883–​1887) had appointed a commission on deportation, which advised that the time had come to again deport dangerous characters without previous convictions. The culprits, the commission said, were well known to leading Chinese figures, who were quite ready to report them privately but refused to give evidence against them in court because they feared reprisals against themselves or their families on the mainland.23 Governor Bowen sought instructions from the Secretary of State to extend the scope of deportation. Hong Kong, he said, was not a colony in any usual sense of the word but, like Gibraltar, was analogous to the fortified outposts of the ancient Greeks. As previous secretaries of state had stressed, it was a place ‘to be dealt with on principles which might not be sanctioned elsewhere’. Its proximity to Canton, combined with the leniency of English law, made it ‘the Alsatia of the disorderly classes of southern China’. Banishment here, Bowen argued, had a different meaning from that in other countries. When originally colonised, Hong Kong was ‘merely a barren rock inhabited by a few pirates and fishermen’. Its present population of 150,000 was made up almost entirely of immigrants, here of their own free will for the sake of safety, convenience and profit. ‘What banishment means here is really repatriation. It is tantamount to refusing the disorderly classes of Canton permission to seek a new field for their depredations on British territory.’24 The Secretary of State declined to give Bowen the instructions he sought. However, over the next few months the pace of deportation quickened. In June 1885 Bowen ordered that all felons convicted of a second offence be put up for banishment. A commission reporting in June 1886 on overcrowding in Victoria Gaol urged that the only way to avoid further burdens on taxpayers was through ‘a rigorous system of repatriation’ and, ‘by the logical sequence of that system’, the infliction of whipping on returned banishees, who were now appearing in increasing numbers in annual court returns.25 In the same month, following a report from another committee, the government began a second round-​up of triad leaders and other gangsters, who had established headquarters in the colony, infiltrated the police and committed with impunity crimes ranging from murder to extortion. Despite their depredations, they could not be convicted of any crime because their victims were too scared to give evidence against them. The government ordered the deportation of ten prominent triad figures, which was sufficient to ‘thoroughly frighten’ dozens of other triad leaders, who promptly went into hiding.26 It was a short step from repatriating untriable triad members to deporting other troublemakers not convicted by the courts. By the early 1890s recommendations for deportation put up by the Captain Superintendent of Police and the Registrar General had become a standard feature of Executive Council meetings. In fact, at some meetings lists of deportees constituted the only item on the agenda. In addition to the standard lists of repeat offenders due for release

23

32 C. Munn from prison, those put up for deportation included professional gamblers, prostitutes, pimps, keepers of unlicensed brothels, traffickers in women, kidnappers, thieves, receivers, blackmailers, swindlers, smugglers, beggars, lunatics, invaders of the opium monopoly, common informers, corrupt policemen and various others merely described as ‘bad characters’. Sometimes the authorities were criticised for going too far. In 1910, for example, complaints were raised in the press about several notorious cases of respectable Chinese being deported merely on the scanty information of police informers. There were hundreds who should be deported, said one editorial, but that was no reason for ‘citizens of British ­prestige’ to be deported merely for being gamblers or opium smokers.27 In 1895 political banishments began to make an appearance when 65 men were banished for obstructing the enforcement of new regulations requiring registration and minimum space requirements for common lodging houses, a sanitary measure introduced in the wake of the colony’s first outbreak of bubonic plague a year earlier. The regulations provoked strikes among coolie labourers, who feared rent increases. The banishments prompted the flight of over 100 head coolies and played a key part in terminating the strike.28 As Hong Kong became a centre of anti-​dynastic and nationalist activity, banishment was used against those who plotted, or fomented opposition, against governments in other countries or their colonies. Among the most famous of these was Sun Yat-​sen, who was twice banished in absentia, in 1896 and 1907. In 1905, while an anti-​American boycott was in progress, three editors of the Kung Yik Po were deported for publishing an offensive cartoon of Alice Roosevelt, the daughter of the US president, shortly before her visit to the colony.29 The laws are tightened, 1912–​1935 The political dislocations that followed the collapse of the Qing Dynasty deepened the instability in the region around Hong Kong. Nationalist feeling, fuelled by labour grievances, was increasingly directed against the colonial establishment in Hong Kong and Western imperialism elsewhere in China. A succession of hardline governors deployed deportation and other draconian measures to protect the colony. The first of these, Sir Henry May (1912–​1918), had earlier headed the Hong Kong Police (1893–​1902) and had been a dominant force in government as colonial secretary (1902–​1910). Shortly before his return to the colony in 1912 after a brief spell as Governor of Fiji, a new Deportation Ordinance, long in preparation and drawing on laws in the Straits Settlements, was enacted to consolidate and extend existing powers. This was followed by a series of amending ordinances and a new consolidation in 1917, which was periodically amended until the introduction of a new deportation system in 1935. There were few subjects that the Hong Kong government legislated upon more frequently than deportation, as it sought to extend control and plug loopholes, always in consultation with the Secretary of State, because the system depended on extraordinary powers and increasingly touched on the rights of British subjects. The 1912 ordinance removed the five-​year limit on terms of banishment,

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‘Our best trump card’ 33 making it possible for the Governor in Council to banish a person for any period up to and including life. It increased the penalty for returning from banishment from one year’s imprisonment to a maximum of five years for a returned banishee who had been banished for more than 15 years. It also prescribed procedures. Persons proposed for deportation were to be arrested on a warrant signed by the governor and detained in a ‘House of Detention’ (Victoria Gaol) for up to six days under what became known as the ‘long procedure’. Under this procedure persons put up for deportation were questioned by an official in the Registrar General’s Department and given the opportunity to state their place of birth and connection with the colony and to answer any allegations. They would then be either discharged or put up for deportation by order of the Governor in Council, with the grounds on which they were deported stated in the order.30 Amending ordinances in 1913 introduced a ‘short procedure’ for summarily deporting non-​British subjects convicted of any offence in the colony and British subjects convicted by the British courts in China after they had served sentences in Hong Kong. Magistrates were given powers to impose flogging, in addition to imprisonment, for certain categories of male returned banishees.31 This provision, retained until 1931, implemented recommendations made by successive gaol commissions and leaders of the Chinese community since the 1880s. Further legislation in 1914 permitted the deportation of ‘dangerous’ persons born in Hong Kong of non-​British parents, which made nearly the entire Hong Kong Chinese population –​the vast majority of people in the colony –​liable to deportation.32 In a consolidation of the legislation in 1917, British subjects of all descriptions who abused the courts were also made liable to deportation. The legislation also stated that deportation decisions by the Governor in Council were ‘final and conclusive for all purposes whatsoever’.33 In 1921 the Governor in Council acquired the further power to summarily deport any alien during an emergency and to deport by the long procedure any British subject acting in a manner prejudicial to public safety or defence –​a measure aimed at disaffected Indian soldiers and policemen.34 This legislative creep usually took the form of ad hoc responses to particular problems facing the colony, including complex questions about the status of British subjects from elsewhere in the world. The Great War of 1914–​1918, which prompted the enactment of extraordinary powers throughout the British Empire, had little if any influence on the process. Increasingly, the law blurred the line between Hong Kong-​born people, who as British subjects might have expected to be safe from deportation, and the rapidly growing population of immigrants and sojourners whose limited rights were also eroded. Some of the legislative amendments were also intended to insulate the process of deportation  –​now an entirely executive affair  –​from challenges in the courts. The Deportation Ordinance, said Chief Justice Sir Francis Piggott in an unsuccessful habeas corpus action in 1910, conferred ‘the most absolute powers’ on the Governor in Council: ‘directly the Legislature sanctions the exercise of arbitrary power, there is an end of the matter’.35 Fundamental rights to due process or a fair hearing could, under Hong Kong’s rudimentary constitutional arrangements,

43

34 C. Munn be legislated away as long as the legislation was properly enacted and procedures strictly followed.36 Because deportation imposed restraints on personal freedom, judges tended to insist on scrupulous adherence to procedures in the few deportation cases that came before them. These various issues came together in the curious case of Li Hong Mi, which is still cited in cases concerning the competence of colonial legislatures in what remains of Britain’s colonial empire.37 The governor, Sir Henry May, had become increasingly exercised by the general inefficiency of the courts. Lax management by judges was partly to blame, lawyers privately informed him. However, secret information from two leaders of the Chinese community, Lau Chu Pak and Wei Yuk, also convinced him that the courts were being clogged up with ‘speculative litigation’ promoted by solicitors’ clerks, who took a share of the proceeds and sometimes financed the actions themselves. In some cases, said Lau and Wei, witnesses were trained ‘like parrots’ to give false evidence. In others, credulous people were induced to pursue hopeless claims when they would have been better off accepting settlements. The predatory activities of these clerks were paralysing justice, May subsequently reported, and were tending ‘in the eyes of the Chinese, to reduce our Courts to the level of those of more corrupt and less civilised countries’.38 Lau and Wei proposed banishment for these troublemakers. Earlier attempts to prosecute such people for champerty and maintenance  –​the technical term for the offence  –​had not been successful. Deportation under existing powers was also a doubtful solution because the culprits could easily manufacture evidence of British nationality. The leading light in this alleged network of swindlers, Li Hong Mi, was protected even from the 1914 amendment, being the son of British subjects born in Penang. Well connected, respected and resourceful, he had retired in 1909 after 36 years of exemplary service as an interpreter in the Hong Kong courts. To deal with Li Hong Mi, May asked for powers to deport any British subject on any grounds. The Colonial Office thought this went too far and instructed May to confine the amendment to the abuse he sought to address. Accordingly, in October 1917, in a re-​enactment of the Deportation Ordinance, the Governor in Council was empowered to deport anyone, regardless of nationality, deemed guilty of any criminal offence, or of any other misconduct, connected with the preparation, commencement, prosecution, defence or maintenance of any legal proceeding, or the sharing in the proceeds thereof, or the settlement or compromise thereof, or the obtaining or preparation of evidence in anticipation thereof or in relation thereto. Tailor-​made for Li Hong Mi (it was used against no one else during its 18-​year life), this provision was quickly put into execution. Li was arrested in November 1917 and taken to Victoria Gaol for questioning before being bailed. On 15 January 1918 the Governor in Council issued a deportation order forbidding him from setting foot in Hong Kong for 15 years on the grounds that he had engaged

5 3

‘Our best trump card’ 35 in champerty generally and in relation to two offences specifically. Li did not go quietly. His lawyers challenged the order in the Supreme Court as a violation of the rights guaranteed by Magna Carta to be heard in one’s own defence and for a British subject to remain in the King’s realm. The court decided against Li, holding that the legislature had entrusted to official exceptional powers overriding ‘the generally accepted principles of the Common Law of England affecting the liberty of the subject’. Those powers could not be challenged as long as procedures had been complied with. Li went to the Privy Council, which, in 1920, had no difficulty in upholding the Supreme Court’s ruling on the constitutional question but discovered a procedural error in the drafting of the deportation order.39 Li’s appeal was thus allowed, and he remained in Hong Kong. While preparing for the Privy Council hearing, one legal advisor in the Colonial Office had found it ‘rather a shock’ when he compared Hong Kong’s Deportation Ordinance with Magna Carta and the Habeas Corpus Act. A member of Li’s defence team in Hong Kong, C.G. Alabaster, told the Supreme Court that, as far as he could ascertain the provision used against Li was ‘the first time in the history of British colonial legislation that a natural-​born British subject was made liable to absolute and unconditional banishment to any place’. Much later, in 1935–​1936, Alabaster, as Attorney General, was behind a reorganisation of the deportation legislation, making a clear distinction between aliens and British subjects. The old arrangements for deporting aliens were retained, with certain modifications, in the new Deportation of Aliens Ordinance (1935): one of these, introduced in 1929, was the power to deport any alien at any time for any reason under the summary procedure; another, introduced in 1931, was a formal provision for judges and magistrates to recommend a deportation order in addition to, or in lieu of, sentences. A separate Deportation (British Subjects) Ordinance (1936), based on a model bill provided by the Colonial Office, provided for the deportation of convicted, destitute or undesirable British subjects deemed not to belong to the colony: belonging was defined by birth or naturalisation in the colony or continuous residence for seven or more years. Deportations of British subjects were now subject to elaborate procedures and safeguards, including proceedings before a judge and, for some cases, reference to the secretary of state.40 A sham under cloak of deportation: political deportations Deportation –​expulsion at the initiative of the Hong Kong government –​was distinct from extradition, which involved the return of a fugitive from justice at the request of the authorities of another jurisdiction. Deportation was an executive act carried out in secret without the right to a hearing. Extradition required a judicial process in which a magistrate, in open court, determined whether there was sufficient prima facie evidence against a fugitive to commit him to gaol pending a decision by the governor on whether he should be surrendered. Extradition could be granted only for serious criminal offences, not for offences of a political nature.

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36 C. Munn From the 1870s onwards, magistrates were generally cautious in handling extradition requests from the Chinese authorities, some of which they suspected of being connected with private feuds or political disputes or with attempts to extort money from wealthy merchants. Some noted that the extradition agreement for Chinese subjects in the 1858 Treaty of Tientsin required ‘proof of guilt’, a higher test than usual. Others were influenced by the controversial Kwok A-​Sing case of 1871 in which the Privy Council had upheld a decision by Chief Justice Smale to release a man wanted by the Chinese authorities for piracy and murder on board a French coolie ship.41 Generally, magistrates required the appearance in court of witnesses from China to substantiate extradition requests. When surrendering fugitives, the Hong Kong government also required undertakings from the Chinese authorities that torture would not be used and that the fugitive would not be tried for a crime other than the one for which he was being extradited. Some governors were concerned that too cautious an approach to extradition would encourage criminals to seek refuge in Hong Kong. Governor Bowen was particularly vexed by the question. His successor, Sir G.W. Des Voeux (1887–​1891), attempted to simplify procedures and considered the possibility of suspending the presumption of innocence in extradition proceedings for ‘the moveable portion of the population’ –​that is, for Chinese who had been resident in the colony for less than two years. During a particularly heated debate in 1889 on a bill to regulate extradition to China, Des Voeux pointed out that the governor had the power to deport anybody and that deportees wanted by the Chinese authorities would ‘be pounced upon immediately’ under a method ‘far more severe than any extradition ordinance’. Des Voeux’s somewhat modest bill attempted to substitute witnesses in extradition proceedings with depositions –​a standard practice in England. But in the end he had to back down even on this (although it was added eight years later) and to give assurances that the extradition of anyone resident for more than a year would be considered by the Governor in Council with the help of the Chief Justice. The resulting Chinese Extradition Ordinance set out procedures and safeguards, including, for the first time, a list of extraditable offences.42 Twenty-​seven years later Governor May dabbled with the idea of making the extradition of Chinese fugitives a purely executive matter, like deportation. The trigger was the case of Hung Shiu-​lun, an associate of Sun Yat-​sen who was wanted in China for rebellion but whose extradition was requested for a murder that had never taken place. May ordered Hung’s surrender to the Canton authorities, even though the magistrate committing him had grave doubts about the case. But the Supreme Court released Hung on a writ of habeas corpus, having concluded that he was a political fugitive. Hung was immediately re-​arrested on a deportation warrant as he left the court. His deportation, however, was not to China, but to Japan, where he joined Sun and other exiles. May did not pursue his plans to reform extradition. Instead, at around this time a new safeguard was inserted in the Deportation Ordinance to prevent the deportation of a person to a jurisdiction that had sought his extradition if he had been discharged by a magistrate or by a writ of habeas corpus.43

7 3

‘Our best trump card’ 37 Increasingly, British diplomats in China became impatient with the ‘extremely casuistic legal view’ adopted by the Hong Kong government in extradition requests. They proposed that the government summarily deport any political refugee whose presence in the colony was objectionable to the Chinese government. What had particularly enraged diplomats was the protection given in Hong Kong to Li Zongren and other members of the ‘Guangxi clique’ who in 1929 had fallen out with Chiang Kai-​shek and were plotting against a government friendly to Britain.44 Officials in Hong Kong resisted the idea, not so much out of principle, but because they did not wish to offend factions that might one day assume power in China. They had fewer qualms about applying this approach to communists, who, in 1925–​1926, had instigated a strike-​boycott that paralysed Hong Kong’s trade: one of the six sets of demands made by the organisers –​along with free speech and improvements in labour conditions –​was for all Chinese to be treated on the same basis regardless of place of birth, and the immediate abolition of the deportation law and the abuses that went with it.45 When Guangdong Province came under the rule of the anti-​communist Li Jishen in 1927, the communist leadership moved its headquarters to Hong Kong. The governor, the staunch anti-​communist Sir Cecil Clementi (1925–​1930), joined hands with Li’s government to rid the colony of communists through deportation. With the aid of detectives from Canton, Hong Kong police arrested hundreds of alleged communists. Most were deported, some reportedly after being tortured while in detention. A number of communist leaders handed over direct to the Canton authorities faced execution. By the early 1930s the Chinese Communist Party in Hong Kong had been reduced to a ‘state of inactivity’.46 Hong Kong was also a base for revolutionaries plotting the overthrow of colonial regimes in other places. The most illustrious of these was the future President of the Democratic Republic of Vietnam, Ho Chi Minh, whose deportation case became an international cause célèbre. Ho was wanted by the French authorities in Indochina as one of the leaders of the communist insurgency. Disguised as a Chinese journalist by the name of Sung Man Cho, he was arrested in Hong Kong in June 1931 and detained in Victoria Gaol while deportation proceedings against him were begun. The French government wanted him deported to Indochina. Frank Loseby, a solicitor who had represented other Vietnamese clients, took up Ho’s case and persuaded the governor, Sir William Peel (1930–​1935), that deporting Ho to Indochina would result in his death. The Attorney General, C.G. Alabaster, also advised that it was ‘repugnant to British principles’ to use deportation as a means of effecting extradition. Peel proposed that Ho simply be released on condition that he leave Hong Kong within seven days. However, the secretary of state, under pressure from the Foreign Office, ordered that Ho be deported to Indochina. A succession of deportation orders then followed, each specifying the ship on which Ho was to be deported to Indochina, while Ho’s lawyers –​Loseby and barrister F.C. Jenkin KC –​pursued habeas corpus proceedings on the basis that the orders were faulty and the whole procedure ‘subterfuge’ by the government, a ‘sham under cloak of deportation’. The Supreme Court rejected these arguments and held that if

83

38 C. Munn there had been irregularities in the early proceedings against Ho, they had been corrected by subsequent orders.47 Ho was given leave to appeal to the Privy Council and, through Loseby, he engaged as his counsel D.N. Pritt KC, a Labour Party member sympathetic to the Stalin regime in USSR. The Colonial Office engaged another prominent Labour Party member, Sir Stafford Cripps KC. Cripps was shocked by what he read about the case and was convinced that Ho’s appeal would succeed, not least because the only evidence before the court about his identity was that (as Sung Man Cho) he was a Chinese national: his deportation to Indochina would therefore be indefensible. The Colonial Office, Cripps advised, was ‘out for a man-​hunt’ and ‘a lot of unpleasant things’ would come out in court that would make future deportation cases more difficult. The matter was settled out of court after the first day of the Privy Council hearing.48 In return for dropping the case, Ho was to be deported to a place of his choice, which was effectively what Governor Peel had recommended at the outset. Ho chose Moscow, and, on 21 January 1933, after 18 months of detention in Victoria Gaol and the Bowen Road Hospital, he secretly boarded a ship for Shanghai, whence he took another ship to Vladivostok. Deportation in time of war Royal orders in council and defence regulations gave colonial governors special powers during times of war, including the power to order anyone to leave the colony. This power was used soon after the start of the First World War to deport 86 German and Austrian women, children and older men from Hong Kong to Shanghai and 79 interned prisoners-​of-​war to camps in Australia. The outbreak of the Second World War presented larger problems, including the growing threat of a Japanese invasion of Hong Kong. In summer 1940 the government evacuated nearly 3,500 British women and children of ‘pure’ European descent using a new emergency regulation made under the 1922 Emergency Regulations Ordinance.49 This mass deportation was resented both by the families affected by it and by legislators, who refused to grant funds for this racially discriminatory measure. An Excess Population Reduction Committee, reporting in June 1940, urgently considered the problem of refugees from Japanese hostilities in China, who during the late 1930s had swelled the population from 853,000 to an estimated 1.8 million or possibly even two million. The committee recommended the transfer of refugee camps and squatter settlements to north of the Kowloon Hills (the colony’s internal defence line) and greater use by police and magistrates of the Vagrancy Ordinance, which had recently been strengthened to include powers of expulsion. The committee also recommended immigration restrictions, which in 1941 were introduced for Chinese people for the first time.50 During the Japanese occupation of Hong Kong from 1941 to 1945, about a million people were deported under a ‘repatriation’ policy aimed at reducing the population to half a million. The policy began as a voluntary scheme and ended with people being indiscriminately rounded up in the streets. Towed out of Hong Kong on coal lighters, thousands of these deportees died at sea. Others were

9 3

‘Our best trump card’ 39 landed on uninhabited islands or remote bays, where they faced starvation. This mass deportation of civilians formed one of the main allegations against Noma Kennosuke, Commanding Officer of the Kempeitei during the occupation, in his trial for war crimes in 1946–​1947. Noma was convicted of war crimes, sentenced to death and executed in Stanley Prison on 27 May 1947.51 The end of deportation After the Second World War the Hong Kong government gradually revived the practice of deportation as the population rapidly increased and as civil war and revolution in China brought new anxieties and an increase in crime. Militant labour leaders and other ‘subversives’ were among the targets. For example, the leader of the victims of the 1951 Tung Tau Fire, which prompted one of the earliest mass demonstrations after the war, along with barrister Mok Ying-​kwai, Chairman of the Chinese Reform Association and organiser of a reception for a ‘comfort mission’ from China, were deported for their role in the demonstrations. The Expulsion of Undesirables Ordinance 1949 empowered the government to expel aliens resident in the colony for less than a year. However, as before the war, by far the largest number of deportees were convicted criminals. Legislation in 1948 for the first time gave courts the power to order deportations in addition to, or in lieu of, sentences for specified offences committed by persons resident for under a year; previously, with the exception of mendicant or vagrancy cases, the courts could only recommend deportations. This lasted for only a year, to be replaced by a system under which every alien offender was automatically deported at the end of any sentence of more than 18  months’ imprisonment (12 months from 1950) or, for certain offences, one month.52 In 1954 the number of ‘compulsory removals’ rose to over 10,000.53 Deportees were held in a camp on Chatham Road in Tsim Sha Tsui before being taken to the border in police trucks, carried off in chartered junks or towed in boats by police launches before being cut loose near Chinese territory. Increasingly, the Chinese authorities returned deportees to Hong Kong. In August 1955, after a Chinese  gunboat captured a deportation junk off Zhongshan and detained the crew, the Chinese government finally refused to take any more deportees other than political deportees. Deportees were already accumulating at the Chatham Road camp, and the government had by now decided to relax the system. Prosecutions of returned deportees was discontinued in 1954, and the automatic deportation of all convicts sentenced to 12  months or longer was abolished. Arrangements were introduced for the conditional rescission of existing deportation orders, and some 2,500 minor offenders detained for deportation were brought before magistrates to be bound over to keep the peace (about half were later rearrested for other offences). Another 379 serious offenders were let out on condition that they report to the police weekly until their deportation orders were cancelled. The policy of automatic deportation, the Colonial Secretary Robert Black admitted, had operated ‘unduly harshly in the grave economic difficulties with which certain sections of the Colony’s population have been faced’.54

04

40 C. Munn Except as a feature of immigration policy, or for political cases, deportation as a means of dealing with criminals and other undesirables ended in 1955. Officials regretted the loss of this tool of control. As a result of China’s refusal to take deportees, said Governor Sir Alexander Grantham, ‘we were saddled with thousands of the worst criminal elements’. Police officers believed the end of deportation to have been an aggravating factor in the triad-​instigated Double-​Tenth riots of October 1956, the bloodiest civil unrest in Hong Kong’s post-​war history. The violence of these riots, said Grantham, was ‘the last straw’.55 In November of that year new emergency regulations were passed, enabling the Governor in Council to order indefinite detention, subject to six-​monthly reviews, of any person liable to deportation where a deportation order was incapable of enforcement.56 During the following decade thousands of triad members, drug traffickers and other undesirables were held at the Chatham Road camp, various prisons and, from 1962, the Victoria Road Detention Centre.57 A  modified version of this legislation (covering British nationals as well as aliens) was later used to detain political prisoners without trial during the disturbances of 1967–​1968.58 Although the numbers of detainees were, by now, very small, and the practice was soon to be discontinued, officials still desired to maintain their powers of detention as a last resort, a desire that prevented Hong Kong, almost exceptionally among inhabited colonies, from acceding to the European Convention on Human Rights. When crime rates began to rise in the early 1970s, Governor Sir David Trench (1964–​1971) considered reintroducing detention without trial for ‘cases where the more usual processes of the courts would be impractical or ineffective’. However, he acknowledged that, because the first test for detention was eligibility for deportation, detention might have limited application to young offenders (the main cause for concern), since most of them had been born in Hong Kong. As for deportation itself, ‘traditionally one of the most powerful and effective forms of deterrent to criminals’, Trench was forced to admit that it was now out of the question even for those who were technically eligible.59 Deportation, citizenship and social movements Other people also had deportation on their minds, albeit for different reasons. ‘The daily threat of deportation which hangs over most of Hong Kong’s adults’ was one of the reasons why ‘the open critics of the government are so few in number’, stated the manifesto of the newly registered Hong Kong Democratic Self-​ Government Party in 1963. Reformist politicians campaigned for a form of local citizenship that would remove the ‘shadow of deportation’ hanging over some two million Hong Kong residents born in China. The Hogan Commission on the 1966 Star Ferry Riots cited ‘unreasonable fears of deportation’ as an important factor in the ‘sense of not-​belonging’ among young people that had fed the riots, even though deportation was now defunct and most young people, having been born in Hong Kong, were not deportable. Early that year, one of the reformist politicians, the elected Urban Councillor Elsie Elliott (whose refusal to disclose evidence in support of her allegations that police had incited the riots led to her

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‘Our best trump card’ 41 censure by the commission), had moved a successful motion criticising the police for using threats of deportation against law-​abiding citizens to prevent them from giving evidence in court about police abuses.60 Deportation or detention could be used ‘to frighten anyone who had the courage to complain’, recalled Elliott (later Tu) in her memoir.61 Some of the concerns expressed by politicians in the 1960s were addressed in a new Immigration Ordinance in 1971, the year in which the census recorded for the first time that the majority of Hong Kong’s population had been born in Hong Kong.62 The ordinance created the category of ‘Hong Kong Belonger’ to cover those born or naturalised in Hong Kong as British nationals. This category of people, consisting of more than half the population, had the unrestricted right to live and remain in Hong Kong. The ordinance introduced the further category of ‘Chinese Resident’ to cover people of Chinese origin who had been ordinarily resident in Hong Kong for seven or more years. Added in response to intense public criticism of the original bill, this measure still fell short of citizenship or right of abode: Chinese Residents were technically liable to deportation by order of the Governor in Council, albeit with various safeguards and a degree of judicial oversight.63 In practice people in this category were treated in the same way as Hong Kong Belongers. The intention behind the ordinance, said Attorney-​General Denys Roberts, was to ‘give a greater feeling of security’ to people who had made Hong Kong their home.64 In 1987, following the provisions in the Joint Declaration, a new category of Hong Kong Permanent Resident was created that broadly embraced the old categories of both Hong Kong Belonger and Chinese Resident. Permanent residents –​the great majority of Hong Kong’s population –​had an unqualified right of abode in Hong Kong and could not be subject to a deportation order. Having long since fallen into disuse, the Emergency (Deportation and Detention) Regulations were finally repealed in 1995.65 Acknowledgements I am grateful to participants at a workshop on 23 May 2016, particularly to Professor Albert H.Y. Chen, for their comments on an earlier version of this chapter. Notes 1 China Mail, 18 May 1922. 2 A contender for the record was Ip Kau, sentenced to five years’ hard labour in 1919 after having returned from banishment for the ninth time. Hong Kong Daily Press, 19 December 1919. 3 The other colonies were the Straits Settlements, the Dutch East Indies and French Indochina. See Report of the Captain Superintendent of Police for 1922, 6–​7, Hong Kong Government Administrative Reports. 4 From 1912 all legislation used the term ‘deportation’. However, for some years thereafter the term ‘banishment’ continued to be used in official documents and newspapers.

24

42 C. Munn 5 Badeley to Colonial Office, January 1904, The National Archives, UK: Great Britain, Colonial Office, Original Correspondence: Hong Kong, 1841–​ 1951, Series 129, hereafter CO 129/​327, 23–​25. 6 In 1847–​1862 magistrates had powers to order the deportation of Chinese beggars, suspicious persons and convicted felons. For the 1948–​1949 arrangements, see below. From 1939 magistrates also had powers to order the deportation of mendicants not ordinarily resident for seven or more years. 7 Davis to Aberdeen, 20 December 1844, National Archives (Original Correspondence), CO 129/​7, 302–​303. 8 Bowring to Labouchere, 22 July 1857, CO 129/​63, 472–​77; Ordinance No. 2 of 1850. 9 Bowring to Labouchere, 29 January and 28 February 1857, National Archives (Original Correspondence), CO 129/​62, 154–​58, 338–​40. 10 Ordinance Nos. 2 and 9 of 1857 and 8 of 1858. The 1857 ordinances also imposed a curfew and night-​pass system on Chinese inhabitants, which was maintained in one form or another until 1897. 11 Ordinance No. 4 of 1871; Whitfield to Kimberley, 22 September 1871, National Archives (Original Correspondence), CO 129/​152, 20–​28. 12 Smale held the order to be invalid because it specified a five-​year banishment period starting a week after the date of the order. The five-​year period, said Smale, should begin on the date of the order itself. The deportee, Chun Afuk, had been sentenced to six months’ hard labour for returning before the expiry of the order. The court quashed the sentence but postponed Chun’s discharge pending the issue of a fresh deportation order. The words in inverted commas within the quotation are taken by Smale from Sir Peter Benson Maxwell, On the Interpretation of Statutes (1875), 270. R v. Chun Afuk, Hong Kong Daily Press, 27 July and 15 August 1877. 13 Christopher Munn, Anglo-​China:  Chinese People and British Rule in Hong Kong, 1841–​1880 (Richmond: Curzon, 2001; Hong Kong University Press, 2009), 352–​354, 362–​364. 14 Ordinance No. 4 of 1872. 15 MacDonnell to Carnarvon, 14 January 1867, National Archives (Original Correspondence), CO 129/​120, 122–​124. 16 The total number is not known, but Hennessy gave the figure of 532 for the five-​year period before his arrival in 1877. Hennessy to Hicks Beach, 29 April 1877, CO 129/​ 184, 201. 17 Hennessy to Hicks Beach, 18 May 1880, CO 129/​ 188, 54–​ 101; Hong Kong Government Gazette, 31 July 1880. 18 Other resolutions called for a firm carrying out of existing laws, the reintroduction of public floggings with the cat-​o’-​nine-​tails, which Hennessy had abolished, and a royal commission to inquire into the criminal law and the carrying out of sentences. China Mail, 7 October 1878. 19 Ng’s concern was about the provision (section 2) empowering a magistrate to order a Chinese convicted of a second imprisonable offence within 12 months after release from prison for a previous offence to find security, failing which he would be deemed a dangerous person (a modification of the power introduced in 1858, which was available for first offenders). At his suggestion, this power was extended to cover all non-​ British subjects. Ordinance Nos. 8 of 1876 and 8 of 1882; Hennessy to Kimberley, 3 March 1882, National Archives (Original Correspondence), CO 129/​ 198, 29–​38. 20 Order by the Governor on aggravated offenders, 6 June 1885, and Acting Colonial Secretary to H.E. Wodehouse, Police Magistrate, 22 August 1885, Public Records Office, Hong Kong: Correspondence Relative to the Magistrates Court, Police and Prisons, January 1885–​December 1885, HKRS 101-​1-​7, 69, 181.

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‘Our best trump card’ 43 21 The governor was required to report to the Secretary of State any order of banishment made under the ordinance and any suspension of the status of naturalisation. Ordinance Nos. 22 of 1884 and 15 of 1886. 22 The flogging provisions had been repealed in 1954. The whole of the Peace Preservation Ordinance was repealed by Public Order Ordinance, No. 64 of 1967. 23 Marsh to Derby, 11 October 1884, National Archives (Original Correspondence), CO 129/​217, 468–​499; Stewart, Russell and Ackroyd, members of the Commission on Deportation, to Colonial Secretary, 22 December 1883, CO 129/​218, 83–​86. 24 Bowen to Derby, 19 November 1884 and 14 February 1885, CO 129/​218, 74–​88 and CO 129/​220, 243–​250. 25 Report of the Commission to Consider Overcrowding in the Gaol, Hong Kong Sessional Papers, 34/​87. 26 Not all ten were deported. Two were policemen who were willing to give information and who were detained for the time being. One of the two was committed for trial for demanding money with menace but jumped bail and fled to the mainland, where he was killed in a gunfight with Chinese soldiers. A  third, magistracy interpreter Li Fuk-​sing, who was born in Penang and claimed British nationality, was simply dismissed from his position. Marsh to Granville, 15 and 28 June 1886, National Archives (Original Correspondence), CO 129/​227, 287–​371, 587–​600. 27 Hongkong Telegraph, 25 November 1910. 28 Executive Council Minutes, 22 March and 1 April 1895, The National Archives, UK: Great Britain, Colonial Office, Executive and Legislative Council Minutes:  Hong Kong, 1844–​1967, Series 131, CO 131/​20, 340–​43; Jung-​fang Tsai, Hong Kong in Chinese History:  Community and Social Unrest in the British Colony, 1842–​1913 (New York: Columbia University Press, 1993), 175–​181. 29 Nathan to Lyttelton, 8 September 1905, National Archives (Original Correspondence), CO 129/​329, 259–​64. 30 Ordinance No. 9 of 1912. 31 These included returned banishees who had been convicted of any offence by the Hong Kong Supreme Court or by HM’s Supreme Court in China, had been twice convicted of any criminal offence by a magistrate or had been convicted by a magistrate of any offence for which he was liable to flogging. The flogging provisions were repealed in 1931. Ordinance Nos. 3 and 10 of 1913 and 7 of 1931. 32 The ordinance exempted Hong Kong-​ born people who had taken out certificates of British birth or registered at British consulates in China as persons entitled to British protection. Blake to Lucas, 17 April 1904, National Archives (Original Correspondence), CO 129/​327, 35–​43. 33 Ordinance Nos. 20 of 1914 and 25 of 1917. 34 Ordinance No. 19 of 1921. 35 In re Lo Tsun Man (1910) 5 HKLR 166. 36 The Letters Patent empowered the governor, with the advice and consent of the Legislative Council, ‘to make laws for the peace, order and good government of the colony’. The Legislative Council consisted entirely of appointed members, the majority of whom were officials. If, as occasionally happened, unofficial appointees opposed a bill, the government could force it through with the official majority. See Peter Wesley-​ Smith, ‘Legal Limitations upon the Legislative Competence of the Hong Kong Legislature’, Hong Kong Law Journal 11 (1981): 3–​31. 37 It was one of the Hong Kong cases referred to by the British government as respondent in the first judicial review, in 2000, of the deportation of the Chagos Islanders and in the unsuccessful appeal on constitutional grounds in 2006 by six Pitcairn islanders against their convictions for sexual offences. R v. Secretary of State for Foreign and Commonwealth Affairs, ex p Bancoult (No 1) [2000] EWHC Admin 413; Christian & Others v. The Queen (The Pitcairn Islands) [2006] UKPC 47.

4

44 C. Munn 38 May to Long, 15 December 1916, CO 129/411, 305. 39 The deportation order consisted of a general charge of champerty and other abuses, followed by three charges of misconduct in relation to specific cases (one of which was later dropped). The Judicial Committee of the Privy Council held that the ordinance referred to a person who had been guilty of a specific offence on a particular occasion, not a general accusation. It was impossible to say how far the inadmissible general allegation had influenced the governor and his advisors when considering the specific charges that followed. Li Hong Mi v. Attorney General and Others (1918) 13 HKLR 6; Li Hong Mi v. The Attorney General of Hong Kong and others (Hong Kong) [1920] UKPC 10. 40 Ordinance Nos. 34 of 1929, 7 of 1931, 39 of 1935 and 16 of 1936. 41 See Peter Wesley-​Smith, ‘Kwok A-​Sing, Sir John Smale, and the Macao Coolie Trade’, in Law Lectures for Practitioners, ed. Shane Nozzal (Hong Kong: Hong Kong Law Journal, 1993). 42 Des Voeux to Knutsford, 8 August 1888, National Archives (Original Correspondence), CO 129/​238, 462–​515; Hongkong Daily Press, 19 June 1889; Sir George William Des Voeux, My Colonial Service in British Guiana, St. Lucia, Trinidad, Fiji, Australia, Newfoundland, and Hong Kong with Interludes, Vol. II (London: John Murray, 1903), 256–​267; Ordinance Nos. 26 of 1889 and 23 of 1897. 43 In re Hung Siu Lun (1915) 10 HKLR 114; Hongkong Daily Press, 25 December 1915; May to Bonar Law, 12 January 1916, National Archives (Original Correspondence), CO 129/​ 431, 112–​ 14; Executive Council Minutes, 16 March 1916, National Archives (Council Meetings), CO 131/​49, 576–​77; Ordinance No. 35 of 1915. 44 Deportation of Political Refugees from Hong Kong, National Archives (Original Correspondence), CO 129/​526/​4. For the activities of the Guangxi clique, see Diana Lary, ‘The Guangxi Clique and Hong Kong:  Sanctuary in a Dangerous World’, in Colonial Hong Kong and Modern China: Interaction and Reintegration, ed. Lee Pui-​ tak (Hong Kong: Hong Kong University Press, 2005), 155–​168. 45 The other three were the right for labour unions to vote on the appointment of Chinese Legislative Council members, rent reductions and the right of Chinese to reside on the Peak. Hong Kong Daily Press, 23 June 1925. 46 Chan Lau Kit-​ching, From Nothing to Nothing:  The Chinese Communist Movement and Hong Kong, 1921–​1936 (Hong Kong:  Hong Kong University Press, 1999), 176–​189; Chan Lau Kit-​ching, China, Britain and Hong Kong, 1895–​1945 (Hong Kong: Chinese University Press, 1990), ­chapter 5; Report of Captain Superintendent of Police for 1932. 47 In the Matter of the Deportation Ordinance, 1919, and In the Matter of Sung Man Cho v. The Superintendent of Prisons (1931–​32) 25 HKLR 62. An authoritative account can be found in Dennis J.  Duncanson, ‘Ho-​chi-​Minh in Hong Kong, 1931–​32’, The China Quarterly 57 (1974): 84–​100. For broader background information, see William J. Duiker, Ho Chi Minh: A Life (New York: Hyperion, 2000), ­chapter 7 48 ‘Nguyen Ai Quoc, arrest of’, National Archives (Original Correspondence), CO 129/​ 539 (1932). 49 Hong Kong Government Gazette, 29 June 1940. 50 Excess Population Reduction Committee Report (1940), CO 129/587/15; Ordinances Nos. 41 of 1939 and 32 of 1940; Hong Kong Government Gazette, 4 February 1941; Albert H. Y. Chen, “The Development of Immigration Law and Policy: The Hong Kong Experience,” McGill Law Journal 33 (1987–88): 637–38. 51 Trial of Noma Kennosuke, WO 235/​999; Suzannah Linton, ‘War Crimes’, in Hong Kong’s War Crimes Trials, ed. Suzannah Linton (Oxford:  Oxford University Press, 2013), 107–​118.

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‘Our best trump card’ 45 52 The specified offences included more serious offences against property and the person, as well as corruption and returning after expulsion as a mendicant. Ordinance Nos. 58 of 1948, 44 of 1949 and 25 of 1950. 53 Report of Captain Superintendent of Police for 1954/​ 55. For the statistics for 1946–​1960, see Carol A.G. Jones and Jon Vagg, Criminal Justice in Hong Kong (London: Routledge-​Cavendish, 2007), 235–​237. 54 The remaining offences on the list were robbery, demanding money with menace, possession of arms, burglary, larceny from a dwelling, dangerous drug offences, bribery and corruption, impersonating a police officer, and triad membership. Hong Kong Hansard, 12 January 1955; Ordinance No. 3 of 1955. 55 Commissioner of Police Henry Heath to the Working Party on Detention, quoted in Jones and Vagg, Criminal Justice in Hong Kong, 328; see also Alexander Grantham, Via Ports: From Hong Kong to Hong Kong (Hong Kong: Hong Kong University Press, 1965), 192. 56 Emergency (Deportation and Detention) Regulations 1956. These were accompanied by declarations, made every six months, that deportation for certain categories was impractical. In 1962 a Deportation and Detention Advisory Tribunal, chaired by a judge, was established to advise the Governor in Council before the issue of any detention order and to review orders periodically. 57 The figures, compiled from the annual reports of the police are: 1954–​1955: 10,388; 1955–​1956: 4,000; 1956–​1957: 1,356; 1957–​1958: 1,155; 1958–​1959: 795; 1959–​ 1960: 543. Jones and Vagg, Criminal Justice in Hong Kong, 317–​318. 58 The regulations were finally repealed in 1995, along with other emergency regulations. For the 1967 detentions, see Gary Ka-​wai Cheung, Hong Kong’s Watershed: The 1967 Riots (Hong Kong:  Hong Kong University Press, 2009), 84–​86, 204–​213. The regulations are examined in the context of emergency regulations more generally in Max W.L. Wong, ‘Social Control and Political Order:  Decolonisation and the Use of Emergency Regulations in Hong Kong’, Hong Kong Law Journal 41(1) (2011): 449–​480. 59 Trench to Monson, 6 August 1970, HKRS 260-​1-​22, encl. 4. 60 South China Morning Post, 18 October 1963, 8 December 1965, 26 February 1967. 61 Elsie Elliott, Colonial Hong Kong in the Eyes of Elsie Tu (Hong Kong:  Hong Kong University Press, 2003), 127–​128. 62 Fifty-​six per cent of the population (and a far higher proportion for those under 25), compared with 47.7 per cent in 1961. 63 For the political background to the ordinance, see Agnes Ku, ‘Immigration Policies, Discourses and the Politics of Local Belonging in Hong Kong (1950–​1980)’, Modern China 30(3) (2004): 326–​360. 64 The ordinance defined two additional categories:  ‘Resident United Kingdom Belongers’, who were citizens of the UK or colonies with seven years’ continuous ordinary residence in Hong Kong and had rights similar to those of Chinese Residents, and ‘Others’, who had no inherent rights and whose presence in Hong Kong was at the discretion of the immigration authorities. Hong Kong Hansard, 13 October 1971; Ordinance No. 55 of 1971; Chen, ‘Development of Immigration Law’, 642–​648. 65 Ordinance No. 31 of 1987.

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3  Exclusion as oppression A quest for extra-​legal status for Chinese medicine in colonial Hong Kong Yu Xiu-​ling Indigenous medicine’s encounter with Western medicine is an important issue in considering the expansion of colonial power. When Western colonisers arrived in the East as self-​professed representatives of civilisation and science, they often considered the medical traditions they found to be backward, incompatible with scientifically based Western medicine and even dangerous.1 Historians of India have made significant contributions to the study of disease and medical practice in the colonial context, and a number of powerful academic works on the history of imperialism and colonial medicine have appeared.2 Among them, David Arnold’s seminal book Colonizing the Body is a notable contribution. In 2001, Mark Harrison and Biswamoy Pati offered creative perspectives on the relations among health, medicine and empire, with a particular focus on the relationship between medicine and imperialism and the complexity of relations between colonisers and the colonised in the medical arena. In an important earlier work, Harrison describes the encounter between the European colonisers and Indian medicine, and analyses the Orientalist perspective of the former in regarding Indian medicine as flawed and outmoded.3 With the growing ascendancy of Western m ­ edicine, indigenous medicine was increasingly marginalised by the colonial medical system. Chinese medicine in the British Colony of Hong Kong suffered from a similar Orientalist prejudice. In practice, however, to help to maintain colonial order, the colonial government did not outlaw indigenous medical traditions or robustly enforce measures against them. Instead, a cautious legislative approach and policy was often followed when it came to the question of excluding or replacing indigenous medicine. The adoption of such a laissez-​faire policy4 suggests that the colonial Hong Kong government had no intention of interfering with Chinese customs, including Chinese medicine, for much of the second half of the nineteenth century. As will become clear in the next section, the colony’s early medical laws did not regulate Chinese-​style medical practitioners or Chinese medications. However, without proper legal status, Chinese medicine’s development became increasingly problematic. The next section of the chapter investigates the limitations imposed by the colony’s normative medical framework on Chinese medicine. Systematically excluded and oppressed, Chinese medicine at best enjoyed

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Exclusion as oppression 47 customary practice. The chapter then turns to further exploration of the ­status of Chinese medicine under customary laws and reflection on the nature of colonial law. Laissez-​faire Chinese medicine policy Segregation between Chinese and Western medicine Increasing numbers of people today consider Western and Chinese medicine as complementary. In the early period of colonial Hong Kong, however, mutual prejudices against the two systems prevailed in the colony’s Chinese and European communities. On the one side, Chinese residents were suspicious of the effects of Western medicine and resisted being treated by Western doctors. They especially dreaded surgery and amputation, which were not only strange to the Chinese style of treatment but contrary to core Chinese values.5 It would not be an exaggeration to say that the Chinese at that time would have preferred death to being treated by foreign doctors.6 To deal with Chinese prejudice against Western medicine, a native hospital was established in Hong Kong as early as 1870, namely, Tung Wah Hospital.7 On the other side, Europeans who upheld scientific principles looked down on Chinese medicine. Dr Ayres, the Colonial Surgeon (1873–​1897), constantly criticised Chinese medicine as ‘useless’ and ‘dangerous’.8 In colonial medical officers’ opinion, Tung Wah Hospital hardly constituted a hospital at all, but was rather a poorhouse.9 Still, for social and political reasons, the colonial government remained reluctant to interfere with Tung Wah’s autonomy. Against such a backdrop, segregation appeared to be the most convenient way for the government to regulate medicine in colonial Hong Kong. And indeed, when the colony introduced its first medical legislation, the Medical Registration Ordinance No. 6 of 1884, that approach was adopted in the sense that a laissez-​ faire policy became the basic principle adopted for ‘regulating’ Chinese medicine. Chinese practitioners remain free of regulation On 3 May 1882, a group of qualified Western medical practitioners submitted a petition to the colonial government asking it to extend British medical laws regulating the qualifications of medical practitioners in both medicine and surgery to colonial Hong Kong.10 Two days after receiving the petition, the attorney-​general responded on behalf of the colonial government, pointing out that ‘the petition is not quite accurate as regards the present state of law’.11 As a Crown colony, he said, Hong Kong came automatically under the jurisdiction of Imperial Act, 21 and 22 Vic., Cap 90.12 Thus, every person registered under the British Medical Act ‘was entitled according to his qualification to practice medicine and surgery in this Colony and to sue for his charges’. What the petitioners really desired, the attorney-​general explained, was a ‘Register’ upon which were entered the names of all persons entitled to practise medicine and surgery in the colony. He thus

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48  X.L. Yu suggested such a register as a compromise to acknowledge three categories of medical practitioner:13 (a.) All persons in the Colony now entitled to practise in the Colony under the Imperial Act 21 and 22 Vic., Cap. 90. (b.) All persons in the Colony who have been registered in any other British Colony. (c.) All persons in the Colony who hold a diploma, licence, or certificate, granted in any university or college or faculty after and in consequence of their having passed through a course of study and examination as thorough and sufficient as the minimum course in any like case approved by the Privy Council under section 21 of the Imperial Act, 21 and 22 Vic., Cap. 90, upon proper proof. Also, under such law, no person would be entitled to recover charges for medical services unless he or she was registered. Moreover, the law would punish an unregistered person who ‘falsely takes any title implying a qualification to practise medicine or surgery’.14 The attorney-​general also suggested establishing a Medical Council to administer enforcement of the law and examine the veracity of diplomas and licences, subject to appeal to the Governor in Council. After communicating with the Privy Council, the Colonial Office in London approved the attorney-​general’s proposal. With the introduction of Medical Registration Ordinance No. 6 of 1884, the registration and supervision system in the British Medical Act was transplanted to colonial Hong Kong. During the colonial legal transplantation process, modifications were often made to take into account local conditions. In this case, the most striking local condition in Hong Kong was the presence of Chinese medicine. In addition to the Colonial Office’s instruction, there was also a resolution from the British Medical Council that authorised Hong Kong to establish a local register, but suggested that it ‘should not in any way limit the freedom of practice of Chinese Practitioners’.15 Accordingly, Section 2 of the 1884 Medical Registration Ordinance stated: ‘This Ordinance shall not operate to limit the right of Chinese practitioners to practise medicine or surgery or to receive demand or recover reasonable charges in respect of such practice.’ Chinese medical practitioners were therefore exempt from the registration requirement. Ostensibly, the exemption from registration granted Chinese doctors more freedom than that enjoyed by Western practitioners. In practice, however, it placed Chinese medicine in a weak and problematic position. As an important means of state regulation, registration not only ensures the quality of medical practitioners but also legitimises certain forms of medical conduct. Without registration, as we will see in the following sections, Chinese medicine was not entitled to the various advantages and privileges offered under colonial law in Hong Kong. At the same time, the lack of a proper registration system heightened the risk of quackery becoming rampant among Chinese-​style medical practitioners.

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Exclusion as oppression 49 Plague ends laissez-​faire policies As long as the Chinese residents of Hong Kong lived separately from the European residents, the colonial government was happy to let the Chinese look after themselves according to their own medical and sanitary traditions, such as were practised at Tung Wah Hospital. The 1894 plague dramatically changed the situation and brought Chinese and Western medicine into direct confrontation. As soon as Hong Kong had been declared an infected colony, a number of preventive measures were enacted, namely, the quarantine of patients, proper burials, obligatory declarations, and in-​home visitation and disinfection.16 From the identification of plague cases to the disposal of the dead, the newly issued measures covered almost every aspect of the epidemic in accordance with the contemporary Western understanding of contagious disease.17 Owing to the stark differences between the two medical cultures involved, however, almost every precautionary measure imposed by the colonial government  –​from visitations to interment –​became the object of recrimination from the Chinese populace. For example, there was immediate resistance to house-​to-​house inspections. To avoid such inspections, many cases of plague went unreported, in violation of the law, with the Chinese using a range of innovative means to conceal them.18 On the morning of 19 May, disturbances arose in Taipingshan.19 While carrying out a house-​to-​house search to identify plague cases, sanitation officers were showered with stones, bricks and rubbish.20 The Chinese also objected to the quarantine of patients. When Tung Wah was forbidden to receive plague cases, the number of Chinese objections to removals to the hospital ship Hygeia increased.21 As distrust of the colonial government at the time was rampant among the poor in particular, rumours began to spread, further complicating the colony’s anti-​plague efforts.22 The colonial government’s burial requirements for plague victims, namely, burying the dead hastily in ditches and covering them with quicklime, also frightened the Chinese, being contrary to Chinese beliefs. Many opted to die in or on their way to the mainland so that they would be buried properly on Chinese ground and would not have to be treated by Western doctors prior to death. The exodus commenced just one week after the colonial government’s efforts to stamp out the plague began. It is said that on 20 May alone, around 1,000 panic-​stricken Chinese fled from Hong Kong. Of those that remained trapped in the colony, some chose to fight the government’s precautions. Their sometimes violent resistance was quelled only by colonial military power.23 The bubonic plague was a crisis, under the cover of which the colonial government pushed the Chinese community of Hong Kong to accept the new regime. In doing so, it laid bare the conflicts between Western and Chinese medicine in the colony. The committee of Tung Wah Hospital petitioned then-​Governor Sir William Robinson on behalf of the general Chinese community, requesting that the government stop house-​to-​house inspections and allow Tung Wah to treat Chinese patients in line with Chinese medical methods. However, the governor believed that the sanitary regulations were ‘absolutely necessary to safeguard, as far as possible, the health of the entire population’.24 He further reminded Tung

05

50  X.L. Yu Wah’s directors, in strong terms, that ‘Hongkong was a British Colony and, as they had chosen to reside in it, they must submit to British laws and methods of sanitation’.25 For the Chinese in the nineteenth century, however, it was far from clear that Western medical science offered the best approach to combatting such public health issues as the plague, and Chinese distrust of Western medicine played an important role in the protests against the colonial government’s sanitation laws. In fact, an experiment carried out in May 1894 to compare the efficacy of Chinese and Western medical treatments for the plague found the mortality rate to be about 20 per cent lower in patients receiving the former. The colonial government did not trust the experiment’s results, and thus another sample of patients was found and divided into two treatment groups. Again, the mortality rate was lower for those receiving Chinese rather than Western treatment. Although Chinese medicine could not give a scientific explanation for its treatment of the plague, these experiments proved it to be effective empirically. Although the colonial government subsequently allowed Chinese doctors to treat plague patients in a temporary hospital supported by Tung Wah, they remained under the watchful supervision of Western medical professionals.26 From the government’s standpoint, Tung Wah’s prejudice against Western medicine had played a significant role in obstructing the legal transplantation of British public health knowledge and standards to the colony. In the opinion of some European colonists, it was the government’s laissez-​faire policies that had allowed Tung Wah to ‘steadily block the way to the gradual and judicious introduction of modern methods of medical and surgical treatment’.27 Therefore, the restoration of governmental supervision over the hospital was strongly recommended. In 1896, a commission was set up to investigate the administration of Tung Wah. After hard negotiations, the 1896 reform ushered in Western medicine at the hospital, and thus Hong Kong no longer had a Chinese hospital offering purely Chinese treatment.28 The plague provided an opportune moment for the colonial government to intervene in Tung Wah. Before the 1896 reform, Tung Wah was a potent symbol, an undiluted Chinese institution offering public services along traditional lines. The end of its autonomy indicated the inability of local Chinese leaders to fully protect Chinese ways of life under British rule. As will be seen in the following section, in subsequent years additional British medical laws were transplanted to colonial Hong Kong, and, under this normative framework, Chinese medicine became further marginalised. Exclusion as oppression Partly triggered by the plague, Hong Kong’s medical laws experienced rapid development in the early twentieth century. Various ordinances, often transplants from Great Britain, were introduced to regulate different medical professions, including, for example, pharmacy (Pharmacy Ordinance No. 12 of 1908), midwifery (Midwives Ordinance No. 22 of 1910), dentistry (Dentistry Ordinance

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Exclusion as oppression 51 No. 16 of 1914), nursing (Nurse Registration Ordinance No. 1 of 1931) and general medical practice (Medical Registration Amendment Ordinances No. 1 of 1897, No. 31 of 1914 and so on). During this process of professionalisation, Chinese medicine was further marginalised. Although the medical laws were not intended to interfere with the freedom of Chinese-​style medical practitioners, they nevertheless gradually became a powerful force in marginalising, restricting and even replacing Chinese medicine. Chinese medicine’s extra-​legal status under Hong Kong’s normative framework As noted above, under section 2 of Ordinance No. 6 of 1884, Chinese medical practitioners were exempt from registration, which deprived them of the privileges that came from being ‘registered’, ‘legally qualified’ or ‘duly qualified’ medical practitioners.29 It also put Chinese-​style doctors in an ambiguous position, one in which they enjoyed neither a proper legal status nor a status that could be considered unlawful. In other words, Chinese medicine and its practitioners were excluded by the normative medical framework under colonial rule. The 1884 Medical Registration Ordinance outlined the basic legal position on the status of Chinese medicine, namely, to exempt Chinese-​style doctors from a requirement to register under the terms of said Ordinance. Subsequent medical laws also followed the approach of neglecting the topic of Chinese medicine. For instance, the Midwives Ordinance (No. 22 of 1910)  prescribed that only Western-​style midwives were eligible to apply for a certificate and be admitted into the roll of midwives (section 3). Chinese traditional midwives, known as Wan Po (Wenpo, 稳婆), could continue to practise on condition that they did not use any title or name in English or any expression implying that they were ‘certified midwives’ (section 13, as amended by Ordinance No. 12 of 1926). When the Dentist Ordinance (No. 16 of 1914) was in preparation, it originally suggested that the proposed ordinance be inapplicable to the Chinese community (section 4 of the Bill for the Dentistry Ordinance, 1914). However, section 4 was struck out in the final version of the ordinance. The deliberate omission of any mention of the status of Chinese-​style dentists shows the colonial government’s reluctance to grant Chinese medicine explicit legal status.30 Being excluded from, but not forbidden by, the law, Chinese medicine at best enjoyed an ambiguous legal status in colonial Hong Kong. As we will see in the following subsection, that status placed it in a rather weak position in relation to Western medicine. Normative restrictions on Chinese medicine Although it has been widely noted that the relationship between Chinese and Western medical culture in the colony was unequal, not many scholars realise that the inferior status of Chinese medicine was deliberately created and supported by colonial medical laws. From a legal perspective, it is not difficult to uncover the restrictions imposed on Chinese medicine. Many medical laws clearly indicated

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52  X.L. Yu that certain tasks could be carried out only by ‘legally qualified medical practitioners’ or ‘registered persons’ who had been educated or trained in Western medicine. Drawing on a preliminary survey of various medical laws in colonial Hong Kong, this chapter shows that Chinese medicine was limited in at least three respects, as outlined below. Restricted scope of medical treatment Chinese medicine was prevented by certain medical laws and bye-​laws from being used to treat particular diseases. Among these restricted diseases, infectious diseases may well have been the most controversial. During the time of the plague, for example, the Sanitary Board passed sanitary by-​laws that empowered legally registered Western-​style medical practitioners to examine individuals suspected of suffering from ‘bubonic plague, cholera, small-​pox … or [other] contagious disease as may be from time to time duly notified in the Government Gazette’.31 These restrictive by-​laws, restrictive in the sense that Chinese-​style doctors were presumably not allowed to treat the ‘contagious diseases [that] may be from time to time duly notified by the Government Gazette’, were later absorbed by Public Health and Buildings Ordinance No. 1 of 1903.32 Indeed, Chinese doctors in Tung Wah Hospital were from time to time notified by medical officers that they were not to treat certain contagious diseases. One extreme example is the 1938 notification issued by the Medical Committee, which listed 17 infectious diseases that Chinese doctors were not permitted to treat.33 Subsequent to that development, Chinese doctors in Tung Wah Hospital found that they had virtually ‘no patients’ to treat.34 In addition to infectious diseases, Chinese-​style doctors were also prohibited from treating midwifery cases (Midwives Ordinance 1910 and its amendments), dentistry cases (Dentistry Ordinance 1914 and Registry of Dentists Ordinance 1940) and eye diseases, to name just a few.35 Similar restrictions were placed on Chinese medications. For instance, under the poison by-​laws, only ‘legally qualified’, Western-​style medical practitioners, chemists and druggists were entitled to sell medicines containing certain kinds of poison,36 some of which were also used in Chinese medicine to treat certain diseases. From a strictly legal point-​of-​view, Chinese-​style doctors and pharmacists had no right to sell or prescribe medicines containing the poisons listed in the laws.37 Accordingly, some Chinese medications faced a potential legal challenge at all times. However, it was not until the late 1950s that the use of Chinese herbs was first prosecuted. These belated prosecutions are considered below from a socio-​cultural perspective. Limited role of Chinese medicine in the public sphere As previously noted, without clear legal status, Chinese medical practitioners were denied certain privileges enjoyed by registered, Western-​style doctors. For instance, Chinese medical practitioners were not permitted to issue death certificates (section 12 of the Births and Deaths Registration Ordinance No. 16

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Exclusion as oppression 53 of 1896), certificates concerning infectious diseases (section 84 of the Public Health and Buildings Ordinance No. 1 of 1903), orders removing patients suffering from infectious diseases to designated places (section 29 of Public Health Ordinance, 1887) or even certificates designating buildings to be unfit for human habitation (sanitary by-​laws under section 13 of the Closed Houses and Insanitary Dwellings Ordinance No. 15 of 1894). The participation of Chinese medical practitioners in public affairs was also limited. Some scholars have noted that no Chinese-​style doctors were appointed as government medical officers and that, in the formulation of public health policies, the opinions of Chinese medical practitioners were rarely sought by the government.38 The Hong Kong College of Medicine for Chinese was established in 1887, but it taught Western medicine alone. No formal medical schools or institutions to teach Chinese medicine were established in the colony. By restricting the role of Chinese medicine in the public sphere, the colonial government ensured that Western medicine exerted the primary influence on the transformation of Hong Kong’s public health and related social institutions. Limited opportunity for Chinese medicine to develop As noted above, under section 2 of Medical Registration Ordinance No. 6 of 1884, Chinese medical practitioners were exempt from the obligation to register, although that exemption was later revised as follows: Nothing in this Ordinance shall be deemed to affect the right of any Chinese person to practise medicine or surgery according to purely Chinese methods [emphasis added] and to demand and recover reasonable charges in respect of such practice: provided that such person does not take or use any name title or addition calculated to induce any one to believe that he is qualified to practise medicine or surgery according to modern scientific methods.39 The key point here is the term ‘purely Chinese medicine’. What is purely Chinese medicine? A medical system is a living system, constantly evolving and developing in relation to other medical and even non-​medical systems. To render Chinese medicine sufficiently ‘pure’ to be distinguished from Western medicine, steps would have to be taken to protect Chinese medicine from being ‘sullied’ by other medical systems. In the 1970s, Marjorie Topley, a medical anthropologist, observed that in Hong Kong: [n]‌o herbalist may do anything restricted as a privilege to qualified registrable Western-​trained doctors or auxiliaries. Thus he may not … use drugs on the Part I list of the Pharmacy and Poisons Ordinance [or] use antibiotics … He may not perform western-​type surgery or use X-​ray equipment.40 As might be imagined, the condition of ‘according to purely Chinese medicine’ unavoidably had the effect of ossifying Chinese medicine. However, in conjunction

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54  X.L. Yu with the government’s non-​interference policy, such ossification took place subtly, and was barely perceivable by the Chinese community of the time. The chapter has thus far scrutinised the normative colonial framework devised for Chinese medicine in Hong Kong. With the Medical Registration Ordinance at its centre, surrounded by other ordinances and by-​laws, public health law in the colony constructed a network from which Chinese medicine was systematically excluded. From the foregoing investigation, and from a legal perspective, we can safely infer that to a large extent the inferior status of Chinese medicine was created and supported by colonial medical laws. Chinese medicine as customary practice Excluded from the normative medical framework, Chinese medicine survived as a customary medical practice. As such, was it subject to regulation by Chinese customary laws? Were there any such laws on Chinese medicine recognised by the colonial legislative and judicial systems? Answering these questions requires investigation of the general framework established for Chinese customs in the colonial setting. Chinese medicine under colonial customary laws Custom in the colonial setting usually had one of two fates: being absorbed by the normative legal framework41 or being superseded by law when found no longer to apply.42 Before being absorbed or replaced, Chinese customs existed side-​by-​ side with colonial laws, with the former usually prevailing when there were insurmountable differences between the two.43 Following the case of Wong Yu Shi and Others v. Wong Ying Kuen, however, the positions previously held by Chinese and English law under section 5 of Supreme Court Ordinance No. 3 of 1873 were reversed.44 Based on Captain Elliot’s proclamation on that section and on other ordinances, the Hong Kong courts ‘embarked on a process of [the] selective incorporation of … Chinese customary law on a case-​by-​case basis’, the result being that, at least until 1971, ‘a relatively coherent body of Chinese customary law’ that nonetheless possessed ‘its own Hong Kong flavour’ began to emerge.45 Even with the ‘Hong Kong flavour’ of colonial law, it was difficult to find a place for Chinese customary medicine. First, none of the colonial medical laws empowered the courts or colonial government to acknowledge or enforce Chinese methods of medical treatment. Under Medical Registration Ordinance No. 41 of 1935, Chinese-​style doctors practising according to ‘purely Chinese methods’ were exempt from the ordinance’s application (section 3), although no provisions explicitly empowered the courts to acknowledge or enforce Chinese treatment methods. Thus, compared with customary marriage laws before 1971 and customary land rights in the New Territories, customary medicine remained largely outside the legal domain, enjoying an even weaker ‘customary law’ status. Second, during the 1900–​1941 period, the courts dealt with no case concerning the status of Chinese traditional medicine.46 Chinese medical custom was

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Exclusion as oppression 55 not added to the ‘Hong Kong flavour’ of colonial law via a case-​by-​case process. Lacking any normative regulation, Chinese medicine’s development in colonial Hong Kong remained problematic. Chinese medicine as customary practice Despite being limited by various normative restrictions, traditional Chinese medicine remained popular, particularly within the Chinese community, before and after the Second World War.47 To some extent, that vitality resulted from popular ignorance concerning the normative restrictions. Under colonial medical laws, Chinese-​style doctors were forbidden to use such modern, or Western, medical facilities as X-​ray machines or laser scalpels. In practice, however, Chinese medical practitioners and patients alike ignored these restrictions. Also, to attract Chinese patients, some Western-​style doctors offered such Chinese medical treatments as acupuncture. As medical anthropologist Marjorie Topley and sociologist Rance Lee have observed, the boundary between Chinese and Western medicine was never as clearly defined in the real world as it was in the normative world.48 It was common for patients to move between Chinese and Western medicine. In fact, the colonial government once reported that, with the exception of emergencies, 74 per cent of patients had been treated at some stage of their illness by traditional medical practitioners.49 The popularity of Chinese medicine combined with its lack of clear legal status raised alarm bells in Hong Kong society. The popular English-​language newspaper the Hong Kong Standard, for example, asserted that ‘the astonishing lack of proper safeguards and controls of Chinese medicine is a serious flaw in the Colony’s laws: any Chinese, trained or untrained, ethical or unethical can practice Chinese medicine’.50 Without normative regulation, the problem of quacks freely practising Chinese medicine posed a real threat to public health. It was reported, for example, that in 1957 alone, of the roughly 200 persons registering as blind, 140 had been blinded before the age of ten as a result of treatment by ‘charlatans who usually applied acupuncture of the socket of the eye, usually with rusty needles, for “nerve-​pain” ’.51 Section 30 of Medical Registration Ordinance No. 25 of 1957, which was based on the long-​established principle of non-​interference, prevented the colonial government from dealing with quacks in the Chinese medicine arena. To safeguard public health, some regulation of Chinese medicine appeared unavoidable. How best then to regulate Chinese medicine? Opinion diverged on the question. Some supported the continuation of the non-​interference approach, speculating that stronger legal control might cause social and political disturbances, in effect denying people the services they had come to expect.52 Many others, ­particularly Western-​style medical practitioners, called for a complete ban on Chinese medicine. In the case of eye treatments, the colonial government decided that it was necessary to adopt a strong-​armed approach. Section 30 of Ordinance No. 25 of 1957 was amended in 1958 with the proviso that only Western-​style ‘legally qualified and registered’ medical practitioners were permitted to treat

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56  X.L. Yu eye diseases (section 30 of Medical Registration (amend) Ordinance No. 19 of 1958). This amendment incited fierce objections from the Chinese community. During the interval between the first and third readings of the bill, it was observed that ‘all the Chinese newspapers, without exception [are] against the proposed Ordinance. Each paper [has] printed at least one major article daily, and the total of articles printed during the [past] two months could be around three hundred or more’.53 At least nine Chinese herbalist associations united to protest the new restriction on the grounds that the new law would ‘restrict the freedom of bona fide Chinese Herbalists in treating patients and deprive the Chinese people in Hong Kong of a source of low cost treatment in which they have confidence’. They demanded that the government add a clause specifically exempting ‘Chinese Herbalists who use Chinese Herbs and methods in the treatment of ocular diseases’.54 However, the colonial government refused on the grounds that ‘such an amendment would completely nullify the powers that are sought for the protection of the public against the untrained and meddlesome individuals who advertise widely and blatantly that they can treat and cure diseases of the human eye’.55 Repressed by colonial medical legislation, Chinese medicine lost another important field of treatment. Based on his in-​depth case studies, and after careful comparison of the effectiveness of both Chinese and Western medicine, Rance Lee has suggested that a convergence of Chinese and Western medicine would not have been difficult to achieve.56 However, Lee did not elaborate on the political, economic and legal factors behind the exclusion of Chinese medicine. Without equal political and legal status for the two systems of medicine, such convergence would have been difficult to achieve. In the 1970s, the medical authority defended its exclusive normative framework on the grounds that Chinese medicine did not possess the uniform standards or depth of scientific knowledge that Western medicine did. Accordingly, it was impossible to separate the bad ‘sheep’ from the good ‘goat’.57 From a historical point of view, this defence is merely an excuse, disguising Europeans’ deep-​ seated prejudice against Chinese medicine. Tung Wah Hospital would have been an excellent medical institution to assist the colonial government in formalising Chinese medicine. Indeed, as early as the 1870s, the hospital’s Board of Directors had implemented specific medical regulations to enhance and ensure the quality of Chinese doctors.58 Although they were based on Chinese medical theory and principles, those regulations shared the same objectives as the medical laws transplanted from Britain, namely, to ensure the quality of medical practitioners and protect public health. If the colonial government had not taken such an aggressive approach in suppressing Chinese medicine at Tung Wah Hospital, sooner or later the Tung Wah Committee would have sought proper legal status for Chinese medicine, as it indeed did in the late 1870s and early 1880s.59 In other words, if the colonial government had delegated certain legislative and administrative power to Tung Wah Hospital and established a Chinese-​style medical committee to supervise the development of Chinese medicine, the problem of quacks would very probably have been limited if not avoided entirely. The gap

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Exclusion as oppression 57 between colonial medical laws and the Chinese community would also have been bridged. Unfortunately, however, the socio-​historical conditions were not conducive to such a step being taken. Conclusion Looking at Hong Kong law from a primarily cultural-​historical perspective, this chapter explores the impact of colonial Hong Kong’s medical laws on the development of Chinese medicine. Drawing on the theme of legal orientalism, Hong Kong’s medical laws became the ‘cutting edge’ of imperialism, ‘an instrument of the power of an alien state and part of the process of coercion’.60 Following a hundred years of endeavour that began in the 1840s, a ‘modern and scientific’ public health system was finally transplanted and began to take root in colonial Hong Kong in the 1940s. During this legal transplantation process, rather than being integrated, local elements were excluded or suppressed by colonial laws. Influenced by Orientalist prejudice, the transplanted medical laws were gradually transformed into colonial tools that played an important role in marginalising and even supressing Chinese medical culture and traditions, wasting huge amounts of medical resources in the process. The unequal relationship between Chinese and Western medicine reminds us of the unequal nature of colonial rule more widely, and pushes us to ask more general questions about the law. Was the exclusion of Chinese elements a specific feature of Hong Kong’s public health law or a common feature of colonial laws in general? If a common feature, then how can that feature help us to better understand the nature of the rule of law? Perhaps the rule of law concept conceals more than it reveals. If so, what has been concealed, and how can we reveal it? Informed by legal Orientalism, the research discussed in this chapter constitutes a preliminary attempt to critically inquire into Hong Kong’s legal history. It is hoped that with more critical study of colonial legal history, further light can be shed on contemporary legal-​political issues in Hong Kong whose roots may lie in unequal and exclusive colonial laws, such as those discussed herein. Notes 1 In India, Western medicine was always self-​evidently a ‘colonial science’; see David Arnold, Colonizing the Body:  State Medicine and Epidemic Disease in Nineteenth-​ Century India (Berkeley: University of California Press, 1993), 290–​294. 2 For instances, see Arnold, Colonizing the Body; Mark Harrison, Public Health in British India: Anglo-​Indian Preventive Medicine 1859–​1914 (Cambridge: Cambridge University Press, 1994); Andrew Cunningham and Bridie Andrews, eds, Western Medicine as Contested Knowledge (Manchester:  Manchester University Press, 1997); Deepak Kumar, ed., Disease and Medicine in India:  A  Historical Overview (New Delhi: Tulika Books, 2001); Mark Harrison and Biswamoy Pati, Health, Medicine and Empire: Perspectives on Colonial India (London: Sangam Books, 2001). 3 Harrison, Public Health. 4 The policy indicates that the colonial government played a limited role in colonial society, especially in light of its deliberate policy of indirect rule, with economic and

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58  X.L. Yu political non-​intervention. See Tak-​Wing Ngo, ed., Hong Kong’s History: State and Society under Colonial Rule (London: Routledge, 1999), 3–​5. 5 Influenced, and to some extent limited, by Confucianism, Chinese medicine was reluctant to cure disease through surgery or operations. Xiao (孝, liberally ‘fidelity’) is one of the core concepts of Confucianism. It is recorded in the Xiaojing (《孝經》, On Fidelity) that Confucius explained his understanding of Xiao to his disciples in the following terms: ‘身體發膚, 受之父母, 不敢損傷, 孝之始也’, which can be translated into English as: ‘Our body and hair are given by parents; we dare not break or damage the body and hair. This is the beginning of Fidelity.’ Against this cultural background, it was not possible for Chinese medicine to develop surgery. However, that cultural limitation also gave Chinese medicine a chance to develop other methods of diagnosis and treatment such as ‘feeling the pulse’ (脈診, mai zhen) and acupuncture. For further details on the characteristics of Chinese medicine, see Hua Chen, Zhongyi de kexue yuanli (Shanghai: Shangwu chubanshe, 1991). 6 Ernest John Eitel, Europe in China (Hong Kong: Oxford University Press, 1983), 462. 7 Once Tung Wah had been established, it rapidly developed into an omnipotent eleemosynary institution looking after Chinese welfare and became a de facto form of government in the Chinese community. In the process, it enhanced Chinese methods of medication and sanitation. See Elizabeth Sinn, Power and Charity: The Early History of the Tung Wah Hospital (Hong Kong: Oxford University Press, 1989), 19–​22. For a detailed account of Tung Wah Hospital, refer to Puiyin Ho, Yuan yu Liu: Dongwa yiyuan de chuangli yu yanjin (Xianggang:  Sanlian shudian (Xianggang) youxian gongsi, 2009). 8 See ‘Original Annual Report of Colonial Surgeon for 1874, Now Printed in Full, with Minutes and Marginal Notes’, Sanitary Reports (Hong Kong) Laid before the Legislative Council, 1879–​ 1880, accessed 23 July 2016, http://​sunzi.lib.hku.hk/​ hkgro/​view/​a1879/​2449.pdf. 9 Ibid. 10 ‘Medical Practitioners to the Officer Administering the Government’, dated 3 May 1882, in Hong Kong Government Gazette (HKGG), 9 June 1883, 464. 11 ‘Report by the Attorney General’, 5 May 1882, in ibid., 465. 12 The Imperial Act (21 and 22 Vic., Cap 90.) was also referred to as the Medical Act 1858. According to section 31 of that Act, ‘Every Person registered under this Act shall be entitled according to his Qualification … to practise Medicine or Surgery … in any Part of Her Majesty’s Dominions, and to demand and recover in any Court of Law, with full Costs of Suit’. 13 Ibid. 14 Ibid. 15 ‘Resolution’ passed by the Medical Council Executive Committee on 10 November 1882, published in HKGG, 9 June 1883, 466. 16 ‘Government Notification No. 175’, HKGG, 11 May 1894. 17 In 1894, no accepted aetiology of the bubonic plague existed. What Hong Kong’s medical professionals relied upon at the time were general guidelines for epidemic prevention, such as isolation and disinfection, based on the germ theory of disease. It was not until 1905 that rat fleas were widely accepted as the plague’s vector. For more information on the medical dimension of the plague, see Carney T. Fisher, ‘Plague in Hong Kong 1894’ (paper presented at the International Conference on Hong Kong and Modern China, The Centre of Asian Studies, Hong Kong University, Hong Kong, 3–​5 December 1997). 18 It was reported, for example, that a dead person had been propped up at a mah-​jong table to mislead inspectors. See Jean Cantlie Stewart, The Quality of Mercy: The Lives of Sir James and Lady Cantlie (London: George Allen & Unwin, 1983), 67. 19 Taipingshan was a crowded ‘Chinatown’ located in the west of Hong Kong Island.

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Exclusion as oppression 59 20 Daily Press (DP), 20 May 1894. 21 ‘Threatened Riots in Chinatown’, DP, 21 May 1894. The Hygeia was a hospital ship originally used to quarantine Europeans suffering from smallpox. 22 For instance, a rumour that was widely believed by Chinese coolies and servants was that a Chinese woman had been sent to the Hygeia by the sanitary authorities supposedly suffering from the plague, but it turned out that she was merely pregnant. See ‘Alleged Singular and Fatal Mistake’, Hong Kong Weekly Press, 24 May 1894, 405. 23 Sinn, Power and Charity, 164–​165. 24 Despatch no.121, from Robinson to Secretary of State, 23 May 1894, CO129/​ 263, 178. 25 Despatch no.151, CO129/​263, p. 461, paragraph 10. 26 Hong Kong Museum of Medical Sciences Society, Plague, SARS and the Story of Medicine in Hong Kong (Hong Kong: Hong Kong University Press, 2006), 29. See also Xiangyin Yang, ‘Zhimin quanli yu yiliao kongjian: xianggang donghua sanyuan zhongxiyi fuwu bianqian (1894–​1941)’ (‘Colonial Power and Medical Space:  The Transformation of Chinese and Western Medical Services in the Tung Wah Group of Hospitals, 1894–​1941’) (PhD diss., Chinese University of Hong Kong, 2007), 79–​81. According to Yang’s research, at 76.47 per cent and 77.77 per cent, respectively, there was also virtually no difference in mortality rates among plague cases treated using Chinese medicine in the Tung Wah’s Glassworks Hospital and Western medicine in the Hygeia hospital ship and Kennedy Town Hospital. 27 Report on Tung Wah hospital by T.H. Whitehead, 17 October 1896, in ‘Report of the Commission appointed by H. D. Sir William Robinson to enquire into the Working and Organization of the Tung Wa [sic] Hospital, 1896’, in Sessional Papers for the year 1896, xxi, accessed 10 August 2016, http://​sunzi.lib.hku.hk/​hkgro/​browseSP. jsp?the_​year=1896. 28 Both the Tung Wah Committee and Chinese doctors more widely were resistant to government interference. Owing to space limitations, this chapter does not further elaborate on Chinese objections to the 1896 reform. For details, see Yang, ‘Colonial Power and Medical Space’, 106–​122 (in particular). 29 Under section 8 of Medical Registration Ordinance No. 6 of 1884, the terms ‘legally qualified Medical Practitioner’, ‘duly qualified Medical Practitioner’ and ‘registered persons’ were interchangeable. 30 From the point of view of legal transplantation, the ineligibility of Chinese-​style doctors to apply for certificates as registered medical practitioners, qualified midwives or dentists is somewhat understandable, as medical laws transplanted from Britain were based on Western medical theory and standards. The difficulties in applying such alien laws in local society must have been tremendous, if not insurmountable. For instance, the individuals sitting on the Medical Board, Midwives Board and Dentist Board had all been trained in European methods and had no knowledge of Chinese medicine. How then could they have administered and ensured the quality of Chinese medical practitioners? In addition to this administrative difficulty, Chinese medicine per se at the time had a number of problems. As has often been emphasised by Western medical practitioners, Chinese medicine lacked education and qualification systems comparable to its Western counterpart. However, these difficulties were not insurmountable. Popular Chinese medicine did lack a proper training system, but at the scholarly and official level, Chinese medicine had a long tradition of formal education and qualification. See Xianzhong Hao, ‘Jindai zhongyi cunfei zhizheng yanjiu’ (‘On the Abolishment and Preservation of Modern Chinese Medicine’) (PhD diss., East China Normal University, 2005), 34, 37–​38. In addition, Tung Wah Hospital had attempted to formalise Chinese medicine as early as the 1870s. Hence, it cannot be said that the colonial government lacked the resources to understand and formally administer Chinese medicine had it decided to recognise it.

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60  X.L. Yu 31 By-​law 17 prescribed that ‘All persons knowing or having reason to believe that any person has been attacked by, or is suffering from, bubonic plague … or [other] contagious disease as may be from time to time duly notified in the Government Gazette, shall notify … [the officer] … and … [the] officer … shall notify … the medical officer of health, and may detain such person or remove him to a public hospital until he can be examined by the medical officer of health or by some legally qualified and registered medical practitioner’ [emphasis added]. See the by-​laws passed under section 13 of Ordinance No. 15 of 1894, in HKGG, 22 May 1897, 364–​367. 32 See Schedule B, Bye-​laws of Notification of Infectious Diseases. 33 Tung Wah dongshiju huiyi jilu (Minutes of Meetings of the Tung Wah Hospital Directors’ Board Committee), 20 December 1938.The archive of meeting minutes is preserved in the Tung Wah Museum which locates in Kwang Wah Hospital, Kowloon. 34 Ibid., 15 March 1939. 35 A later section of the chapter elaborates in some detail the prevention of Chinese-​style doctors from treating certain diseases and Chinese protests against such restrictions. 36 By-​laws made under sub-​section 22 of section 13 of Public Health Ordinance No. 24 of 1887 to regulate the sale of poisons in the colony of Hong Kong, passed by the Sanitary Board on 25 August 1898, in HKGG, 17 September 1898, 917–​918. 37 The poisons listed in the aforementioned by-​laws include arsenic, almond, morphine and orpiment. For the full list, see Parts I and II attached to the by-​laws. Made under section 13 of Ordinance No. 24 of 1887, these by-​laws were later consolidated by the Pharmacy Ordinance of 1908 and Pharmacy and Poison Ordinances of 1916 and 1936. 38 Rance P.L. Lee, ‘Interaction between Chinese and Western Medicine in Hong Kong: Modernization and Professional Inequality’, in Culture and Healing in Asian Societies, Anthropological, Psychiatric and Public Health Studies, ed. A.  Kleinman, P.  Kunstadter, E.  Russell Alexander and J.L. Gale (Cambridge, MA:  Schenkman Publishing, 1978), 292–​293. 39 Section 3(1) of the Medical Registration Ordinance of 1884, as amended by Ordinance No. 31 of 1914. 40 Marjorie Topley, ‘Chinese Traditional Etiology and Methods of Cure in Hong Kong’, in Asian Medical Systems: A Comparative Study, ed. C. Leslie (Berkeley: University of California Press, 1976), 113. 41 The customs concerning land in the New Territories, for example, were acknowledged under colonial law throughout the period of colonial rule. For an excellent account of the application of Hong Kong’s customary land laws under colonial rule, see Michael Palmer, ‘The Surface-​Subsoil Form of Divided Ownership in Late Imperial China: Some Examples from the New Territories of Hong Kong’, Modern Asian Studies 21 (1987):  1–​119. By recognising Chinese customs through legislation and judicature, Chinese customs were absorbed into the normative framework of colonial laws. 42 Consider, for example, the customary rules on Chinese family institutions: marriage, adoption and succession. Before the Hong Kong legislature explicitly abolished Chinese family customs in the early 1970s, many of these customs had been protected by Marriage Ordinance No. 7 of 1875, Chinese Marriage Preservation Ordinance No. 42 of 1912, Supreme Court Ordinance No. 13 of 1873 and, arguably, Elliot’s Proclamation of 1841. However, the introduction of the Marriage Reform Ordinance in 1971 abolished Chinese customary marriage. Some scholars have suggested that Hong Kong’s developing social composition, organisation and economic life necessitated these changes in the law. See D.M. Evans, ‘Common Law in a Chinese Setting –​The Kernel or the Nut?’ Hong Kong Law Journal 1 (1971): 9–​32; D.J. Lewis, ‘A Requiem for Chinese Customary Law in Hong Kong’, The International and Comparative Law Quarterly 32 (1983): 347–​379; D. Evans and M. Emrys, ‘The New Law of Succession in Hong Kong’, Hong Kong Law Journal 3 (1973): 7–66.

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Exclusion as oppression 61 43 According to section 5 of Supreme Court Ordinance No. 3 of 1873, English laws were in force within the colony, ‘except so far as the said laws shall be inapplicable to the local circumstances of the Colony or of its inhabitants’. Section 5 of that ordinance was derived from the original Supreme Court Ordinance No. 15 of 1844, and was later consolidated into section 4 of Application of English Law Ordinance No. 2 of 1966. As long as Chinese customs were not explicitly abolished or replaced by the colonial legislature, with the support of section 5 of the Supreme Court Ordinance, many Chinese customary laws prevailed over English law. See, for example, the case of Ho Tsz Tsun v. Ho Au Shi and Others, in which the Chief Justice stated that ‘[a]‌perusal of the laws of the Colony, taken collectively, shows that the object has been to establish in a British Colony a system of British jurisprudence, in so far [as] it is not inconsistent with Chinese usage and custom’ in [1915] 10 Hong Kong Law Reports 69, 76 (HKLR hereinafter). In the case In the Estate of Chak Chiu Hang and Others, the court emphasised that Chinese customary law was reserved only to the extent that the Legislative Council had not introduced a law to replace in; see [1925] 20 HKLR 1. 44 In Wong Yu Shi and Others v. Wong Ying Kuen, the Chief Justice established a new principle whereby English law would generally prevail unless ‘injustice or oppression’ could be shown to be the probable result ([1957] HKLR 420). 45 Lewis, ‘A Requiem for Chinese Customary Law in Hong Kong’, 378. 46 This conclusion is based on a survey of the cases in the HKLR database from 1905 onwards, which shows the first medical case relating to an unqualified Chinese ‘medical practitioner’ to have appeared as late as 1960. See Chan Hor Chuen and Another v. The Queen [1960] HKLR 257. 47 The popularity of Chinese medicine among the Chinese population before the Second World War can be discerned by the large number of outpatients seeking Chinese medicine from the Tung Wah Group of Hospitals. In the post-​war period, various medical reports continued to report the ‘stubborn’ Chinese belief in Chinese medicine. 48 Marjorie Topley, ‘Chinese Traditional Ideas and the Treatment of Disease: Two Examples from Hong Kong’, Man 3 (1970): 421–​437; Topley, ‘Chinese and Western Medicine in Hong Kong: Some Social and Cultural Determinants of Variation, Interaction and Change’, in Culture and Healing in Asian Societies: Anthropological, Psychiatric and Public Health Studies, ed. A. Kleinman, P. Kunstadter, E. Russell Alexander and J.L. Gale (Cambridge, MA: Schenkman Publishing, 1978): 111–​141; Lee, ‘Interaction between Chinese and Western Medicine’: 289–​ 310; Rance P.L. Lee, ‘Perceptions and Uses of Chinese Medicine among the Chinese in Hong Kong’, Culture, Medicine and Psychiatry 4 (1980): 345–​375. 49 Topley, ‘Chinese and Western Medicine’, 133. 50 11 April 1974, quoted in ibid., 125. 51 Hong Kong Hansard [HKH], 16 April 1958, 172. 52 Topley, ‘Chinese and Western Medicine’. 53 Hongkong Ophthalmic Society, ‘Medical Registration (Amendment) Ordinance, 1958’, Bulletin of the Hong Kong Chinese Medical Association 10 (1958): 193–​201, 194. 54 HKH, 11 June 1958, 200. 55 Ibid. 56 Lee, ‘Interaction between Chinese and Western Medicine’, 303–​304. 57 Topley, ‘Chinese and Western Medicine’, 126. 58 Take, for example, Tung Wah’s yishi guitiao (醫師規條, literally, Regulation of Medical Practitioners), published in zhengxinlu (徵信錄, Annual Reports) in 1873. This regulation contained 15 clauses providing procedures and standards to distinguish good Chinese doctors from quacks (Clauses 2–​4). It also defined the status and power of Chinese doctors at Tung Wah Hospital (Clauses 1, 5–​6, 8)  and the procedure for patients to follow in selecting doctors by drawing lots (Clause 7). Tung Wah’s xiyi guitiao (習醫規條, literally, Regulation of Medical Apprentices) in 1879 laid down strict requirements for the education and supervision of Chinese medical apprentices.

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62  X.L. Yu 59 In the late 1870s, Chinese elites attempted to legalise Chinese medical practices and sanitation by lobbying the colonial government, Governor Hennessy in particular. For details, see Carl T.  Smith, ‘The English-​educated Chinese Elite in Nineteenth-​ century Hong Kong’, in History of Hong Kong, 1842–​ 1984, ed. David Faure (London: Tamarind Books, 1995): 29–​56. 60 Martin Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge: Cambridge University Press, 1985), 4.

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4  How the 1967 riots changed Hong Kong’s political landscape, with the repercussions still felt today Gary Ka-​wai Cheung

The 1967 riots, which brought Hong Kong to a standstill, constitute one of the most controversial events in the former colony’s history. Whilst the immediate trigger of the disturbances was a labour dispute in San Po Kwong, the riots were actually a spillover from the Cultural Revolution that had erupted in mainland China the previous year. This chapter address some of the key issues surrounding the 1967 riots, including whether and to what extent the mayhem was triggered by discontent with social anomalies and sparked the social reforms of the early 1970s. Drawing on declassified files from Britain’s National Archives and colonial government documents, the chapter argues that whilst such social ills as a lack of labour rights protection and the plight of the underprivileged were problems in the middle of the 1960s, the ultra-​leftist thinking prevalent in the Cultural Revolution was the primary force behind the anti-​British struggle launched by the Hong Kong left wing in 1967. When a five-​cent fare rise for the ferry ride between Central and Tsim Sha Tsui triggered the Star Ferry riots of 1966, the leftist camp initially stood idly by, and editorials in pro-​Beijing newspapers even threw their weight behind the colonial government’s suppression of the riots. The left wing’s use of the aforementioned labour dispute to launch an anti-​British struggle the following year speaks volumes about the impact of the Cultural Revolution. The chapter also notes that there was momentum within the colonial government in the mid-​1960s to initiate social reform, but the proposals it put forward, including a mandatory provident fund and social insurance to protect workers against illness and unemployment, were shelved because of opposition from the business community. One of the unintended consequences of the 1967 riots was renewed momentum for social reform, which helped to overcome that opposition and thus improve labour conditions. Hence, it is fair to say that the riots served as the catalyst for reform, but were not its cause. Finally, the chapter further argues that the 1967 riots reshaped Hong Kong’s political landscape by reinforcing Hong Kongers’ anti-​communist mentality and giving the colonial government an opportunity to foster a ‘Hong Kong identity’ amongst the local populace. At the same time, the British government realised

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64 G.K. Cheung after the riots that Hong Kong’s eventual future lay with China and that Britain’s objective must be to initiate negotiations with Beijing for the return of Hong Kong’s sovereignty at a favourable time in the future. The bombs and bloodied bodies have long since been cleared from the streets, but the 1967 riots still polarise Hong Kong. The divided response to the death in 2015 of Yeung Kwong, the ringleader of the riots and a veteran leader of the Federation of Trade Unions (FTU), underscores the entrenched division between the leftist camp and mainstream society. Pro-​Beijing newspapers heaped praise on Yeung’s ‘contribution to the labour movement’, and many people posted such tribute messages as ‘we will miss our fellow fighter in the anti-​British and anti-​ persecution struggle’, which FTU lawmaker Alice Mak Mei-​kuen put up on her Facebook page. In a eulogy to Yeung at his funeral on 14 June, FTU president Lam Shuk-​yee praised him for ‘bravely leading the “anti-​British and counter-​ violence” struggle’: The struggle eventually forced the colonial government to adjust its governing strategy and improve the protection for workers. It helped ease the conflict between employers and employees, making a huge impact on the development of Hong Kong society.1 At the same time, a number of Internet users critical of the pro-​Beijing camp posted such messages as ‘Yeung Kwong, you are a murderer with blood on your hands’ on Facebook groups set up by like-​minded people. Yeung served as FTU chairman from 1962 to 1980,2 and then as its president between 1980 and 1988. He died on 16 May 2015 at the age of 89. These polarised views of Yeung, who was also director of the 104-​strong All-​Circles Anti-​Persecution Struggle Committee, the body in charge of left-​wing activities during the 1967 disturbances, underscore the ongoing division in Hong Kong society nearly half a century later. This is not the first time that an old wound has been reopened. In July 2001, the Hong Kong government’s controversial decision to award Yeung the Grand Bauhinia Medal, the city’s top honour, sparked a debate over whether the government was trying to rewrite colonial history and reverse mainstream Hong Kong society’s condemnation of the riots. Pro-​democracy politicians saw the move as an official endorsement of the anti-​British riots and bombing campaign that rocked Hong Kong in the 1960s, and angry calls flooded popular radio talk shows. Another controversy over that chapter in Hong Kong’s history was sparked in May 2010 when Wong Ting-​kwong and Chan Kam-​lam, lawmakers from the pro-​Beijing Democratic Alliance for the Betterment and Progress of Hong Kong (DAB), denied that leftists had been responsible for the death of Commercial Radio host Lam Bun during the 1967 riots. Lam, known for his sarcastic criticism and condemnation of the extremist actions of the leftists, was burnt to death in August 1967 after making comments critical of leftist rioters on his programme. Chan said: ‘During the 1967 riots, it was not just Lam Bun who died. There were

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The 1967 riots and the political landscape 65 very many ordinary citizens who, we don’t know for what reason, died.’3 Some commentators and pan-​democrats charged that the DAB’s sponsorship deal with Commercial Radio, under which the party purchased about 72 hours of air time, was disrespectful to Lam’s legacy. Forty-​eight years on, it is clear that the 1967 riots still polarise Hong Kong. Whilst the leftist camp boasts of its ‘righteous revolt’ against oppression by the colonial government, most people outside that camp emphasise the bomb attacks and killing of Lam Bun. The riots are certainly the most controversial event in the history of colonial Hong Kong. Hong Kong 1967, the colonial government’s annual report for the year in question, described the riots as a ‘communist-​ initiated confrontation’ during which communist organisations in Hong Kong sought to impose their will on the people by intimidating workers, fomenting work stoppages, rioting and ‘indiscriminate violence’. The leftist camp, in contrast, insists the riots constituted a ‘righteous mass movement’ sparked by colonial oppression that forced the then authorities to introduce social reforms. Even the event’s name is prone to controversy. The pre-​handover government referred to ‘riots’, whilst pro-​Beijing organisations preferred ‘an anti-​British and counter-​ violence’ movement (Fanying Kangbao). The left wing often cites a labour dispute at the Hong Kong Artificial Flower Works in San Po Kong, the immediate trigger of the 1967 riots, as proof that the subsequent anti-​British disturbances originated in a campaign for workers’ rights. On 6 May 1967, 21 factory workers were arrested, prompting leftist unions to stage protests. At the beginning of the labour dispute, some members of the public were sympathetic with the workers who had joined the strike. The left wing, however, quickly dropped their discussion of labour issues and call for improved labour rights, instead positioning the incident as ‘national oppression’ by the colonial government. In an article published in the Far Eastern Economic Review in 1967, Derek Davies, the chief editor of the now-​defunct regional magazine, wrote that the local communists very soon dropped the industrial and labour issues (in which they had such a very strong case and which should have formed the basis of any proper, representative left-​wing union movement in an industrial society) because in terms of the Cultural Revolution they would have been guilty of economism … So the campaign shifted onto the purely political level. Once the meaningful bases for a left-​wing movement had been jettisoned, the campaign became rootless and purposeless, inspired by hate and a desire to destroy.4 The riots were actually a spillover from the Cultural Revolution that had begun on the mainland a year earlier. Whilst Yeung Kwong led the struggle committee, the unrest was actually masterminded by the Hong Kong branch of Xinhua News Agency, which served as Beijing’s de facto embassy in Hong Kong at the time. It is obvious that such a large-​scale anti-​British struggle could not have taken place in Hong Kong in the absence of the Cultural Revolution across the border.

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66 G.K. Cheung Arguing that they were moved to act by social discontent amongst the Hong Kong people, leftists point to the lack of labour rights protection and the plight of the underprivileged at the time of the riots. It is certainly true that such social ills existed in the 1960s. What is intriguing is that the left wing did not express support for the Star Ferry riots in 1966, which took place a month before Mao Zedong launched the Cultural Revolution. Editorials in pro-​Beijing newspapers even called for the Hong Kong people to co-​operate with the colonial government in quelling the disturbances, which had been triggered by a five-​cent rise in the ferry fare between Central and Tsim Sha Tsui. This lack of support speaks volumes for the impact of the Cultural Revolution on instigating the 1967 riots. Once the Cultural Revolution had begun, leftists used the labour dispute in San Po Kong to launch an anti-​British struggle. In doing so, they initially had Beijing’s support, being particularly inspired by a 3 June editorial in the People’s Daily calling on the Hong Kong Chinese to ‘be ready to respond to the call of the motherland to smash the reactionary rule of the Hong Kong British authorities’. The leftist camp called a general strike and then a four-​day strike by hawkers and food stall operators at the end of June, but the colonial administration stood firm against attempts to topple it. The stand-​off continued to escalate when extremists planted bombs on the streets, and was alleviated only in December, when Chinese Premier Zhou Enlai expressed Beijing’s official disapproval. The bloody disturbances, the worst ever in Hong Kong’s history, brought the colony to a standstill and triggered an exodus of capital amidst fears of a military invasion from China. Previously classified files from Britain’s National Archives reveal an interim report prepared by the British government in July 1967 concerning the prospects of a withdrawal from the colony in the event that such an invasion occurred.5 The disturbances also claimed 51 lives, 15 of them lost to bomb attacks. A total of 1,936 people were convicted of criminal offences, with 465 jailed for ‘unlawful assembly’, 40 for possessing bombs and 33 for explosion-​related offences. The 1967 disturbances are seen as a watershed in the post-​war history of Hong Kong, and their repercussions can still be felt today. The left wing paid a heavy price for instigating the riots, which caused huge inconvenience and worse to the public, and its image was particularly damaged by the bomb attacks. The events largely reversed any progress that Beijing had made in winning over the hearts and minds of the Hong Kong people in the 1950s and early 1960s. Reinforcement of entrenched divisions between leftists and mainstream society The leftist newspapers were hit hard by their support for the disturbances, and they lost their appeal amongst the general public in their aftermath. Their combined daily circulation plunged from 454,900 in May 1967, when the disturbances broke out, to 240,500 in November.6 According to Li Hou, former deputy director of the Hong Kong and Macau Affairs Office, FTU membership also plunged from 280,000 before the riots to fewer than 180,000 afterward.7

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The 1967 riots and the political landscape 67 Many formerly faithful followers were left disillusioned with both the leftists and Beijing in the aftermath of the disturbances. In a personal interview with the author in 2015, Lau Man-​shing, one of the 52 leftists detained at the Victoria Road Detention Centre in Pok Fu Lam during the disturbances, expressed disappointment with the left wing’s failure to shoulder responsibility for them. In 1967, Lau was an inspector in the Water Supplies Department, with an excellent salary of HK$1,700 per month. A  member of the executive committee of the Hong Kong Government Waterworks Chinese Employees Union, Lau joined a strike organised by the Anti-​British Struggle Committee. The result was the loss of his lucrative job and 13 months’ detainment at the Victoria Road Detention Centre. Upon his release, he held a number of odd jobs, including truck driver. ‘The union did not support us’, he recalled. ‘We lived from one day to the next.’ Lau, one of a handful of leftists detained at the centre who are still alive, said that, including the families of the leftists who took part in the anti-​British riots, hundreds of thousands of people were affected, adding: ‘We followed the instructions of the left wing and suffered from their erroneous policies. But we were abandoned by the left wing afterwards and the leftist camp has regarded the 1967 riots as a taboo for the past 48 years.’8 The disturbances reinforced the already entrenched divisions between the leftist camp and mainstream society and, in their aftermath, the left wing went into self-​imposed isolation. Licking its wound after the riots, the FTU concentrated on its own internal affairs and stopped participating in social affairs. In the years since, it has boycotted government advisory bodies on labour affairs such as the Labour Advisory Board, and refused to take part in the district board elections in 1982 and 1985. Chan Yuen-​han, an FTU heavyweight who was elected as a member of the Eastern District Board in 1988, became the union’s first elected district board member. The left wing’s isolation from mainstream society lasted until the mid-​1980s. Former FTU chairman Wong Kwok-​kin explained that, after the riots, the traditional leftist camp developed a ‘siege mentality’ as it felt marginalised by mainstream society. ‘Such a mentality has been receding gradually since the 1990s’, he said, ‘but it still exists among some leaders of the leftist organisations’.9 The leftists’ self-​imposed isolation in the post-​riot years allowed room for the development of independent unions in the 1970s. The leftist unions also refrained from adopting a confrontational approach towards labour disputes in the 1970s and 1980s in light of the rapprochement between Beijing and the Hong Kong government in the post-​riot era. Former lawmaker Lau Chin-​shek, who became the director of the Christian Industrial Committee in 1979 and founded the Confederation of Trade Unions in 1990, stated that the FTU did not attempt to reassert its influence over labour legislation until the early 1990s: ‘Otherwise, we would not have had room for development in the 1970s.’10 The disturbances also intensified the anti-​communist mentality of a substantial portion of the Hong Kong people, whose distrust of Beijing has not receded since the handover. As the confrontation escalated in 1967, the fear of communist rule drove Hong Kongers to side with the colonial government. Richard

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68 G.K. Cheung Hughes, a British journalist based in Hong Kong during the 1960s and 1970s, noted:  ‘Bluntly, the May 1967 plot did not fail because the Chinese younger generation, who will determine Hong Kong’s future, loved the British more, but because they loved the Communists less.’11 It is ironic that leftist-​inspired riots, which embraced anti-​colonial slogans, ended up encouraging the Hong Kong people to support the colonial government. Ian Scott, a former professor in the Department of Politics and Public Administration at the University of Hong Kong, wrote: Concern about working conditions in public circles and in the press was soon dissipated by the riots, by the strikes and by the results of indiscriminate bombing. Ironically, in the light of communist objectives, the end-​result of the disturbances was to increase the support for, and the legitimacy of, the existing order. Faced with a choice between communism of the Cultural Revolution variety and the, as yet, unreformed colonial capitalist state, most people chose to side with the devil they knew.12 Jiang Shigong, Deputy Director of Peking University’s Centre for Hong Kong and Macau Studies and a researcher in the central government’s Hong Kong liaison office from 2004 to 2008, believes the colonial government capitalised on the suppression of the leftist-​inspired riots to launch a campaign of ‘winning the hearts and minds’ of the Hong Kong people: The British Hong Kong authorities’ campaign of ‘winning the hearts and minds’ fundamentally changed the consciousness of Hong Kong people and contributed to Hongkongers’ phobia of ‘leftists’, the ‘communist party’ and ‘socialism’. This mentality is in line with the anti-​communist mentality of the Kuomintang’s high-​ranking officials, capitalists and intellectuals who fled to Hong Kong [after the communist takeover in 1949]. Consequently, an anti-​communist mentality and phobia about communist rule became commonplace in Hong Kong. Most Hongkongers are resistant to the mainland, and their sense of superiority vis-​à-​vis the mainland has grown in the light of Hong Kong’s economic take-​off. They are not comfortable with China’s resumption of Hong Kong’s sovereignty. This has become a negative factor affecting Hong Kong politics to this day.13 The colonial administration spared no effort in winning the fierce battle for the hearts and minds of Hong Kong residents during the disturbances. For example, in their midst, it established a Publicity Committee, headed by then Deputy Colonial Secretary Jack Cater, which was tasked with devising a strategy to discredit the leftist camp. The Special Publicity Unit, a work unit under the committee’s auspices, made a ‘counter-​propaganda effort directed to winning hearts and mind[s]‌for the government’.14 Three staff members from Radio Hong Kong (RTHK’s predecessor), including Franklin Wong Wah-​kay, who became Director of Broadcasting from 2008 to 2011, were seconded to the unit

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The 1967 riots and the political landscape 69 to produce programmes giving an account of security measures and to broadcast interviews designed to build support for the government. In an attempt to win support for quelling the disturbances, the colonial administration also strived to foster a Hong Kong identity in the local populace. Matthew Turner, a former anthropology professor at the University of Hong Kong, noted that it was not until 1967 that the rhetoric of ‘citizenship’, of ‘community’ and ‘belonging’ was first deployed on a grand scale as anti-​communist counter-​ propaganda. By the end of the sixties the idea of ‘community’ was no longer an irrelevance to the majority of the population. For alongside the official discourse, a local and largely unarticulated sense of identity had begun to emerge in Hong Kong.15 As part of its efforts to foster a Hong Kong identify, the government organised the first Hong Kong Week in October 1967 to promote products with Hong Kong brand names. The colonial administration went further in 1969 to organise the Festival of Hong Kong, which encouraged residents to celebrate the place they called home in their capacity as ‘Hong Kongers’. The activities of the festival, which was also held in 1971 and 1973, ranged from fashion shows and a carnival to singing contests. At the same time, the 1967 riots aroused ‘Hong Kong consciousness’ and a sense of belonging to the city amongst the young generation. Members of the public, particularly the better educated, became increasingly critical of the colony’s social problems. ICAC 25th Anniversary, a booklet published by the Independent Commission Against Corruption (ICAC) in 1999, notes that people were getting sick of corruption and more and more in the late 1960s began to express their anger at corrupt officials and ineffective government. The riots of 1966–​67 had challenged many old assumptions about government. The people of Hong Kong increasingly began to openly condemn corruption, and the indifference of the government towards it.16 It is beyond doubt that the growing awareness of social inequality amongst the young generation served as the catalyst for the student and social movements that took place in Hong Kong in the 1970s. In the aftermath of the 1967 riots, many people in Hong Kong began to treasure the colony –​a ‘refugee society’ that served as a haven for those fleeing political upheavals in mainland China  –​as their genuine home. Nelson Chow Wing-​sun, emeritus professor of social work and social administration at the University of Hong Kong, reported that at the time of the 1967 riots, I felt Hong Kong people were generally lukewarm towards the government but they were disgusted with the acts of the leftists. Hong Kong people realised that they had to unite together in support

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70 G.K. Cheung for the government. From then on, Hong Kong people appear to [have] start[ed] treasuring this place. At least Hong Kong was [a]‌haven where they were sheltered from the disasters arising from the Cultural Revolution.17 Forcing the colonial government to introduce social reforms The colonial administration’s success in quelling the disturbances of 1967 does not mean that it enjoyed wholehearted support from the Hong Kong people. Until extremists launched bomb attacks in July, most people did not actively support the government, although they may have disagreed with the actions taken by the left wing. Elizabeth Sinn, a Hong Kong academic who specialises in Hong Kong history, explained:  ‘Members of the public were ambivalent towards the labour dispute [in San Po Kong] in the early stage; some even thought that it was good to teach the colonial administration a lesson for its authoritarian style of government.’18 Derek Davies, former chief editor of the Far Eastern Economic Review, wrote in June 1967 that those involved in the anti-​British riots were essentially frustrated lower-​middle-​class people and urged the government to address social anomalies: A depressingly small proportion of our four million people have begun to reap the benefits of Hong Kong’s economic growth … The government must not be allowed to convince itself that the overwhelming expression of public support for its recent actions in maintaining law and order means that the community wholeheartedly approves of its policies in normal times … The government can afford no longer to refuse to commit itself in advance and must mobilise all the community’s resources to improving housing, education, medical services, recreational facilities and public welfare in general.19 Although the terrorist means employed during the 1967 riots were widely condemned at the time, many independent observers agree that the social background to those riots cannot be ignored. Prior to their outbreak, the colonial government paid little regard to the education and social welfare needs of the socially disadvantaged. For instance, spending on education in 1966 accounted for a mere 4.5 per cent of overall government expenditure, compared with more than 20 per cent in recent years. In 1965, only 18.3 per cent of primary school leavers were admitted to government and aided secondary schools or given assisted places in private secondary schools.20 Commentary in the Far Eastern Economic Review in January 1968 noted that this sort of incident [the riots] should be unthinkable in a decent, progressive society. The administration must show that it is concerned with something more than the mere statistics of so many thousands resettled, educated or provided with medical treatment every year … [I]‌t is the individual whose loyalty must be retained, and the government can only succeed in this by

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The 1967 riots and the political landscape 71 demonstrating that the man in the street is not ruled by a faceless, arrogant machine … Too often, the government seems not only faceless but deaf as well. No matter what suggestions are made –​even from within the civil service –​for improvement or reform of the government’s performance, all ideas of change [are] shrugged off at the top.21 As noted, the leftist camp has long argued that the 1967 riots were triggered by the Hong Kong people’s discontent with such social anomalies as a lack of labour rights protection and the plight of the underprivileged. Since the mid-​ 1990s, it has also claimed that the riots prompted the colonial government to introduce social reforms in the 1970s. As an author who has spent nearly two decades studying the 1967 riots, I think there is a need to set the record straight and to counter the fallacies put forward by the leftist camp. Although it is beyond doubt that many social ills existed in the 1960s, the leftist camp stood idly by during the April 1966 Star Ferry riots and subsequent unrest, which exposed the discontent of the colony’s young generation. As noted, editorials in Hong Kong’s pro-​Beijing newspapers even threw their weight behind the colonial government’s suppression of the disturbances. The leftist camp’s inaction during the 1966 unrest and subsequent use of a labour dispute to launch an anti-​British struggle the following year speaks volumes about the impact of the Cultural Revolution launched by Mao Zedong in May 1966. It is noteworthy that there was momentum within the colonial government in the mid-​1960s to initiate social reforms. In early 1967, for example, the government’s Report by the Inter-​departmental Working Party to Consider Certain Aspects of Social Security put forward an ambitious reform programme, including a mandatory provident fund to provide retirement protection for workers and social insurance to protect the labour force against illness and unemployment. However, these proposals were shelved because of opposition from the business community. One of the unintended consequences of the 1967 riots was renewed momentum for these reforms, which helped to overcome the business community’s opposition to improving labour conditions. The disturbances of both 1966 and 1967 shocked employers in Hong Kong, who subsequently accepted the need for legislative reforms. It is thus fair to say that the 1967 riots served as a catalyst for social reforms, rather than a cause of those reforms. At a meeting of the Labour Advisory Board in May 1967, employers’ representatives were still opposed to a progressive reduction in working hours for women and young people. In December 1967, the government amended the law to reduce the maximum working hours for women and young people to 57 hours a week. They were further reduced to 48 hours per week in 1971. In addition, the Employment Ordinance was passed in 1968 to regulate the duration and termination of contracts and to provide wage protection for employees. In 1969, it was amended to require employers to grant maternity leave and at least four rest days per month. It is beyond doubt that the 1967 confrontation provided the impetus for these labour reforms. Leo Goodstadt, deputy editor of the Far Eastern Economic Review at the time of the riots and head of Central

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72 G.K. Cheung Policy Unit, a Hong Kong government think tank, from 1989 to 1997, believes the disturbances changed the relationship between the government and the community: Following the failure of the general strike in June 1967, the Hong Kong government had to accept that the city belonged to the people of Hong Kong and the fate of the city had been decided by the people of Hong Kong, not by the British or the Hong Kong government … Now the government had to admit that the community had rights. The business community could see that the morale of the workforce was high; law and order was extremely good. People were very diligent and had walked for one or two hours to go to work during the general strike. As soon as this happened, it became possible to overcome the opposition of the business community to improve conditions of the workforce.22 According to files declassified by the British government, Lord Malcolm Shepherd, Minister of State in the Commonwealth Office, wrote in a note to the secretary of state in May 1968 that ‘much needed to be done in Hong Kong’ in commenting on the pros and cons of extending David Trench’s tenure as governor. ‘The disturbances of last year mark, in some respects, the end of a long chapter of laissez-​faire’, he wrote. ‘There is a need for change.’23 However, the British government approved the extension of Trench’s tenure for a further year until April 1970 and then again to November 1971. He was then succeeded by Murray MacLehose, who spearheaded the ambitious reform programme after taking up the governorship in 1971. The gap between the government and the people had been one of the primary concerns of community leaders since the Star Ferry riots broke out in 1966. In an attempt to bridge that gap, the Hong Kong government introduced the City District Officer scheme in January 1968, announcing that six district offices in Kowloon and four on Hong Kong Island were to be established in urban areas. These offices were responsible for maintaining contact with local organisations, receiving complaints and assessing the impact of government policies. Jack Cater, who was the deputy colonial secretary and special assistant to the governor during the 1967 riots, described this move as a watershed: ‘The government learned the lesson from the riots and introduced a series of reforms. Certainly we took the opportunity of producing a new system and reform.’24 Further social reforms fast-​tracked after Murray MacLehose succeeded David Trench as governor in 1971 included free primary education for all in 1972 and compulsory nine-​year education in 1978. MacLehose also introduced a public assistance scheme for the disadvantaged in April 1971 and a ten-​year housing programme in 1973 to alleviate the colony’s housing problems. These reforms bore fruit in the mid-​1970s. Many residents now felt that the governance of the colonial administration had become relatively reasonable and was amongst the most efficient in Asia even though it remained a colonial regime. The social reform programme introduced by Governor MacLehose was partly driven by his belief that a modernised Hong Kong would be Britain’s

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The 1967 riots and the political landscape 73 best bargaining chip when it negotiated with Beijing on the future of the colony. In a note to Britain’s Foreign and Commonwealth Office in October 1971, MacLehose wrote that the best way forward for Hong Kong was to turn the city into a ‘special administrative district’:  ‘For my part, I  think the best we could hope for would be some form of special status for Hong Kong under which sovereignty would return to China, but Hong Kong might be defined as a special administrative district to be managed in a way that would facilitate the continued residence of foreigners.’ He believed that the more developed the colony was, the more attractive the idea of a ‘special regime’ would appear to the Chinese leadership. ‘My object in Hong Kong must be to ensure that conditions in Hong Kong are so superior in every way to those in China that the CPG will hesitate before facing the problem of absorption.’25 It thus appears that the social reform programme launched in 1971 was part of a strategy for dealing with the colony’s future. In a report to then British Foreign Secretary Sir Alec Douglas-​Home in 1972, MacLehose suggested a ‘domestic strategy’ for Hong Kong when London was preparing to approach Beijing to start discussions over its future: This is to tackle the domestic problems of the colony so vigorously during the next 10 years that they would be eliminate[ed] to a point at which by western standards there [would be] nothing to be ashamed of anywhere. In terms of program[mes] for housing and urban renewal, secondary and higher education, transport, social services, cultural development and [the] improvement of urban and rural development, I believe it could be done.26 The British government realised after the 1967 riots that Hong Kong’s future eventually lay with China and that Britain’s objective must be to attempt to negotiate with Beijing over the colony’s return at a favourable time in the future. In other words, the riots prompted London to start making plans to hand control of Hong Kong back to China. According to Hong Kong: Long Term Study, a report prepared by Britain’s Defence and Overseas Policy Committee in April 1968, Britain was forced to admit that it was inconceivable that any Chinese government would negotiate an extension of the New Territories lease that was due to expire in 1997. ‘There is no real prospect of any solution which does not provide for the resumption of Chinese sovereignty over Hong Kong’, the report states. In another report prepared by the Cabinet Office’s Ministerial Committee on Hong Kong in March 1969, the British government recognised the need to co-​operate with China in finding a solution to the future of Hong Kong. The crisis of confidence caused by uncertainty over the city’s future before the conclusion of the Sino-​British Joint Declaration in 1984 proved that the British officials who drafted the report in the late 1960s were already casting their minds towards the future. It showed that the British government had seen public confidence in Hong Kong’s future slip and feared a possible wave of emigration in the 1980s if the 1997 question remained unresolved. It foresaw scenarios in which Hong Kong professionals would seek to emigrate and foreign companies would

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74 G.K. Cheung remove their assets by the mid-​1980s. It expected that professionals with qualifications recognised overseas to start emigrating from the 1960s, with the situation becoming acute by the mid-​1980s. The Ministerial Committee’s report spelled out four possible scenarios, with the best being an informal approach to Beijing with a view to reaching a tacit understanding: The course best suited to our interests would be an informal and disavowable approach to the Chinese when the time is ripe aimed at reaching an eventual withdrawal at a suitable agreed date … The purpose would be to tell the Chinese that we acknowledge that Hong Kong must eventually be returned to China and we are anxious to effect an orderly transfer as soon as public opinion would allow us to … To this end, we will endeavour to avoid doing anything in Hong Kong to make the transfer more difficult, for example by constitutional changes towards representative and more responsible government.27 This recommendation was in line with Britain’s post-​war policy of rejecting full democracy for Hong Kong so as not to spark suspicion from Beijing. The report recognised that meaningful negotiation could not be broached in the foreseeable future, given the ongoing internal strife in the mainland wrought by the Cultural Revolution, but suggested that the British government approach Beijing no later than the early 1980s in the hope of negotiating an agreement on Hong Kong’s future: The other end of the time scale is determined by the strong probability that public confidence in the colony’s future will start to slip and the economy to run down in the 1980s; it could become a serious liability to us and lose its value to China … All this points to an initiative on our part taken not later than the early 1980s or as soon as there emerges in China a regime with which we might be able to do business.28 The moment came in 1979 when Governor MacLehose paid a visit to China. During a meeting on the morning of 29 March 1979, the governor tactfully raised the issue of the New Territories lease with China’s paramount leader Deng Xiaoping. These historic talks, during the first official visit to China by a Hong Kong governor, are now viewed as a key step in securing the smooth transfer of Hong Kong’s sovereignty to China. The fact is that Britain had been mulling the future of the colony since 1967 and that MacLehose was merely following a script from a report that had been drafted more than a decade before his visit. Notes 1 Luo Ji Sheng, ‘Lin Jiao Yi: Guang Shu Zheng Dong Jiang Shui Jie Gang Ke’ Lam Shuk-yee: Uncle Guang Striving for Dongjiang Water to Quench Thirst of Hong Kong], Wen Wei Po, 15 June 2015, A15.

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The 1967 riots and the political landscape 75 2 The Hong Kong Federation of Trade Unions, Gong Lian Hui Yu Nin Tong Hang —​ 65 Zhou Nian Li Shi Wen Ji [FTU with you –​65th Anniversary Historical Collections] (Hong Kong: Chung Hwa Press, 2013), 275–​276. 3 ‘Min Jian Lian Cuan Gai 67 Bao Dong shi En Ren Zuo Pai Sha Lin Bin’ [Democratic Alliance for the Betterment and Progress of Hong Kong Distorted the History of Hong Kong 1967 Riots and Denied the Murder of Lin Bin by Leftist Groups], Apple Daily, 13 May 2010, http://​hk.apple.nextmedia.com/​news/​first/​20100513/​ 14024468?ref=fb. 4 Derek Davies, ‘A Position of Strength’, Far Eastern Economic Review, 3 August 1967, 260–​263. 5 Draft Interim Report:  Hong Kong, Defence, Review Working Party, Defence and Overseas Policy Committee, 19 July 1967, The National Archives (TNA), FCO 40/​ 77. 6 Special Branch, Daily Comparative Circulation Figures of Left-​wing Newspapers: 1967, 26 October 1967, TNA, FCO 40/​114. 7 Li Hou, Hui Gui De Li Cheng [The History of Reunification] (Hong Kong:  Joint Publishing HK, 1997), 59. 8 Lau Man-​shing, personal interview with the author, May 2015. 9 Wong Kwok-​kin, personal interview with the author, April 2007. 10 Lau Chin-​shek, personal interview with the author, 1999. 11 Richard Hughes, Borrowed Places, Borrowed Time:  Hong Kong and Its Many Places (Hong Kong: Andre Deutsch, 1976), 51. 12 Ian Scott, Political Change and the Crisis of Legitimacy in Hong Kong (Honolulu: University of Hawaii Press, 1989), 104. 13 Jiang Shi-gong, Zhong Guo Xiang Gang: Wen Hua Yu Zheng Zhi De Shi Ye [Hong Kong, China: Cultural and Political Perspectives] (Hong Kong: Oxford University Press (China), 2008), 33. 14 Report on the Operation of the Special Publicity Unit, 5 January 1968, TNA, FCO 40/​106. 15 Matthew Turner, ‘Hong Kong Sixties/​Nineties: Dissolving the People’, in Hong Kong Sixties: Designing Identity, ed. Matthew Turner and Irene Ngan (Hong Kong: Hong Kong Arts Centre, 1995), 2–​34. 16 Independent Commission Against Corruption, ICAC 25th Anniversary (Hong Kong: ICAC, 1999), 14. 17 Nelson Wing-sun Chow, Mu Du Xiang Gang Si Shi Nian [Witnessing 40 Years of Hong Kong] (Hong Kong: Mingpao Press, 1990), 40. 18 Elizabeth Sinn, She Hui Zu Zhi Yu She Hui Zhuan Bian [Social Organization and Change] (Hong Kong History: New Perspectives Volume 1) (Hong Kong: Joint Publishing HK, 1997), 157–​209. 19 Derek Davies, ‘What Is To Be Done Now?’, Far Eastern Economic Review, 1 June 1967, 509–​511. 20 Education Policy (Hong Kong: Hong Kong Government Printer, 1965), 2. 21 ‘In the Pink’, Far Eastern Economic Review, 4 January 1968, 36–​37. 22 Leo Goodstadt, personal interview with the author, May 2007. 23 Malcolm Shepherd to Secretary of State, 13 May 1968, TNA, FCO 40/​43. 24 Gary Cheung, Hong Kong’s Watershed (Hong Kong:  Hong Kong University Press, 2009), 139. 25 Murray MacLehose to Michael Wilford, assistant undersecretary of State in the Foreign and Commonwealth Office, 27 October 1971, TNA, FCO 40/​331. 26 Murray MacLehose to Sir Alec Douglas-​Home, 5 May 1972, TNA, FCO 40/​1023. 27 Ministerial Committee on Hong Kong, British Cabinet Office, Hong Kong: Long Term Study, 28 March 1969, TNA, CAB 134/​2945. 28 Ibid.

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5  ‘Flying MPs’ and political change in a colonial setting Political reform under MacLehose’s governorship of Hong Kong Lui Tai-​lok A colonial situation is a political setting characterised by an unequal power ­relation between the metropole and the colony. It is also characterised by a lack of transparency in policymaking, with the former being able to impose its agenda on the latter. Yet, at the level of everyday experience, the colonised may not be aware of such political opacity and simply fail to recognise its full implications. This chapter explores the political changes in the former British colony of Hong Kong in the 1970s under the governance of a popular governor, Murray MacLehose. Many locals believed MacLehose to be a benevolent colonial governor, driving many changes in administration and social services. At the same time, the 1970s also witnessed the emergence of a local political agenda and local social movements. Many observers assume that it must have been either MacLehose or local protests that brought about the reforms in the local administration. However, based on archival study of the decision-​making behind the political changes effected by the colonial government in the late 1970s, I argue that whilst local protests did help to exert pressure on the government, it was a different political agenda in London, particularly that shaped by Labour Party backbenchers in parliament, that triggered some of the most significant changes within the colonial state apparatus. The source of socio-​political changes in a colony is often opaque and on many occasions beyond the imagination of locals. Introduction The governorship of Murray MacLehose (November 1971–​May 1982), a period sometimes described as the ‘MacLehose decade’,1 is fondly remembered as a critical period in Hong Kong’s colonial history, a period that saw major social reforms that drastically changed the former colony’s social and political landscape.2 The governor is widely credited with turning Hong Kong into an efficiently managed colony and modern city, and is sometimes even seen as having done so single-​handedly,3 and confronting corruption and improving the livelihoods of local people. MacLehose was probably the most popular governor (even pro-​Beijing groups in Hong Kong organised farewell dinners upon his departure4) in the eyes of the people of Hong Kong. Negative remarks about the colonial administration under his governorship were rare. Whilst his contributions to

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Political change in a colonial setting 77 major governmental initiatives (such as public housing, medical services, public transport and subsidised education) have been positively evaluated by a wide social spectrum,5 few attempts have been made to evaluate MacLehose’s governorship in terms of his role in the development of Hong Kong’s political system. Indeed, until the launch of local administration reform after MacLehose’s return from his visit to Beijing in 1979 and the subsequent political reforms triggered by the Sino-​British negotiations over Hong Kong’s political future in the 1980s, constitutional change and political development were two topics that were largely missing from the former colony’s post-​war political history.6 This chapter constitutes an attempt to fill in the missing pages on political change and development in post-​war Hong Kong and to reflect upon the implications of the neglect of the colonial administration’s underachievement in terms of political change under MacLehose’s governorship. As will be shown in the following discussion, beneath the political tranquillity of the 1970s, there was enormous pressure from the United Kingdom on the colonial administration to initiate social reforms and political changes.7 Although there were many local political actions, especially in terms of student activism and protests brought about by urban development,8 constitutional and political reform was largely kept off the public agenda. Similar to its reactions to other pressure and requests from London (e.g. requests to reform industrial relations and improve labour conditions), the colonial government worked very hard to steer its own course. Instead of making drastic moves to reform the anachronistic political structure, MacLehose brought new members with more diverse social backgrounds into the legislature and increased the number of seats in the Legislative Council. The so-​called ‘government by consent’ remained intact, and political reform initiatives were largely held at bay. When changes were made, including the establishment of a new form of local administration in 1982, they were largely confined to local matters and the role of the new District Boards was mainly that of consultation. And even for changes of such a limited scope, the driving force was not MacLehose’s initiation of a devolution of power but rather pressure from London. Questions raised by members of parliament in the UK looked like long shots with few echoes in the colony. However, talks in Westminster did open up opportunities and set an agenda within the colonial administrative structure that otherwise might not have been made available for policy consideration. This is what I  describe as ‘political opacity’ under a colonial situation:  the push for political change may come from sources other than the colonial state and/​or the colony’s civil society. Such political opacity poses serious questions for researchers seeking to understand institutional changes in a colonial setting. Whilst the metropole formally possesses the power to drive changes in the colony, colonial officials do not necessarily follow it in an uncritical manner. At the same time, although most of the colonised, especially those active in political opposition, tend to see the metropole as the major source of resistance to reform, it may well turn out to be a resource for triggering institutional changes in the colony. Colonialism is a complex political process wherein there exists space for manoeuvring. Whilst this is not to deny the significance of institutional changes initiated

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78  T.L. Lui by colonial officials (as suggested by the so-​called state-​centred approach) and/​or triggered by political pressure from below (as suggested by the so-​called society-​ centred approach), our discussion will show that, given a colonial situation, the political process does involve agents from the metropole. Their role may not be obvious but their actual political impact is sometimes quite significant. In the case of Hong Kong, members of parliament in the UK played a role in opening up a space for political participation in the early 1980s. The main concerns of MacLehose’s governance Elsewhere I have argued that a proper assessment of Murray MacLehose’s initiation of social reforms in Hong Kong should be interpreted in connection with earlier efforts by his predecessor, David Trench (who was governor of Hong Kong from 1964 to 1971), the impacts of the two riots in the mid-​1960s and his own diplomatic perspective on the preparations for negotiation with China over the colony’s political future.9 In MacLehose’s drafting of guidelines for the governor designate, he highlighted the importance of forward planning: Hitherto the Hong Kong Government has believed that the security risks involved in forward planning were greater than any advantages to be derived from it. My own view is that the balance of advantage now lies in initiating a highly secret but thorough look at the future. While I do not think the critical period will commence before the second half of this decade, the planning process will have to start now.10 By planning, MacLehose was referring to two separate and yet simultaneous processes. The first was a planning process to prepare for the encounter with China over Hong Kong’s political future. However, in order to effect such preparation, the colonial government also had to carry out the second, that is, longer term planning in the area of social service provision. These two processes were expected to converge in strengthening the colonial government’s position in its future dealings with China. MacLehose seems to have developed this perspective at a very early stage of his governorship, as is evident in the following internal exchange in the Foreign and Commonwealth Office. Sir Murray MacLehose left on record the following statement of the line he would follow –​‘Meanwhile my object in Hong Kong must be to ensure that conditions in Hong Kong are so superior in every way to those in China that the CPG will hesitate before facing the problems of absorption. These objects coincide with what we, as the administrative power, would wish for the Colony in any case.’11 The policy initiatives on housing, education, social services and infrastructure development to be launched in Hong Kong in the following years are perhaps best interpreted in light of MacLehose’s perspective. They constituted policy

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Political change in a colonial setting 79 deliverables that, in MacLehose’s thinking, could build confidence in the colonial government and gradually facilitate identification with Hong Kong amongst the local people as a place of their own. The institutional arrangements of the colonial political structure were almost inevitably a part of this larger plan of governorship. However, MacLehose seems to have been more mindful of the lack of a sense of corporate responsibility within the colonial administration than with matters concerning the political interface with the general public: I am particularly struck by the absence of any inner council of officials acting as a corporate decision-​making or steering body … The absence of such a body, which is normal in most big cities, must make it difficult for the Governor and Colonial Secretary to impress their policies on the few key officials who run the Colony or to develop in them a sense of corporate responsibility … I have read the papers in the Department setting out ­various proposals for reform of the structure of government including Sir L Monson’s proposal for an entirely unofficial membership of Leg-​Co, and Mr Laird’s for a ‘Member’ system. All I can say at this stage is that I accept this whole field as one of top priorit[ies] for consideration.12 As we shall see in the following discussion, MacLehose did return to the question of the establishment of a ‘member’ system as an attempt to strengthen the role of unofficial members in the Legislative Council. At the time he assumed the governorship of Hong Kong, however, he clearly had rather limited interest in making major changes to the constitutional arrangements. MacLehose’s emphasis on preparation for future negotiations with China was both an enabling factor for introducing social reform and longer term planning to Hong Kong and a restraining factor for political reform. On the latter point, ‘the China factor’ was always seen as the key variable setting the parameters of potential political changes. This factor worked at two levels. First, China would not accept any change in the status quo, particularly a move towards political independence for Hong Kong. Any measure, no matter how small, that would create suspicion in Beijing was considered undesirable. Second, any changes in political institutions would almost inevitably bring pro-​Beijing and pro-​Taiwan political forces into political contention and provide them with a public arena for political mobilisation. Such a development would pose a serious challenge to the authority of the colonial government, and therefore was to be avoided. Similar views concerning the China factor are repeatedly found in discussions within the Foreign and Commonwealth Office. For instance, in notes prepared for the Secretary of State before a meeting with MacLehose, it was remarked that the governor was well aware of these concerns: An elected minority [in the Legislative Council] would increase Hong Kong’s expectation of getting its own way, without making it more likely that we would permit this. Moreover the composition of an elected element would be unpredictable. It would inevitably divide into a pro-​communist

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80  T.L. Lui and anti-​communist group. The Governor’s task would become more difficult. We concluded with the Governor that there was no scope for constitutional changes at the moment, [and he] hopes to confirm that this is also the Secretary of State’s view.13 The introduction of political representation to the colonial political system was always perceived as a move that would activate the China factor and, in turn, undermine colonial governance. Hence, at least in the early period of MacLehose’s governorship, major political change seems to have been off the agenda. MacLehose’s 1974 despatches By 1974, however, MacLehose seems to have changed his view of the political arrangements in Hong Kong. In that year, he raised the question of whether there was a need to re-​examine the arguments for and against changes in the colony’s political institutions, and then in a series of despatches to the Foreign and Commonwealth Office in preparation for his visit to London later that year, MacLehose set out a number of suggestions for discussion:14 I myself am in two minds about the merits of change and it is for this reason I asked for a review. In my first year here I still believed it would be possible, without constitutional change, to hold the loyalty and attention of the population and build up a sense of local identity based on civic pride. I thought this could be done by the implementation of extensive programmes of social reform, by greater responsiveness on the part of the Government, and by organising extensive grass-​roots participation in neighbourhood affairs on the model of Singapore … Nevertheless I  now believe that Hong Kong would have a better chance of retaining its cohesion and sense of identity in the difficult period that will start with the ‘80s if it had a more obviously local and less obviously alien government.15 MacLehose was, of course, aware of the restrictions on democratic political reform in Hong Kong imposed by the colony’s special political circumstances, namely, the concerns of the Chinese People’s Government. This was noted later in the foregoing despatch. He further noted that his proposal was not about democratisation. He understood that ‘the way to normal elected responsible government is blocked’, noting that he could not ‘discern any significant local interest in real democratic reform’. The question he was posing, he said, was: ‘What therefore can we do to render this Government more local and less alien if we cannot do this by the conventional method of creating an elected government along Western lines?’ His proposal was to appoint a number of local unofficial members as ‘responsible ministers’. MacLehose envisaged that, together with the localisation of the civil service, the introduction of these unofficial members would gain the confidence of the local people and help to remove the taint of a colonial government that was alien and out of touch with the local population. It

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Political change in a colonial setting 81 would also facilitate the devolution of power from Westminster: the locals would have their say on ‘purely local matters’.16 MacLehose’s proposal rested, at least in part, upon broadening the recruitment of local political leaders. He placed his hopes in the newly established Mutual Aid Committees (MACs) and Area Committees: ‘[they] may throw up some vigorous and respected personalities with a social background quite different to that of present members of the Executive, Legislative or Urban Councils. If they do the problem of broadening the membership of the Councils would be solved.’17 In short, MacLehose’s proposal did not concern the introduction of elected representatives to the legislature. Rather, it was about the appointment of ‘local responsible ministers’. A closer look at his proposal also alerts us to the fact that it echoes his aforementioned concern over the lack of a sense of corporate responsibility within the colonial administration. In that early statement, he had in mind that most of the key decisions in Hong Kong fell on the shoulders of the governor and Colonial Secretary, although major officials’ support was occasionally enlisted by holding ad hoc meetings.18 The appointment of local responsible ministers would not only strengthen the connection between the government and the local population, but it would also help to cultivate ‘constructive and co-​operative’ members of the Legislative Council to defend government policy.19 MacLehose concluded the third despatch by saying: A move towards a fully elected and responsible government, if successfully handled, could have real merit, but it would also entail so many dangers that I do not think it should be contemplated in present circumstances. A move towards a Legislative Council that contained a small elected element would not be subject to any of these dangers but would have little local appeal and would be hard to combine with the present constructive partnership between UMELCO [Unofficial Members of the Executive and Legislative Councils] and officials, which is a special and valuable feature of the present situation, and would be of no significance in putting power into local hands.20 Actually, MacLehose had raised similar concerns in his earlier submission of an annual review of Hong Kong to the Foreign and Commonwealth Office. After reviewing the changing relations between the government and the governed, the governor remarked in his review of 1973: Nevertheless, I do wonder whether such methods, which are all the present constitution of the Colony affords scope for, will be sufficient in the long term to hold the interest and loyalty of the population, or induce able men to serve –​even when coupled with a rising standard of living and Chinese complaisance. I have particularly in mind the younger generation educated in British liberalism. Real as the well-​known objections are even to limited constitutional advance in Hong Kong, I am not as convinced as I once was that they are as insuperable as they used to be. Moreover, it is arguable that as time passes the danger of leaving things alone will increase to a point

28

82  T.L. Lui at which it is greater than that of making a move. It may well be that our conclusion will still be that no substantial progress is feasible, but I  think that this subject merits careful and confidential re-​examination amongst ourselves, and I will address the Department in due course. I trust that this whiff of heresy will not cause consternation.21 MacLehose’s remarks received a very cautious reaction from London. A.C. Stuart of the Hong Kong and Indian Ocean Department saw the involvement of the local population in the political processes of a government without representative institutions as ‘the crux of the problem of Government inside Hong Kong’. In his view, ‘the Governor has concluded that the problem may be insoluble without some direct elections to [the] Legislative and Executive Council[s]‌. He may be right … [b]ut the difficulties remain formidable’.22 Edward Youde was equally if not more cautious, noting: The problem is rather similar to that of the Chinese representative. The first step is a small one but once it has [been] taken it is impossible to reverse and the process acquires a momentum of its own. My own view is thus that we could only start on that road if we were prepared to see very substantial changes in the government of Hong Kong within the next ten years. The issue is also one in which the Chinese in Peking would take an immediate interest because they know that Hong Kong left to itself would choose independence and not reversion to China. They would not want to see opportunities for that option opened without vigorous action to counter it and they could be drawn more deeply into the political arena in Hong Kong when for the present they would rather stay out. So I would prefer not to give any hint of our attitude either way in any comment sent on this despatch.23 It is true that MacLehose had not fully spelt out the implications of his proposed changes. That said, however, the cautious reaction from London seems somewhat overplayed. The proposal did not necessarily, at least in the short run, imply the introduction of political representation through direct elections. MacLehose’s agenda was focused instead on changing the relationship between the colonial government and the governed, in part to make his administration less alien. The appointment of ‘local responsible ministers’ seems like a move to secure the local populace’s confidence in the colonial government and to build a bridge between the government and the governed by actively engaging notables, but without necessarily making any drastic changes in Hong Kong’s constitutional arrangements. The necessity for such a move was emphasised by Trench before his departure and also earlier by MacLehose. The other part of MacLehose’s agenda concerned building and strengthening colonial rule with a local touch. To develop an image of not being out of touch with the local population, MacLehose emphasised the significance of the perception that the colonial government was able to protect local interests. This was an issue that came up quite often in exchanges between Hong Kong and London.24

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Political change in a colonial setting 83 The Foreign and Commonwealth Office did not share MacLehose’s view of the need to tune up the role of the Legislative Council and its councillors. In briefing notes prepared by A.C. Stuart for a meeting between MacLehose and Lord Goronwy-​Roberts, he noted, in response to MacLehose’s despatch dated 30 May 1974, that ‘we have had some doubts about whether the proposal might not look in London like a further consolidation of the power of the Hong Kong business establishment’.25 He then went on to comment on a proposal made by S.Y. Chung concerning an increase in the membership of the Legislative Council and put forward several reasons that the proposed changes were problematic: Particularly if any form of elections for the new seats was introduced, the proposals might look to the Chinese like a step towards self-​government and independence. This would have to be carefully handled with the Chinese. We could not appear to be consulting them; but we would need to be sure that they understood the proposal and did not regard it as a threat. Secondly, the introduction of new Unofficial Members could upset the constitutional arithmetic by which the Governor has, in the last resort, the power to rule through the Official majority in the Legislative Council. It might be necessary to avoid this either by the provision of a balancing number of Officials, or by introducing a different sort of Constitution with reserve powers for the Governor. The latter might, of itself raise suspicions of the Chinese, since it has in the past been seen as a step on the road to responsible government. Thirdly, the Unofficial Members of Legislative and Executive Councils in Hong Kong (UMELCO) act as an informal cabinet towards the Governor. This is a healthy situation, but it presupposes some coherence of view among the members. A larger Unofficial membership with perhaps differing methods of selection or election might lead to greater divisions within the group. This would be particularly true and particularly undesirable if some of the Members regarded themselves as representing Peking and some Taiwan. It could also raise problems of the security of official papers.26 By this time, Stuart seems to have secured MacLehose’s agreement not to proceed further. In the former’s summary, he wrote: The Governor’s own view is that new candidates for membership of Council are only just beginning to emerge. From the Hong Kong point of view he would therefore favour waiting. He is also inclined to advise that this is not yet the right moment to introduce the Member system. However, he recognises that there may be pressure in the UK for faster progress.27 Pressure from the United Kingdom Discussion of the need to increase and broaden the membership of the Legislative Council returned to the communication between London and

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84  T.L. Lui Hong Kong when the former came under intense pressure from trade unions and the Secretary of State was about to visit East Asia. Hong Kong’s lack of compliance with International Labour Organization conventions and refusal to recognise local trade unions, as well as the poor conditions of the working class, were disturbing to the Labour government, which felt pressure from trade unions in the UK. The International Committee of the Trades Union Congress pressured the Secretary of State to monitor the colony’s performance in protecting workers’ rights. Questions were also raised in parliament, twice in April 1975, about the situation in Hong Kong, whose poor social welfare provisions and inadequate labour protection were seen as the main reason for Hong Kong manufacturers’ ability to undersell their British counterparts. This focus on Hong Kong was crystallised by the publication of a Fabian Society pamphlet entitled Hong Kong –​Britain’s Responsibility in early 1976,28 which coincided with the planning for a visit to East Asia by the Secretary of State. As a result, Hong Kong became a matter of some urgency, kicking off the drafting of a planning paper on the colony. The drafting of this document was driven by the need to respond to the pressure being exerted by trade unions in the UK, and also shaped by the Secretary’s expectation of a meeting with Beijing’s top leaders during his visit. Inevitably, it was believed, Hong Kong’s future would be an issue of concern. Worry over Hong Kong becoming a liability to Britain was not new. On the part of London, there was concern that Hong Kong did not pay sufficient attention to Britain’s interests, a concern that had been raised before the campaign organised by British trade unions: The basic problem is that in dealing with Hong Kong we are dealing with a numerically large and economically prosperous territory which, but for historical and geographical circumstances, would by now be independent, and acts accordingly. It seems to me that in our relationships with Hong Kong we have to give some degree of recognition to this de facto sense of ‘independence’ –​which means inter alia paying due regard to unofficial opinion in the Executive and Legislative Council even though the representatives are nominated and not elected (for we have ourselves deliberately created these channels for the expression of opinion in view of the impossibility of normal constitutional progress). On the other hand, we cannot in running a Crown Colony give local interests complete priority and allow our own to go by default: we cannot for example allow Hong Kong to do just what it likes about its £600 million plus of sterling reserves in ways that could hurt us. But going with the power to tell the Hong Kong Government to do what we want there would appear to me to be a concomitant responsibility to have regard to the Colony’s own interests and to strike a fair and just balance between them and our own. (As a corollary to this attitude it would be right to expect a less parochial and belligerent approach on the part of senior Hong Kong officials).29

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Political change in a colonial setting 85 But as one would expect, the reception of such a message on the other end was very different, as MacLehose made quite clear in his annual review of Hong Kong for 1974: I end this despatch by a plea to bear this in mind in dealing with Hong Kong this year. Whether the issue is trade negotiations with the EEC or the US, or negotiation of a new Defence Costs Agreement, or any other matter in which Her Majesty’s Government plays a distinct and dominant role in Hong Kong’s affairs, Hong Kong will tend to be immensely preoccupied with its own problems and impatient and shrill about those of others. Much the most difficult and potentially explosive of these issues will be the Defence Costs Agreement.30 The exchanges between London and Hong Kong show the growing strains between the parties concerned. In commenting on MacLehose’s annual review for 1975, Laurence O’Keeffe of the Hong Kong and Indian Ocean Department noted that ‘the problem is that criticism, if anything, is growing more deep-​ seated, better informed and more persistent’.31 And, in response to O’Keeffe’s comments, Larmour stated that ‘he [MacLehose] still underrates the increasingly critical feelings about Hong Kong that are widespread in this country’.32 However, with the establishment of procedures for drafting a planning paper on Hong Kong, MacLehose was expected to address the concerns and questions raised by the Foreign and Commonwealth Office. Furthermore, the latter decided to closely monitor the progress made by the colonial government. For example, in his preparations for his policy address in 1976, MacLehose had to respond to London’s requests and to make changes to his speech in order to show that his response and support were not simply words but were policy deliverables that would have almost immediate effect. However, the growing pressure from British trade unions and the Secretary of State did not necessarily drive the Foreign and Commonwealth Office and colonial government further apart. Recognising the complications of activating the China factor, the former actually tried to cool down the pace of change. On matters concerning labour conditions and social welfare, they were ready to speed up reform,33 but on matters concerning China and political reform in Hong Kong, they were reluctant to make any impulsive moves. Hence, in response to MacLehose’s letters expressing his strong reaction to pressure from British trade unions and London, Foreign and Commonwealth Office Deputy Undersecretary Duncan Watson expressed his worries to the governor, as well as his intention to coach the Secretary of State on how to deal with the more sensitive issues: As things turned out, it was hardly a matter of letting loose balls go by, but rather of dealing with a couple of fast Yorkers from the Secretary of State himself. The first (i.e. the Secretary of State’s insistence that he could see no reason why three members could not be found preferably from the MACs for

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86  T.L. Lui appointment to LegCo next year) we felt we could only glide to leg to you … The much more dangerous ball (arising from the thought which came off the top of the Secretary of State’s head for some sort of social-​economic consultative council in Hong Kong including trade union representation) was the suggestion of straight talking in Peking about future arrangements in Hong Kong. We played a very straight bat to this, and I reminded the Secretary of State of the potential problem of all the British passport holders of Chinese origin in Hong Kong, if relations with China went awry. At the moment, however, he obviously liked the feel of the ball he had delivered, and we had to leave with the thought that after all this was carefree bowling in the nets, and there was time for serious coaching before he walked out onto the Peking wicket next May … We have already set the ‘coaching’ process in hand, with the preparation of a draft outline paper on the long-​ term future of Hong Kong, intended to provide a considered basis for the Secretary of State’s approach to the Chinese next year.34 The ever-​sensitive China factor seemed to bring the Foreign and Commonwealth Office closer to Hong Kong, and vice versa. In commenting on Hong Kong’s political future, MacLehose highlighted the importance of not bringing China into the colony’s political system: The role of the Hong Kong Government in this problem seems to me to be clear. On the one hand it must do nothing to frustrate Chinese earnings or impair Chinese security, and must cultivate a practical working relationship with Chinese officials in Hong Kong, and accept a development of Chinese use of and activities in the Colony –​it must do all this while remaining master in its own house. On the other hand it must continue its present policy of improving standards of life and contentment in Hong [K]‌ong and the continuing economic development of the Colony.35 In another despatch on domestic policies in Hong Kong up to the 1980s, MacLehose was again very cautious in handling political changes: The constitution of Hong Kong is of course an anomaly resulting from special circumstances. But it is an anomaly that has proved both that it can work, and that it is capable of evolution over a wide field, and I am not sure how fully it is understood in Whitehall how much it has evolved in recent years. Moreover, it is able to attract men and women prepared to devote a large measure of their time to public business who are able, liberal, well-​informed and sensitive to public opinion. They are also appointed with a view to being ‘representative’ in the sense that they are personally and genuinely concerned, and prepared to speak for, the public interest as a whole rather than for that of a class or group. In considering change one must therefore be very careful to avoid substituting for something that is accepted locally and which works, something that does neither. The results of doing so for Hong Kong

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Political change in a colonial setting 87 and H.M.G. and for H.M.G.’s relations with China could be very serious. Nevertheless, as indicated in my despatch on 30th May 1974, for some time I have concluded there is room and need for change, and have been steadily working towards it.36 MacLehose underlined the fact that the existing political system, despite being an anomaly, functioned quite well. He was very careful in saying that he did not intend to propose changes that would depart from the existing system. Furthermore, he would continue to follow existing practice in appointing members of the legislature. What he would do differently was to broaden the scope of the process of political inclusion by identifying suitable persons from a more diverse social background: It has been the tradition that unofficial members of Legislative Council should be appointed from people who have gained recognition and respect in the community by successful participation in community affairs, whether in the subvented agencies and charitable organisations or in advisory committees, both of which are such a feature of Hong Kong. Success in business or a profession has never in itself commanded or of course barred eligibility. I am not proposing any departure from this expansion to the whole population through the opportunities for participation now being progressively offered to all through the Mutual Aid Committees and Area Committees. The essence of the approach I have proposed is therefore the substitution in the special circumstances of Hong Kong of the principle of ‘participation’ for the normal principle of election. It is a principle well established in Chinese tradition and it is well understood here and will I believe have cosmetic value in Westminster.37 His conclusion was a repetition of what he had already outlined in the proposal he put forward in May 1974, which was an enlargement of the Legislative Council together with a broadening of the recruitment process for members. This initiative would be backed up by the promotion of social participation through government-​sponsored grassroots organisations. With legislative councillors taking up more responsibilities and focusing on specific policy areas, the colonial government would gradually move towards stronger ties with the local population without invoking the suspicions of China: Nevertheless, provided all goes well with the enlarged Council, I think we could reasonably expect Hong Kong to start the ‘80s with a Legislative Council which was both enlarged and drawn from a much wider cross-​ section of the population, and in which overt responsibility for selected fields of government was already in the hands of local unofficial[s]‌. The whole would be under-​pinned by widespread grass-​roots organizations, assisted by the Home Affairs Department, and playing useful and practical roles in their own neighbourhoods, and also in advisory committees. I believe this

8

88  T.L. Lui to be right in itself, and if it goes well it could be a source of additional strength in the difficult period that must be faced in the ‘80s. But we would need to watch carefully how the new arrangements and the new personalities developed in practice. On no account could we afford to allow new sources of weakness or factionalism in Hong Kong to complicate the resolution of Sino/​British problems for which not only judgement and decision will be required, but also confidence between population, Unofficials and Government, and between Hong Kong and H.M.G.38 This declaration echoes what MacLehose had written earlier in his annual review of 1975 in which he noted that Hong Kong ‘is sustained by a tripod’, the three legs of which ‘are the support of Her Majesty’s Government, the policy of the Chinese Government, and Hong Kong’s ability to support its swollen population by its own resilient economy’.39 It was his intention to build a fourth leg through the better relationship between the government and the governed that was being constructed through ‘social progress, closer contact, more open and responsive government and progressive participation, eventually leading to civic pride as a substitute for a sense of national identity’.40 One of the major features of MacLehose’s proposed fourth leg was that it was intended to work in conjunction with the three existing legs of the tripod, not to replace them. In other words, its purpose was to strengthen the existing balance of political relations that helped to maintain Hong Kong’s stability.41 Reform in action In a meeting with MacLehose in April 1975, then British Foreign and Commonwealth Secretary James Callaghan bluntly told him that ‘the reputation of Hong Kong did not stand particularly high in the Labour movement generally in the United Kingdom’.42 The governor replied by suggesting that some of the views in the UK were ‘not soundly based’. Moreover, many did not realise that the Legislative Council in Hong Kong operated more like a cabinet than a parliament. However, MacLehose did agree that ‘members from the lower income brackets would need to be included in due course and the Hong Kong Government was keeping a close watch on people in the Mutual Aid Committee[s]‌for the emergence of natural leaders’.43 Callaghan responded by commenting that ‘as an administrator, he could understand the need for high calibre in the members of the Legislative Council, but this was not an argument which would carry much weight politically here [in London]’.44 With this response from London, it seems clear that MacLehose would have to appoint new Legislative Council members with ties to the working class. MacLehose gave hints about making changes in political institutions when he remarked in his 1975 Policy Address in reference to the political system that ‘[t]‌his is a situation which, like Hong Kong itself, has evolved, is evolving, and can evolve further’.45 He also further commented on the possibility of changing the composition of the Legislative Council:

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Political change in a colonial setting 89 Lacking, as is unavoidable, any electoral mandate, Members are required to try to think and plan and speak for the interests of the community as a whole as they see it, and not, as would be so much easier, for the narrow interests of a party, a group, a profession, an area or a class. But I believe it assists this general requirement if members are able to speak from as wide a spread as possible not only of professional experience, but also of social background.46 By 1976, the question in front of MacLehose was how to put his suggestions into practice. One thing he tried to avoid was pressure from London, more specifically pressure from British trade unions, to formally appoint local union representatives to the Legislative Council. Given that Hong Kong’s unions were largely divided into two main camps –​pro-​Beijing and pro-​Taiwan –​an institutionalised assignment of seats to unions in the legislature would inevitably bring communist–​ nationalist rivalry into open conflict.47 This, as noted earlier, was a situation that both the colonial government and the Foreign and Commonwealth Office were keen to avoid. To deal with the issue, MacLehose repeatedly emphasised the MACs as an alternative route to soliciting grassroots support. The MACs were also important to MacLehose’s desire to pre-​empt the argument that the Urban Council, which had elected seats, should be used as an institutional channel for widening public participation and as a source of future political leaders: [I]‌n Hong Kong, there [is] not scope for a second tier of Government with wide powers. Hong Kong [is] too small for fragmentation. The Urban Council franchise might be extended but not its functions. If an extension of franchise gave rise to claims for an extension of power it would have to be resisted. Village and Mutual Aid Committees, representing about a million people, [are] in fact, a more genuine expression of popular opinion than the Urban Council which [represent] about ten thousand voters.48 Hence, when MacLehose had to initiate changes in political institutions in 1976, the first move he made was to increase the number of official and unofficial members in the Legislative Council to 46 in total. The upper limit on the number of ex officio and nominated officials was 18, and that of unofficial members was 23. In practice, only 15 officials were nominated, and 22 ‘unofficials’ appointed. In 1977 and 1980, the number of seats was further expanded to 50 and 54, respectively (see Table 5.1). The bigger challenge for MacLehose concerned the appointees to the unofficial positions. He promised to bring in three candidates ‘of a rather different type and with a[n]‌MAC background’.49 Altogether, eight new members were appointed as ‘unofficials’ of the Legislative Council in September 1976.50 Two of them had a background in labour-​related service. Mr Leung Tat-​shing, for example, had connections with the pro-​Taiwan unions, and Rev. Patrick McGovern was a Jesuit priest active in social service. He became the director of the Caritas Social Centre in Kennedy Town in 1965 and founded the Industrial Relations Institute in 1968. Whilst Mr Leung seemed to be a co-​operative trade

09

90  T.L. Lui Table 5.1 Composition of the Hong Kong Legislative Council, 1947–​1980 Year

Ex officio (including the president)

Nominated officials

Appointed unofficials

Total

1947 1951 1964 1973 1976 1977 1980

6 6 6 5 5 5 5

3 4 7 10 15 (18) 16 (20) 18 (22)

7 8 13 15 22 (23) 24 (25) 26 (27)

16 18 26 30 42 (46) 45 (50) 49 (54)

Source: Adapted from N.J. Miners, The Government and Politics of Hong Kong, 3rd edition (Hong Kong: Oxford University Press, 1981). Note: The figures in the table are the actual number of ex officio members, nominated officials and appointed ‘unofficials’. Those in brackets are the upper limit of the quota allocated.

unionist, Rev. McGovern was an independent character who served the working class. Their appointment addressed some of the concerns of British trade unions. Regarding the appointment of members who had a touch of the grassroots, Rev. Joyce Bennett had a long career of service in education and had demonstrated concern for poor neighbourhoods. More importantly, Mr Wong Lam, who worked for the Kowloon Bus Company and was active in the Fight Crime Campaign, was seen as a symbolic figure of the colonial government’s success in community building and the establishment of the MACs. These appointments served to broaden the social mix of the Legislative Council. However, MacLehose fell short of his promise to introduce three members with strong MAC connections, which is understandable in part. The governor had alerted London that the MACs were still in an early stage of development, repeatedly emphasising that the ‘Mutual Aid Committees are developing well, and in view of the very short time they have been in existence have become accepted as part of the life of Hong Kong to a remarkable extent. Nevertheless, I would have preferred to wait a little longer before putting any of their members to the Leg. Co. test’.51 He went on to say that he would try to identify potential candidates because of ‘the Secretary of State’s concern’.52 Back at home, however, the colonial government was rather unsure of its grassroots connections. MacLehose’s difficult situation is best summarised in Eric Ho’s recollections about the urgency of finding grassroots candidates for appointment to the legislature: One memorable incident was a directive from the Governor, conveyed through Denis Bray, the Secretary for Home Affairs. Wanted:  grass roots candidates for appointment to the Legislative Council! … The Unofficials (i.e. non-​officials) were successful businessmen, bankers or professionals,

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Political change in a colonial setting 91 with a sprinkling of industrialists, head-​teachers and figures involved in voluntary work. Over a dozen men and two women: all middle class, all able to speak English. Few would not agree it was time to vary the mix. The rational way of proceeding would be to select a few persons from the ‘grass roots’, try them out in some less prominent spheres, and then pick the most successful. That was not for Sir Murray MacLehose, as he then was. It had to be instant!53 Ho’s recollection probably captures very well how MacLehose tried to cope with the demands from London. The MACs and Area Committees were supposed to constitute a new engine for grooming potential leaders from below. In 1975/​ 1976, however, they were apparently far from ready, although such behind-​the-​ scenes nervousness does not seem to have been noticed by the general public. The appointment of Mr Wong Lam did breathe some fresh air into the Legislative Council, symbolising the colonial government’s awareness of the need to listen to and enlist grassroots support. Largely because of Mr Wong, Chinese was allowed to be used in the Council chamber. MPs and local administration reform Conversations of a similar kind between London and the governor resumed in 1980, with London put under pressure this time: There have been periodic demands for greater democracy in Hong Kong for many years. In the past few months Ministers have been under pressure from two quarters. A delegation from the Elected Members of the Hong Kong Urban Council met Mr Blaker on 30 October 1979  … On 5 December 1979, Mr Blaker met four members of the Anglo-​Hong Kong Parliamentary Group led by Sir Paul Bryan MP. Sir Paul stressed that on a recent visit to Hong Kong he had been struck by the increase in pressure for democratic reform. The other members pressed for a more open mind by the Hong Kong and UK Government on the subject.54 The backdrop of this interest in democratic reform in Hong Kong is the emergence of pressure groups and protest actions (particularly in relation to urban resettlement and related livelihood issues) in the colony in the early 1970s.55 Visiting MPs from the UK (especially those who were members of trade unions and/​or the Labour Party) showed their support for many of the protests organised by community organisers and pressure groups in Hong Kong. Some of these MPs were seen as ‘flying MPs’, as their trips were short and they simply ‘parachuted’ into the colony and made remarks without knowing much about Hong Kong. However, their status as MPs in the British government ensured that their presence enhanced the visibility of the protests they attended, although few pressure group activists actually thought they would be of much help.56 The visits of some ‘flying MPs’ were sponsored by the Hong Kong government, and others

29

92  T.L. Lui were supported by pressure groups in Hong Kong.57 As it turns out, these MPs’ actions in the UK did help to push the Foreign and Commonwealth Office into exerting pressure on the governor, which sometimes triggered a chain of events that subsequently brought about institutional change. Hong Kong pressure groups, protest leaders and Urban Councillors organised a petition to London in October 1979 over the so-​called Yau Ma Tei boat people incident.58 This incident began in 1977 when boat people in the Yau Ma Tei shelter raised concerns over their personal safety arising from their deteriorating living environment and began to organise to take action. In January 1979, some 67 boat people and their supporters were arrested for illegal assembly while on their way to stage a protest in front of Government House, sparking a strong reaction from other pressure groups and student activists. The protest agenda was no longer confined to resettlement-​related matters but extended to issues concerning political rights and participation. It was in this connection that pressure group leaders and Urban Councillors travelled to London to deliver their petition. In response, the aforementioned ‘flying MPs’ provided assistance by finding 150 MPs willing to move an ‘early day motion’ for debate in the House of Commons on matters related to reforming the Urban Council in Hong Kong. This move put Hong Kong back onto the agenda in London and kick-​started a new round of communication between the Foreign and Commonwealth Office and MacLehose on political change in the colony. In internal Foreign and Commonwealth Office communication, in recognition of MacLehose’s strong objection to using the Urban Council for the purposes of promoting local governance, it was suggested that [a]‌lthough Sir MacLehose and the Hong Kong administration see no possibility of progress towards popular participation … I think the whole question should still be examined fundamentally, though still on the firm assumption that there can be no change in the nature of LEGCO and EXCO … With one vital reservation, I  would have thought that the Chinese might not necessarily see any need to complain at a two-​tier, two-​nature form of administration, relatively democratic at district or neighbourhood level, but autocratic at all higher levels.59 Of course, that one vital reservation was, again, the China factor. That said, it was also suggested that ‘Mr Blaker [Peter Blaker, one of the so-​called flying MPs] might care to explore with Sir M MacLehose the possibility of a study without commitment of functions which could be devolved on to elected local committees (or committees with a majority of elected membership)’.60 In a meeting with the minister of state, MacLehose again brought up his objection to the idea of using the Urban Council as a platform for political change. On top of what he had already expressed, he also raised the point that any attempt to expand the franchise of the Urban Council ‘would produce public expectations which could not be fulfilled’.61 Towards the end of the meeting, it was noted that MacLehose agreed that

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Political change in a colonial setting 93 he would much prefer a pragmatic step-​by-​step approach in which action was taken in one area after another, with a public statement as each move was made. What he had in mind was to start with the introduction of some electoral element into the Advisory Board for Tsuen Wan which could later be copied in other parts of the New Territories.62 This seems to have constituted the basis for the subsequent reform of the local administration. A proposal was put forward on ‘District Administration in Hong Kong’ in the 1980 Green Paper and 1981 White Paper. Instead of starting with experimentation in Tsuen Wan, Kwun Tong was chosen for this major change in the local administration. Of course, this was no major breakthrough in democratisation. However, the establishment of the District Board did mark the opening of a new channel for the Hong Kong people’s engagement in public affairs. Later, with the drastic transformation of the political atmosphere brought about by the Sino-​British negotiations over Hong Kong’s political future, the District Board underwent significant changes and became a platform for indirect election to the legislature.63 Concluding remarks The changes in the composition of the Legislative Council made by MacLehose did not add up to any significant constitutional change. The China factor continued to restrict the room for such change, and the governor was well aware of how the rivalry between communists and nationalists in Hong Kong could be a source of political disorder. He was very reluctant to deal with this issue and resisted any possibility of upsetting the existing equilibrium. In the face of pressure from London, he continued to find a way to control the direction of reform. Hence, that pressure did not precipitate more drastic measures in reforming colonial political institutions. The Hong Kong Planning Paper of 1976 was more successful in speeding up social welfare and labour reforms than any in the domain of constitutional change. Once any proposed changes touched upon the sensitive China factor, the Foreign and Commonwealth Office tended to support the governor’s more cautious approach. The result was minimal constitutional change, with China kept out of the domestic political scene. When pressure groups in Hong Kong became more influential in the late 1970s and more pressure was exerted by MPs in the UK, London again urged MacLehose to respond to questions raised in parliament. Again, however, he was reluctant to closely follow the advice of London. Rather than implement democratic reform, he produced a plan for reforming the local administration, introducing a form of popular election without allowing for any serious form of devolution of power to the local level. In the end, it seems that MacLehose further strengthened the practice of ‘government by consent’ by making the colonial government less alien and more responsive to the local population. Little if any progress was achieved in terms of constitutional change. It seems that it was only when the China factor

49

94  T.L. Lui entered the picture again in the early 1980s, when MacLehose visited Beijing and expressed his concern about Hong Kong’s political future, that a different approach to constitutional change was seen as sensible by both London and the colonial government. Until then, the colonial political institutions remained intact. Acknowledgments Archival research for this chapter is supported by a Start-up Research Grant from The Education University of Hong Kong. Notes 1 Peter Moss, No Babylon: A Hong Kong Scrapbook (New York: iUniverse, 2006), 175. Moss describes the MacLehose decade as ‘an era more closely identified with a particular governor than any other in Hong Kong’s history’. 2 Ian Scott, Political Change and the Crisis of Legitimacy in Hong Kong (Hong Kong: Oxford University Press, 1989), 127; Steve Tsang, A Modern History of Hong Kong, 1841–​1997 (Hong Kong: Hong Kong University Press, 2004), 205. 3 See, e.g. Catherine Jones, Promoting Prosperity (Hong Kong: The Chinese University of Hong Kong, 1990), 210. 4 Zhang Liang-​xing, Xianggang Ershiba Zongdu [Twenty-​ Eight Governors of Hong Kong] (Beijing: Chaohua chubanshe, 2007), 328. 5 MacLehose’s resistance to suggestions for social reform from London in the mid-​ 1970s, particularly the idea of establishing some form of social security, has been unduly ignored in existing assessments of his governorship. See Ray Yep and Tai-​lok Lui, ‘Revisiting the Golden Era of MacLehose and the Dynamics of Social Reformer’, China Information 24(3) (2010): 249–​272; Tai-​lok Lui, The Story of Hong Kong in the 1970s Retold (Hong Kong: Chunghwa Publications, 2012) [in Chinese]. 6 Exceptions are the Young Plan and debates on the establishment of some form of local government in the 1960s. However, both of these were basically fruitless in terms of initiating major changes in political institutions. 7 See Yep and Lui, ‘Revisiting the Golden Era’; Lui, The Story of Hong Kong. 8 Stephen W.K. Chiu and Tai-​lok Lui, eds, The Dynamics of Social Movement in Hong Kong (Hong Kong: Hong Kong University Press, 1999). 9 Alan Smart and Tai-​lok Lui, ‘Learning from Civil Unrest:  State/​Society Relations before and after the 1967 Disturbances’, in May Days in Hong Kong:  Riots and Emergency in 1967, ed. Robert Bickers and Ray Yep (Hong Kong:  Hong Kong University Press, 2009), 145–​160; Yep and Lui, ‘Revisiting the Golden Era’. 10 Murray MacLehose, Guidelines for the Governor Designate, Hong Kong, 18 October 1971, The National Archives (TNA), FCO 40/​329. 11 Laird to Monson on MacLehose’s Guidelines, 29 November 1971, TNA, FCO 40/​329. 12 MacLehose, Guidelines, 18 October 1971, FCO 40/​329. 13 Call on the Secretary of State by Sir Murray MacLehose, 13 September 1973, TNA, FCO 40/​422. 14 The first two of these three despatches carried the titles ‘Hong Kong Objectives’ (27 May 1974) and ‘Hong Kong: Social and Economic Situation’ (28 May 1974). The third had no title but its opening sentence concerns constitutional change (30 May 1974). For all three despatches, see TNA, FCO 40/​547. 15 Ibid., 30 May 1974. 16 Ibid. 17 Ibid.

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Political change in a colonial setting 95 18 19 20 21 22

MacLehose, Guidelines, 18 October 1971, FCO 40/​329. Laird to Monson, 29 November 1971, FCO 40/​329. Third despatch, 30 May 1974, FCO 40/​547. Hong Kong: Annual Review for 1973, 4 January 1974, TNA, FCO 40/​547. A.C. Stuart’s comments on Hong Kong: Annual Review, 1 February 1974, FCO 40/​ 547. 23 Edward Youde’s comments on Hong Kong Annual Review, 8 February 1974, FCO 40/​547. 24 The issue was most evident in the exchanges on British interests and Hong Kong objectives. As a result of arguments concerning the death penalty and defence costs and growing pressure from trade unions in the UK, the colonial government was very uneasy about the imposition of London’s will on its governance. The perception by local people that the colonial government was not protecting their interests and they did not really have any say on matters of significance was harmful to the building of confidence in the administration. These concerns are clearly reflected in a despatch prepared by MacLehose in 1973. See ‘Who Benefits from Hong Kong?’, 11 October 1973, TNA, FCO 40/​439. 25 Briefing Notes, 13 December 1974, TNA, FCO 40/​511. 26 Ibid. 27 Ibid. 28 Joe England, Hong Kong –​Britain’s Responsibility, Fabian Research Series 324 (London: Fabian Society, 1976). 29 Duncan Watson to the Secretary of State: Hong Kong, 16 August 1973, TNA, FCO 40/​420. 30 Hong Kong: Annual Review of 1974, TNA, FCO 40/​642. 31 Comments on Hong Kong: Annual Review of 1975, 16 February 1976, TNA, FCO 40/​707. 32 Ibid. 33 Yep and Lui, ‘Revisiting the Golden Era’. 34 Duncan Watson to Murray MacLehose, 29 August 1975, TNA, FCO 40/​628. 35 MacLehose, Despatch on the Future of Hong Kong, 13 February 1976, TNA, FCO 40/​713. 36 MacLehose, Hong Kong –​Domestic Policies up to the 1980s, 6 March 1976, TNA, FCO 40/​701. 37 Ibid. 38 Ibid. 39 Hong Kong: Annual Review of 1975, 23 January 1976, TNA, FCO 40/​707. 40 Ibid. 41 It is important to note that despite his eagerness to promote community development through the mobilisation of campaigns to clean up Hong Kong and fight violent crime, MacLehose was also conscious of the political implications of building bottom-​up grassroots organisations. That is why his emphasis was placed on the building of a sense of civic pride and not on the notion of citizenship and/​or public participation. Indeed, colonial officials were careful not to encourage the development of a concept of political representation by the newly groomed local leaders. In this regard, the project of community building and setting up of MACs was almost necessarily self-​contradictory in nature. On the one hand, MacLehose needed the MACs to justify his claim that the colonial government had already started to recruit leaders from a diverse social background into the colonial administration. On the other, these newly built community organisations and their leaders were not expected to assume the political role of local representatives. The colonial government cautiously guarded against the possibility of a politicisation process at the grassroots level. See Lui, The Story of Hong Kong. 42 Record of conversation between the Foreign and Commonwealth Secretary and the Governor of Hong Kong held at the Foreign and Commonwealth Office on Friday 11 April 1975 at 11.30 a.m., TNA, FCO 40/​613.

69

96  T.L. Lui 43 Ibid. 44 Ibid. 45 Hong Kong Hansard Session 1975/​76:45. 46 Ibid. 47 The 1970s witnessed the emergence of several independent unions. However, it seems that the colonial government was rather sceptical about them. Furthermore, they were not strong enough to claim that they were more representative than those in the pro-​ Beijing and pro-​Taiwan camps. 48 Meeting on possible constitutional changes held at Government House Hong Kong, 13 January 1975, TNA, FCO 40/​613. 49 MacLehose to Duncan Watson, 23 October 1975, TNA, FCO 40/​625. 50 They were Rev. Joyce Bennett, Mr Chen Shou-​lum, Miss Lydia Dunn, Dr Henry Wu Hung-​lick, Mr Leung Tat-​shing, Rev. Patrick Terence McGovern, Mr Peter Wong and Mr Wong Lam. 51 MacLehose to Duncan Watson, FCO 40/​625. 52 Ibid. 53 Eric Peter Ho, Times of Change:  A  Memoir of Hong Kong’s Governance 1950–​1991 (Hong Kong: Hong Kong University Press, 2005), 99. 54 Minister of State’s Discussion with Sir Murray MacLehose, 10 January 1980, TNA, FCO 40/​1156. An earlier example of an MP’s enquiry can be found in FCO 40/​937 (Inquiry on Democracy in Hong Kong). 55 Tai-​lok Lui and James K.S. Kung, City Unlimited: Housing Protests and Urban Politics in Hong Kong (Hong Kong: Wide Angle Publications, 1985) [in Chinese]. 56 An observation that seems to have been shared by the Foreign and Commonwealth Office, as implied by the aforementioned remark that ‘one problem is that the MPs who visit Hong Kong are not always of the highest calibre’. See FCO 40/​1156. 57 Ibid. 58 S.H. Chang, Choujue Jiyi (Hong Kong: Step Forward Multimedia, 2007) [in Chinese]. 59 FCO 40/​1156. 60 Ibid. 61 Ibid. 62 Ibid. 63 My preliminary archival research seems to suggest that in 1979/​1980 the British government had not yet started to prepare for the political transition that was later triggered by the Sino-​British negotiations. The kinds of questions put to Beijing by MacLehose when he visited China in 1979 seem premised on the assumption that the British could still rely on the three treaties to conduct its governance of Hong Kong up to and/​or beyond 1997. There was no sign of immediate alarm about what needed to be done after the visit to China to prepare for a change in government by 1997.

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6  Between two episodes of social unrest below Lion Rock From the 1967 riots to the 2014 Umbrella Movement John D. Wong Debates over the process of political reform, particularly with regard to the selection/​election of the chief executive in 2017, have consumed the Hong Kong public. In promoting the 31 August 2014 decision of the Standing Committee of the National People’s Congress (NPCSC), the voices representing the powers in Beijing have taken pains to characterise the proposed arrangement, that is, to select Hong Kong’s chief executive by universal suffrage from the two to three candidates put forward by what Beijing deems to be a representative nominating committee, as a historic milestone for Hong Kong, one surpassing any democratic measure the British government allowed in the colonial era. For example, dismissing complaints that the Beijing mandate would not allow for a ‘genuine’ election, Chen Zuo’er, Head of the Chinese Association of Hong Kong and Macao Studies, emphasised that ‘Hong Kong has accomplished democratic progress it never enjoyed under the British rule of over 150 years’.1 Chen’s words appeared first in a Chinese press release issued the day after the NPCSC decision was announced under the heading, ‘The seven million residents of Hong Kong should seize the opportunity [for] universal suffrage in 2017, scholars say’.2 Within days, translations had appeared in English, and in November 2014 the article was featured in the foreign edition of the official NPC publication The People’s Congresses Journal.3 Whilst the Hong Kong people remain divided over how ‘democratic’ the Beijing proposal really is, Chen’s characterisation of the Chinese Communist Party (CCP) consent for such an arrangement underscores a valid contention made by the new rulers of Hong Kong: Why did the people of Hong Kong never fight as hard for political reforms under British rule? Rather than assess the sincerity of either the London or Beijing government in expanding democratic rights in Hong Kong, this chapter analyses the differences between the pre-​handover decades and the current situation in Hong Kong. In particular, I highlight socio-​economic conditions and cultural developments in 1970s Hong Kong relative to today’s environment to explore how the pre-​handover situation engendered a more muted demand for political assertion, whilst current conditions have precipitated a full-​blown public outcry for autonomy.

89

98 J.D. Wong Social and cultural development in Hong Kong: a reversal of fortune The Umbrella Movement of 2014 was phenomenal in scope and scale. Amongst other episodes in recent memory, only the upheaval of 1966–​1967 posed a comparable threat to Hong Kong’s ruling administration. In 1966, a five-​cent increase in the first-​class fare for the Star Ferry sparked off riots that resulted in 59 deaths, 443 injuries and 1,740 convictions.4 Those riots proved to be simply the prelude to the 1967 riots that started out in April as a labour dispute at the Hong Kong Artificial Flower Works. In the ensuing eight-​month struggle, 51 died, over 800 were injured and some 2,000 convicted. The protracted clashes between the protesters and police in 1967 also entailed serious violence not seen in the Umbrella Movement. The government reported almost 1,200 genuine bomb incidents, 253 uncontrolled explosions and 8,074 suspected bombs dealt with by bomb disposal teams. Of the 51 dead, 15 died in bomb attacks. During the disturbances of 1967, the Hong Kong police conducted 1,281 raids on suspected premises. By the time they subsided, 465 had been jailed for unlawful assembly, 40 for bomb possession and 33 for explosion-​related offences.5 This violent episode in the history of Hong Kong is believed to have been a spillover from the Cultural Revolution in mainland China. CCP members in Hong Kong are said to have perpetrated the 1967 riots, which ended only when Zhou Enlai assumed sufficient control to protect Hong Kong in order to ensure its continuing usefulness to the CCP.6 At the peak of the turmoil, the British government was sufficiently alarmed to make plans for an emergency evacuation of Hong Kong, not just of British officials, troops and their families, but also of Hong Kong Chinese serving in the colony’s police force and civil service.7 In the end, the British did not need to realise these contingency plans. The left wing in Hong Kong suffered a heavy defeat, not only because it failed to unseat the British administration but also because its image was tarnished by the bomb attacks.8 The riots of 1966 and 1967 laid bare a range of social problems that the colonial government had failed to address. In their aftermath, Governor David Trench, and Governor Murray MacLehose who succeeded him in 1971, launched a series of social reforms. In 1972, the colonial government introduced free primary education, which it further extended to nine years of compulsory education in 1978. The Ten-​Year Housing Programme was also launched in 1972 to address the city’s housing problems.9 In his 18 October 1972 address to the Legislative Council, MacLehose projected that the government, along with the private sector, would house 1.8 million people within ten years, covering a significant portion of the population, which, as of the 1971 census, totalled less than four million.10 In 1973, public service broadcaster RTHK was granted full editorial independence and ceased to carry only news prepared by the Government Information Services.11 The following year, the Hong Kong government established the Independent Commission Against Corruption (ICAC), which was ‘entirely independent, and separate from any department of the Government, including the Police’, to combat corruption in both the public and private sectors.12

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Two episodes of social unrest 99 At the same time, the riots also precipitated a new sense of identity for the Hong Kong community. Wishing to avoid the tumultuous conditions of the mainland, many local organisations pledged their support to the British colonial government in suppressing the riots and restoring law and order, and many local residents who had endured anxiety and unease during the riots opted to side with their colonial rulers rather than the Chinese motherland, where chaos and fanaticism raged on. As a result, an ironic product of the 1967 disturbance was enhanced legitimacy and recognition for the British colonial government in Hong Kong. In addition, there was a large influx into Hong Kong of people from the mainland who had come to start a new life different from that they had experienced in the People’s Republic of China (PRC).13 Therefore, in the aftermath of the 1966 and 1967 riots, the sentiments of the local community were conducive to the social reforms initiated by the colonial government and the crystallisation of a Hong Kong identity distinct from that of the mainland Chinese. Many scholars have attributed the social reforms of the 1970s to the awakening of the British colonial machinery. Gary Cheung, author of Hong Kong’s Watershed:  The 1967 Riots, quoted Jack Cater, retired chief secretary of Hong Kong who had served as special assistant to the government and later as deputy colonial secretary (special duties) during the crisis period in 1967 and 1968: ‘The government learned the lesson from the riots and introduced a series of reforms’, Cater told Cheung in a 1999 interview. ‘Before 1967, there was no real channel of contact between the government and the people … I  don’t think there would have been any reform at all [without the riots].’14 However, Lui Tai-​lok has questioned this interpretation because of the long time lag between the riots and the reforms of the 1970s. He instead explored the evolving position of the colonial government over the longer term in the context of earlier episodes of social unrest. Along with Alan Smart, Lui identified British diplomatic politics as the major consideration underlying the social reforms of the MacLehose era. These scholars believe the colonial government pursued the reforms to boost public confidence in Hong Kong and gain local recognition of British colonial authority ahead of discussions with the CCP over the future of Hong Kong.15 Debates over the intentions of the colonial government notwithstanding, such suspicions about Britain’s concern for its subjects only underscore the importance of public perception. Implementing policies that the public considered to be benevolent, even if for a political agenda, helped the colonial government to foster feelings of co-​operation with local people in Hong Kong. In its bid to build ‘identification, cooperation and loyalty’,16 albeit in support of its own diplomatic agenda, the colonial government galvanised the energy of Hong Kong in the period of reconstruction after the riots, promoting an image of joint efforts between the government and local community to develop the city. If the people of Hong Kong see the social reforms implemented in the aftermath of the 1967 riots as constituting the rebuilding of their home, then their complaints about conditions in today’s Hong Kong Special Administrative Region (HKSAR) indicate an unravelling of the progress made during those golden years below Lion Rock. In spearheading the development of Hong Kong, the colonial

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100 J.D. Wong government did more than mobilise campaigns to ‘Clean Hong Kong’ and ‘Fight Violent Crime’. The expansion of the education system could well have been intended to eradicate free-​roaming radicals. At the time of the riots, half the Hong Kong population was under the age of 21. Of those between the ages of 15 and 19, only 13 per cent attended schools, some of which were leftist in orientation.17 The compulsory education policy introduced after the riots served to stabilise and socialise the city’s young residents in a direction the colonial government deemed desirable. After all, those educated under the British colonial system, members of the Federation of Students and the Hong Kong University Students’ Union in particular, were amongst those who lent support to the government in suppressing the riots.18 However, the popularisation of education also enhanced locals’ sense of experiencing upward social mobility. The Ten-​Year Housing Programme may not have produced the results promised at its outset but, in addition to providing actual shelter for many, it was a source of comfort for and gave hope to the local population. Similarly, the ICAC fulfilled its anti-​graft mandate only after many hitches but its establishment transformed the mode of operation in public and private enterprises alike. Similar to the 1967 riots, the social unrest of 2014 was prefigured by a 40-​day labour strike in 2013 in a container terminal, where workers demanded better pay and working conditions from, amongst others, the largest operator owned by Li Ka Shing’s flagship enterprise.19 The Hong Kong economy has continued to grow but the distribution of the gains has been far from equal (more on this below). The education system has continued to expand but educated youth today complain about downward rather than upward mobility.20 After a period of increasing home ownership, the housing situation has deteriorated to the extent that not only has the dream of owning a shoe-​box-​sized flat become unrealistic for many but the lower strata of the local population have even be reduced to occupying partitioned areas of subdivided flats, a situation reminiscent of the abhorrent situation that the earlier public housing policy was supposed to eradicate.21 Finally, after decades of labour that secured Hong Kong a reputation as a city largely free of corruption, the ICAC itself came under public scrutiny when its former chief was accused of breaking the very rules that the organisation is charged with enforcing.22 In addition to the return of these major social problems, the people of Hong Kong are also concerned about the erosion of certain freedoms and values that had become the cornerstone of life in the city. In contrast to the colonial government’s granting of editorial independence to RTHK and issuance of multiple broadcasting licences in the 1970s, the HKSAR government refused in 2013 to issue a free television programme licence to HKTV, an operator popular with certain segments of the Hong Kong public. To make things worse, the administration declined to elaborate on the deliberations that had resulted in the denial of HKTV’s application.23 The administration’s continued refusal to look favourably at HKTV’s case is especially questionable given that one of the two current licence holders is on the verge of financial and operational bankruptcy.24 Regardless of the HKSAR government’s attempt to rationalise its decision and

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Two episodes of social unrest 101 the review process, the Hong Kong public understandably perceives the licensing fiasco as a politically motivated charade, one that has trampled on the freedoms of speech, opinion and expression that Hong Kongers have come to cherish all the more dearly in recent years. Whether the colonial government implemented social and cultural reforms in Hong Kong to placate local residents or for other considerations related to British imperial calculations, the changes made to the livelihoods of Hong Kong residents in the 1970s, be they real or perceived, allowed the city to return to relative stability and fostered collective efforts to build Hong Kong. Government campaigns combined with local participation to conjure up an image that, in retrospect, appears to reflect the ‘good old days’. Many post-​handover developments seem to be undoing the hard-​earned progress the city made during a difficult era that Hong Kongers overcame through their own industrious labour and what locals regarded as enlightened government policies. If the game of politics pivots on public perception, then the HKSAR government, which has managed to garner a malevolent image conducive to social unrest, appears to be losing. From economic miracle to lacklustre growth Whilst it might be difficult to provide a definitive assessment of the success of colonial policies in the 1970s and the veracity of claims about their undoing in recent years, it is relatively easy to quantify the economic experience of Hong Kong since the 1970s. In financial terms, the past decade has witnessed a marked deterioration in the improving trends seen in the post-​1967 riot era. As shown in Figure 6.1, prior to the 1990s, both GDP growth and GDP-​per-​capita growth often exceeded 10 per cent. Since 1997, however, GDP has not registered a single year of double-​digit growth. In fact, by this measure, the economy contracted in six of the 16 years. Adjusting for inflation, the situation looks slightly better, although the contrast for the periods before and after the 1990s remains notable (see Figure 6.2). In the pre-​handover period, real growth was also erratic. However, throughout the oil crisis and various stock market crashes, the Hong Kong economy proved resilient, registering real GDP growth exceeding 5 per cent in most years. Since the late 1990s, in contrast, GDP growth has often been in the low single digits and has even dipped into the negative zone on multiple occasions. To smooth out the effect of annual fluctuations, Figure 6.3 shows the moving three-​year compound annual growth rate for the same period. By extending the unit of analysis to a moving three-​year window, we can better appreciate the economic experience of Hong Kong residents, who evidently fared better before the 1990s when real GDP growth usually compounded at over 6 per cent than in recent years when growth has often been limited to the low single digits. Not only has overall economic growth stalled in recent years in Hong Kong but the city’s wealth disparity is also among the most severe in the world. As Figure 6.4 shows, the GINI coefficient, which measures the degree of inequality in family income (with 1 being the most inequitable), took a quantum jump

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102 J.D. Wong 35.0% 30.0% 25.0% 20.0% 15.0% 10.0% 5.0%

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Figure 6.1  GDP growth in Hong Kong Source:  Hong Kong Annual Digest of Statistics (1978, 1981, 1990, 1993, 1997, 1999, 2003, 2009, 2014).

between the 1970s and the 1990s, and has continued to rise. In addition to the notable deterioration in income inequality over time, Hong Kong also compares unfavourably on this measure in the international arena. Of the 141 places tracked in the CIA’s World Factbook, Hong Kong’ is the 11th worst in income distribution, as measured by the GINI Index (0.537 in 2011), ahead of Mexico (#24; GINI = 0.483 in 2008), China (#26; GINI = 0.475 in 2013), Singapore (#30; GINI  =  0.463 in 2013)  and the United States (#41; GINI  =  0.450 in 2007).25 Economist Richard Wong has argued that income inequality at the household level has worsened relative to individual income inequality because of Hong Kong’s ageing population, increasing divorce rate and general preference for not living with one’s parents.26 These may be mitigating factors that could explain the jump in the GINI coefficient but the trend in this economic measure only serves to reveal the serious social problems unfolding in Hong Kong. Even as we focus on the individual, the historical trend of median monthly income also tells a similar story of diminishing financial rewards for Hong Kong workers. After a period of phenomenal growth in the 1970s and 1980s, monthly income has plateaued for the average income earner. During two five-​year intervals

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Two episodes of social unrest 103 20.0%

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Figure 6.2 Real GDP growth Source:  Hong Kong Annual Digest of Statistics (1978, 1981, 1990, 1993, 1997, 1999, 2003, 2009, 2014).

between a census and by-​census, median monthly income in Hong Kong skyrocketed 104 per cent from 1976 to 1981, and then another 70 per cent from 1981 to 1986. Even after adjusting for inflation, the growth seen in these five-​year intervals was still spectacular, at 36 per cent and 11 per cent, respectively.27 The next ten years, from 1986 to 1996, saw even more impressive growth in median income, which rose 269 per cent whilst general inflation stood at 125 per cent.28 In stark contrast, since 1996, the year before the handover, median monthly income has undergone little to no growth. For the five years from 1996 to 2001, that growth was a meagre 5 per cent versus inflation of 1 per cent.29 Thereafter, it remained flat between 2001 and 2006 before resuming growth from 2006 to 2011. In the ten-​year period ending in 2011, median monthly income in Hong Kong grew 10 per cent but inflation rose by 12 per cent. In other words, the average worker saw a decline in real income from 2001 to 2011 (Figure 6.5).30 More worrisome than the overall lacklustre economic results in recent years is the trend for those aged between 25 and 34. For this group of workers, most of whom were just entering the workforce, median monthly income dropped from HK$12,000 in 2001 to HK$10,500 in 2006 and did not return to HK$12,000 until 2011. The trend is slightly better for men than women, with the average

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14.00% 12.00% 10.00% 8.00% 6.00% 4.00% 2.00%

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Figure 6.3  Three-​year compound annual growth rate Source:  Hong Kong Annual Digest of Statistics (1978, 1981, 1990, 1993, 1997, 1999, 2003, 2009, 2014).

0.56 0.54 0.52 0.50 0.48 0.46 0.44 0.42 0.40

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Figure 6.4 Rising income inequity: GINI coefficient of Hong Kong Source:  Half-​yearly Economic Report, 2012 (Hong Kong:  Financial Secretary’s Office, Government of the Hong Kong Special Administration Region, 2012), 86.

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Two episodes of social unrest 105 $14,000 $12,000 $10,000 $8,000 $6,000 $4,000 $2,000 $1976

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Figure 6.5  Median monthly income Source: Population Census: Main Report (1991, 2001, 2011); Hong Kong Monthly Digest of Statistics (January 1982), 96.

female worker earning less in 2011 than her counterpart in 2001 even before taking into consideration the increased cost of living effected by an inflation rate of 12 per cent.31 The spectacular economic growth seen in the 1970s and 1980s in Hong Kong, and the other Asian Tigers, resulted largely from historical and geopolitical factors.32 The massive growth of exports manufactured in the numerous sweatshops below Lion Rock depended on a huge customer base in the United States and other Western countries who stood ready to buy cheap Asian goods. Many of those customers are still buyers of cheap Asian goods but the production centres have moved out of Hong Kong. Many of the factories in the former colonial city no longer house any manufacturing facilities. The northward shift of these manufacturing bases across the border to locations in the Pearl River Delta of mainland China has resulted in a drastic reduction in industrial employment in Hong Kong, which fell from some 1 million in 1981 to 433,672 in 1994.33 By the turn of the millennium, the Hong Kong economy had undergone such dramatic transformation that the HKSAR government had to define the city’s economic drivers without any reference to industrial production. According to the government, the Four Key Industries in Hong Kong are financial services, tourism, trading and logistics, and professional and producer services. In 2013,

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106 J.D. Wong these four sectors represented over half the city’s value-​added (financial services: 16.5 per cent; tourism: 5.0 per cent: trading and logistics: 23.9 per cent; and professional and producer services: 12.4 per cent). In total, these four areas employed 47.3 per cent of the Hong Kong population in 2013, with financial services accounting for 6.2 per cent, tourism 7.2 per cent, trading and logistics 20.6 per cent, and professional and other producer services 13.3 per cent.34 Whilst these figures are impressive, they also underscore the lack of any manufacturing underpinning the economic life of Hong Kong, a significant difference from the situation in the other Asian Tigers. For example, whilst Taiwan has developed a science park that houses many of the world’s largest semiconductor foundries and South Korea has upgraded its manufacturing sector to boast global brands such as Samsung and LG, the various projects that target scientific developments in Hong Kong seem merely to have inspired property development in the city’s neighbourhoods. The structural transformation of the Hong Kong economy from a manufacturing orientation to overwhelming service orientation may have promoted good feelings amongst the Hong Kong people for a while, as most of them shed blue-​collar occupations and took up white-​collar professions. That many in Hong Kong no longer need to rely on manual labour to make a living may be gratifying but, as the median monthly income trend shows, the general move from factory tasks to desk jobs did not result in a pay rise for the average worker. In fact, after ten years of labour, the average worker in Hong Kong had managed to gain a 10 per cent increase in monthly income by 2011 during a period that saw property prices rise by a phenomenal 131 per cent.35 In Mei Foo Sun Chuen, a residential development that was once the icon of a rising middle class in Hong Kong, one could buy a flat of 681 gross square footage in 2001 for under HK$1.5 million. In 2011, the same flat cost over HK$3.5 million.36 The situation has only worsened in recent years, with housing prices rising another 41 per cent in the three short years leading up to the Umbrella Movement in 2014.37 The making of Lion Rock 2.0: vying for control over Hong Kong’s heritage The comparison I have made in this chapter between the post-​1967 riot endeavours and the socio-​economic issues facing Hong Kong in the period leading up to the Umbrella Movement is more than a purely academic exercise. That the theme of ‘Below the Lion Rock’ has come to represent the difficult but fruitful era of pre-​handover Hong Kong has caught the attention of the HKSAR government, which has repeatedly attempted to appropriate the nostalgic Lion Rock spirit to mobilise the people of Hong Kong. The iconic phrase began as the title song of a television series called Below the Lion Rock, which featured the everyday struggles of Hong Kongers in the 1970s. During the tough times in early post-​handover Hong Kong, then HKSAR Financial Secretary Anthony Leung concluded his 2002 Budget Address by quoting the lyrics of the song, also entitled ‘Below the Lion Rock’:

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Two episodes of social unrest 107 Of one mind in pursuit of our dream All discord set aside With one heart on the same bright quest Fearless and valiant inside. Hand in hand to the ends of the earth Rough terrain no respite Side by side we overcome ills As the Hong Kong story we write.38

As Leung attempted to arouse this spirit of old Hong Kong in 2002, the city was indeed going through another period of difficulties, with even darker days ahead. The perseverance of the Hong Kong people prevailed, and the city proved resilient during the subsequent tough decade, which brought, amongst other challenges, the unprecedented public health crisis wrought by the outbreak of severe acute respiratory syndrome (SARS). Perhaps encouraged by the appeal that the theme song had proved to hold in public relations terms, the HKSAR government tried to invoke the Lion Rock spirit once again as it attempted to reenergise an enervated Hong Kong in April 2013. To address the issue of social degeneration, the government launched the ‘Hong Kong:  Our Home Campaign’. Spearheaded by Chief Secretary for Administration Carrie Lam, the campaign filled the airwaves with a theme song sung by two Cantopop superstars, Jacky Cheung and Eason Chan. Entitled ‘Sail On’, the song adopted parts of the signature melody of ‘Below the Lion Rock’. The campaign kick-​off featured inspiring comments from the two singers. ‘Being a Hong Konger, there are still things worth treasuring’, said Jacky Cheung. On singing with Cheung, Eason Chan, widely recognised as a successor to Cheung’s ‘God of songs’ status, commented: ‘They always say there should be successors going to work together. This time, it is really about working together.’ Promoted through the balance of 2013, the campaign was designed to ‘inject positive energy into society, foster social cohesion and promote care, mutual help and solidarity in the community’.39 The HKSAR government was correct in identifying the social problems in the city. However, the propaganda campaign did not deliver the desired results, with those problems remaining unresolved. In fact, the campaign backfired, whilst the original song, ‘Below the Lion Rock’, continued to resonate with the people of Hong Kong. As public unrest mounted and culminated in the outbreak of the Umbrella Movement in 2014, protesters retook the theme and expressed their displeasure with social conditions in Hong Kong with reference to Lion Rock motives. The popularisation of education indeed kept young people off the streets of Hong Kong. However, after school, many discontented youths returned to the protest sites, where camps were grouped into clusters with names adopted from the public housing estates that had alleviated Hong Kong’s housing problem in an earlier era. Many of these young people were dissatisfied with the manner in which the Hong Kong media covered the movement. Some bold protesters made the dramatic move of hanging huge yellow banners from Lion

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108 J.D. Wong Rock itself, expressing not only their demand for ‘genuine universal suffrage’ but also that Chief Executive C.Y. Leung step down.40 International relations specialists have highlighted the intertwined myth of Hong Kong: the Chinese version, which insists that Hong Kong is an ‘economic city’, not a ‘political one’, and the Western version, which views Hong Kong as a laissez-​faire economy administered by an apolitical civil service bureaucracy.41 The socio-​economic backdrop to the Umbrella Movement and the demands of the protesters debunk both components of that myth. Decades in the making, the movement, which manifested itself in the form of demands for political rights, gained urgency as social and economic tensions mounted.42 Politics is never divorced from economics, and the HKSAR government, or at least its appointed leaders, operates with a political mandate. It is unrealistic of the HKSAR government to believe that the people of Hong Kong will turn docile and labour away for the collective good when they do not perceive any benefits to their livelihoods in doing so. Singapore’s late founding prime minister Lee Kuan Yew once asserted: ‘The ultimate test of the value of a political system is whether it helps that society establish conditions that improve the standard of living for the majority of its people, plus enabling the maximum of personal freedoms compatible with the freedoms of others in society.’43 This test of political legitimacy applied to the British colonial government of Hong Kong before 1997, and it still applies to the HKSAR government today. The former fared rather better than the latter in this test, as comparison of the aftermath of the 1967 riots and the Umbrella Movement makes clear, with the latter laying bare the current government’s legitimacy crisis. A cultural crisis in the ‘One Country, Two Systems’ era If the outbreak of the Umbrella Movement resulted at least in part from the unravelling of the progress Hong Kong made in the aftermath of the 1967 riots, could the city simply replicate the recipe the British colonial government adopted in the 1970s to restore social harmony? The HKSAR government attempted just that, at least in its rhetoric, when it resurrected the Hong Kong past from the Lion Rock era. However, it would be difficult to reproduce the economic miracle of that era today, as the geopolitical landscape is drastically different. Many of the policies initiated in early-​1970s Hong Kong were part of a Cold War mirror-​imaging process.44 In the aftermath of the riots agitated by leftists, the colonial government actively fashioned its version of modernity in contrast to the path taken in mainland China. The contrast paid off. With its economic take-​off and improving social situation, Hong Kong was a shining star across the border from a trouble-​ridden PRC. This sense of superiority was reflected in the cultural products of the Hong Kong mass media, which not only captured the attention of mainland consumers but also portrayed the Chinese north of the border as laggards in the race. In the 1970s, the city witnessed a surge in the articulation of mainland/​Hong Kong differences, as epitomised by the label Ah Caan (阿燦) in popular culture.

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Two episodes of social unrest 109 Made popular by a 1979 TVB series, the character Ah Caan, an immigrant who had fled from the PRC to Hong Kong, was vilified as a lazy country bumpkin with poor taste who imposed a burden on his Hong Kong relatives. This caricature was of course not the only portrayal of Hong Kongers’ feelings towards China. Juxtaposed uncomfortably against the Ah Caan image was the patriotic support exhibited by some Hong Kong Chinese over such fraught issues as the sovereignty of the Diaoyu Islands, as they are known in China. Arguably, Hong Kong Chinese can espouse such apparent inconsistencies because they identify with their Chinese compatriots only so far as they express cultural and economic superiority over their brethren north of the Shenzhen River. In the 2010s, Hong Kongers’ feelings of ‘otherness’ from the mainland Chinese have again galvanised the energy of the city. Economically, however, there has been a reversal of fortune that has relegated the Hong Kong Chinese to a perceived position of inferiority with respect to their northern compatriots. Gone are Ah Caan and the designations of poor cousins (biu ze [表姐] and biu suk [表叔]). The alienated compatriots in the PRC have instead become the ‘People of a Strong Nation’ (geong gwok jan [强國人]), a euphemistic term that accentuates not only the financial wherewithal of mainlanders but also the nouveau nature of their riche. Such expressions of a distinct Hong Kong identity reflect not merely anti-​ mainland sentiment but also locals’ decrying of the HKSAR’s failure to promote the city’s economic well-​being. As many of their mainland brethren appear eager to spend their newfound wealth (in a manner reminiscent of Hong Kong’s rising middle class in the 1970s), the people of Hong Kong complain about the elusiveness of home ownership in their own city. Because of this contrast, the mainland/​ Hong Kong conflict will only intensify unless and until the Hong Kong public believes that the HKSAR government is pursuing policies that will further their economic interests. It would be unfair, however, to blame this reversal of fortune since the 1970s solely on the misgovernment of the current regime. In the four intervening decades, the people of Hong Kong have been complicit in the city’s growing economic reliance on the PRC. Since the 1980s, they have found it difficult to resist the allure of a rising China. The city itself shuttered its factories and shipped production north of the border. From its international orientation during British colonial days, the city has shifted emphasis towards ties with mainland China. Further, plenty of property owners have benefited from the skyrocketing property prices in Hong Kong, which owe their phenomenal rise at least in part to mainland Chinese investors. The mainland Chinese tourists who have come to be seen as a nuisance were billed as saviours of the city’s economy after the SARS epidemic. In a few short decades, Hong Kong has lost the industrial base and technical expertise that underwrote its ascent in the 1970s to become a mere processing centre for things mainland and a centre of speculation fuelled by the ever-​mounting capital base in the PRC. Shifting geopolitics have reversed the fortunes not just of Hong Kongers but also of their brethren in the Chinese mainland. The current articulation of

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110 J.D. Wong a separate identity to some extent reflects Hong Kongers’ increasing sense of economic inferiority vis-​à-​vis mainlanders. To make things worse, it has become more difficult for Hong Kongers to express their identity within the framework of ‘One Country, Two Systems’. As part of the motherland since the handover, Hong Kongers are considered Chinese nationals. However, survey polls track the increasing proportion of respondents identifying themselves as Hong Kongers at the expense of identification as Chinese, especially since the Umbrella Movement.45 Others express their otherness by waving the British colonial flag, although many are too young to remember life in the colonial era. One protester who expressed his views in this manner explained: ‘I [have] got the feeling that pre-​1997 life was better, so I brought the flag to show that things [are] getting worse than before the handover.’46 The British colonial flag was not meant to convey his desire for Hong Kong independence but a nostalgic impression of the situation in pre-​handover Hong Kong. Yet others have enunciated their yearning to maintain a distance with the mainland by framing their petitions in international terms. One recent example is the debate over the ‘genuineness’ of the proposed guidelines for the 2017 chief executive election as compared to international standards of universal suffrage. Such discussions of structuring Hong Kong systems against global norms illustrate what Anthony Fung described as Hong Kongers’ attempt to counteract forces against the attrition of local identity with what is construed as global culture.47 Targeting the British colonial government, the riots of 1966 and 1967 reflected the dissatisfaction of certain Hong Kongers with social affairs as they stood, as well as their search for a cultural identity rooted in China. Since those turbulent years, Hong Kong has experienced the ebb and flow of socio-​economic conditions. By 2014, these currents had culminated in the Umbrella Movement, which called for a distinct Hong Kong identity and underscored many locals’ distrust of the Beijing government, as well as of the HKSAR administration doing its bidding. Deng Xiaoping is said to have boasted, ‘If the British can do it, so can the Chinese, and we will do it better than the British’.48 The powers that be in the administration of Hong Kong have construed the grievances of Hong Kongers as those of recalcitrant ex-​colonial subjects who blindly subscribe to Western political ideals. The soft power of the West still prevails in Hong Kong. However, underlying the political demands of the Hong Kong people are socio-​economic issues that have plagued the HKSAR for years. This chapter’s comparison of the painstaking building of Hong Kong during the Lion Rock era in the aftermath of the 1967 riots with the turmoil-​stricken period leading up to the 2014 Umbrella Movement evinces the stark contrast between the results of what was perceived as the co-​operative efforts of the colonial government and local residents and the general state of decline attributed to the HKSAR administration. Perhaps the PRC leadership can outdo Hong Kong’s former colonial overlords, but if so it has yet to be reflected in the lives of ordinary Hong Kongers.

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Two episodes of social unrest 111 Notes 1 Li Li, ‘A New Chapter for Democracy: The First Ever Round of Universal Suffrage for Hong Kong’s Chief Executive Will Be Held in 2017’, Beijing Review, 9 September 2014, accessed 8 April 2015, www.bjreview.com.cn/​print/​txt/​2014-​09/​09/​content_​638987_​2.htm. 2 Xing Liyu(邢利宇) and Zheng Qiao(郑巧),‘学者: 香港700万居民应抓住2017普选机会’, China News, 1 September 2014, accessed 8 April 2015, www.chinanews.com/​ga/​ 2014/​09-​01/​6549738.shtml. 3 Li Li, ‘A New Chapter for Democracy: The First Ever Round of Universal Suffrage for Hong Kong’s Chief Executive Will Be Held in 2017’, The People’s Congresses Journal 3 (2014): 26–​31. 4 Gary Ka-​wei Cheung, Hong Kong’s Watershed:  The 1967 Riots (Hong Kong:  Hong Kong University Press, 2009), 10; Christine Loh, Underground Front:  The Chinese Communist Party in Hong Kong (Hong Kong:  Hong Kong University Press, 2010), 104. 5 Cheung, Hong Kong’s Watershed, 3, appendix 2; Loh, Underground Front, 104; Robert Bickers and Ray Yep, eds, May Days in Hong Kong:  Riot and Emergency in 1967 (Hong Kong: Hong Kong University Press, 2009), 7. 6 Cheung, Hong Kong’s Watershed, 3; Loh, Underground Front, 4. 7 Cheung, Hong Kong’s Watershed, ­chapter 6. 8 Cheung, Hong Kong’s Watershed, 131; Loh, Underground Front, 116. 9 Cheung, Hong Kong’s Watershed, 140. 10 Speech of H.E. The Governor, Sir Murray MacLehose, K.C.M.G., M.B.E., to the Legislative Council on 18 October 1972, Information Services, Hong Kong Government; Hong Kong Annual Digest of Statistics (Hong Kong:  Census and Statistics Department, 1978), 23. 11 ‘Information on Development of Public Service Broadcasting in Hong Kong’ (CB(1)1644/​05-​06(01)(Revised)), accessed 15 April 2015, www.legco.gov.hk/​yr05-​ 06/​chinese/​panels/​itb/​papers/​itbcb1-​1644-​1ec.pdf. 12 Governor MacLehose’s speech at the Legislative Council on 17 October 1973, in Steve Tsang, ed., A Documentary History of Hong Kong:  Government and Politics (Hong Kong: Hong Kong University Press, 1995), 189. 13 Loh, Underground Front, 118; Bickers and Yep, May Days in Hong Kong, 12; John Carroll, ‘A Historical Perspective: The 1967 Riots and the Strike-​boycott of 1925–​26’, in May Days in Hong Kong: Riot and Emergency in 1967, ed. Robert Bickers and Ray Yep (Hong Kong: Hong Kong University Press, 2009), 80. 14 Cheung, Hong Kong’s Watershed, 5, 139. 15 Alan Smart and Tai-​lok Lui, ‘Learning from Civil Unrest: State/​Society Relations in Hong Kong Before and After the 1967 Disturbances’, in May Days in Hong Kong: Riot and Emergency in 1967, ed. Robert Bickers and Ray Yep (Hong Kong: Hong Kong University Press, 2009), 145–​159; Lui Tai-​lok, 《那似曾相識的七十年代》[The Oh-​ So-​Familiar 1970s] (Hong Kong: Chung Hwa Book Co., 2012), 16, ­chapter 17. 16 Smart and Lui, ‘Learning from Civil Unrest’, 159. 17 Carroll, ‘A Historical Perspective’, 75. 18 Ibid., 79. 19 Lai Ying-​kit, ‘Dockers’ Supporters Take Protest to Li’s Corporate Offices’, The South China Morning Post, 24 April 2013, accessed 27 July 2016, www.scmp.com/​news/​ hong-​kong/​article/​1222181/​dockers-​supporters-​take-​protest-​lis-​corporate-​offices. 20 Jennifer Ngo, ‘Young Fear Lack of Money Will Hold Them Back from Middle-​ class Dream’, The South China Morning Post, 1 May 2013, accessed 27 July 2016, www.scmp.com/​news/​hong-​kong/​article/​1226949/​young-​fear-​lack-​money-​will-​ hold-​them-​back-​middle-​class-​dream; Ng Kang-​ chung, ‘Social Mobility in Hong

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112 J.D. Wong Kong “Getting Harder,” Poll Says’, The South China Morning Post, 5 March 2013, accessed 27 July 2016, www.scmp.com/​news/​hong-​kong/​article/​1177243/​ social-​mobility-​hong-​kong-​getting-​harder-​poll-​says. 21 Peggy Sito, ‘Hong Kong Home Prices Hit Record High in February’, The South China Morning Post, 9 April 2015, accessed 27 July 2016, www.scmp.com/​business/​ companies/​article/​1762496/​hong-​kong-​home-​prices-​hit-​r ecord-​high-​february; Joyce Ng, ‘Housing Officials Offer No Solution to HK’s Subdivided Flat Problems’, The South China Morning Post, 31 May 2013, accessed 27 July 2016, www.scmp. com/​news/​hong-​kong/​article/​1249922/​housing-​officials-​offer-​no-​solution-​hks-​ subdivided-​flats-​problem; Ng Kang-​ chung, ‘Housing Undersecretary Draws Fire over Remarks’, The South China Morning Post, 8 January 2013, accessed 27 July 2016, www.scmp.com/​news/​hong-​kong/​article/​1122324/​housing-​undersecretary​draws-​fire-​over-​remarks. 22 Joshua But and Samuel Chan, ‘Former ICAC Chief Timothy Tong Criticized for Breaching Spending Rules’, The South China Morning Post, 13 September 2013, accessed 27 July 2016, www.scmp.com/​news/​hong-​kong/​article/​1308815/​ former-​icac-​chief-​timothy-​tong-​criticised-​breaching-​spending-​rules. 23 Tony Cheung, ‘Leung Chun-​ ying Likens Exco to Jury in Defending Secrecy on HKTV Ruling’, The South China Morning Post, 17 November 2013, accessed 27 July 2016, www.scmp.com/​news/​hong-​kong/​article/​1358152/​leung-​chun-​ying-​ likens-​exco-​jury-​defending-​secrecy-​hktv-​ruling. 24 Vivienne Chow, Amy Nip and Tony Cheung, ‘Hong Kong’s ATV Denied New Free-​ to-​air Licence as Exco Pulls the Plug on Ailing Broadcaster’, The South China Morning Post, 1 April 2015, accessed 27 July 2016, www.scmp.com/​news/​hong-​kong/​article/​1753424/​troubled-​broadcaster-​atvs-​future-​line-​exco-​meets-​discuss-​licence. 25 ‘Country Comparison:  Distribution of Family Income  –​GINI Index’, The World Factbook, Central Intelligence Agency, accessed 16 April 2015, www.cia.gov/​library/​ publications/​the-​world-​factbook/​rankorder/​2172rank.html. 26 Richard Yue-​chim Wong, ‘The Roots of Hong Kong’s Income Inequality’, The South China Morning Post, 31 March 2015, accessed 27 July 2016, www.scmp.com/​business/​global-​economy/​article/​1752277/​roots-​hong-​kongs-​income-​inequality. 27 Hong Kong Monthly Digest of Statistics, November 1986 (Hong Kong:  Census and Statistics Department, 1986), 107. 28 1996 Population By-​ census:  Main Report (Hong Kong:  Census and Statistics Department, 1996), 15. 29 2001 Population Census:  Main Report, vol. 1 (Hong Kong:  Census and Statistics Department, 2001), 11. 30 Ibid., 12. 31 Ibid., 12, 134. 32 Umesh C.  Gulati, ‘The Foundations of Rapid Economic Growth:  The Case of the Four Tigers’, American Journal of Economics and Sociology 51(2) (1992): 161–​172. 33 Victor F.S. Sit, ‘Hong Kong’s “Transferred” Industrialization and Industrial Geography’, Asian Survey 38(9) (1998): 894. 34 Hong Kong Monthly Digest of Statistics, April 2015 (Hong Kong: Census and Statistics Department, 2015), FA2, FA4, FA5. 35 Private Domestic –​Price Indices by Class (Territory-​wide) (from 1979) (Hong Kong: Rating and Valuation Department, 2015). 36 ‘Transaction History’, Midland Realty, accessed 18 April 2015, http://​proptx.midland.com.hk/​utx/​. 37 Private Domestic. 38 ‘The 2002–​03 Budget’, speech by the Financial Secretary, The Hon Antony Leung, moving the Second Reading of the Appropriation Bill 2002, Wednesday, 6 March 2002, accessed 18 April 2015, www.budget.gov.hk/​2002/​eframe2.htm.

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Two episodes of social unrest 113 39 ‘ “HK Our Home” Campaign Opens. Pop Icons Sing from the Heart for “Hong Kong: Our Home” Campaign’, HKSAR Government Press Release, 23 April 2013, accessed 27 July 2016, www.info.gov.hk/​gia/​general/​201304/​30/​P201304300395.htm. 40 HKSAR Government, Report on the Recent Community and Political Situation in Hong Kong (January 2015): 15, 120–​121, 212, accessed 18 April 2015, www.2017. gov.hk/​filemanager/​template/​en/​doc/​rcps_​report/​rcps_​report.pdf. 41 William H.  Overholt, ‘Hong Kong at the Crossroads. Testimony presented to the House Committee on International Relations, Subcommittee on Asia and the Pacific on June 23, 2004’, accessed 18 April 2015, www.rand.org/​content/​dam/​rand/​ pubs/​testimonies/​2005/​RAND_​CT228.pdf. See also ‘Political City:  Denied Free Elections, Hong Kong’s Democrats Plan, Reluctantly, for Protest’, The Economist, 6 September 2014. 42 Arif Dirlik, ‘The Mouse That Roared: The Democratic Movement in Hong Kong’, boundary2, 29 October 2014, accessed 5 May 2015, http://​boundary2.org/​2014/​ 10/​29/​the-​mouse-​that-​roared-​the-​democratic-​movement-​in-​hong-​kong-​2/​. 43 Speech of Lee Kuan Yew, Senior Minister of Singapore, at the Philippine Business Conference on 18 November 1992, National Archives of Singapore, accessed 27 July 2016, www.nas.gov.sg/​archivesonline/​data/​pdfdoc/​lky19921118.pdf. 44 John Borneman, Belonging in the Two Berlins: Kin, State, Nation (Cambridge: Cambridge University Press, 1992), 17; Patrick Major and Rana Mitter, ‘East is East and West is West? Towards a Comparative Socio-​Cultural History of the Cold War’, Cold War History 4(1) (2003): 2. 45 Public Opinion Programme, The University of Hong Kong, accessed 20 April 2015, http://​ h kupop.hku.hk/ ​ e nglish/ ​ p opexpress/ ​ e thnic/​ e identity/​ p oll/​ d atatables. html; Phila Siu and Tony Cheung, ‘Poll Finds Fewer Hongkongers Identifying as Chinese, Thanks to Occupy’, The South China Morning Post, 11 November 2014, accessed 27 July 2016, www.scmp.com/​news/​hong-​kong/​article/​1636818/​ poll-​finds-​fewer-​hongkongers-​identifying-​chinese-​thanks-​occupy?page=all. 46 Grace Tsoi, ‘Hong Kong Independence: Is it a Thing?’, HK Magazine, 22 November 2012, accessed 27 July 2016, http://​hk-​magazine.com/​article/​10224/​hong-​kong​independence-​it-​thing. 47 Anthony Fung, ‘Discourse and Cultural Identity: Towards a Global Identity for Hong Kong’, in Discourses of Cultural China in the Globalizing Age, ed. Doreen D.  Wu (Hong Kong: Hong Kong University Press, 2008), 200. 48 Cited in 王永平 Joseph Wong Wing-​ ping, 為何中國人治港比不上英國人? [‘Why Would the Chinese Not Be as Good in Governing Hong Kong as the British?’], Hong Kong Economic Journal, 31 July 2013, accessed 27 July 2016, https://​forum.hkej. com/​node/​103907.

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Part II

The art of argument Justifications and expressions of civil unrest

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7  Social movements and the law The case of Hong Kong Albert H.Y. Chen*

The relationship between social movements and the law in the Western world has been well studied. With regard to social movements in America, it has been pointed out that ‘legal norms, discourses, and practices in each case were an important constitutive element of evolving movement understandings, aspirations, and strategic action’.1 In Hong Kong, particularly since the handover in 1997, social movements have flourished, and the law has become an increasingly prominent arena of social and political conflict. What is the relationship between social movements and the law in post-​colonial Hong Kong? Are theories developed in the West useful in understanding social movements and the law in Hong Kong? It is the purpose of this chapter to explore these questions. Our inquiry will proceed in the following stages. The first section of the chapter introduces theories developed in the Western world on social movements and their relationship with the law in order to provide a general theoretical foundation for the subsequent parts. The second section reviews the development of social movements in Hong Kong since the colonial era. The third section considers the development of Hong Kong’s legal system, and discusses several dimensions of law and social movements in post-​colonial Hong Kong. Finally, the fourth section provides some concluding reflections. Social movements and the law What are social movements? Social movements are a form of contentious politics that first emerged in Western Europe and North America in the late eighteenth and early nineteenth centuries.2 According to Tilly, a social movement consists of a distinctive combination of three elements: (1) campaign, (2) repertoire and (3) WUNC displays (WUNC being an abbreviation for worthiness, unity, numbers and commitment). A campaign is ‘a sustained, organized public effort making collective claims on target authorities’, whilst the repertoire of a social movement refers to the employment of combinations from among the following forms of political action:  creation of special-​ purpose associations and coalitions, public

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118 A.H.Y. Chen meetings, solemn processions, vigils, rallies, demonstrations, petition drives, statements to and in public media, and pamphleteering.3 Finally, WUNC displays are public representations by the participants in the social movement on the part of themselves and/​or their constituencies.4 Another way to understand social movements is to consider concrete examples of phenomena that are generally regarded as social movements by scholars and writers. From this perspective, one of the earliest and important social movements is the labour movement.5 Other classic examples of social movements in modern history include the anti-​slavery movement in nineteenth-​century America, the movement for women’s suffrage, the US civil rights movement in the 1960s and the student movement of the late 1960s. Social movements that have emerged in the Western world since the 1960s include the feminist movement, environmental movement and peace movement, which are collectively described as constituting ‘the irreducible core of social movement activity’.6 Other movements that have often been discussed include the gay rights movement, consumer movement, animal rights movement, anti-​psychiatry movement, pro-​and anti-​ abortion movements, the Solidarity movement in Poland and, most recently, the anti-​globalisation movement. It seems that the mass demonstrations in 1989 that led to the collapse of communism in Eastern Europe may also be regarded as social movements.7 Sometimes even nationalism, Nazism and fascism are also described as social movements. In the contemporary world, social movements have become a popular and well-​established form of political participation outside the formal institutional channels of electoral politics. They represent the vital forces of civil society at work, particularly as they seek to challenge the ruling elites, the establishment, and the existing social, economic and political order in a particular country or in the global system as a whole. They symbolise politics from below or the grassroots as contrasted with the top-​down mode of societal management. As various waves of democratisation swept the world in the late twentieth century, social movements and democratisation have mutually supported and reinforced each other in many countries in their transition from authoritarianism to democracy. Theoretical perspectives on social movements and the law Let us now consider the general theoretical framework developed by Western scholars to understand the relationship between social movements and the law. We first look at how general theories of social movements may be relevant to this understanding, and then examine the literature on law and social movements. What Doug McAdam called the ‘classical model’ of social movements was premised on theories of collective behaviour and ‘mass society’ that emphasise the structural strains in a society and the social psychology of its inhabitants.8 Such theories throw light on the rise of Nazism and fascism in Europe before the Second World War. With the civil rights movements in the United States in the 1960s and student activism in the United States and Europe in 1968, as

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Social movements and the law 119 well as ‘new social movements’ of the kind mentioned above, social movements began to be perceived in a positive light. New perspectives were developed by European scholars who investigate how such movements respond to the crises of post-​modern or post-​industrial society in advanced Western nations.9 In America, the paradigms for the study of social movements became shaped by resource mobilisation theory and political process theory. It is these two approaches that seem most relevant to the study of law and social movements. The insight contributed by resource mobilisation theory is that, whereas structural strains and grievances exist in almost every society, they do not necessarily lead to social movements. The formation and development of any social movement depends on the effective organisation and mobilisation of resources. Given the existence of a particular socio-​political environment and certain resources at their disposal, the leaders and participants of a social movement must act rationally and strategically in order to maximise their influence and achieve their goals. There are at least four ways in which resource mobilisation theory can throw light on the relationship between law and social movements. First, depending on whether the legal system is repressive or respectful of civil liberties, that system may either constrain or facilitate mobilisation for a social movement: [P]‌olitical freedoms, and the extent of repression by agents of social control … may affect the costs for any individual or organization allocating resources to the SMS [social movement sector], [and] serve as constraints on or facilitators of the use of resources for social movement purposes.10 Second, litigation may be used as one of the strategies of a social movement, as in the initial phase of the US civil rights movement.11 Third, insofar as resource mobilisation theory points to the use of the media by a social movement as a significant factor,12 litigation or other law-​related strategies may generate media attention, and thus attention by members of the public, to the issues raised by the movement. Finally, resource mobilisation theory recognises that resources include ‘legitimacy, money, facilities, and labor’13 and both ‘material and symbolic resources’.14 Hence, the expression of a social movement’s demands in legal discourse (particularly the discourse of rights) or victories in court battles may be quite effective in conferring legitimacy on the movement and constitute an important symbolic resource for it. Political process theory stresses that social movements are essentially political phenomena, and may therefore be examined in ways similar to those applicable to other political phenomena such as ‘institutionalized political processes’.15 What needs to be studied therefore includes the interaction and alignment of different political actors within the system and their response to the social movement. The theory recognises the importance of the internal dynamics of a social movement’s development, but it also pays particular attention to the external political environment in which the movement finds itself, or what it calls the ‘political opportunities’ and ‘political opportunity structures’.16 Changes in that structure may have a significant impact on the social movement, and even be able to account

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120 A.H.Y. Chen for its rise and fall. For example, such changes may result in a sudden opening up of the political system that is either intentional or unintentional,17 and may undermine its stability or otherwise improve the bargaining position or political leverage of the movement’s constituents.18 Like resource mobilisation theory, political process theory demonstrates that a legal system –​as part of the structure of political opportunities for a social movement –​that is repressive increases the ‘risks associated with movement participation’,19 and thus constrains the movement’s development. In addition to this observation, political process theory also contributes at least two other insights into the relationship between law and social movements. First, the theory posits that the law-​related aspects of the structure of political opportunities to be studied include not only ‘the state’s capacity for and tendency toward repression’,20 but also ‘the relative weight and independence of judicial, legislative, and executive branches in governments’.21 Thus, the constitutional role of the courts in a particular legal system, and, in particular, whether the judiciary is independent, activist and willing to develop new legal doctrines to meet the demands of particular social movements, may become highly relevant to the development of a social movement. In countries such as the United States where the judiciary is indeed powerful and activist, social movements are more likely to resort to litigation as a means for social reform. Second, political process theory points out that an important factor in the formation of a social movement is ‘cognitive liberation’22 or ‘the subjective transformation of consciousness’ into an ‘insurgent consciousness’.23 When this insight is combined with discourse theory, which demonstrates that the language and discourse that people use shape their interpretation of their life experience and perception of the meaning of events and construct the social reality in which they live,24 it is possible to understand how legal discourse matters for social movements. This point has been further elaborated by McCann’s work on law and social movements to which we now turn. Drawing upon various studies by scholars of law and social movements and his own empirical research on the movement for gender-​based wage equity in the United States, McCann has developed a fairly comprehensive theory of the relationship between law and social movements.25 He describes his theory as one of ‘legal mobilization’26 that ‘merges a dynamic dispute-​oriented, interpretivist understanding of legal practice with insights from social movement theorizing about collective action based on “political process” ’, also noting that the ‘law is mobilized when a desire or want is translated into an assertion of right or lawful claim’.27 McCann points out that both legal discourse and litigation may be turned into a positive resource by a social movement that is striving to change the status quo. In particular, litigation may be used as a strategy that supplements the use of such non-​institutional channels of mass protest as marches and demonstrations. Moreover, legal norms and rights discourse may be used by social movements as positive resources in mobilising support and making gains in struggle against the existing system. Thus, the law is itself a medium and arena of social struggle.

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Social movements and the law 121 Legal norms may be able to ‘play a role in shaping and expressing the terms of resistance, aspiration, and tactical struggle for institutional transformation’; ‘[w]‌e must, in Michel de Certeau’s words, analyze law’s “manipulation by users who are not its makers” ’.28 McCann notes, for example, that legal discourse may be drawn upon ‘to name and to challenge existing social wrongs or injustices’ or to forge a ‘sense of collective aspiration and identity’ among movement participants.29 Legal norms contributed significantly in framing movement demands and shaping movement identity in the US civil rights movement, as well as in the early US labour movement and the movements for women’s rights, welfare rights, animal rights, and gay and lesbian rights.30 McCann also analyses the multi-​fold functions of litigation as a possible strategy of social movements, particularly as ‘a source of institutional and symbolic leverage against opponents’.31 Social movements in Hong Kong A dominant paradigm in socio-​political studies of Hong Kong is premised on the view that post-​war Hong Kong has been characterised by a high degree of political stability,32 and thus has been spared the turmoil and civil disturbances that often accompany modernisation in the developing world.33 Hong Kong’s political stability has in turn been explained by the political apathy, ‘utilitarian familism’ and ‘refugee mentality’ that characterised Hong Kong34 –​a society that originally consisted largely of migrants from mainland China who came to Hong Kong in different periods of modern Chinese history to escape wars, political instability and/​or economic difficulties.35 However, this does not mean that there is no tradition of collective action and social protest in Hong Kong, where there have been ‘diverse forms of protests and resistance at the grass roots’ level.36 The government’s expanded role in the provision of social service from the mid-​1970s was accompanied by the increased frequency of social conflict and protest actions in areas such as housing, transport, the environment and education.37 Moreover, ‘the rising trend of social conflict was also a consequence of the increasing organizational and mobilizing capacity of … protest participants’.38 A leading work on social movements in Hong Kong states that: waves after waves of collective actions –​from student activism to urban protests and organized actions of civil service unions –​have been witnessed … since the 1970s … [T]‌he emergence of collective actions in the 1960s and 1970s was largely an outcome of social and political changes within Hong Kong society.39 The 1970s have been described as the ‘Golden Age’ of social movements in Hong Kong.40 At that time, the colonial state was largely insulated from society, with the political system closed to popular participation from below. Hence, dissatisfied groups resorted to non-​institutional channels to express their grievances and demands.41 The protest participants shared an anti-​colonial administration

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122 A.H.Y. Chen mentality, and the conflict mode of collective action was used to attract media attention and mobilise the support of public opinion, and thus to strengthen the bargaining position of the protesters vis-​à-​vis the government.42 The most significant social movements of the 1970s were the student movement,43 the housing movement (a movement launched by the residents of public housing estates to improve their living conditions)44 and the public sector labour movement.45 The signing of the Sino-​British Joint Declaration in 1984 and the colonial government’s policy in the 1980s of developing representative government in Hong Kong by opening up the political system to electoral politics resulted in a changed structure of political opportunities (in the language of political process theory) for social movements in Hong Kong.46 Many social movement organisations ‘switched to the political participation mode’,47 in the sense of participating in electoral politics and trying to pursue their agendas through institutional channels such as the District Boards and Legislative Council. Lui commented that: the 1997 question has pushed almost all active participants in politics to concentrate on political matters, especially those concerning China-​Hong Kong relations. Issues which are most relevant to grassroots mobilisation have not been successfully articulated in the 1997 agenda.48 The anti-​colonial consensus that had united protest groups, pressure groups and social movement organisations in the 1970s gradually collapsed, with no new identity being established to replace it.49 There was a ‘decline of grass roots protest groups’ and ‘a “hollowing out” of political organization at the grass roots level’.50 In 1989, the student movement in Beijing and its suppression on 4 June provoked a series of demonstrations of a scale unprecedented in Hong Kong’s history. However, this pro-​Chinese democracy movement was not able to sustain itself in the 1990s despite well-​attended annual vigils in memory of the victims of 4 June 1989.51 At the same time, the constitutional reforms and drafting of the Basic Law in the 1980s had stimulated the development of a pro-​democracy movement in Hong Kong.52 However, this pro-​democracy movement was also unable to sustain itself in the 1990s.53 The 1980s and 1990s saw the decline of the student movement as well,54 although the environmental movement55 and feminist movement56 began to assert themselves in Hong Kong in that decade. Overall, however, social movements had only a limited role to play in the transition to 1997, and the demands articulated by the social movements of the 1960s and 1970s fell by the wayside.57 Social movements remained at the periphery of the political system, albeit occasionally producing some disruptive effects.58 After 1997, the economic downturn and growing dissatisfaction with the Tung Chee-​hwa administration gave rise to an increasing number of demonstrations and an ‘explosion of social protests’,59 culminating in the march of half a million people on 1 July 2003. The march was provoked by the impending passage of a national security law for the purpose of implementing article 23 of the Basic Law, and was followed by assemblies and marches demanding the

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Social movements and the law 123 Table 7.1 Demonstrations in Hong Kong, 2004–​2014 Year

Number of legal processions

Number of people prosecuted for unlawful assembly

Number of people prosecuted for assaulting a police officer

2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

1,974 1,900 2,228 3,824 4,278 4,222 5,656 6,878 7,529 6,166 6,818

52 65 83 55 89 45 93 30 112 35 20

236 266 274 326 232 202 268 470 498 467 461

Source: The information here is reproduced from Edmund W. Cheng, ‘Street Politics in a Hybrid Regime: The Diffusion of Political Activism in Post-​colonial Hong Kong’, China Quarterly 226 (2016): 383–​406 at 389.

introduction of universal suffrage for the election of the chief executive in 2007 and for the election of all members of the Legislative Council in 2008. This pro-​ democracy movement subsided temporarily after the National People’s Congress Standing Committee (NPCSC) rejected the democratic camp’s demands in April 2004, but was resurrected and reached an unprecedented climax in the Occupy Central/​Umbrella Movement of autumn 2014. Post-​colonial Hong Kong has been described as a ‘city of protests’.60 In the 1997–​2007 period, there were an average of 2,200 public meetings and processions every year involving protests or policy demands.61 Table 7.1, compiled by Cheng,62 reports the number of legal processions in the 2004–​2014 period, as well as the number of prosecutions relating to such processions. ‘Legal processions’ are public meetings of more than 50 people or public processions of more than 30 people that are approved by the police under the Public Order Ordinance.63 Cheng points out that ‘[t]‌here were 51,915 approved applications, out of a total of 51,946, between July 1997 and September 2012, or an average of ten protests of that scale each day’.64 Among the many protests and demonstrations, the best-​known include the annual candlelight vigils in Victoria Park, organised by the Hong Kong Alliance in Support of Patriotic Democratic Movements in China in memory of the victims of the Tiananmen incident of 4 June 1989, and the annual marches on Hong Kong Island on 1 July (the public holiday to commemorate Hong Kong’s reunification with China) organised by the Civil Human Rights Front every year since 1 July 2003. These two annual events always attract tens of thousands of participants from all walks of life, and are widely reported and broadcast in Hong Kong’s mass media.

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124 A.H.Y. Chen The march of hundreds of thousands of demonstrators on 1 July 2003 was not only the ‘largest indigenous social movement’ in Hong Kong to date,65 but also inaugurated a ‘post-​modern mode of social movements’66 characterised by loose organisational structures, open and diversified participation, and spontaneous mobilisation by the media, social media and other information technology tools. ‘While the 1 July 2003 rally is widely considered to be a critical juncture that cast the strength of local civil society, the data suggest that 2006–​2007 was another point when the number of collective actions increased rapidly.’67 The campaigns launched by the social movement organisation Local Action in 2006 and 2007 to resist the demolition of the Star Ferry Terminal and Queen’s Pier, respectively, for the sake of preserving local cultural heritage and places invoking the collective memory of the Hong Kong people, marked a ‘localist’ turn in Hong Kong’s social movements, with increasing numbers of young activists of the ‘post-​80s’ generation (those born in or after the 1980s) engaging in social actions to assert their identity as Hong Kongers and to resist the integration of Hong Kong with the mainland.68 The movements to preserve the terminal and pier were followed by several other major movements of larger scale, which paved the way for the Occupy Central/​Umbrella Movement of 2014.69 These included the campaign in 2009–​ 2010 to oppose the Legislative Council’s approval of funding to construct a high-​speed railway connecting Hong Kong with the mainland, which included a movement to resist the demolition of Choi Yuen Village in the process of the railway’s construction; the protests in 2012–​2014 against the government’s plan to develop the North East New Territories; the 2012 campaign against the introduction of a ‘moral and national education’ curriculum in schools, which, unlike the other campaigns, actually succeeded in pressurising the government to abandon its original plan; and the 2013 protest against the government’s decision not to issue a television licence to Ricky Wong’s company, Hong Kong Television Network. Whereas only a few hundred protestors participated in the pro-​pier events in 2006–​2007, thousands participated in the protest against the construction of the express rail,70 which resulted in a siege of the Legislative Council building, and tens of thousands protested against the national education curriculum (a campaign that persisted for weeks and involved many large-​scale assemblies outside Government Headquarters) and the rejection of Wong’s television licence application.71 Then came autumn 2014, when Hong Kong found itself in the international spotlight as another social movement as powerful and spectacular as the 1 July 2003 march of half a million people engulfed the city. This was the world-​famous Occupy Central or Umbrella Movement. The unprecedented occupation, completely unlawful from the legal point of view, by thousands of demonstrators of key governmental and business districts in Admiralty, Mong Kok and Causeway Bay for more than two months, with occasional gatherings of tens of thousands of protestors, was largely a spontaneous and self-​mobilised social movement with a decentralised organisational structure. It went far beyond the original ‘script’ or plan of the Occupy Central Campaign,72 as conceived by the ‘Occupy trio’ led by

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Social movements and the law 125 University of Hong Kong law professor Benny Tai. The original campaign promoted by Tai threatened the Beijing and Hong Kong governments with the mass occupation of the Central District by protestors practising civil disobedience, so as to paralyse the city’s central business district in the event that the two governments failed to put forward a proposal for election of the chief executive by universal suffrage in 2017 that complied with internationally accepted standards of democratic elections and universal suffrage. As observers and scholars have rightly pointed out,73 this original campaign, which did not have a strong social base, was transformed by relatively contingent events into a resilient occupation of public space in the heart of the city by protestors too numerous for the police to evict. Those contingent events included (1)  the storming of Civic Square, where demonstrations were originally prohibited, by a number of students on the evening of 26 September (leading to the students’ arrest and a search of the home of student leader Joshua Wong Chi-​fung) after several days of peaceful and lawful sit-​in protests in Tamar Park and (2) the police use of large amounts of tear gas in an attempt to disperse swelling crowds of demonstrators at Admiralty on the evening of 28 September. Both events, which were widely reported in the media and televised, provoked a public outcry and mobilised large numbers of citizens to participate in the social movement. The ensuing occupation led to top government officials engaging in a televised dialogue with student leaders on 21 October, but ultimately failed to secure any substantive concessions from the authorities on the proposed model for the election of the chief executive by universal suffrage, which was finally vetoed by Hong Kong’s Legislative Council on 18 June 2015.74 Social movements and the law in Hong Kong The development of Hong Kong’s legal system In the colonial era, the British legal model and English common law were transplanted to Hong Kong. The British tradition of rule of law and the independence of the judiciary provided a strong foundation for Hong Kong’s legal system.75 However, for most of the time during Hong Kong’s history as a colony, the people of Hong Kong did not enjoy the full extent of civil liberties enjoyed by the British people themselves.76 As in other ceded colonies in the British Empire, the nature of colonial rule was authoritarian,77 with a high degree of concentration of power in the hands of a governor appointed by London.78 Laws on sedition, assembly and association were draconian, although they were not always strictly enforced.79 Furthermore, the operation of the legislative and judicial systems in the English language made local inhabitants feel that the legal system was alien and imposed on them.80 The 1980s, however, saw a fundamental change in Hong Kong’s legal culture, particularly in public attitudes towards issues relating to the rule of law. The signing of the Sino-​British Joint Declaration in 1984 and the prospects of reunification with China alerted the people of Hong Kong to the fact that the rule of law

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126 A.H.Y. Chen and protection of individual rights were much weaker in mainland China than in Hong Kong, and thus that there was a real danger that the human rights situation in Hong Kong would deteriorate upon its return to China. The people of Hong Kong therefore began to treasure the legal system they had inherited from the British colonisers, and to make efforts to safeguard and strengthen it in preparation for the challenges of 1997. There was a legal awakening in Hong Kong, a rise in rights consciousness. Law-​related current affairs attracted increasing media and public attention.81 A number of legal controversies in the 1980s testified to the increasing vigilance of members of the public with regard to human rights and fundamental freedoms.82 In 1989, the 4 June suppression of the student movement in Beijing brought about an unprecedented crisis of confidence in Hong Kong. One of the measures taken by the British colonial government to alleviate the difficult situation was the enactment of the Hong Kong Bill of Rights Ordinance in 1991, which incorporated into the domestic law of Hong Kong the human rights guarantees in the International Covenant on Civil and Political Rights. Under this new legal regime of the constitutional protection of human rights, the courts of Hong Kong acquired and began to exercise for the first time the power to review the validity of local legislation on the ground of its inconsistency with international standards of human rights.83 As in other jurisdictions, the opportunity for constitutional review rendered the courts of Hong Kong more assertive and activist in ensuring that the law struck the proper balance between the rights and liberties of individuals on the one hand and the collective interest of society on the other. A body of jurisprudence and principles of constitutional interpretation were gradually built up through the accumulation of case law.84 At the same time, the government conducted a thorough review of existing legislation with regard to its compliance with the Bill of Rights and introduced relevant amendments to liberalise the law. In retrospect, the most significant amendments were those made to the Societies Ordinance and Public Order Ordinance, which Beijing found to be objectionable, with the result that the amendments were partially reversed at the time of the handover in 1997.85 The Basic Law –​the constitutional instrument of the Hong Kong Special Administrative Region –​restricts the right of individual members of the Legislative Council to introduce private members’ bills relating to government policy.86 In the last weeks before it came into effect in July 1997, the Legislative Council, which had been elected in 1995 in a fairly democratic manner pursuant to the political reforms introduced by Governor Chris Patten, rushed through a number of private members’ bills that turned out to be significant in the post-​ 1997 era. One example is the amendment of the Housing Ordinance for the purpose of ensuring that the rent payable by tenants of public housing estates remained affordable for them. Another is the enactment of the Protection of the Harbour Ordinance, which declares Victoria Harbour to be a ‘special public asset and a natural heritage of Hong Kong people’ and discourages land reclamation within the harbour. Laws like these, when enforced by the courts, have enabled the courts to play a major role in shaping social policies in Hong Kong in the

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Social movements and the law 127 post-​1997 era. They reinforced the already enhanced role of the courts resulting from the aforementioned constitutional review of laws on human rights grounds and from the protection afforded by the Basic Law to various interests and its entrenchment of various policies.87 Generally speaking, therefore, Hong Kong courts in the post-​1997 era have addressed difficult issues of public policy more often than ever before.88 Opportunities for social movements to challenge the existing order or existing policies by means of litigation have also become greater than ever before. We consider below the interaction between social movements and the law in the post-​1997 history of Hong Kong. The discussion is organised into the following topics: (1) the legal space for social movements; (2) the law as a resource used by social movements; (3) the law as an arena of struggle for social movements; and (4) the multiple legal dimensions of the Occupy Central/​Umbrella Movement. The legal space for social movements As discussed above, the law may constrain the space for social movements by limiting the freedoms of speech, press, assembly, procession and association without which social movements could hardly mobilise mass support. In both colonial and post-​colonial Hong Kong, the space for social movements was constrained by the Public Order Ordinance and Societies Ordinance, which regulate the freedoms of assembly, procession and association. As noted above, the colonial laws in these areas were originally strict, but were liberalised in the 1990s as part of the exercise to ensure that all existing Hong Kong laws were consistent with the newly enacted Bill of Rights. However, on the eve of Hong Kong’s reunification with China, the NPCSC, exercising its power under the Basic Law of Hong Kong to determine which existing Hong Kong laws could not survive the handover,89 decided not to adopt the major amendments made to the Societies Ordinance and Public Order Ordinance in July 1992 and July 1995, respectively. At the same time, the SAR government was given the freedom to devise new versions of societies and public order legislation for the SAR. Rising to the challenge, the Office of the SAR Chief Executive-​designate published a consultative document entitled Civil Liberties and Social Order on 9 April 1997 proposing new versions of the laws governing the freedoms of association, assembly and procession. After consultation, respective bills were drafted and finally enacted by the Provisional Legislative Council on 14 June 1997 in the form of the Societies (Amendment) Ordinance 1997 and Public Order (Amendment) Ordinance 1997. The amended laws largely preserved the improvements and liberalisations made in 1992 and 1995, and did not remove any significant substantive rights enjoyed under the existing laws. Under the Public Order Ordinance (as amended), organisers of public meetings of more than 50 persons or public processions of more than 30 persons are obliged to give the police notice of the event at least seven days in advance (as a general rule, although the seven-​day period may be shortened), and the police

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128 A.H.Y. Chen may impose conditions on the demonstration. In practice, some demonstrators do not comply with this advance notification requirement. For example, 126 protests were organised in 1998 and 183 in 1999 without complying with the requirement,90 and the government did not prosecute any of the organisers. The organisers of other demonstrations have complied with the legal requirements, with 1,388 and 1,283 protests being approved in 1998 and 1999, respectively.91 Cheung and Chen report that, ‘according to official figures in the period between July 1997 and March 2002, about one in seven public rallies were in fact held without notifying the police in advance’.92 In the 1998–​2007 period, a total of 25,108 public meetings and processions were held, 679 in circumstances in which the law required prior notification to the police but no such notification was given.93 In the same period, the total number of persons arrested, prosecuted and convicted for offences relating to demonstrations was 1,346 (of which 1,158 arrests took place in 2005),94 102 and 56, respectively.95 In 1997–​2004, the total number of demonstrations that failed to receive approval after prior notification was 21.96 The general picture that seems to emerge from these statistics and from the Department of Justice’s Prosecution Code and its Prosecutions Division’s Yearly Review documents is that ‘the Department of Justice has adopted a diversionary approach to public order cases’, so that ‘[o]‌nly serious cases warrant prosecution’.97 Serious cases usually involve disorderly conduct, some degree of violence and physical conflict with the police. The organisers of and participants in ‘unauthorised’ assemblies and processions (i.e. those that fail to comply with the legal requirement of prior notification to the police) are often not prosecuted even though organising and participating in unauthorised demonstrations constitute criminal offences under the Public Order Ordinance. With regard to the period prior to Occupy Central, it has been pointed out that ‘[f]rom September 2003 to June 2014, there were 5,529 public order events and, as of 8 September 2014, only 16 protesters [had been] prosecuted’.98 Generally speaking, it thus seems that legal restrictions on demonstrations are not always strictly enforced in the SAR, leaving considerable physical and legal space for protests associated with social movements. Law as a resource used by social movements As discussed above, under some circumstances litigation may be an effective strategy for social movements, particularly when accompanied by other tactics such as demonstrations and other forms of expression of popular support for the cause of such movement. In other words, the law of the state may be relied upon as a useful resource, and turned into a weapon in the battle against existing laws and policies, or changes therein, for example by launching public interest litigation to challenge a law or policy or demand policy changes. As Tam notes, ‘[l]‌egal mobilization in post-​colonial Hong Kong (and elsewhere) can be regarded as a social movement tactic’.99 ‘Legal mobilisation’ in this context has been defined as individuals invoking their legal rights in litigation relating to human rights and public policies.100

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Social movements and the law 129 Empirical studies of cases litigated in Hong Kong courts have shown that ‘[t]‌he number of human rights and policy-​oriented cases on the judiciary’s agenda has increased substantially since the early 1990s and particularly after July 1997’.101 The litigation in the majority of these cases has been funded by the government’s Legal Aid Department, and launched by litigants with the support of social movement organisations, rights advocacy organisations and ‘cause lawyers’ (lawyers active in human rights and public policy litigation).102 Whereas social movement organisations and rights advocacy groups ‘rarely used litigation’ to promote their cause in the 1970s and 1980s, and instead ‘rel[ied] on protests, petitions, or mass mobilization as their major strategies’, since the 1990s they have ‘devoted an increasing share of their efforts to legal mobilization’; hence, ‘legal mobilization [has] intensified’, particularly since 1997.103 Social movement organisations104 play an important role in public interest litigation by using their social networks ‘to gain access to potential sources of cases’ and to search ‘for promising issues and cases for ligation’.105 They also help litigants in relevant cases to apply for legal aid and to recruit activist lawyers to represent them in court. In his book-​length study of legal mobilisation under authoritarianism in post-​ colonial Hong Kong, Tam106 attributes the rise of such mobilisation since the 1990s to the interaction of several factors, including the ‘critical antecedents’ or ‘historical legacies’ of the existence of a well-​developed institutional legal complex (consisting of courts, the legal profession and the legal aid system), the ‘critical junctures’ of the enactment of the Hong Kong Bill of Rights, the coming into force of the Basic Law and the establishment of a new Court of Final Appeal, the availability in Hong Kong of what Epp107 calls a rights ‘support structure’ comprising rights advocacy organisations and activist lawyers who play the role of ‘transformative agents’,108 and a shifting structure of legal and political opportunities after 1997 when it apparently became more difficult for social movement organisations to advance their cause in the political arena.109 The following are some examples of cases involving rights and public policies litigated in post-​colonial Hong Kong in which social movement organisations participated by supporting the litigants or launching the litigation themselves: (1) cases litigated with the support of the Neighbourhood and Workers’ Service Centre and other groups (a)  on public housing rental policy,110 (b)  against the privatisation of the shopping and car park facilities in public housing estates,111 and (c) on a minimum wage for employees in Hong Kong;112 (2) cases litigated with the support of the Society for Community Organization on (a)  issues of the right of abode in Hong Kong of persons with cross-​border (mainland-​Hong Kong) family relationships,113 (b) social security assistance entitlements for new migrants and others,114 and (c) prisoners’ right to vote;115 (3) cases litigated by the Society for the Protection of the Harbour challenging the reclamation of Victoria Harbour;116 (4)  a case brought by a Local Action activist against the demolition of Queen’s Pier;117 (5)  cases brought by environmental groups on (a) height restrictions on construction on the waterfront,118 (b) air pollution and the right to life and health,119 (c) the environmental impact of the construction of the Hong Kong-​Zhuhai-​Macau Bridge,120 and (d) the environmental impact

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130 A.H.Y. Chen of the construction of an incinerator;121 and (6) a case on homosexuals’ criminal liability litigated with the support of the LGBT group Civil Rights for Sexual Diversities122 and a case on a transsexual’s right to marriage.123 Law as an arena of struggle for social movements Social movements are often about trying to change the law for the better, but they may also be launched to oppose a change in the law. In both cases, the law becomes an arena of struggle. The two largest social movements in post-​colonial Hong Kong, and the most famous internationally, are undoubtedly the movement against the National Security Bill to implement article 23 of the Basic Law (BL 23) in mid-​2003 and the Occupy Central/​Umbrella Movement in autumn 2014. In both cases, the law constituted an arena of struggle for a social movement. In this section, we consider the former case, in which the movement’s aim was to oppose a change in the law, in contrast to the latter (considered in the following section), in which the aim was to protest against a legal decision imposed by Beijing on Hong Kong. BL 23 requires the HKSAR to ‘enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government’. It also addresses the protection of state secrets and the activities of foreign political organisations in Hong Kong. Many of the issues raised by BL 23 are considered politically sensitive. Ever since the Basic Law was enacted in 1990 and brought into effect in July 1997, there have been anxieties over the implementation of BL 23. The publication on 24 September 2002 of the government’s Consultation Document on Proposals to Implement Article 23 of the Basic Law opened a three-​ month consultation exercise on the legislative proposal. On 28 January 2003, the government published the results of the consultation, and announced nine sets of clarifications or modifications of the original legislative proposal. This was followed by the publication of the National Security (Legislative Provisions) Bill on 13 February 2003 and its first reading in the Legislative Council on 26 February 2003. During the Bills Committee’s deliberations on the bill, the government agreed to some amendments. However, critics said that these amendments were insufficient,124 and in any event the government’s timetable for passing the bill in the Legislative Council’s week-​long meeting beginning on 9 July did not allow sufficient time for deliberation. On 1 July 2003, a hot summer day that was also a public holiday marking the anniversary of Hong Kong’s return to China, an estimated half a million Hong Kong residents took to the streets to demonstrate against the BL 23 legislative exercise and to express other grievances against the Tung Chee-​hwa administration. The demonstration had the effect of tilting the balance in the Legislative Council between legislators who supported the bill and those who opposed it: the Liberal Party, which had hitherto supported the bill, now advocated its postponement and opposed the Tung administration’s decision on 5 July to adhere to the original 9 July deadline for its passage. Not having enough votes in the legislature

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Social movements and the law 131 to pass the bill, the government decided to postpone it.125 On 17 July 2003, Tung announced that the government would re-​open public consultations on the bill. However, in an about-​turn on 5 September 2003, he announced that the bill was to be withdrawn. Since then, the implementation of BL 23 has been shelved indefinitely. The article 23 episode is a paradigmatic case of a social movement with massive popular support succeeding in resisting a change in the law that movement participants consider a change for the worse. It has been suggested that it is also a case of ‘popular constitutionalism’ at work in Hong Kong,126 with citizens rising up to defend the liberal values and human rights enshrined in the Basic Law –​the constitutional instrument of the HKSAR –​against encroachment by legislative action. By the same token, supporters of the National Security Bill could of course point out that the implementation of BL 23 is itself a constitutional obligation for the HKSAR under the Basic Law. Thus, the contest was over the meaning and implications of the relevant provisions of the Basic Law, particularly those on human rights on the one hand and those on national security on the other. The movement against the National Security Bill was therefore also about how the constitution should be understood and implemented. The Occupy Central Movement was also a movement of this nature, and to it we now turn. The multiple legal dimensions of the Occupy Central/​Umbrella Movement From the perspective of law and social movements, the Occupy Central/​Umbrella Movement provides a most interesting case study. There are at least eight law-​ related dimensions or features, each of which is considered below. First, as in the case of the struggle against the bill to implement BL 23, the law was an arena of struggle in the Occupy Central Movement, which originally justified its demands in legal and constitutional terms, thereby using the law as a symbolic and moral resource.127 The Occupy trio led by Benny Tai pointed out that as article 45 of the Basic Law provides for the eventual introduction of the election of the chief executive by universal suffrage, and the NPCSC in its Decision of December 2007 had stipulated that such universal suffrage might be introduced in 2017, the main question that remained was the precise electoral model. They demanded that the model adopted should be consistent with international standards of democratic elections and genuine universal suffrage, as enshrined in the International Covenant on Civil and Political Rights (itself referred to in article 39 of the Basic Law and incorporated by it into Hong Kong law) and the related jurisprudence, which include the principle that there should be no unreasonable restrictions on the right to participate in the election as a candidate. Accordingly, they opposed any system of nomination of candidates that was so restrictive that only ‘pro-​China’ or ‘patriotic’ politicians would have a chance of being nominated, such as the nomination model eventually adopted by the NPCSC in its Decision of 31 August 2014.128 Second, although the Occupy Central campaign drew on legal norms as a source of legitimacy for its demands, it also amounted to a challenge to the

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132 A.H.Y. Chen law –​particularly Hong Kong’s public order law –​in advocating civil disobedience in the form of occupation of Central District by demonstrators so numerous as to be able to paralyse traffic.129 It has been argued that such disobedience of the law by peaceful demonstrators (who are willing to endure arrests and legal sanctions) is not inconsistent with the rule of law, and can be justified by the movement’s goals of democracy and justice, which are higher values inherent in the concept of the rule of law.130 Opponents, in contrast, argue that the unlawful occupation of the city’s Central District could not be justified in the circumstances and undermined the rule of law in Hong Kong. Third, as noted above, the Occupy Central campaign as conceived by Benny Tai was transformed into the mass-​scale occupation of Admiralty and two other districts as a result of public indignation aroused by police actions against student activists on the evening of 26 September and the police use of large quantities of tear gas against the gathering crowds on the evening of 28 September. Although the behaviour of the student activists (who stormed Civic Square) and the crowds (who engaged in an ‘unauthorised assembly’) was technically unlawful,131 the police actions to enforce the law were widely perceived as disproportionate and unjust.132 After the occupation had initially succeeded, the police simply gave up any attempt to enforce the public order law and disperse the demonstrators, whose occupation of the roads continued for weeks. The legal constraints on assembly and demonstrations thus became totally ineffective, as protestors persisted in their defiance of the public order law. Fourth, another noteworthy feature of the movement was that constitutional and legal arguments figured prominently in the televised dialogue between student leaders and senior government officials on 21 October.133 Students argued that their demands for the introduction of an electoral model consistent with internationally accepted standards of democracy and genuine universal suffrage were perfectly consistent with the Basic Law, and that there were good legal grounds to challenge the validity of the NPCSC Decision of 31 August 2014, which they argued should be rescinded. Fifth, and this is closely related to the fourth point above, two cases were brought before the court (including one brought by Yvonne Leung, one of the student leaders who participated in the dialogue on 21 October) to challenge (a)  the chief executive’s report to the NPCSC that had paved the way for the NPCSC’s decision134 and (b) the HKSAR government’s consultation document and report on the electoral model that had followed that decision.135 The legal arguments used in these judicial review cases were largely similar to those put forward in the televised dialogue, but the court was not persuaded. Sixth, as the occupation continued for weeks, the protestors carved out in the heart of the city their own ‘nomosphere’,136 an enclave in which the ordinary legal norms of Hong Kong apparently lost their force, and ‘semi-​permanent, self-​sufficient communities … lived out an alternative form of community in the heart of the city’.137 The city’s ‘existing spatio-​normative constructions were subverted’, and a ‘new public space’ was created in which an ‘alternative form of life’ was imagined and lived out138 in an ‘atmospheric glass house’,139 ‘providing

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Social movements and the law 133 opportunities for slowness and feeling, sharing and solidarity in a city that is otherwise predisposed’.140 A ‘performative mode of resistance’ was enacted, which in retrospect serves ‘as a reminder of a democratic spirit that lies so closely behind the city’s otherwise uncompromising edifices’.141 Seventh, the prolonged occupation produced a ‘stalemate’, with both the protestors and the government seemingly at a loss as to what the ‘exit strategy’ should be.142 Eventually, it was the court injunctions to evict the protestors obtained by private parties such as the operators of buses and taxis and property owners that served as a ‘focal point’ to co-​ordinate the actions taken by the authorities,143 with minimal physical resistance by the protestors, to end the two-​ month occupation. It is ironic that the timing of the Umbrella Movement’s end was ultimately determined not by the police enforcing the public order law, but by private companies invoking their legal right not to be further subjected to the business losses caused by the occupation, which amounted in law to a nuisance and justified the granting of the injunctions. Finally, the legal aftermath of the movement is also noteworthy. The government has continued to employ the ‘diversionary approach to public order cases’144 mentioned above, and most of the participants in ‘unauthorised’ assemblies who were not involved in acts of violence, disorderly behaviour or clashes with the police have not been prosecuted. The Occupy trio, who had turned themselves in at a police station on 3 December 2014, were charged with conspiracy and incitement to commit public nuisance.145 The seven policemen filmed assaulting Ken Tsang were prosecuted and convicted,146 as was Tsang himself.147 Of the 1,003 protestors arrested for illegal actions related to the movement, only 5 per cent had been prosecuted as of June 2015, and just 34 per cent of those had been found guilty.148 As of 7 May 2015, only 21 of the 67 movement-​related cases prosecuted had resulted in a conviction, with 13 cases resulting in an acquittal and 22 withdrawn from prosecution. Among the 21 ‘successful’ cases of prosecution, there were 11 in which the accused had pleaded guilty.149 Concluding reflections Although many social movements in Hong Kong were of small scale and limited duration, post-​colonial Hong Kong has seen some extraordinary movements, most notably the anti-​article 23 Bill movement of 2003 and Occupy/​Umbrella Movement of 2014. As this chapter shows, Hong Kong provides an interesting case study of the relationship between the law and social movements. Theories of that relationship developed by scholars on the basis of Western experience are by no means irrelevant to Hong Kong. Indeed, cases and events in Hong Kong furnish plenty of examples of the law being used as a means to constrain the space for social movements, as a resource by social movements and as an arena of struggle for those movements. The Occupy/​Umbrella Movement of 2014 demonstrates that there can be a close, complex and ambivalent relationship between the law and social movements that is deserving of multi-​dimensional analysis.

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134 A.H.Y. Chen The transition in 1997 to Chinese sovereignty has not weakened the vitality of the law in Hong Kong. On the contrary, the life of the law and the policymaking role of the courts have been strengthened by the coming into force of the Basic Law, and social movement organisations have been more active than ever in using litigation strategically to challenge government policies or at least make their claims highly visible to members of the public. As in the West, the law in Hong Kong has served in some instances as a symbolic and moral resource for social movements. The legal boundary of the free space for social movements has been contested, and those movements have generated debates surrounding the rule of law and civil disobedience. The future is unknown, but it is certain that the story of Hong Kong law and the story of Hong Kong social movements will continue to be intertwined as Hong Kong marches towards its uncertain future under ‘One Country, Two Systems’. Notes * This chapter draws on my previous work, ‘Social Movements and the Law in Post-​ colonial Hong Kong’, in Social Movements in China and Hong Kong: The Expansion of Protest Space, ed. Khun Eng Kuah-​Pearce and Gilles Guiheux (Amsterdam: Amsterdam University Press, 2009), 65–​90. 1 Michael W.  McCann, ‘How Does Law Matter for Social Movements?’, in How Does Law Matter?, ed. Bryant G.  Garth and Austin Sarat (Evanston:  Northwestern University Press, 1998), 76–​108 at 84. 2 Charles Tilly, Social Movements 1768–​2004 (Boulder: Paradigm Publishers, 2004). 3 Ibid., 3. 4 Ibid., 4. 5 Ibid., 6. 6 Paul Byrne, Social Movements in Britain (London: Routledge, 1997), 12. 7 Tilly, Social Movements, 78. 8 Doug McAdam, Political Process and the Development of Black Insurgency 1930–​1970, 2nd edition (Chicago: University of Chicago Press, 1999). 9 Alain Touraine, The Voice and the Eye:  An Analysis of Social Movements, trans. Alan Duff (Cambridge: Cambridge University Press, 1981). 10 John D. McCarthy and Mayer N. Zald, ‘Resource Mobilization and Social Movements: A Partial Theory’, in Social Movements in an Organizational Society, ed. Mayer N. Zald and John D McCarthy (New Brunswick: Transaction Publishers, 1987), 15–​42 at 26. 11 See David A. Locher, Collective Behavior (Upper Saddle River: Prentice Hall, 2002), 273–​279; Ron Eyerman and Andrew Jamison, Social Movements: A Cognitive Approach (Cambridge: Polity Press, 1991), 122, 125. 12 McCarthy and Zald, ‘Resource Mobilization’, 15, 31. 13 Ibid., 22. 14 Donatella Della Porta and Mario Dini, Social Movements:  An Introduction (Oxford: Blackwell, 1999), 8. 15 McAdam, Political Process, 36. 16 Ibid., viii, xi, xiv. 17 Roberta Garner, Contemporary Movements and Ideologies (New York: McGraw-​Hill, 1996), 50. 18 McAdam, Political Process, 42–​43. 19 Ibid., 43. 20 Locher, Collective Behavior, 267.

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Social movements and the law 135 21 Garner, Contemporary Movements, 52. 22 McAdam, Political Process, 48. 23 Ibid., 38, 40. 24 Garner, Contemporary Movements, 15–​16. 25 McCann, ‘How Does Law Matter’; Michael W. McCann, ‘Social Movements and the Mobilization of Law’, in Social Movements and American Political Institutions, ed. Anne N. Costain and Andrew S. McFarland (Lanham: Rowman & Littlefield, 1998), 201–​15; Michael McCann, ‘Law and Social Movements’, in The Blackwell Companion to Law and Society, ed. Austin Sarat (Oxford: Blackwell, 2004), 506–​522. 26 McCann, ‘Law and Social Movements’, 506. 27 Ibid., 508. 28 McCann, ‘How Does Law Matter’, 84. 29 Ibid., 83. 30 Ibid., 84. 31 McCann, ‘Law and Social Movements’, 513. 32 H.C. Kuan, ‘Political Stability and Change in Hong Kong’, in Hong Kong: Economic, Social and Political Studies in Development, ed. T.B. Lin, R.P. Lee and U.  Simonis (New York: M.E. Sharpe, 1979), 127–​146. 33 Benjamin K.P. Leung, Perspectives on Hong Kong Society (Hong Kong:  Oxford University Press, 1996), 159. 34 Siu-​kai Lau, Society and Politics in Hong Kong (Hong Kong: Chinese University Press, 1982). 35 Albert H.Y. Chen, ‘The Development of Immigration Law and Policy:  The Hong Kong Experience’, McGill Law Journal 33 (1988): 631–​675. 36 Tai Lok Lui and Stephen Wing Kai Chiu, ‘Changing Political Opportunities and the Shaping of Collective Action: Social Movement in Hong Kong’, in The Dynamics of Social Movement in Hong Kong, ed. Stephen Wing Kai Chiu and Tai Lok Lui (Hong Kong: Hong Kong University Press, 2000), 1–​19 at 6. 37 Leung, Perspectives, 148–​149. 38 Ibid., 149. 39 Lui and Chiu, ‘Changing Political Opportunities’, 3, 5. 40 Linda Butenhoff, Social Movements and Political Reform in Hong Kong (Westport: Praeger, 1999), 25. 41 Lui and Chiu, ‘Changing Political Opportunities’, 8. 42 Tai Lok Lui, ‘The Path of Development of Hong Kong’s Popular Movements’, Hong Kong Journal of Social Sciences [Xianggang shehuikexue xuebao] 4 (1994): 67–​78 [in Chinese]. 43 See Benjamin K.P. Leung, ‘Social Movement as Cognitive Praxis:  The Case of the Student and Labour Movements in Hong Kong’, Occasional Paper 9 (Hong Kong:  Social Sciences Research Centre and Department of Sociology, University of Hong Kong, 1992); Leung, Perspectives, 155–​158. 44 See Tai Lok Lui and J.K.S. Kung, City Unlimited: Housing Protests and Urban Politics in Hong Kong [Chengshi zongheng:  Xianggang jumin yundong ji chengshi zhengzhi yanjiu] (Hong Kong: Wide Angle Press, 1985) [in Chinese]; Denny Kwok Leung Ho, ‘The Rise and Fall of Community Mobilization:  The Housing Movement in Hong Kong’, in Chiu and Lui, The Dynamics of Social Movement, 185–​208. 45 See Benjamin Leung and Stephen Chiu, ‘A Social History of Industrial Strikes and the Labour Movement in Hong Kong, 1946–​ 1989’, Occasional Paper 3 (Hong Kong:  Social Sciences Research Centre and Department of Sociology, University of Hong Kong, 1991); David A.  Levin and Stephen Wing Kai Chiu, ‘Bureaucratic Insurgency: The Public Sector Labour Movement’, in Chiu and Lui, The Dynamics of Social Movement, 139–​183. 46 Lui, ‘The Path of Development’, 75.

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136 A.H.Y. Chen 47 Ibid., 76. 48 Tai Lok Lui, ‘The Development of Social Movements in Contemporary Hong Kong’, in Hong Kong’s Social Movements:  Forces from the Margins, ed. Sophia Woodman (Hong Kong: July 1 Link and Hong Kong Women Christian Council, 1997), 133–​ 141 at 140. 49 Lui, ‘The Path of Development’, 77–​78. 50 Lui and Chiu, ‘Changing Political Opportunities’, 12. 51 Ibid., 12–​13; see also Pik Wan Wong, ‘The Pro-​Chinese Democracy Movement in Hong Kong’, in Chiu and Lui, The Dynamics of Social Movement, 55–​90. 52 Butenhoff, Social Movements. 53 Lui and Chiu, ‘Changing Political Opportunities’, 13; Ming Sing, ‘Mobilization for Political Change –​The Pro-​democracy Movement in Hong Kong (1980s-​1994)’, in Chiu and Lui, The Dynamics of Social Movement, 21–​53. 54 Benjamin K.P. Leung, ‘The Student Movement in Hong Kong:  Transition to a Democratizing Society’, in Chiu and Lui, The Dynamics of Social Movement, 209–​225. 55 Lui and Chiu, ‘Changing Political Opportunities’, 13; On Kwok Lai, ‘Greening of Hong Kong? –​Forms of Manifestation of Environmental Movements’, in Chiu and Lui, The Dynamics of Social Movement, 259–​295. 56 Lui and Chiu, ‘Changing Political Opportunities’, 13; Ching Kwan Lee, ‘Public Discourses and Collective Identities: Emergence of Women as a Collective Actor in the Women’s Movement in Hong Kong’, in Chiu and Lui, The Dynamics of Social Movement, 227–​257. 57 Lui, ‘The Development of Social Movements’, 140–​141. 58 Lui, ‘The Path of Development’, 78. 59 Lui and Chiu, ‘Changing Political Opportunities’, 14–​ 16; Alvin Y.  So, ‘Social Protests, Legitimacy Crisis, and the Impetus Toward Soft Authoritarianism in the Hong Kong SAR’, in The First Tung Chee-​hwa Administration, ed. Siu-​kai Lau (Hong Kong: Chinese University Press, 2002), 399–​418 at 407. 60 Daniel Garrett and Wing-​chung Ho, ‘Hong Kong at the Brink:  Emerging Forms of Political Participation in the New Social Movement’, in New Trends of Political Participation in Hong Kong, ed. Joseph Y.S. Cheng (Hong Kong: City University of Hong Kong Press, 2014), 347–​383 at 347. 61 Ngok Ma, ‘Social Movements and State-​Society Relationship in Hong Kong’, in Social Movements in China and Hong Kong, ed. Khun Eng Kuah-​Pearce and Gilles Guiheux (Amsterdam: Amsterdam University Press, 2009), 45–​63 at 52–​53. 62 Edmund W.  Cheng, ‘Street Politics in a Hybrid Regime:  The Diffusion of Political Activism in Post-​colonial Hong Kong’, China Quarterly 226 (2016): 383–​406 at 389. 63 Ibid., 389. 64 Ibid. 65 Alvin Y.  So, ‘Social Conflict in Hong Kong after 1997:  The Emergence of a Post-​ modern Mode of Social Movements?’, in China’s Hong Kong Transformed: Retrospect and Prospects Beyond the First Decade, ed. Ming K.  Chan (Hong Kong:  City University of Hong Kong Press, 2008), 233–​251 at 240; Ma, ‘Social Movements and State-​Society’, 56. 66 So, ‘Social Conflict in Hong Kong’, 240, 249. 67 Cheng, ‘Street Politics’, 389. 68 So, ‘Social Conflict in Hong Kong’; Garrett and Ho, ‘Hong Kong at the Brink’. 69 Cheng, ‘Street Politics’. 70 Chor-​yung Cheung, ‘Hong Kong’s Systemic Crisis of Governance and the Revolt of the “Post-​80s” Youths:  The Anti-​Express Rail Campaign’, in Cheng, New Trends, 417–​447. 71 Cheng, ‘Street Politics’. 72 See the movement’s website, the full English name of which is ‘Occupy Central with Love and Peace’, accessed 2 August 2016, www.oclp.hk/​.

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Social movements and the law 137 73 Edmund W. Cheng and Wai-​ yin Chan, ‘Explaining Spontaneous Occupation: Antecedents and Contingencies in the Making of the Umbrella Movement’, Social Movement Studies (2016), accessed 2 August 2016, https://www.researchgate. net/publication/303667567_Explaining_Spontaneous_Occupation_Antecedents_ Contingencies_and_Spaces_in_the_Umbrella_Movement. 74 Albert H.Y. Chen, ‘The Law and Politics of the Struggle for Universal Suffrage in Hong Kong, 2013–​15’, Asian Journal of Law and Society 3 (2016): 189–​207. 75 Steve Tsang, ed., Judicial Independence and the Rule of Law in Hong Kong (Hong Kong: Hong Kong University Press, 2001). 76 Raymond Wacks, ed., Civil Liberties in Hong Kong (Hong Kong: Oxford University Press, 1988). 77 Norman Miners, The Government and Politics of Hong Kong, 4th edition (Hong Kong: Oxford University Press, 1986). 78 Peter Wesley-​Smith, Constitutional and Administrative Law in Hong Kong (Hong Kong: Longman Asia, 1995). 79 Albert H.Y. Chen, ‘Civil Liberties in Hong Kong:  Freedoms of Expression and Association’, Hong Kong Law Journal 19 (1989): 4–​9; Albert H.Y. Chen, ‘The Legal System’, in The Other Hong Kong Report 1990, ed. Richard Y.C. Wong and Joseph Y.S. Cheng (Hong Kong: Hong Kong Chinese University Press, 1990), 65–​86. 80 Albert H.Y. Chen, ‘Law in a Foreign Language: The Case of Hong Kong’, in Hong Kong: The Challenge of Transformation, ed. Kathleen Cheek-​Milby and Miron Mushkat (Hong Kong: Centre of Asian Studies, University of Hong Kong, 1989), 212–​238. 81 Albert H.Y. Chen and Johannes M.M. Chan, Human Rights and the Rule of Law: The Challenges of Hong Kong’s Transition [Renquan yu fazhi:  Xianggang guoduqi de tiaozhan] (Hong Kong:  Wide Angle Press, 1987)  [in Chinese]; Albert H.Y. Chen, Law and Politics in Hong Kong [Xianggang falü yu Xianggang zhengzhi] (Hong Kong: Wide Angle Press, 1990) [in Chinese]. 82 Albert H.Y. Chen, ‘Civil Liberties in Hong Kong:  Recent Controversies, Evolving Consciousness and Future Legal Protection’, Journal of Chinese Law 2 (1988): 137–​ 151; Johannes M.M. Chan, Human Rights in Hong Kong [Renquan zai Xianggang] (Hong Kong: Wide Angle Press, 1990) [in Chinese]. 83 Albert H.Y. Chen, ‘The Interpretation of the Basic Law: Common Law and Mainland Chinese Perspectives’, Hong Kong Law Journal 30 (2000): 380–​431 at 418–​420. 84 See Yash Ghai, ‘Sentinels of Liberty or Sheep in Woolf’s Clothing? Judicial Politics and the Hong Kong Bill of Rights’, Modern Law Review 60 (1997): 459–​480; Johannes M.M. Chan, ‘Hong Kong’s Bill of Rights:  Its Reception of and Contribution to International and Comparative Jurisprudence’, International and Comparative Law Quarterly 47 (1998):  306–​336; Andrew Byrnes, ‘And Some Have Bills of Rights Thrust Upon Them: The Experience of Hong Kong’s Bill of Rights’, in Promoting Human Rights Through Bills of Rights:  Comparative Perspectives, ed. Philip Alston (Oxford: Oxford University Press, 2000), 318–​391. 85 Albert H.Y. Chen, ‘Hong Kong’s Legal System in the New Constitutional Order: The Experience of 1997–​ 2000’, in Implementation of Law in the People’s Republic of China, ed. Jianfu Chen, Yuwen Li and Jan Michiel Otto (The Hague: Kluwer Law International, 2002), 213–​245 at 216. 86 See article 74 of the Basic Law. For a comparison with the pre-​1997 position, see Albert H.Y. Chen, ‘From Colony to Special Administrative Region:  Hong Kong’s Constitutional Journey’, in The Future of the Law in Hong Kong, ed. Raymond Wacks (Hong Kong: Oxford University Press, 1989), 76–​126 at 118. 87 See, e.g. articles 40 and 99–​103 in ­chapters 5 and 6 of the Basic Law. 88 Anthony Cheung and Max Wong, ‘Judicial Review and Policy Making in Hong Kong: Changing Interface Between the Legal and the Political’, Asia Pacific Journal of Public Administration 28 (2006): 117–​141.

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138 A.H.Y. Chen 89 Yash Ghai, ‘The Continuity of Laws and Legal Rights and Obligations in the SAR’, Hong Kong Law Journal 27 (1997):  136–​151; Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law, 2nd edition (Hong Kong: Hong Kong University Press, 1999), 379–​386. 90 So, ‘Social Protests, Legitimacy Crisis’, 405. 91 Ibid. 92 Anne S.Y. Cheung and Albert H.Y. Chen, ‘The Search for the Rule of Law in the Hong Kong Special Administrative Region, 1997–​ 2003’, in ‘One Country, Two Systems’ in Crisis:  Hong Kong’s Transformation Since the Handover, ed. Yiu-​chung Wong (Lanham: Lexington Books, 2004), 61–​93 at 79. 93 Ma, ‘Social Movements and State-​Society’. 94 The abnormally high number of arrests in 2005 was probably attributable to the anti-​ globalisation protests in December 2005 during a WTO meeting held in Hong Kong. 95 Ma, ‘Social Movements and State-​Society’. 96 Ibid. 97 Simon Young, ‘Prosecution Response to Occupy Central?’, HKU Legal Scholarship Blog, 11 November 2014, accessed 2 August 2016, http://​researchblog.law.hku. hk/​2014/​11/​prosecution-​response-​to-​occupy-​central.html. 98 Ibid.; the cases relating to Occupy Central are discussed below. 99 Waikeung Tam, Legal Mobilization under Authoritarianism: The Case of Post Colonial Hong Kong (New York: Cambridge University Press, 2013), 5. 100 Ibid., 4. 101 Ibid., 2, 30. 102 Ibid., 21–​22, 152. 103 Ibid., 153. 104 Examples include the Society for Community Organization, Neighbourhood and Workers’ Service Centre (both groups are devoted to grass-​roots interests), Green Sense (an environmental protection group), Society for the Protection of the Harbour and Civil Rights for Sexual Diversities. 105 Tam, Legal Mobilization, 158–​159. 106 Ibid. 107 Charles Epp, The Rights Revolution:  Lawyers, Activities and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998). 108 Tam, Legal Mobilization, 23. 109 Ibid., 153. 110 Ho Choi Wan v. Hong Kong Housing Authority [2005] 4 HKLRD 706. 111 Lo Siu Lan v. Hong Kong Housing Authority [2005] 3 HKLRD 257. 112 Chan Noi Heung v. Chief Executive in Council [2008] HKEC 780, [2009] 3 HKLRD 362. See Tam, Legal Mobilization, 22. 113 There were many such cases, the best-​known of which include Ng Ka Ling v. Director of Immigration [1999] 1 HKLRD 315; Chan Kam Nga v. Director of Immigration [1999] 1 HKLRD 304; Lau Kong Yung v. Director of Immigration [1999] 3 HKLRD 778; Tam Nga Yin v. Director of Immigration [2001] 2 HKLRD 644; Director of Immigration v. Chong Fung-​yuen [2001] 2 HKLRD 533. 114 Yao Man Fai George v.  Director of Social Welfare, CACV 153/​2010 (17 February 2012, CA), Kong Yunming v. Director of Social Welfare (2013) 16 HKCFAR 950. 115 Chan Kin Sum v.  Secretary for Justice [2009] 2 HKLRD 166. See Tam, Legal Mobilization, 22, 159–​162. 116 There were several cases, the most famous of which was Town Planning Board v. Society for the Protection of the Harbour Ltd [2004] 1 HKLRD 396 (CFA), in which the Society won the lawsuit against the government. See also Society for Protection of the Harbour Ltd v.  Chief Executive-​in-​Council (No. 2)  [2004] 2 HKLRD 902; Society for Protection of the Harbour Ltd v. Secretary for Justice [2008] 4 HKLRD 417;

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Social movements and the law 139 and Karen Kong, ‘Public Interest Litigation in Hong Kong: A New Hope for Social Transformation?’, Civil Justice Quarterly 28(3) (2009): 327–​343 at 338–​340. 117 Chu Hoi Dick v. Secretary for Home Affairs, HCAL 87/​2007 (10 August 2007, 6 September 2007, CFI). 118 Ng Ngau Chai v. Town Planning Board [2007] HKEC 1207 (CFI). 119 Clean Air Foundation Ltd v. Government of the HKSAR [2007] HKEC 1356 (CFI). 120 Chu Yee Wah v. Director of Environmental Protection [2011] 5 HKLRD 469 (CA). 121 Leung Hon Wai [2014] HKEC 1459 (CA). See Karen Kong, ‘The Uphill Battle for Sustainable Development: Can the Use of Public Interest Litigation Protect the Natural Environment in Hong Kong?’, Asia Pacific Law Review 23(1) (2015): 7–​29. 122 Secretary for Justice v. Yau Yuk Lung Zigo [2007] 3 HKLRD 903. See Tam, Legal Mobilization, 163–​166. 123 W v. Registrar of Marriages [2013] 3 HKLRD 90. 124 Hualing Fu, Carole J. Petersen and Simon N.M. Young, eds, National Security and Fundamental Freedoms: Hong Kong’s Article 23 Under Scrutiny (Hong Kong: Hong Kong University Press, 2005). 125 Albert Chen, ‘A Defining Moment In Hong Kong’s History’, South China Morning Post, 4 July 2003; ‘How the Liberals Stopped a Constitutional Crisis’, South China Morning Post, 8 July 2003. 126 Eric Ip, ‘The High Court of the People: Popular Constitutionalism in Hong Kong under Chinese Sovereignty’, Law and Policy 36(3) (2014): 314–​338. 127 See, generally, Michael C. Davis, ‘The Basic Law, Universal Suffrage and the Rule of Law in Hong Kong’, Hastings International and Comparative Law Review 38 (2015):  275–​ 298; Alvin Y.H. Cheung, ‘Road to Nowhere:  Hong Kong’s Democratization and China’s Obligations under Public International Law’, Brooklyn Journal of International Law 40 (2015): 465–​545. 128 Chen, ‘The Law and Politics’. 129 Jermain T.M. Lam, ‘The Occupy Central Movement and Political Reform in Hong Kong’, in Cheng, New Trends, 449–​481. 130 See Chapter 8 in this volume. 131 Because of their storming of ‘Civic Square’ on the evening of 26 September 2014, Joshua Wong and two other student activists were convicted by a magistrate on 15 August 2016 for unlawful assembly and sentenced leniently to community service orders or suspended sentence of imprisonment:  see ‘No Jail for Occupy Leaders Joshua Wong and Nathan Law’, and ‘Clear to Run: Nathan Law, Joshua Wong and Alex Chow are Spared Jail in Time for Legco Elections’, South China Morning Post, 16 August 2016. 132 There was further public outcry when video footage of seven policemen beating up a demonstrator (Ken Tsang, a social worker and member of the Civic Party) in a dark corner of the demonstration area after his arrest was broadcast on TV news programmes on 15 October 2014. 133 Sebastian Veg, ‘Legalistic and Utopian:  Hong Kong’s Umbrella Movement’, New Left Review 92 (2015): 55–​73. 134 Kwok Cheuk Kin v.  Chief Executive of the HKSAR, HCAL 103/​2014 (CFI, 25 June 2015). 135 Leung Lai Kwok Yvonne v.  Chief Secretary for Administration, HCAL 31/​2015 (CFI, 5 June 2015). 136 Daniel Matthews, ‘Narrative Space and Atmosphere: A Nomospheric Inquiry into Hong Kong’s Pro-​democracy “Umbrella Movement” ’, Social & Legal Studies 26(1) (1 February 2017): 25–​46. Article first published online: 20 May 2016. 137 Ibid., 12 (emphasis in the original). 138 Ibid., 13–​14. 139 Ibid., 17.

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140 A.H.Y. Chen 40 Ibid., 14. 1 141 Ibid., 17. 142 Veg, ‘Legalistic and Utopian’, 61. 143 Eric Ip, ‘Constitutional Conflict in Hong Kong Under Chinese Sovereignty’, Hague Journal on the Rule of Law 8 (2016): 75–​99. 144 Young, ‘Prosecution Response’. 145 ‘Nine Occupy Activists, Leaders to Face Court’, South China Morning Post, 28 March 2017. Six other activists (including two members of the Legislative Council) were charged at the same time with similar offences relating to their participation in the ‘Occupy’ movement. Their trials have not yet taken place at the time of writing. Two other widely publicized cases relating to the ‘Occupy’ movement also came before the courts at the end of March 2017. In one case, activist Alvin Cheng Kam-mun, who resisted the enforcement of the court injunction to clear the occupation in Mongkok, was sentenced by the High Court to three months’ imprisonment for criminal contempt of court: ‘Occupy Protester Jailed for Contempt’, South China Morning Post, 31 March 2017. In another case, Franklin Chu, a police superintendent who retired after the ‘Occupy’ movement, was charged with assaulting a bystander during the occupation of Mongkok: ‘Retired Policeman Denies Baton Swipe at Bystander’, South China Morning Post, 1 April 2017. The trial has not yet taken place at the time of writing. According to information supplied by the Department of Justice to the Legislative Council on 8 Feb 2017: ‘During the “Occupy Movement” in 2014, a total of 955 persons were arrested by the Police for various alleged offences, and another 48 persons were arrested by the Police after the incident. As at January 31, 2017, a total of 216 arrestees have undergone or are undergoing judicial proceedings. Amongst them, 123 persons have to bear legal consequences (i.e. 81 who were convicted and 42 who were bound over). The convictions include unlawful assembly, arson, possession of offensive weapon, criminal damage, wounding, assaulting police officer, common assault, possession of imitation firearms, theft, criminal intimidation, indecent assault, possession of dangerous drugs, and possession of Part I poisons, etc. The penalties of convicted persons include imprisonment from two days to 10 months, probation order of 12 to 15 months, community service order of 80 to 180 hours, treatment in drug treatment centres, and fine of HK$300 to HK$6,000. (See ‘Prosecution work relating to “Occupy Movement”’, www.doj.gov.hk/eng/public/ pr/20170208_pr2.html, accessed 3 April 2017.) 146 The seven policemen were convicted and sentenced to two years’ imprisonment: ‘Seven Policemen Guilty of Assaulting Occupy Activist’, South China Morning Post, 15 Feb 2017; ‘Police Condemn Jail Terms for Ken Tsang Assault’, South China Morning Post, 17 Feb 2017. 147 In May 2016, Tsang was convicted by a magistrate of assault and resisting arrest, and sentenced to five weeks’ imprisonment: see ‘Activist Ken Tsang Convicted of Assaulting Police During Occupy Protests’, South China Morning Post, 27 May 2016; ‘Activist Ken Tsang Gets Five Weeks in Jail for Assaulting Police and Resisting Arrest During Occupy Protest’, South China Morning Post, 31 May 2016. 148 Cheng, ‘Street Politics’, 400. 149 Adrian Pok-​yin Chow, ‘Police-​related Statements during the Umbrella Movement in Hong Kong’, Inter-​Asia Cultural Studies 16(3) (2015): 470–​487 at 477; for a detailed report (in Chinese) of court case relating to the ‘Occupy’ movement, see www.apaclaw.org/events-pdf/report29-3-2016.pdf, accessed 1 April 2017.

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8  Civil disobedience and the rule of law Benny Yiu-​ting Tai

What is the relationship between civil disobedience and the rule of law? Is civil disobedience an inroad into the rule of law? Is it a legitimate consideration for the court in determining whether an offender is guilty and what the penalty should be? Does a citizen have a right to civil disobedience? Is civil disobedience momentous to advancement of the rule of law? These questions were hotly debated during the Occupy Central Movement in Hong Kong. During a 79-​day period between September and December 2014, thousands of Hong Kong citizens occupied the main streets of several busy districts to demonstrate against the territory’s undemocratic election system.1 Peaceful protesters in Hong Kong advocate the view that the Occupy action, although illegal, was based on the spirit of civil disobedience. The aim of the civil disobedience movement was to bring constitutional and political change to the governance system of Hong Kong, making it more just. The protesters assert that their action is consistent with the rule of law because the ultimate goal of the law under the rule of law should be the achievement of justice. Albeit paradoxical, the purpose of breaking the law is to make the law better. In the opening ceremony of the 2015 legal year, prominent figures in the Hong Kong legal community tried to answer the above questions, and presented differing views on the ‘proper’ relationship between civil disobedience and the rule of law. Hong Kong Secretary for Justice Rimsky Yuen criticised the ‘unlawful’ Occupy Movement as a blatant challenge to the rule of law. To him, the rule of law is all about obedience to the law or acting in accordance with it. Yuen believes that resorting to unlawful means for the purpose of pursuing democratic change can never be justified. Doing so can only erode the rule of law.2 Paul Shieh, then Chairman of the Hong Kong Bar Association, in contrast, ridiculed the government’s overemphasis on the ‘obeying the law’ aspect of the rule of law, dubbing it a hallmark of a regime that is keen on using the law as a tool to constrain the governed rather than as a means of constraining the way it governs. Shieh agreed there are historical examples of civil disobedience bringing about political or social change. However, he pointed out, there are limits to civil disobedience action: those engaged in it must not cause excessive damage

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142 B.Y.T. Tai or inconvenience. Shieh then expressed the belief that the conduct of some ­protesters during the ‘occupation’ may have overstepped these legitimate limits.3 Geoffrey Ma, Chief Justice of the Hong Kong Court of Final Appeal, averred that most people had demonstrated respect for the rule of law during the protests. Ma’s understanding of the rule of law is broader than Yuen’s, and more akin to Shieh’s. Equality before the law, fidelity to the law and its spirit, and judicial independence are fundamentals of the rule of law in his eyes. As a judge, it is natural for Ma to emphasise this particular aspect of the rule of law. He repeatedly stressed that the administration of justice by the courts must not be affected by extraneous factors, including political factors.4 An incident that took place during the Occupy Movement serves to illustrate the three men’s sharply conflicting views on the relationship between the rule of law and civil disobedience. A taxi driver association applied to the court for injunction orders prohibiting any person from continuing to obstruct sections of specified roads in the occupied areas. It asserted that the business of its members had been seriously affected by the obstruction caused by the protesters. Injunction orders were granted on the grounds that the obstruction constituted a form of public nuisance. Taxi drivers were entitled to have the specified sections of the roads cleared, and bailiffs were sent to assist the plaintiff in doing so. However, some protesters refused to leave. The police who were there to provide support to the bailiffs arrested them. The charge was criminal contempt of court for failing to comply with the orders of the court. Yuen would consider the protesters to be acting unlawfully and that their actions could not be justified in any circumstances. Shieh might recognise their actions as civil disobedience. However, he could not accept any non-​compliance with a court order properly issued, and would see the protesters as having crossed the legitimate limits of such disobedience. Finally, Ma would view the injunction orders as having been issued and implemented in accordance with his list of requirements for the rule of law. Hence, he would expect the court orders to be accepted and respected by all members of the community. Yuen, Shieh and Ma are all legal professionals, and their concerns are naturally concentrated on the administration of justice in the courts. The peaceful protesters, in contrast, perceive the law as going beyond the letter of legal rules. Although the requirements for the rule of law include an orientation towards respecting the law by obeying it on the part of the people, that orientation can hardly be the main component of the rule of law. The rule of law cannot demand that citizens obey the law unconditionally and unreflectively. To the peaceful protesters, the rule of law is more about limiting the powers of the government and ensuring adequate protection for the fundamental rights of the people. Justice means more than legal justice that can only be reached in court. An independent judiciary is surely one of the main pillars of the rule of law, as it can impose the necessary limitations on all public powers. However, independent courts under the rule of law still encounter constraints in achieving ­justice. Judges cannot go beyond the legal issues tabled before them to address the systemic injustices that caused so many people to leave the safety of their

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Civil disobedience and the rule of law 143 homes to fight for their fundamental rights in the streets. Under special circumstances and conditions, people may be justified in resorting to unlawful means to achieve justice, and even to act against a court order issued by an independent court, if justice cannot be done through the courts. The contrasting views of the peaceful protesters and those of Yuen, Shieh and Ma reflect the complexity of the relationship between civil disobedience and the rule of law. Their differences may be caused by their limited understanding of civil disobedience or divergent understandings of the rule of law. I am not asserting that civil disobedience is not unlawful. The real issue is whether that unlawfulness can be justified and, if so, justified by what. The aim of this chapter is to establish a thesis: civil disobedience is justified by the rule of law. To establish this thesis, I have to illustrate that the goal that civil disobedience claims to achieve is also the goal that the rule of law pursues and to demonstrate that civil disobedience is an effective way of securing the attainment of this common goal, at least in the long run, by creating a climate within which other means can be used to achieve that goal.5 Civil disobedience is first defined in the first section of the chapter by showing that its goal is to do justice. The second section advances a level approach to the rule of law, which integrates different understandings of the concept and necessitates a more substantive goal for the rule of law, i.e. achieving justice. In the third section, I argue that civil disobedience plays a pivotal role in the development of the rule of law in attaining its substantive goal of achieving justice. Finally, in the fourth section, I conclude the chapter by proposing a developmental model of the rule of law that provides justification for civil disobedience within the framework of the rule of law. Civil disobedience The discourse on civil disobedience comprises many issues,6 some of which are defining features and some of which are justifying factors. The defining features distinguish civil disobedience from other forms of resistance, whilst the justifying factors provide the driving force needed for civil disobedience to achieve its goal.7 Civil disobedience as a form of social action does not aim to achieve its goal directly by forcing the authorities to accept the social changes demanded instantly. Its goal is rather to draw the attention of the community to the demands of the action and to reshape attitudes in the hope that more people will show sympathy with or even provide support for the movement’s cause.8 If more people are drawn to the side of those engaged in civil disobedience, the authorities will face increased opposition to or lose essential support for its governance of the community if it refuses to respond positively to the protestors’ demands. A metaphor proves useful here: a wrecking ball can be used to knock down a building, but shaking its foundations will also cause it to collapse. Civil disobedience threatens to rock the power base of the authorities in similar fashion. Both its defining features and justifying factors are important in understanding civil disobedience, although there is little agreement about whether a given issue

41

144 B.Y.T. Tai qualifies as one or the other. Some academics include in their definitions of civil disobedience certain elements that others would consider to be justifying factors. The result may be an under-​inclusive definition that excludes many acts of such disobedience. However, if the ultimate purpose of discussing civil disobedience is to explore whether it can be justified, acts that are excluded will in any case be acts with comparatively weak justification. Hence, the distinction between defining features and justifying factors is not significant in this chapter, as its purpose is to find a justification for civil disobedience within the framework of the rule of law. Defining features One universal defining feature of civil disobedience is illegality.9 Civil disobedience must involve an illegal act, which distinguishes it from such acts of civil resistance as boycotts, which are not necessarily illegal.10 Also, if a person disobeys a law in the sincere and strong belief that it is unconstitutional, and is prepared to challenge the law’s constitutionality through the constitutional process, then his or her action may not fall under civil disobedience. If the challenge is successful, the person will not have disobeyed a valid law.11 An illegal act may be a breach of the law directly being challenged, but the law being infringed may also be a legitimate law regulating public order that is being used to prohibit or limit the organisation of an action targeting another law. The former is called direct civil disobedience, and the latter indirect civil disobedience. Both are justifiable, although the latter may need more and stronger justifying factors.12 Breaking a law in most cases is not justifiable in itself. Other defining features and justifying factors are crucial in the search for justification. Another universal defining feature is publicity.13 Civil disobedience must be a public act. This feature distinguishes civil disobedience from conscientious objection or private civil disobedience.14 A  commitment to conscientious objection may be publicly known, but it has a very different justification from civil disobedience, as it does not require a public commitment. However, no act of civil disobedience can be done in camera, as doing so would defeat its purpose. To achieve the goal of such an act, and to generate justification for it, the demands of the act and the reasons for breaking the law must be communicated to the public.15 Advance notice is generally given before civil disobedience begins, although for some acts of civil disobedience, the public may be informed of the occurrence and reasons after their completion.16 The third defining feature is intentionality.17 Civil disobedience must be committed deliberately for a specific purpose, although it need not be planned in advance.18 There is no accidental civil disobedience. Whether the illegal act intentionally committed can be justified depends very much on its specific purpose. The purpose of the act sets a legitimate limit on the illegality of civil disobedience. Civil disobedience cannot involve law-​breaking that is committed purely out of self-​interest. It must have an altruistic element.19 This brings forth the fourth defining feature of civil disobedience. However, here the line that divides defining features and justifying factors becomes blurred.

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Civil disobedience and the rule of law 145 The purpose of civil disobedience is to instigate reform of the system of government or cause change to a law or policy of the government on the grounds that it is unjust.20 The end purpose of civil disobedience is to do justice by causing change to the existing unjust system, law or policy.21 Overthrowing the existing system is not the goal of civil disobedience. Civil disobedience is not an appropriate tool for revolution. Doing justice is both a defining feature and a justifying factor. The end may not justify every means, but it is fundamental to establishing its justification. If the end is not justifiable, then no means can be. Conscientiousness may also be both a defining feature and justifying factor.22 Dissidents commit acts of civil disobedience based on their sincerely and seriously held beliefs.23 Their judgment of the injustice of the existing system, law or policy may be mistaken or ill-​informed,24 but on the condition that their decision is honestly made and has no ulterior motive, it constitutes civil disobedience.25 Some may consider conscientiousness more important in justifying than defining civil disobedience.26 If an action is taken out of a sense of justice honestly held, it is more likely that it will be recognised as justifiable than if it were taken for pragmatic reasons. A dissident’s commitment to her beliefs and her moral consistency, as reflected in her acts of civil disobedience, deserve due recognition. Many academics and practitioners in the civil disobedience arena include non-​ violence as one of the defining features of civil disobedience.27 Non-​violence certainly has a long tradition in civil disobedience movements. However, others disagree, arguing that violent acts can still satisfy the requirements of civil disobedience in certain circumstances.28 Nonetheless, there is general agreement that non-​violence can provide a much stronger justification for civil disobedience.29 Most people abhor violence. If it is carefully and intelligently planned, self-​sacrificial non-​violent action can often be highly persuasive. The character of an action may influence the character of the results it produces. If doing justice is the end goal of civil disobedience, then non-​violence is much better matched to that civilised goal. Violence is also more likely to distort dissidents’ claims of justice, thereby hindering their actions from reaching their goal. Justifying factors The following are purely justifying factors, and cannot be seen as defining features of civil disobedience. It is generally accepted that just like the ends of civil disobedience, their means cannot be unlimited.30 The principle of proportionality sets a reasonable constraint on acts of civil disobedience.31 Those acts must in themselves be a just and proportionate response to the injustice they are reasonably seeking to prevent or remove.32 The good that civil disobedience can achieve varies, and the probability of the good being achieved is also uncertain. However, all actions inevitably affect other people’s interests in various ways, ranging from causing inconvenience to the impairment of property or other rights. The more serious the losses caused by civil obedience, the stronger the justification needed for it. Greenawalt succinctly spelt out the spirit of proportionality in the context of civil disobedience:  ‘The greater the uncertainty any good will be achieved,

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146 B.Y.T. Tai the greater the good would have to be to outweigh certain or highly probable harm.’33 Resorting to civil disobedience only after all existing legal remedies have been exhausted can demonstrate the necessity of illegal action, adding force to the justification for such disobedience.34 By showing a genuine attempt to avoid causing harm, dissidents gain a better chance of persuading others to accept their claim. However, if past actions reasonably show that further attempts will be fruitless, this condition may not need to be satisfied. Another justifying factor is the willingness of dissidents to accept the legal punishment for their acts.35 Even though they have acted contrary to the law, dissidents recognise their fidelity to the law. The aim of civil disobedience is not to overthrow the system, but only to bring about systemic change that renders the system more just. This is not to say that civil disobedience should be the defence in a trial against dissidents, but rather that their voluntary submission to punishment can at least demonstrate to the community that they are conscientious and sincere in pursuing justice in its public sense. Doing so may have the effect of dramatising the concerns of the dissidents involved and challenging the complacency of other people.36 The final justifying factor is that civil disobedience must have a reasonable prospect of success in reaching its goal.37 If there is only a very remote chance of success, civil disobedience may be questioned, not about its end but about the necessity of using this particular means to achieve that end. People can have reasonable disagreements when judging the prospect of success, as it depends on many factors and the circumstances of the action. The prospect of success may also need to be considered over a long time span because civil disobedience in most cases effects change only through significant attitudinal shifts in the community. This is usually a long process, and direct results may not be seen immediately after the action. Therefore, the failure of a civil disobedience action to achieve its goal immediately does not necessarily render it unjustifiable. For the purposes of this chapter, civil disobedience is a conscientious, public, intentional act of breaking the law, not out of self-​interest but for justice. Such an act is more justifiable if it is also non-​violent and proportionate. Also, if an act of civil disobedience is committed only after the exhaustion of all existing legal remedies and those involved are willing to submit to punishment voluntarily, then it enjoys stronger justification in most circumstances. The goals and different understandings of the rule of law This chapter advances a theory of civil disobedience and the rule of law which purports that civil disobedience can be justified by the rule of law. It has two components. First, the goal of civil disobedience and the goal of the rule of law must be the same. Civil disobedience cannot be in conflict with the rule of law, and nor can it be merely compatible with it. Achieving the goal of civil disobedience means simultaneously realising the goal of the rule of law. Second, civil disobedience is an effective way of securing the attainment of the common goal. I deal with the first component in both this and the following part of the chapter.

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Civil disobedience and the rule of law 147 As noted above, the goal of civil disobedience is doing justice. To establish the thesis of this chapter, I have to first prove that the goal of the rule of law is also to achieve justice. This may not be an easy proposition because in the discourse of the rule of law a major conception of that rule does not speak to the content of the law. This thin or formal conception of the rule of law identifies the features that any legal system must possess to function effectively as a system of laws. Whether the legal system in question is part of a democratic system or whether the laws within it protect human rights is irrelevant in this understanding of the rule of law.38 Another prevailing conception of the rule of law is a thick or substantive conception.39 Built upon the thin conception, this understanding demands that the substantive content of the law recognise and provide protection for various citizens’ rights, ranging from procedural, civil and political rights40 to social and economic rights.41 The thick conception of the rule of law has a much closer correlation with civil disobedience than the thin conception. As we have already defined civil disobedience, the path to resolving the relationship between civil disobedience and the rule of law must be found in the meaning of the rule of law. If I simply adopt a substantive understanding of that rule for the purposes of this chapter, it may be too easy to establish a common goal for civil disobedience and the rule of law. Accordingly, to establish a stronger case for my thesis, I use the thin conception as my starting point here. The thin and thick descriptions of the rule of law, if looked at together, present the rule of law as layers of institutional requirements, with the lower layers providing the foundation for and basis of the upper layers. These descriptions may still be too coarse because there can be different degrees of thinness and thickness. Dieter Grimm suggested a level approach that integrates the thin and thick conceptions of the rule of law. He observed that the [r]‌ule of law is … a matter of … more or less … the realisation of the rule of law can take the form of a process, level by level. Each new step means a step forward compared to the previous level … [T]he realisation … becomes more demanding with each additional level.42 By adopting a level approach that integrates the thin and thick conceptions of the rule of law and gives finer differentiations and richer connections between the layers, I argue that a thin conception with no substantive goal at the outset has an internal and inherent tendency to develop and grow thicker. When a critical point is reached, it inevitably incorporates a substantive goal that is compatible with civil disobedience. Binding by law and existence of the law To rule-​of-​law scholars supporting the thin conception, the rule of law simply means legality.43 Brian Tamanaha is one of the most prominent thin theorists. He succinctly defined the rule of law as meaning that government officials and citizens are both bound by and abide by the law.44 Tamanaha prefers a minimal

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148 B.Y.T. Tai understanding of the rule of law that excludes substantive ideas such as democracy and human rights.45 This understanding appears very similar to the aforementioned stance adopted by Yuen, which is that the rule of law concerns obedience to the law or acting in accordance with it. If civil disobedience must be illegal to qualify as such, then this minimal understanding allows Yuen to confidently assert that civil disobedience can never be compatible with the rule of law. Tamanaha’s understanding of the rule of law provides the basis of analysis in this chapter. If it can be proved that civil disobedience can be justified even by this thin understanding, then it must be able to live harmoniously with other more substantive understandings of the rule of law. In expecting only that government officials and citizens be bound by and abide by the law, Tamanaha’s understanding seems quite basic. Applying the level approach, his understanding would represent a certain layer or level of the rule of law, a layer/​level that can be called ‘binding by law’ or ‘regulation by law’. Although Tamanaha’s definition appears simple, it in fact includes many components. He does not make explicit the distinction between ‘bound by’ and ‘abide by’, and yet the two elements have different implications for an understanding of the rule of law, as will be illustrated in the subsequent part of this chapter. ‘Bound by’ explains conforming behaviour that is prompted by external pressure, whilst ‘abide by’ refers more to an internalised commitment. Even for this simple requirement to be met, additional requirements for the rule of law need to be satisfied. There must first be laws covering the major areas of human activity. People may then refer to these legal rules in seeking guidance on what can and cannot be done. The making and existence of laws come conceptually before the ‘binding by law’ level of the rule of law. This foundational level can be referred to as ‘existence of the law’, a level that buttresses the ‘binding by law’ level. Limitation from law and judicial limitation Second, there must be an effective mechanism in place to ensure that government officials are bound by and abide by the law.46 Put another way, in exercising their powers granted by the law government officials must also be limited by the law. Otherwise, laws would be mere words on paper with no real use in guiding the behaviour of government officials. History tells us that self-​restraint by government officials is not an effective measure. Tamanaha suggests that the law can effectively limit the powers of government officials by dividing government into different component parts, differentiating governmental functions and authorising certain parts of the government to specially perform the function of monitoring other parts, ensuring that their officials are bound by the law.47 This is a level of the rule of law that flows naturally from the requirement that government officials be bound by the law. It is a level built upon the ‘binding by law’ level, and can be called ‘limitation from law’. Like many other rule-​of-​law scholars, Tamanaha assigns a special role to the judiciary: that is, ‘to insure that other government officials are held to the law’.48

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Civil disobedience and the rule of law 149 Because the law cannot be self-​interpreted or self-​applied, there must be human participation in the interpretation and application of legal rules to give concrete meaning to the indeterminate legal language in an actual dispute. To avoid the human weaknesses of bias, passion, prejudice, error, ignorance or whim in this process, the judges who are responsible for adjudicating disputes are expected to be unbiased, neutral, free of passion, prejudice and arbitrariness, and loyal to the law alone. They are recognised as special guardians of the law.49 To many rule-​of-​law scholars, judicial limitation seems to be the most important, if not the only, mechanism for limiting the powers of the government. Institutional arrangements for ensuring judicial independence and protecting the judiciary from outside interference are recognised as institutional essentials of the rule of law.50 However, many rule-​of-​law scholars seem to have very strong faith in judges. Without external checks, judges are trusted to steadfastly guard the boundaries of the law, dauntlessly withstand interference from other branches of the government or outside powers and virtuously adhere to the spirit of the law while resisting any temptation to use their powers to satisfy private needs. As judges are subject to little external pressure, effective judicial limitation relies almost solely on judges’ internalisation of rule-​of-​law commitments. For judges, there can only be ‘abide by’, as opposed to ‘bound by’. It is presumed that rule-​of-​law values can be imprinted on the hearts of judges through their training in legal knowledge and the craft of judging, swearing of a solemn oath to decide cases in accordance with the law, and belonging to a community of legal professionals devoted to upholding the rule of law. Yet, effectively limiting the powers of the government by relying solely on judicial limitation is the exception rather than the rule.51 In most legal systems practising the rule of law, other mechanisms are in place to limit those powers in addition to judicial limitation. These mechanisms supplement or work together with judicial limitation to bring governmental powers under proper constraint. Common sense and history alike tell us that the more mechanisms of limitation available in any system practising the rule of law, the more effective the limitation on the powers of the government is likely to be. Other limitation mechanisms The first kind of additional limitation mechanism can be categorised as an administrative limitation. Such a limitation is provided by institutions that are set up within the executive branch of the government but are given relatively independent status and vested with adequate powers to oversee the work of officials from other government departments. The scope of supervision of each institution usually pertains to a specialised area or certain regulatory principle. For example, an ombudsman investigates maladministration by government officials in enforcing policies and laws,52 an audit agency performs value for money and performance audits,53 an anti-​corruption body fights against corruption,54 and a police complaints commission receives and investigates complaints against alleged malpractice and illegal acts by police officers.55

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150 B.Y.T. Tai Professionalisation in recruitment, training and practices, together with institutional autonomy in personnel, management, finance and operation, ensures the independent status of these agencies and bodies within the executive branch of government. Some of these administrative limitation mechanisms receive complaints from citizens directly, allowing aggrieved citizens to seek redress without going through a rather costly and time-​consuming judicial proceeding. These mechanisms may not have the direct power to prosecute or punish officials found to have done wrong, but a report of an investigation proving wrongdoing that is made public may be a good enough deterrent to hinder government officials from contravening applicable rules. Another kind of limitation mechanism can be categorised as political limitation.56 In addition to establishing more separate institutions to limit the powers of government officials, those who are affected by the decisions or acts of government officials can also impose restraints on their powers directly. If the highest official in the executive branch of government and the members of the legislative branch have the authority to exercise powers granted by law through a process of authorisation by the people under their governance, those authorising them can in turn exert influence on how those being authorised should use the powers granted. It has even been said that without democracy, one can only have something that is an ‘approximation of the rule of law’.57 A democratic election is such an authorisation process. The right to choose who can exercise executive and legislative powers allows bounds to be set and demands to be made on how those powers should be used. Only candidates who can satisfy a sufficient number of electors can be elected and authorised to hold an office of power. Like the other limitation mechanisms, limitation by election may not need to take any particular form, but it must guarantee and give effect to the free expression of the will of the electors.58 Such an election system must satisfy at least four conditions. First, all electors should enjoy an equal number of votes.59 Second, the weight of each vote should also be essentially equal.60 Third, electors should have a free choice of candidates.61 Fourth, there cannot be any unreasonable restriction on the right to stand for election. Any restriction must be justifiable on objective and reasonable criteria.62 For the right to vote to be effectively exercised, there must also be adequate protection for certain fundamental rights of citizens, including at least the rights to freedom of expression, assembly and association.63 The reason these rights are essential is not difficult to understand. For electors to make informed choices in an election, they must have the freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticise and oppose, to publish political material, to campaign for election, and to advertise political ideas.64 Citizens must also be able to engage in political activity individually or through political parties and other organisations. They should have the right to form and join organisations and associations concerned with political and public affairs.65 Extending from these essential rights are other associated rights. Electors must not be prevented from visiting polling stations so that they can effectively exercise

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Civil disobedience and the rule of law 151 their right to vote, and thus the freedom of movement needs to be protected too.66 There must be free communication of information and ideas about public and political issues amongst citizens, candidates and elected representatives. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion.67 The list of associated rights can be further extended for the effective protection of any one of them, as these rights are interconnected. No government can ignore the views of the governed if it wants its governance to be smooth and to encounter the least resistance. In a robust civil society committed to the rule of law, social actions will be organised to challenge any attempt by the authorities to try to sidestep or undermine the rule of law. A free media sensitive to all threats to the rule of law allows people to be informed in timely fashion of whether any such threats are imminent. Therefore, a robust civil society and a free media are both important social mechanisms for limiting governmental powers. Underlying all of these limitation mechanisms is the principle of the separation of powers by checks and balances. The assumption is that no power granted by law under the rule of law can be total and unchecked. Powers are to be separated to ensure that no one person or one institution enjoys full power to govern, thereby preventing power usurpation and power abuse. A  system of power-​ sharing amongst different institutions inbuilt with systems of checks and balances can ensure that officials act within the constraints predetermined by the law granting them the powers. By incorporating this principle into the design of a constitution and arming the constitution with processes of direct enforcement, the ‘limitation from law’ level can be firmly established through the installation of another limitation mechanism categorised as constitutional limitation. Justice through law Political limitation is a means to an end, limiting the powers of government officials, but it can also be an end in itself. To be effective, political limitation relies on adequate protection of the right to vote and associated civil rights. It provides the link between ‘limitation from law’, which may still be a rather content-​neutral level of the rule of law, to another level that clearly sets substantive requirements on the content of legal rules. Providing protection for fundamental rights of various kinds can be taken as achieving justice,68 and this level of the rule of law can be called ‘justice through law’. Achieving justice is the ultimate purpose of law,69 and this understanding of the rule of law has a long history.70 Depending on the conception of justice, the rights that should be protected by the rule of law range from procedural rights, civil rights and political rights to social and economic rights. Procedural justice has two aspects. One relates to the making or enactment of laws,71 and the other concerns the manner in which the laws are being implemented. All laws or legal rules enacted under the rule of law cannot be just any kind of laws, but must be laws of such a nature72 that they are capable of

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152 B.Y.T. Tai being followed by government officials and citizens.73 In another words, the legal ­ process of making the laws must ensure that the legal rules produced contain certain qualitative elements. Fuller’s ‘inner morality of law’74 provides a list of these qualitative elements:  generality,75 publicity,76 stability,77 clarity,78 non-​retroactivity,79 non-​contradictory,80 against impossibility81 and against arbitrariness.82 Procedural rights in the implementation of laws include those rights protected by such common-​law principles of natural justice as the right to a fair hearing, the right to challenge a biased decision and the right to reason.83 Political rights are protected under article 25 of the International Covenant on Civil and Political Rights.84 Democracy has a dual relationship with the rule of law. It is a means as well as an end. Democracy is an element of justice and a necessary instrument for achieving justice.85 As mentioned above, democratic elections are one of the limitation mechanisms ensuring that rights can be effectively protected. Democratic rights are the rights that should be protected by the rule of law. As illustrated above, a full range of civil rights must also be protected by the law for political limitation to be effective in constraining political powers under the rule of law. These civil rights can be found in the International Covenant on Civil and Political Rights.86 Social and economic rights are rights recognised by the International Covenant on Economic, Social and Cultural Rights.87 The International Commission of Jurists supports this understanding of justice in the rule of law, believing that ‘the rule of law … is also concerned with the establishment by the state of social, economic, educational and cultural conditions under which man’s legitimate aspirations and dignity may be realized’.88 Levels of the rule of law We have now come up with four levels of the rule of law. Each level has its own specific goal and is closely connected with the others: Level

Theme

Goal

Rule of Law 1 (ROL [1]‌)

Existence of law

Rule of Law 2 (ROL [2]‌)

Binding by law

Rule of Law 3 (ROL [3]‌)

Limitation from law

Rule of Law 4 (ROL [4]‌)

Justice through law

Laws cover major areas of human activities Government officials and citizens are bound by and abide by the law Governmental powers are subject to various forms of legal limitation Legal rules protect various kinds of rights

In applying the level approach to the rule of law, the level of ‘binding by law’ suggested by Tamanaha, an understanding of the rule of law that seems

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Civil disobedience and the rule of law 153 to be simple and content-​neutral, must be buttressed by a foundational level covering major areas of human activities:  ‘existence of law’. For ‘binding by law’ to be effective in achieving its goal of requiring government officials and citizens to be bound by and abide by the law, it must reach another level of the rule of law allowing governmental powers to be limited: ‘limitation from law’. If ‘limitation from law’ is understood to include other limitation mechanisms, rather than overly focusing on judicial limitation, it naturally leads to ‘justice through law’, a level of the rule of law demanding substantive requirements for the content of laws that there must be effective protection for fundamental rights of various kinds. In another words, once a thin conception such as ‘binding by law’ is accepted, it necessitates the incorporation of a thick conception such as ‘justice through law’, thereby forming an integrated understanding of the rule of law. The level approach suggests that the rule of law can be attained in varying degrees. Each level means a step forward from the previous level.89 Each level is built upon the groundwork laid by its preceding level. A higher level is more difficult to reach as one climbs up the levels because there are more demands to fulfil. Within each level, its fulfilment is also a matter of degree. The more fully the various requirements or aspects of a particular level are satisfied, the steadier the base for further advancement. Civil disobedience and cultural change The preceding parts of the chapter demonstrate that civil disobedience and the rule of law share the goal of achieving justice. However, this is not sufficient to justify civil disobedience by the rule of law. It must also be illustrated that civil disobedience is an effective way of securing the attainment of the common goal of achieving justice. In some cases, civil disobedience may even be essential in this process. Tamanaha’s explanation of the rule of law also sheds light on this aspect. In advancing his thin understanding of the rule of law, he accepted that institutional setups are not enough to effectively produce the expected rule of law. In discussing the institutional essentials for maintaining judicial independence, Tamanaha pointed out that they must be supported by attitudes external to the judiciary, among government officials and the public at large, in particular the attitude that it is improper to interfere with the judiciary as it fulfills its role of interpreting and applying the law, even when its decisions are unpopular.90 In addition, he averred: ‘Citizens and government officials … must voluntarily comply with judicial decisions, including those decisions they find objectionable. This is essential because the judiciary, which has no military force, relies upon the general respect of the populace.’91

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154 B.Y.T. Tai Tamanaha highlighted an important aspect of the rule of law that is overlooked by many rule-​of-​law scholars: For the rule of law to exist, people must believe in and be committed to the rule of law. They must take it for granted as a necessary and proper aspect of their society. This attitude is not itself a legal rule. It amounts to a shared cultural belief. When this cultural belief is pervasive, the rule of law can be resilient, spanning generations and surviving episodes in which the rule of law had been flouted by government officials … When this cultural belief is not pervasive, the rule of law will be weak or non-​existent.92 Put more simply, a rule-​of-​law culture is needed for the effective operation of rule-​of-​law institutions in achieving the goal of the rule of law, whether thin or thick. Returning to Tamanaha: ‘[C]‌ultural beliefs are not subject to complete human control, so it is no easy matter to inculcate belief in the rule of law when it does not already exist.’ To establish the rule of law, he continued, ‘[a] widely shared cultural belief that the law should rule is the essential element of the rule of law’.93 Further, ‘people must identify with the law and perceive it to be worthy of ruling. The populace must believe that the law reflects their values and serves their interests’.94 A rule-​of-​law culture that can support rule-​of-​law institutions at all levels of the rule of law must include at least the following elements: a belief in legality,95 an attitude of law compliance,96 some traits of a critical attitude97 and a rights consciousness.98 Tamanaha’s cure is to find ways to make legal actors live up to their legal obligations to ensure that general trust in the law is embraced by succeeding generations of the community. The challenge is how to make legal actors live up to their legal obligations and how to cultivate general trust in the law. Even if we could find a method of doing so, that method might prove unable to cultivate a rule-​of-​law culture. However, Tamanaha’s conclusion applies equally to all efforts to form a rule-​of-​law culture. It is difficult to achieve. Stromseth, Wippman and Brooks suggested various methods for creating a rule-​of-​law culture. They include: strengthening civil society, investing in legal education at all levels of education, from primary school to law school, and enlisting the help of the media to cultivate such a culture creatively and multi-​dimensionally.99 These are all methods that may effect changes in the culture through a comparatively long habit-​building process, and civil disobedience is not one of them. Long-​lasting change in a culture can also be brought about by ‘cultural shock’. Civil disobedience may not be an appropriate method in normal circumstances, but it may be necessary at a ‘constitutional moment’, a concept developed by Bruce Ackerman. He observed that at times of political crisis, people act collectively to effect constitutional change through informal, extra-​constitutional means.100 Civil disobedience may be needed, especially in a bottleneck situation. Existing institutions, together with cultural change factors and efforts to create

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Civil disobedience and the rule of law 155 a rule-​of-​law culture, may accumulate considerable tension between the rule-​of-​ law institutions and rule-​of-​law culture. Inertia and internal resistance may block changes to institutions, which may in turn generate even more tension. Civil disobedience produces a breakpoint for institutional change. As noted above, civil disobedience does not aim to achieve its goal directly by forcing immediate institutional change. Civil disobedience dramatises the injustice of the system in such a way that people can no longer ignore it.101 People’s established beliefs, values and attitudes are challenged and questioned by civil disobedience action. They are forced to reflect on the meaning and significance of truth and justice.102 Many may reconsider their existing attitudes towards current institutions, and new attitudes or consciousness may be formed.103 Civil disobedience can be an extra-​constitutional means of people’s action at a constitutional moment that results in the transformation of rule-​of-​law institutions. When the majority of community members adopts the position advanced by those engaged in civil disobedience, the authorities have no choice but to introduce changes to those institutions. Even if a civil disobedience action fails to bring about immediate institutional change, the changes in the culture will lay the groundwork for future efforts to effectuate cultural and institutional changes. Civil disobedience is therefore not only social or political action; it is also a movement of cultural change. Civil disobedience is especially needed at critical junctures. It may also be necessary for advancement to higher levels of the rule of law, such as from ‘binding by law’ to ‘limitation from law’ or from ‘limitation from law’ to ‘justice through law’. As the rule of law becomes more sophisticated, institutional change will face growing resistance from existing power-​holders because there will be more and more constraints from law over vested interests. Civil disobedience is thus a very important tool for rule-​of-​law development. Conclusion: a developmental model of the rule of law My thesis in this chapter is that civil disobedience can be justified by the rule of law. In the preceding parts, I first argue through two alternative paths to establish the first part of my thesis that civil disobedience and the rule of law share the same goal, i.e. doing justice. The first path is to incorporate the thin and thick conceptions of the rule of law into a level approach to the rule of law. I argue that once a thin conception of the rule of law, such as that government officials and citizens are bound by law, is accepted the internal institutions needed to achieve the institutional goal of that conception will require the adoption of more sophisticated rule-​of-​law institutions. Hence, the institutional goal of the rule of law will gradually develop into a thicker conception of the rule of law, such as limiting the powers of the government and protecting the rights of citizens. Eventually, the goal of doing justice, which is also the goal of civil disobedience, also becomes the institutional goal of the rule of law. In the level approach, thin and thick conceptions of the rule of law constitute an integrated understanding of the rule of law.

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156 B.Y.T. Tai Because civil disobedience and the rule of law share the same goal, i.e. doing justice, in advancing its goal through action civil disobedience also achieves the goal of the rule of law. Applying the defining features and justifying factors of civil disobedience allows us to see that civil disobedience can be an important tool for achieving a breakthrough in development of the rule of law at a constitutional moment or when the tension between rule-​of-​law institutions and rule-​of-​law culture grows so intense as to reach breaking point. I rely on this functional role of civil disobedience in development of the rule of law to establish the second part of my thesis that civil disobedience is an effective way of securing the attainment of the institutional goal of the rule of law. Synthesising the above arguments justifying civil disobedience by the rule of law may produce a side product: a developmental model of the rule of law. Like the developmental model of law suggested by Nonet and Selznick,104 a developmental model of the rule of law proposes that the rule of law is to be understood by levels (or stages). Some levels are ‘prior’ to others, not just in time but also in importance and function. The advanced or higher levels establish new competencies to address the problems encountered in the preceding or lower levels.105 The developmental model of the rule of law proposes four levels: ‘existence of law’, ‘binding by law’, ‘limitation from law’ and ‘justice through law’. A higher level has more sophisticated institutions and goals than a lower level, and comes into being to address the challenges faced by the lower level in achieving its institutional goal. Also similar to Nonet and Selznick’s developmental model of law, the developmental model of the rule of law recognises that ‘certain states of a system will generate forces leading to specified changes’.106 This developmental model sees the rule of law as comprising institutions and culture. Each level of the rule of law has its own rule-​of-​law institutions and rule-​of-​law culture. The inter-​ relationships amongst such institutions and culture are not static, but interact with one another, and these interactive relationships both produce ‘stresses, problems, opportunities, expectations, and emergent adaptions’ from systemic change and ‘suggest the direction of change’.107 I agree with Nonet and Selznick that the model ‘cannot tell us what will actually happen, since that always depends on widely varying conditions and countervailing forces’.108 However, the developmental model of the rule of law can ‘help diagnose the capacities and weaknesses of institutions, and assess their potentials for the realization of values’.109 These authors further argued: ‘A developmental model points to vulnerabilities as well as to sources of growth. Some of the energy leading to change results from inherent problems and tensions, with corollary risks of regression.’110 The interactive relationships between rule-​of-​law institutions and a rule-​of-​law culture of sustaining, shaping and transforming serve this purpose in analysing the challenges faced by societies in building a rule of law. Returning to the conflicting understandings of the rule of law amongst the peaceful protestors involved in Hong Kong’s Occupy Movement, the Secretary for Justice, the Chairman of the Bar and the Chief Justice of the Court of Final Appeal, it is rather ironic to find that it is actually the peaceful protesters who may

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Civil disobedience and the rule of law 157 have a better grasp of the developmental nature of the rule of law than those who have received legal training and have years of experience in the operation of the Hong Kong legal system. In justifying civil disobedience by the rule of law, we may gain a deeper understanding of what the rule of law actually is and will become. Notes 1 For the background to the Occupy Central Movement, see Jermain T.M. Lam, ‘The Occupy Central Movement and Political Reform in Hong Kong’, in New Trends of Political Participation in Hong Kong, ed. Joseph Y.S. Cheng (Hong Kong:  City University of Hong Kong Press, 2014), 449–​482. 2 ‘Speech by the Hon Rimsky Yuen, SC, JP, Secretary for Justice at the Ceremonial Opening of the Legal Year 2015 on 12 January 2015’, accessed 15 July 2016, ww.doj. gov.hk/​eng/​public/​pdf/​2015/​sj20150112e.pdf. 3 ‘Speech of the Chairman of the Hong Kong Bar Association at the Opening of the Legal Year 2015 12th January 2015’, accessed 15 July 2016, www.hkba.org/​ whatsnew/​misc/​OLY%20Speech%202015%20(E)%20web.pdf. 4 ‘CJ’s Speech at Ceremonial Opening of the Legal Year 2015’, Hong Kong Government press release, accessed 15 July 2016, www.info.gov.hk/​gia/​general/​201501/​12/​ P201501120481.htm. 5 Paul Harris, ‘Introduction: The Nature and Moral Justification of Civil Disobedience’, in Civil Disobedience, ed. Paul Harris (Lanham:  University Press of America, 1989), 34–​35. 6 Henry David Thoreau provided the first account of civil disobedience in 1848. See Hugo Adam Bedau, ed., Civil Disobedience in Focus (London: Routledge, 1991), 28–​ 48. Martin Luther King, Jr., in ‘Letter from Birmingham City Jail’, gave a theoretical and practical exposition of civil obedience from his personal experience during the civil rights movement in the United States in the 1950s and 1960s. Also included in Bedau, Civil Disobedience, 68–​84. John Rawls provided the most sophisticated theory of civil disobedience within his theoretical framework of justice. See John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972), 363–​391. 7 Carl Cohen, Civil Disobedience: Conscience, Tactics and the Law (New York: Columbia University Press, 1971), ­chapter 5. 8 Dworkin distinguished persuasive strategies from non-​persuasive strategies. Persuasive strategies force the majority to listen to arguments on the injustice of the system, law or policy in the expectation that the majority will change its mind and disapprove of such unjust system, law or policy. Non-​persuasive strategies aim not to change the majority’s mind, but to increase the cost of continuing to pursue the unjust system, law or policy. Non-​persuasive strategies of intimidation, fear and anxiety are more forceful, and non-​persuasive strategies of inconvenience and financial expense less forceful. See Ronald Dworkin, ‘Civil Disobedience and Nuclear Protest’, in A Matter of Principle, ed. Ronald Dworkin (Cambridge, MA:  Harvard University Press, 1985), 104–​116, at 109–​110. See also Elliot M. Zashin, Civil Disobedience and Democracy (New York: The Free Press, 1972), 117–​118. 9 Harris, ‘Introduction’, 6; Cohen, Civil Disobedience, 5. 10 Gene Sharp, From Dictatorship to Democracy: A Conceptual Framework for Liberation (London:  Serpent’s Tail, 2012); Kurt Schnock, ‘The Practice and Study of Civil Resistance’, Journal of Peace Research 50 (2013): 277–​290. 11 Kent Greenawalt, Conflicts of Law and Morality (Oxford:  Oxford University Press, 1987), 227–​229. However, Zashin believed that for an act to fall within the definition of civil disobedience, it is sufficient for the public authorities immediately involved to

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158 B.Y.T. Tai consider the act illegal even if the ‘civil disobedient’ wants to use the act and following trial to test the constitutionality of the act. See Zashin, Civil Disobedience, 112. 12 Abe Fortas did not consider civil disobedience to be justified where the law being violated is not itself the focus or target of the protest. See Abe Fortas, Concerning Dissent and Civil Disobedience (New York: Signet Broadside, 1968), 62. Erwin N. Griswold concurred. See Erwin N.  Griswold, ‘Dissent  –​1968’, Tulane Law Review 42 (1968): 726–​739, at 735. For a rebuttal, see Hugo Adam Bedau, ‘Civil Disobedience and Personal Responsibility for Injustice’, The Monist 54 (1970): 517–​535. There is now general agreement that indirect civil disobedience also falls within the scope of civil disobedience. See Rawls, Theory of Justice, 365; Cohen, Civil Disobedience, 52–​56; Greenawalt, Conflicts, 235–​237. 13 Harris, ‘Introduction’, 7; Rawls, Theory of Justice, 366; Cohen, Civil Disobedience, 16–​18. 14 Harris, ‘Introduction’, 7–​8, 37–​47. 15 Kimberley Brownlee, ‘Features of a Paradigm Case of Civil Disobedience’, Res Publica 10 (2004): 337–​351, at 343–​350. 16 Brian Smart, ‘Defining Civil Disobedience’, in Bedau, Civil Disobedience, 206–​207. 17 Harris, ‘Introduction’, 6; Cohen, Civil Disobedience, 7. 18 Zashin, Civil Disobedience, 114. 19 Cohen, Civil Disobedience, 11–​12. 20 Rawls, Theory of Justice, 371–​372; King, ‘Letter from Birmingham’, 73–​74. Dworkin distinguished justice-​based civil disobedience from policy-​based civil disobedience. See Dworkin, ‘Civil Disobedience and Nuclear Protest’, 107. 21 Peter Jones, ‘Introduction: Law and Disobedience’, Res Publica 10 (2004): 319–​336, at 322–​332. 22 Cohen, Civil Disobedience, 18–​22. 23 Brownlee, ‘Features of a Paradigm Case’, 340–​343. 24 Some academics have set the condition that the mistake needs to be reasonable. See David Lofkowitz, ‘On a Moral Right to Civil Disobedience’, Ethics 117 (2007): 202–​ 233, at 224–​233; Vinit Haksar, ‘The Right to Civil Disobedience’, Osgoode Hall Law Journal 41 (2003): 408–​426. 25 This issue is further elaborated upon in the following section on the relationship between the rule of law and civil disobedience. See T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001), ­chapters 2–​4. 26 Harris, ‘Introduction’, 13. 27 Rawls, Theory of Justice, 366–​367; also see King, ‘Letter from Birmingham’. 28 Harris, ‘Introduction’, 10–​12. 29 Ibid., 32–​33; Cohen, Civil Disobedience, 22–​36. 30 Rawls, Theory of Justice, 373–​376. 31 Ibid., 373–​375. 32 ‘An Urgent Call for Earnest Dialogue and Resect Regarding Universal Suffrage and Civil Disobedience’, Catholic Diocese of Hong Kong, issued 24 July 2013, www. catholic.org.hk/​v2/​en/​diocesan_​eng_​statement_​240713.pdf. See also the comment of Lord Hoffmann in R v.  Jones [2006] UKHL at para. 89:  ‘civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history … It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions, which are generally accepted by the law-​breakers on one side and the law-​enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account.’ 33 Greenawalt, Conflicts, 184–​185.

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Civil disobedience and the rule of law 159 34 Harris, ‘Introduction’, 31; Rawls, Theory of Justice, 373; Greenawalt, Conflicts, 229. 35 Harris, ‘Introduction’, 33–​34; Rawls, Theory of Justice, 366–​367; King, ‘Letter from Birmingham’, 74. 36 Wilson Carey McWilliams, ‘Civil Disobedience and Contemporary Constitutionalism: The American Case’, Comparative Politics 1 (1969): 221–​227, at 226. 37 Harris, ‘Introduction’, 31–​ 32; Rawls, Theory of Justice, 374; Dworkin, ‘Civil Disobedience and Nuclear Protest’, 110. 38 Randall Peerenboom, ‘Varieties of Rule of Law’, in Asian Discourse of Rule of Law: Themes and Implications of Rule of Law in Twelve Asia Countries, ed. Randall Peerenboom (London: RoutledgeCurzon, 2004), 1–​53; Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004). 39 Ibid. 40 Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), 11–​12. 41 The International Commission of Jurists in the Declaration of Delhi (1959) stated that ‘the Rule of Law is a dynamic concept … which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized.’ 42 Dieter Grimm, ‘Levels of the Rule of Law on the Possibility of Exporting a Western Achievement’, European-​Asian Journal of Law and Governance 1 (2011): 5–​11. 43 See Joseph Raz, ‘The Rule of Law and its Virtues’, in The Authority of Law: Essays on Law and Morality, ed. Joseph Raz (Oxford: Oxford University Press, 1979), 210–​229. 44 Brian Z. Tamanaha, ‘The History and Elements of the Rule of Law’, Singapore Journal of Legal Studies (2012): 232–​247, at 233. 45 Ibid., 233–​236. 46 Law enforcement mechanisms such as the police, which are run by government officials, are the institutions needed to ensure that citizens are bound by and abide by the law. 47 Tamanaha, ‘History and Elements’, 240. 48 Ibid., 244. 49 Ibid. 50 Ibid. These institutional arrangements include: (1) the selection of judges based upon legal qualifications (their legal training and experience); (2) long-​term appointments for judges; (3) protection against the removal of judges in retaliation for their decisions; and (4) reasonable remuneration for judges, with sufficient resources to maintain a functioning court system. 51 The two exceptions may be Hong Kong and Singapore. For the rule of law in Hong Kong, see Albert H.Y. Chen and Anne S.Y. Cheung, ‘Debating Rule of Law in the Hong Kong Special Administrative Region, 1997–​ 2002’, in Peerenboom, Asian Discourses, 250–​285. For the rule of law in Singapore, see Li-​Ann Thio, ‘Rule of Law within Non-​liberal “Communitarian” Democracy:  The Singapore Experience’, in Peerenboom, Asian Discourses, 180–​221, and Jothie Rajah, Authoritarian Rule of Law:  Legislation, Discourse and Legitimacy in Singapore (Cambridge:  Cambridge University Press, 2012). 52 See Roy Gregory and Philip Giddings, ‘The Ombudsman Institution:  Growth and Development’, in Righting Wrongs:  the Ombudsman in Six Continents, ed. Roy Gregory and Philip Giddings (Amsterdam: IOS Press, 2000), 1–​20; Linda C. Reif, The Ombudsman, Good Governance and the International Human Rights System (Leiden: Martinus Nijhoff Publishers, 2004), ­chapter  1; John Robertson, ‘The Ombudsman Around the World’, in The International Ombudsman Yearbook, volume 2, ed. International Ombudsman Institute and Linda C. Reif (Leiden: Brill, 1998), 112. 53 Anders Grönlund, Fredrik Svärdsten and Peter Öhman, ‘Value for Money and the Rule of Law:  The (New) Performance Audit in Sweden’, International Journal of Public Sector Management 24 (2011):  107–​121; Carlos Santiso, ‘Improving Fiscal

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160 B.Y.T. Tai Governance and Curbing Corruption:  How Relevant are Autonomous Audit Agencies?’, International Public Management Review 7 (2006): 97–​108. 54 Yina Mao, Chi-​Sum Wong and Kelly Z Peng, ‘Breaking Institutionalized Corruption: Is the Experience of the Hong Kong Independent Commission Against Corruption Generalizable?’, Asia Pacific Journal of Management 30 (2013): 1115–​1124. 55 James Harrison and Mary Cunneen, An Independent Police Complaints Commission (London: Liberty, 2000). 56 See the conception of rule of law II (democracy) as distinguished from rule of law I  (independence of the courts and the autonomy of judges) advanced by Jan-​Erik Lane in Jan-​Erik-​Lane, Constitutions and Political Theory, 2nd edition (Manchester: Manchester University Press, 2011). 57 This is a comment made by Justice Bokhary, a retired permanent judge of the Court of Final Appeal, in an interview with the Hong Kong Economic Journal on 1 October 2015. 58 General Comment 25 issued by the Human Rights Committee under article 40, paragraph 4, of the International Covenant on Civil and Political Rights. Adopted by the Committee at its 1510th meeting, U.N. Doc. CCPR/​C/​21/​Rev.1/​Add.7 (1996), para. 21. 59 Ibid. 60 Ibid. 61 Ibid., para. 15. 62 Ibid. Examples of reasonable and unreasonable restrictions are a minimum age and a particular political opinion/​membership of a particular political party, respectively. 63 See articles 19, 21 and 22 of the International Covenant on Civil and Political Rights. It is suggested that positive measures should be taken to overcome specific difficulties, such as illiteracy, language barriers and poverty. Information and materials about voting should be available in minority languages. Specific methods, such as photographs and symbols, should be adopted to ensure that illiterate voters have adequate information on which to base their choice. See General Comment 25, Note 65, para. 12. 64 Ibid., para. 26. 65 Ibid., para. 27. 66 Ibid., para. 12. 67 Ibid., para. 26. 68 See Rawls, Theory of Justice. 69 David A. Funk, ‘Major Functions of Law in Modern Society’, Case Western Reserve Law Review 23 (1972): 257–​306; Dennis Lloyd, The Idea of Justice (London: Penguin Books, 1981), ­chapter 6. 70 Luc B. Tremblay, The Rule of Law, Justice and Interpretation (Montreal: McGill-​Queen’s University Press, 1997), ­chapter 6. 71 Ibid., 169–​170. 72 Tamanaha, ‘History and Elements’, 233. 73 The application to citizens is considered in the next section of the chapter. 74 Lon L.  Fuller, The Morality of Law, 2nd edition (New Haven:  Yale University Press, 1969). 75 Laws apply to general classes but not to specific persons or entities. Generality significantly limits the discretion of judges and others in authority. It forces them to justify the distinctions that they make between persons by reference to the relevant legal rules and principles. 76 The law must be open and adequately publicised so that the people, who are to be guided by the law, are able to find out what it is. Laws may also be subject to public criticism. If they are not made readily available, there is no check against their disregard by those charged with their application and enforcement.

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Civil disobedience and the rule of law 161 77 Laws should not be changed too frequently, or people will find it difficult to find out what the law is at any given moment and will be constantly in fear that the law may have changed since they last learnt what it was. Stability is particularly essential for people’s long-​term planning of their lives, since they are to be guided by the law in their long-​term decisions. 78 Laws should not be ambiguous, vague, obscure or imprecise, as such laws would be likely to mislead or confuse at least some of those who desire to be guided by them. 79 If a retrospective penal liability is imposed, the individual is placed in the position whereby his or her conduct was lawful at the time of the action in question, but he or she is subsequently being held responsible as if the conduct had then been unlawful. Non-​retroactivity is essential for certainty of the law, as it ensures that people can be certain of the legal consequences of their actions before they carry them out. 80 Laws should not have contradictory requirements or should provide guidelines for resolving the incompatibility between different laws. 81 Actions that the law requires and forbids must be of a kind that people could reasonably be expected to do and avoid. The law must not impose impossible requirements. Legislators and judges must act in good faith, and believe that the laws in place can be obeyed and executed. 82 The law should not grant arbitrary power to the government so as to prevent it from using legal power for personal gain, favouritism or acts of vengeance. 83 See Paul Craig, Administrative Law, 7th edition (London: Sweet & Maxwell, 2012), ­chapters 12–​14; William Wade and Christopher Forsyth, Administrative Law, 11th edition (Oxford: Oxford University Press, 2014), ­chapters 12–​14. 84 See note 67. 85 Allen Buchanan, Justice, Legitimacy, and Self-​determination:  Moral Foundation for International Law (Oxford: Oxford University Press, 2004), 256. 86 Adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 2200A (XXI) on 16 December 1966. Entered into force on 23 March 1976. 87 Adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 2200A (XXI) on 16 December 1966. Entered into force on 3 January 1976. 88 See also International Commission of Jurists, The Rule of Law in a Free Society:  A  Report of the International Congress of Jurists (Geneva:  International Commission of Jurists, 1959). 89 Grimm, ‘Levels of the Rule of Law’. 90 Tamanaha, ‘History and Elements’, 245. 91 Ibid. 92 Ibid., 247. 93 Ibid. 94 Ibid. 95 Geoffrey Walker, The Rule of Law: Foundation of Constitutional Democracy (Carlton: Melbourne University Press, 1988), ­chapter  1, at 41. This is needed to sustain ROL [1]‌. 96 Joseph Raz, ‘The Politics of the Rule of Law’, Ratio Juris 3(3) (1990): 331–​339, at 339. This is needed to sustain ROL [2]‌. 97 This is needed to sustain ROL [3]‌. 98 This is needed to sustain ROL [4]‌. 99 Jane Stromseth, David Wippman and Rosa Brooks, Can Might Make Rights? Building the Rule of Law after Military Interventions (Cambridge:  Cambridge University Press, 2006), ­chapter 8. 100 Bruce Ackerman, We the People, Volume 2:  Transformation (Cambridge, MA:  The Belknap Press of Harvard University Press), 19–​20.

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162 B.Y.T. Tai 01 King, ‘Letter from Birmingham’. 1 102 Haksar, ‘The Right to Civil Disobedience’, 412. 103 Lofkowitz, ‘On a Moral Right’, 214. 104 Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law, 2nd edition (New Brunswick: Transaction Publishers, 2001), 18. 105 Ibid., 24. 106 Ibid., 23. 107 Ibid. 108 Ibid. 109 Ibid., 25. 110 Ibid., 26.

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9  From civil disobedience to institutional politics Conflict over the Public Order Ordinance in 2000* Agnes Shuk-​mei Ku The dispute over the Public Order Ordinance in 2000, which involved a campaign of civil disobedience against the law, represented the first major conflict over civil rights in the aftermath of the right of abode saga in post-​handover Hong Kong. The conflict was both revealing and constitutive of the changing state–​society relationships that were yet to unfold. More specifically, it demonstrated both the power and limits of resistance by the people and the government’s increasing will, as well as the strategies it used, to rule within the ‘law and order’ framework under continual challenges. This chapter analyses the conflict from a discursive-​dramaturgical perspective, highlighting the relative fluidity within the field of possibilities and constraints. In analytical terms, the dispute constituted an instance whereby the boundary of civil autonomy was tested through the interplay between state power and citizenship practice and between discourse and dramaturgy.1 Under the competing discourses, civil space was negotiated through a symbolic process of the meaning construction and reconstruction of studenthood, street activism and civic propriety on the one hand and a series of political and performative acts aimed at scripting and re-​scripting the drama by the contenders and the government on the other. Two specific questions are pertinent. First, how and why was the pro-​rights alliance first able to present a successful dramaturgy of legitimate resistance around the discourses of rights and the rule of law in order to expand the scope of civil autonomy beyond legal confines? Second, how, and with what political and symbolic effects, did the state later present a dramaturgy of the restoration of ‘law and order’ that delimited civil space? The discursive field of civil society The discursive field of civil society consists of a set of strategic actors, a system of discourses and a pattern of state–​society relations (as configured by the type of state regime) that define the boundary of permissible claims and action over issues of rights and citizenship. Broadly speaking, scholars distinguish between ‘rule of law’ in liberal regimes and ‘rule by law’ in authoritarian or totalitarian regimes. Hong Kong presents a mixed case. Its colonial history left it a dual legacy of a tradition of law and order and a new discourse of rights and rule of law, the tensions between which have been exacerbated since the handover.

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164 A.S. Ku During the period of British rule, in the absence of democracy, the institutional operation of the rule of law remained partial. There in fact emerged a conscious articulation of law and order as part of the governing ideology, which intensified after mass riots in the mid-​1960s. The Public Order Bill of 1967, in particular, became a symbol of colonial power vis-​à-​vis civil rights. Struggles against the law in the late 1970s led to an amended ordinance in 1980, yet human rights protection on the whole remained very weak in legal terms at least until the transitional period.2 During the 1980s and the 1990s, in the context of the ‘1997 issue’, the mixed colonial legacy, as well as the rising international norm of human rights, became conducive to the development of two conflicting discourses of state–​civil society relations –​a more rights-​based discourse stressing democracy, rights, and rule of law, and an authoritarian discourse stressing stability, control, and law and order. The former, as advocated by pro-​democracy and pro-​rights groups, was strongly opposed by the Chinese government, as well as a conservative alliance of business elites and pro-​Beijing groups. In 1989, the suppression of the student movement at Tiananmen Square nevertheless helped place the ideas of rights and rule of law at the centre of political discourse. This was most distinctly shown in the enactment of the Bill of Rights in 1991, as well as in the subsequent liberalisation of law under the governorship of Chris Patten, such as the Public Order Ordinance and the Societies Ordinance (which formally incorporated a rights component into the law). Today, the two ideologies –​of state–​society relations in general and of the law in particular –​operate simultaneously. The Basic Law includes a Bill of Rights, which incorporates the International Covenant on Civil and Political Rights and other human rights covenants. To a large extent, the rule of law remains an institutionalised norm in the judiciary within the common-​ law tradition. Nevertheless, the law and order ideology has resurfaced, with the most enthusiastic support from the government, conservative elites and pro-​Beijing groups. The SAR government exists within a largely authoritarian structure that is skewed towards a conservative stance. In July 1997, the Beijing-​appointed provisional legislature re-​amended the ordinances on civil liberties in terms that were stricter than those relaxed during the final years of British rule.3 In 1999, in the right-​of-​ abode dispute, its turning to Beijing for constitutional interpretation of the Basic Law after the ruling of the local Court of Final Appeal marked the first major sign of a deepening trend towards legal and political authoritarianism. The government justified itself on the grounds of legality, speed and effective social control in order to reduce drastically the number of Chinese mainlanders eligible to settle in Hong Kong. This move roused fierce opposition from both abode-​seekers and pro-​rights groups, which advocated the values of human rights, constitutionality, local autonomy and the rule of law.4 State and civil society have been in a tug-​of-​ war ever since, and the space for civil autonomy remains highly contested. Trigger points for the drama In July 1997, the provisional legislature amended the Public Order Ordinance, which stipulated, amongst other things, that marches of more than 30 people or

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Civil disobedience and institutional politics 165 sit-​ins of more than 50 people required a seven-​day advance notification to, as well as a notice of no objection from, the police. Non-​conformance to such legal requirements would subject the protesters to criminal punishment. The police, moreover, were empowered to regulate demonstrations and to consider banning them on the grounds of ‘national security’ and the ‘rights and freedom of other people’, in addition to ‘public safety’ and ‘public order’ grounds. Given the terms of the Ordinance, considerable tension and negotiation ensued over the boundaries of legality, illegality and legitimacy. In the first three years after the handover, there were more than 6,000 protests and demonstrations, of which around 400 were held without seeking the advance permission required under the Ordinance, although the police took no action against them.5 In practice, these illegal protests, as well as the informal ‘permission’ granted them by the police, expanded the actual space for civil autonomy beyond the legal confines of the Ordinance. Deep conflicts were nevertheless sparked in June and December 2000 when the police exercised power in a way that undermined goodwill and exposed the harshness of the law. The struggle against the Public Order Ordinance was not planned beforehand, but broke out by accident during a demonstration in June 2000. It was the long and tortuous struggle between the government and abode-​seekers over the right of abode that had ignited the demonstration, first in June and then later in August. In fact, following Beijing’s interpretation of the Basic Law in June 1999, there had been ongoing and escalating conflicts over the issue. The first major clash between the police and abode-​seekers took place on 3 December 1999 when, upon the Court of Final Appeal’s ruling that Beijing’s interpretation was valid and binding (a ruling that could lead to their immediate deportation), a few of the latter fought the police with rocks, bamboo sticks and flowerpots outside the central government offices. On 25 June 2000, an organised protest saw 1,200 people march to mark the first anniversary of Beijing’s interpretation of the Basic Law. At dawn the next day, a group of protesters, including dozens of university students from the Hong Kong Federation of Students (HKFS), abode-​seekers and others, stayed on outside the central government offices after an overnight demonstration. They refused to leave, and scuffles broke out when the police used pepper spray to disperse them. Television footage also showed a policeman punching a student in the back of the head. Twelve protesters suffered mild injuries. The incident was followed in August by the arrests of five university students, eight right-​of-​abode seekers and one citizen. In September, another five students were arrested, three of whom had already been held over the June episode in relation to an earlier demonstration in April. On 20 April, in opposition to the proposed university tuition fee increase, some 50 to 70 university students had marched to government headquarters. What started as a peaceful demonstration descended into scuffles when the students attempted to break through the police lines barring them from making their way to the office of the secretary for education and manpower. The scuffles did not appear to be serious, however, with newspapers reporting that only ‘slight bodily contact [had] happened’.6 In the end, 16 people, including seven university students, were arrested over the April and June demonstrations. They were accused of taking part in and assisting the organisation of an unlawful

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166 A.S. Ku assembly and of obstructing the police in the execution of their duties. The 16 protesters faced the possibility of prosecution subject to a maximum penalty of five years’ imprisonment. The use of unusual force by the police in the June episode marked the beginning of the conflict, but the dramatic heat of the event was reduced by the police decision to resort to the tactic of an internal investigation, which closed off public scrutiny. The heat was turned on again with the arrests on 15 August and 28 September, which brought into the public spotlight the immense institutional power of the police and the harshness of the Ordinance. The arrests seemed to be motivated by a particular event. It took place about two weeks after the attempted suicide at Immigration Tower of several abode-​seekers whose frustrations had reached boiling point after a string of recent court defeats. That attempted suicide in fact turned out to be an arson attack that caused serious injury and deaths and aroused public outrage. Whilst the government might have found this an opportune moment to take action against abode-​seekers and the student activists who still supported them, the arrests subsequently developed into a public drama of intense civil conflict around two related issues: the excessive power of the police and the legitimacy of the Ordinance. Opposition discourse and the performance of civil disobedience In the first stage of the Ordinance dispute, the government defined the protesters as non-​law-​abiding citizens, but the opposition discourse managed to gain sway, and it soon developed into the successful performance of civil disobedience. Public opinion was not one-​sidedly supportive, as evidenced by a number of people telephoning radio programmes to express their disapproval of the students’ law-​breaking behaviour. Yet, by and large, newspaper editorials, commentaries and public opinion surveys showed much sympathy for the students, and support was mobilised from academics, ex-​student movement leaders, the legal profession, pro-​democracy legislators and other civic groups. The interesting question is, in view of the competing frame of an ‘illegal’ undertaking, how did the opposition discourse come to establish its meaning and credibility? The dramaturgy for the discourses of rights and rule of law was grounded at the outset through a more or less consensual construction in the public sphere: the police using excessive force against peaceful demonstrations. Within the ‘law and order’ framework, the government denied the allegation, portrayed the police as dutiful agents of law enforcement, defended the use of pepper spray as a minimal use of force in the circumstances and accused the students of a breach of peace involving physical attacks against the police. Yet despite such framing by the government, what made the alternative, consensual construction more plausible was the performance by the protesters, that is, the orderly, non-​violent and non-​ provoking manner in which the rallies were held: It was on the whole a peaceful, rational protest … The arrests are undoubtedly an insult to the right to join peaceful demonstrations.7

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Civil disobedience and institutional politics 167 By no stretch of the imagination can pepper spray be described as minimum force … Against stone throwing mobs it is a necessary protection. But against unarmed student demonstrators?8 Other critics went further to juxtapose the peaceful and innocent nature of the demonstration against the ‘criminal and coercive enactment of law’9 and ‘political retaliatory action against student leaders who frequently organize anti-​ government activities’.10 Besides sympathy from the press, resistance against both the police and the Ordinance and support for the arrested protesters also emerged in the form of collective actions. These included a silent rally by about 120 students and activists from organisations such as The Frontier and April Fifth Action on 20 August and a joint statement of support for the arrested students from 85 academics from several universities on 28 August. The resistance movement gathered momentum around late September and early October when the government pursued the second arrests of five students over the aforementioned April demonstration. It was at this juncture that a coalition of student activists, pro-​rights groups, ex-​student movement leaders and other social groups mounted a campaign of civil disobedience against what they called the ‘evil law’. From a dramaturgical point of view, peaceful illegal protests do not by themselves define a drama of civil disobedience. The HKFS had been following the same practice of legal non-​cooperation for more than ten years: they only notified the police 24 hours before their assembly without seeking any formal approval. However, their previous protests had not created a dramatic sense of civil disobedience. Neither had the 400 unauthorised protests that had taken place under the SAR government. What marked the difference between the current and previous protests was the intensity of the symbolic meanings conveyed through an ensemble of political, discursive and dramaturgical mechanisms, which paved the way for a battle against the legitimacy of the Ordinance. First, the government was seen as posing serious threats to civil liberties, both real and symbolic. Right at the outset, the police became an agent of injustice victimising the student protesters. The students, amidst increasing public sympathy, began to consciously act out the role of victim by calling a radio programme to disclose details of and express worries over the harassing phone calls their families had received from the police. The resulting coercive and intimidating image of the police revealed the dangerous potential of the Ordinance, and the capricious arrests further posed a real threat to the rule of law. The arrests of selected protesters on selected occasions after a long lapse of time demonstrated arbitrariness and inconsistency on the part of the police. Particularly worrying was the possibility that political considerations might be involved in targeting students as a pre-​emptive threat against unwelcome protests on National Day on 1 October. On 9 October, the Bar Association solemnly presented such concerns in a press conference: An important aspect of the Rule of Law is the concept that all law should be applied objectively, consistently and fairly … We note with concern … We are

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168 A.S. Ku also disturbed by the timing and the manner of the arrest of the university students … We believe that there are serious issues as to whether the current law … We strongly urge the Government to conduct a review of the current law. With its public image, gained through the right-​of-​abode struggle, as an outspoken, rational and unfaltering guardian of the rule of law as a bulwark against the authoritarian state, the Bar Association’s open declaration drummed up further persuasive power for the dramaturgy of the students’ victimisation by the police. The discursive effects accumulated to undermine the presumed link between law and legitimacy with regard to the Ordinance, as well as the scope of police power allowed under it. Appearing alongside the police, Secretary for Security Regina Ip acted out the role of an unyielding guardian of law and order in a high-​profile manner. Discursively, she presented a succinct interpretation of the idea of law and order, with an emphasis on control and order. In justifying the arrests, she insisted: ‘It is impossible for the Government to condone such open, repeated flouting of the rule of law.’ Stressing compliance with and equality before the law, she dared the students to have the courage to face up to the consequences of their actions. Dramaturgically, she personified a staunch, arrogant, authoritarian and yet outspoken bureaucrat and became a popular object of political caricature: she had a stiff look and a callous style; her facial expressions showed a tinge of contempt and smugness; her tone was hard, and her words intimidating; and her stance was never accommodating. Ip’s insistent stress on law and order, as well as her unusually unsympathetic and provocative style, further dramatised and made vivid the threat of state power, which drew increased public criticism. Second, on the other side of the drama, illegal protests were legitimately reconciled with the idea of civil rights, which justified further resistance. Emboldened by public support, the students began to shift roles from victims to heroes in a performance of civil disobedience. That reconciliation was first made possible by the appeal of peaceful assembly, and it was also justified by the ideas of civil rights, constitutionality, human rights and the rule of law. In terms of dramaturgy, the performance of heroic resistance was effected through speeches, action and other symbolic expressions. In terms of rhetoric, the spirit was one of defiance, self-​ sacrifice, justice and rights: Civil disobedience is a form of protest … peaceful, rational, non-​violent … We believe in using such a spirit of ‘self-​sacrifice’ to expose the unjustness and irrationalities of the laws/​ordinances.11 We shall not observe any evil law. We did not seek police approval this time and we shall not do so in the future. We are prepared to face the consequences and will exhaust all channels to express our discontent.12 Symbolically, some students associated themselves with the thinking of Indian independence leader Mahatma Gandhi by wearing black T-​shirts printed with his

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Civil disobedience and institutional politics 169 words. In action, they dared to provoke further arrests and prosecution rather than beg for leniency from the police. The student protesters were not acting alone, but were able to demonstrate the power of civil disobedience through the participation of their supporters. On 2 October, the HKFS organised an unauthorised march and assembly in condemnation of the Ordinance, which mobilised more than 300 people, including pro-​democracy legislators, the professional teachers’ union, religious groups, women’s groups and other advocacy groups. The challenge presented to authority was direct and daring. For example, legislator Szeto Wah said to a policeman, ‘Go ahead [and] register my Hong Kong ID! I  am participating in an illegal assembly’. Many protesters chanted ‘Arrest me! Arrest me!’ The police took no action except to issue verbal warnings, which were drowned out by the chanting.13 Clearly, street protests had occupied the centre stage of the drama. Capitalising on such sentiments of support, ex-​student movement leaders pronounced that another, larger-​scale (and illegal) protest was being planned. A few days later, the Department of Justice announced that it would not prosecute those arrested over the April protest, whilst the fate of those involved in the June protest was left undecided. Despite this conciliatory move, resistance not only did not die down but, to the contrary, was emboldened. One ex-​student movement leader proclaimed: ‘The power of civil society has been shown! We shall continue the struggle!’ An opinion poll also showed that public support was on the side of the pro-​rights alliance. More than half of the respondents (56.7 per cent) did not agree with prosecution, compared with 20.4 per cent who did. The poll also showed 42.7 per cent to be in favour of cancelling the system of approval by the police, compared with 26.8 per cent who were against it.14 On 8 October, more than 1,000 people joined the illegal protest organised by the ex-​student movement leaders. They marched from the city hub to the central government office, burned a mock copy of the Public Order Ordinance and chanted slogans that drowned out the warnings of the police: ‘Down with the Public Order Ordinance. Hand me back my civil rights.’ These symbolic acts were deliberated to convey a sense of public rage, to defy the authority of the police and to challenge the Ordinance in a high-​profile manner. The performance of civil disobedience was not only persuasively conducted by the student activists, but also gained dramatic force through the participation of other people. This presented a strong and direct challenge to both the enforceability and legitimacy of the Ordinance. In public discourse, the power of the performance registered a remarkable effect that pointed to an urgent need to review or amend the Ordinance: The power of civil disobedience lies in making laws ineffective … Laws that cannot be enforced should be amended or even removed by the government … [as there is] a strong public outcry for a review of the Public Order Ordinance.15 This particular law has been decisively held in contempt, not by a group of determined activists alone but also with the backing of majority opinion …

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170 A.S. Ku This ordinance is unenforceable, and that is surely the most compelling argument for amendment.16 Third, the students possessed a special, almost sacred status that added symbolic weight to the civil struggle, the result of public construction via the media and their supporters. Given their role as students, as well as the political conviction they demonstrated in previous events,17 they largely succeeded in showing that their involvement in the political and civil struggle was not motivated by any self-​interest. Hence, public discourse, opinion surveys and supportive collective action focused only on students to the exclusion of other non-​student arrestees. University heads called for lenience towards the students, and more than 500 university professors petitioned against their prosecution in a joint statement: ‘We believe that while students should attend to their studies … [t]‌hey should neither tolerate nor turn a blind eye to social injustices.’ The narrative celebrating studenthood or student activism as a symbol of idealism was given its most succinct account in a newspaper editorial that characterised students, especially student leaders, as generally embodying the ‘conscience of society’: [S]‌tudents are pure, empathetic and righteous, and they hate vices. Student leaders often represent and reflect the superb qualities of the students; they embody and reflect the conscience of society.18 Most significantly, there was a symbolic link with the long tradition of student activism against social injustice and political expression. Ex-​student movement leaders initiated a campaign in support of the students: 370 names were collected from past leaders, and more than 1,000 people joined the ‘march against repression of the student movement’ on 8 October. An organiser described the march as an historic and unprecedented landmark of collective unity in the history of the student movement. During the march, prominent ex-​student movement leaders spoke out about their acts of civil disobedience against colonial repression 20 years previously, which had finally led to the amendment of the Public Order Ordinance in 1980. In sum, a campaign of civil disobedience was effectively conducted through scripting, role enactment, symbolic expressions and the activation of tradition within the discourses of rights, rule of law and constitutionality. Through their civic action, the protesters defied the law and asserted their rights; in their demands, they urged against the prosecution of students and called for a legal amendment. The scale of mobilisation may not have been large, but the momentum was increasing, and the symbolic meaning was conspicuous. Release of dramatic suspense and the lost appeal of civil disobedience On 25 October, the Department of Justice finally decided not to prosecute those arrested for the June demonstration, although no official statement was provided. Earlier, with regard to the April demonstration, the Department only briefly explained that the non-​prosecution decision was reached on legal grounds after

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Civil disobedience and institutional politics 171 having ‘reviewed all the available evidence’ and having considered ‘all the circumstances’. The real intention of the government could not be directly inferred from these brief remarks, but it was clear that it was scrambling to maintain an image of a strong government that did not simply yield to public pressure with the effect of rendering the law unenforceable. Thus, when public critics welcomed it as the right decision based on a discretionary consideration of public pressure in favour of the lenient enforcement of the law,19 the Department of Justice denied that was the case and stressed only legal considerations. It is indeed possible that the Department did not see a strong prosecution case, especially given an independent judiciary that followed the rule of law. Presumably, however, if there were insufficient legal grounds for prosecution, that should simultaneously call into question the rationality of the Ordinance itself, as the demonstration did in fact break the law. Yet the government remained adamant about keeping the law unchanged. In any case, as far as the dramaturgical and political effects were concerned, two inter-​related processes were at work in bringing about a new turn that worked to the advantage of the government. First, in public discourse, the decision by the Department of Justice served to undermine the continued appeal of street activism. Second, on the side of the government, it sought to defuse further resistance while standing firm as the die-​hard guardian of law and order, a role taken up primarily by the secretary for security in her defence of the Ordinance. These factors made way for a re-​scripting process whereby street activism gave way to institutional politics as the new centre stage. The discussion in the rest of this chapter will focus, first, on the wider symbolic and institutional contexts that enabled and constituted that shift and, second, on the symbolic and political effects of the government moves that defined the final outcome. The government’s two decisions not to prosecute might be expected to have demonstrated the political success of the opposition movement, and yet that movement was not empowered. In effect, those decisions, made by the Department of Justice, worked to release much of the dramatic tension built up in the heated campaign of resistance. In early October, that tension was crystallised around the suspense concerning the likelihood of the arrested students being prosecuted over the June demonstration. Once the government dropped the case, the suspense disappeared, and the ‘evilness’ of the Ordinance was drastically diminished. This partly explains why the anti-​Ordinance campaign lost much of its steam in the second stage: However, when the government decided not to prosecute the students, the movement for [the] amendment of the Public Order Ordinance came to a crossroad, because the rallying point for the campaign was lost (or it could be regarded as a success).20 In such a context, even though the student protesters vowed to fight on until the ‘evil law’ was rectified, and pro-​rights groups and democratic legislators called on the government to review and amend the Ordinance, collective action

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172 A.S. Ku in the form of open petitions or large-​scale protests against the Ordinance died down.21 Amongst other things, the end of the anti-​prosecution campaign prompted a concerted call, particularly by pro-​rights legislators, the legal profession and the press, to turn to institutional procedures for a legislative resolution. In fact, as early as the first week of October came news that Democratic Party legislators were working on a joint proposal for legal changes with other civic groups22 and planning to move a private members’ bill to amend the Ordinance via the legislature. Politically, this seemed to be a logical course to take, but after the government dropped the case for prosecution, the shift was also mediated through a process of meaning reconstruction in the public discourse, which began to denigrate street activism. A deeper look at the multiplicity of sub-​discourses reveals how public sympathy for the students embodied nuanced differences over the ideas of rights, civic propriety and studenthood, which both reinforced and fragmented the narrative of civil disobedience. For instance, there was a fine line between asking the government for lenience and forbearance and the heroic assertion of rights and resistance. Whilst the students and their supporters adhered to the latter, and academics suggested that ‘any such decision [of non-​prosecution] should be based on leniency towards the students’, an editorial published in the South China Morning Post (SCMP) on 6 October 2000 stated that students are at an age when rebellion is to be expected. Since there is a lot at stake in their futures, and because they are more than likely to become tomorrow’s respectable and law-​abiding citizens, it is unfortunate that the police did not feel disposed to show a little more forbearance. In this account, forbearance towards the students was the theme, and students were conceived not so much as the ‘conscience of society’ in a discourse of heroic resistance as being at a particularly rebellious age and poised to become future respectable and law-​abiding citizens in a framework of law and order. The account thus exemplified how underlying the demand for non-​prosecution could be a discourse that at one point added weight to the opposition discourse and yet diverged from it once the cause for sympathy (i.e. the possibility of prosecution) had been removed: the SAR is founded on the rule of law and thrives because of it. People cannot pick and choose which sections of the law they want to obey. When laws are repressive, they can be challenged, but a free society has legal means of bring[ing] about change. (SCMP, 26 October 2000) The idea was that, although street activism had played a significant role in stage one, it did not need to outlive it. A rule-​of-​law discourse presuming institutional pluralism, as well as an idea of law-​abidingness, was at work to underscore the necessary transition from activism to legislative politics. With a similar appeal to calm and reason, an editorial in Ming Pao Daily (26 October 2000) proposed

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Civil disobedience and institutional politics 173 that the government ‘take back the initiative by proposing a legal review … with a cool[ing]-​off period of two to three months first, so that we can have a rational and objective discussion’. The underlying ideas were rational discussion versus broiling and institutional order versus unresolved chaos. Whilst the government had remained adamant about keeping the law unchanged, the chair of the pro-​Beijing Democratic Alliance for the Better of Hong Kong had all along insisted that the Ordinance was no evil law in itself: It is [therefore] an unfounded and unfair accusation to say that the Provisional Legislative Council has restored a draconian colonial law … [P]‌eople should target their anger at the selective arrests, rather than the law itself.23 In the midst of increasing calls within the public discourse for a legislative resolution, what happened was that the government later appropriated the appeal to reason and usurped the idea of legal review while standing firm against any amendment of the law. The law and order discourse and strategy of re-​scripting by the government The next set of strategic moves by the government was made primarily by the Security Bureau under Regina Ip. Under the given institutional structure, it was she who, with her domineering profile, personified the law and order ideology, seized back the centre stage of the drama from street activism in favour of institutional politics, and finally achieved an ironic success for the government. Immediately after the Department of Justice announced the second non-​ prosecution decision, the police issued a letter to those arrested affirming the criminal nature of the demonstration and warning them of future prosecution in the case of a similar undertaking. Secretary for Security Ip also added, ‘No one is above the law. Just because some people are not prosecuted this time, it does not mean they would be exempt from prosecution forever’. Control over demonstrations was justified on the grounds of public order (such as the prevention of disruption to traffic), and the harshness of the law on the grounds of a deterrent effect: There is a need to keep the law harsh enough to have a deterrent effect if you hope the people [will] observe it. [The Ordinance] only targets participants who knowingly take part in an unauthorized assembly.24 It followed that whilst the law should be strict, its application could be lax. In this connection, the secretary for security openly called students a ‘headache’,25 and senior police officers privately branded activists ‘troublemakers’ and expressed concerns about the demoralising effect of non-​prosecution on frontline police. In brief, the government’s ‘law and order’ discourse stressed the need for public control, maintained the harshness of the law in principle,

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174 A.S. Ku afforded the police much discretionary power in practice and conceived of activists as unruly troublemakers rather than citizens with legitimate rights. That discourse enabled the government to defend the Ordinance, which also had the open support of Beijing.26 The stern delivery of the discourse of law and order, together with the aforementioned words of warnings, presented a dramaturgy of a government committed to the maintenance of law and order under the existing Ordinance. Within civil society, although the HKFS continued with lower-​profile, small-​ scale protests, political calls for a legal review continued to mount. It was in this period of deadlock that the secretary for security seized back the initiative by making a new public appeal to reason and launching a performance of sham public consultation and procedural resolution. The appeal to reason was in fact first proposed by the media, but was later appropriated by the government in a more favourable public climate. In late October, on RTHK radio, Secretary for Security Ip challenged the student activists to a debate on the Ordinance in the name of reason: We are not convinced by the so-​called viewpoints presented so far. Slogans are not truths and resorting to so-​called civil disobedience is no good way to resolve a problem … I want them [the students] to see us, and convince us. Amongst the press, there were opinions along the same lines: ‘[T]‌he fundamental issues surrounding the controversial Public Order Ordinance have become muddled by activism and exaggeration … too much sensationalist slogan-​shouting from those who oppose the ordinance.’27 The political climate was indeed undergoing changes, not only in the public discourse, but also amongst activists. For example, at this time, the HKFS was also working on a joint proposal for a legal amendment with other groups that had already scheduled a meeting with the secretary for security on 25 November. Although the joint proposal was originally an attempt to take the initiative for change from within civil society, it appeared that the government’s appeal could incorporate such a civil society initiative under the new frame of debate and dialogue. There was a brief interlude when the heat of resistance was cooling off in public. In an undemocratic structure where the government had the upper hand, pro-​rights groups and the public expected the government to at least perform a ritual or dramaturgy of sincere consultation. Hence, the heat of the drama intensified again when the secretary for security failed to meet this expectation, and instead suddenly proposed tabling a motion in support of the Ordinance in the Legislative Council on 22 November. The release of this news was accompanied only by a brief and ritualistic statement by a government spokesperson. The pro-​Beijing parties hailed it as a sign of the restoration of reason and order after a prolonged period of bickering. However, pro-​democracy legislators saw it as a pre-​emptive strike to obtain legislative support before genuine public consultation could begin. They also saw in it a failed dramaturgy for the claim of dialogue and consultation.

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Civil disobedience and institutional politics 175 Politically, in the specific dispute over the Public Order Ordinance in 2000, the government’s move produced two effects: it rejuvenated discontent against the government, but it also shifted the scene of that discontent further from the street and closer to the legislature. On one level, it played to sheer institutional power. Given the skewed structure of the legislature, which consisted mostly of conservative and pro-​Beijing elites, it was calculated that the motion would be passed with a simple majority. On another level, it involved dramaturgical considerations about legitimacy and performance. The intended dramaturgy was to present a strong and effective government taking the initiative to resolve the dispute through reasoned debate, public consultation and legislative support. There was initially a charge of hypocrisy, but the government later somewhat diluted it by conceding, at the request of the Legislative Council (Legco) House Committee, to adjourn the debate by about a month as a conciliatory gesture and to listen to public opinion. With the adjournment, despite a lack of trust in the government, pro-​rights groups unwittingly played a participatory role in the consultative process. (For example, when the government proposed sponsoring the motion, the Human Rights Monitor proclaimed it would resort to civil disobedience, but ­following the adjournment, it did not put that proclamation into action.) Moreover, it was with the shift to the theatre of institutional consultation that legislators’ voices and public expressions of opinion from both sides were mobilised via different channels. During this period, legal discussions by the Bar Association, legal scholars and government officials abounded in the newspapers. The conservative Liberal Party began to voice its opinions in newspaper columns, toeing the government’s line in stressing a balance between individual freedom and political order and discrediting the pro-​democracy legislators’ participation in law-​breaking protests. In the meantime, the Legco Security Panel held several open sessions to hear the views of the public. It was through such open sessions that a critical mass of support for the government’s position was mobilised from amongst the pro-​Beijing network. Most remarkably, right from the first session, dozens of groups and some individuals provided a chorus of support for the government’s no-​amendment stance:  ‘[the] law is made to protect the interests of the majority’; ‘I think the law is not too harsh, but too lenient. Even legislators came out to challenge the law’; and ‘some people will resort to arson attacks if the controls are eased.’28 Moreover, business groups such as the Hong Kong Chamber of Commerce also openly supported the government. Pro-​rights groups voiced their dissent in these open sessions as a counter-​balance, which, despite their protests against a ‘sham consultation, real dictatorship’, ironically reinforced the drama of reasoned debate and public consultation. All of these factors enabled the secretary for security to smugly proclaim triumph and crown the government as an agent of successful re-​scripting by taking back the initiative via the motion.29 Finally, in the subsequent meeting, Secretary Ip commandeered the stage of the legislative debate, and thereby seized media attention by giving a well-​rehearsed, provocative and elaborate speech that was dense with uncommon metaphorical references to the chaos, disorder and danger associated with unregulated and

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176 A.S. Ku emotional mass gatherings. She cited both local and overseas examples, including the then recent anti-​globalisation protests in Seattle and Melbourne. As expected, with the support of the conservative elites and pro-​Beijing groups, the motion was passed. Outside the Council building, emotions ran high, as about 300 ­people backing the Ordinance in its entirety waged a noisy verbal war with 40 opponents demanding that the law be amended. As the whole drama drew to a close with an anticipated political outcome, the scene felt like amateurs shouting for the sake of shouting. Did this constitute a success for the government? Politically, it was a victory that was ensured by the institutional structure. The law remained unchanged, continuing to impose unwarranted legal limits on civic freedom. Symbolically, however, it was at best an ironic success that put the state–​society relationship on an increasingly tenuous course. On the most manifest level of meaning construction, the motion debate may have given the government a chance to present a performance of public and legislative quasi-​consultation and to demonstrate its ability to mobilise support from conservative groups. This was necessary to endow the law with a certain degree of legitimacy. In the process, the secretary for security even labelled the opposition camp as ‘an extremely small minority of people voicing out their biased and extreme opinions’.30 However, on the deeper level of the perception of state legitimacy, public critics decried the confrontational stance and polarising tactics of the government. The opposition camp found the whole process to be ‘biased’, ‘antagonising’ and indicative of ‘fear-​mongering’, and they saw in it a self-​directed show of victory by the government: that is, ‘the government poising itself in such a commanding way, with the endorsement [of] the legislature, to declare victory’31 and ‘[f]‌or the moment, the Government has won a battle. But the War goes on’.32 Although the law remains unchanged to this day, the state–​society relationship has never been the same. On the one hand, the government has emerged as increasingly wedded to the maintenance of law and order, as shown in the conflicts involving arrests and prosecution under the Public Order Ordinance in May 2002. On the other hand, the contenders, having experienced both the power of organised resistance and frustration with the government, continue their resistance using old and new tactics. Concluding remarks The aim of this chapter is to delineate the negotiated space of civil autonomy in post-​handover Hong Kong through the contingent interplay of law, discourse, dramaturgy and politics. It takes the Public Order Ordinance dispute in 2000 as the first major test case of civil conflict in the shadow of the right-​of-​abode struggle. In that dispute, civil autonomy was a contested issue involving considerations of rule of law, rights, civic propriety, state legitimacy and the construction of a particular identity (such as studenthood). Given the multiplicity of discourses and sub-​discourses, citizenship practices and public criticisms opened up a contested space for political resistance and meaning reconstruction. On the government’s part, although it may have wished to strive for control and stable governance

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Civil disobedience and institutional politics 177 under the ideology of law and order, it was ironically the government itself that further politicised and radicalised society. The capricious arrests by the police posed a threat to the rule of law, and the process of consultation and legal review turned out to be a fake dramaturgy that reaffirmed state power. Ultimately, ideological differences were at stake: respect for a rights-​based discourse of rule of law versus the assertion of political and legal authoritarianism. Thus, despite its political victory, the government’s success under the ‘law and order’ framework was built on a very fragile basis. Pro-​rights groups saw a blunt, stubborn and imposing style of authoritarianism manifested in the way that government officials launched a biased consultation, in the manner in which they delivered themselves in public and in the legislature, and in their determination not to amend the Ordinance regardless of protests and opposition. The state–​civil society relationship became more fragile, leaving it easily prone to erupting into further civil conflicts. If, back in 2000, the SAR government was able to present a dramaturgy of the restoration of ‘law and order’ with ironic success, the question of whether or not it can establish a credible dramaturgical line to restore legitimacy amidst today’s mounting calls for democracy and civic liberty would be a fruitful line of inquiry for future research. Notes * This chapter draws on an earlier article by the same author; see Agnes Shuk-​mei Ku, ‘Negotiating the Space of Civil Autonomy in Hong Kong:  Power, Discourses and Dramaturgical Representations’, The China Quarterly 179 (2004): 647–​664. 1 The idea of dramaturgy bespeaks a distinctive understanding of political action as staged or performative practices, which engage meaning with the public through scripting, role enactment and other accompanying symbolic expressions. See Victor Turner, Dramas, Fields, and Metaphors:  Symbolic Action in Human Society (Ithaca:  Cornell University Press, 1974); Joseph W.  Esherick and Jeffrey N.  Wasserstrom, ‘Acting Out Democracy: Political Theatre in Modern China’, in Popular Protest and Political Culture in Modern China, ed. Jeffrey N. Wasserstrom and Elizabeth J. Perry (Boulder: Westview Press, 1992). 2 See Richard Klein, ‘The Empire Strikes Back: Britain’s Use of Law to Suppress Political Dissent in Hong Kong’, Boston University of International Law Journal 15 (1997): 1–​70; Peter Wesley-​Smith, ‘Protecting Human Rights in Hong Kong’, in Human Rights in Hong Kong, ed. Raymond Wacks (Hong Kong:  Oxford University Press, 1992), 17–​36. 3 For example, before 1995, the Public Order Ordinance required organisers to obtain a licence for public assembly. In 1995, the law was relaxed to remove the requirement for a licence. Then, in 1997, the amended law included a requirement for a notice of no-​objection from the police. 4 Agnes Ku, ‘Hegemonic Construction, Negotiation and Displacement:  Struggle over Right of Abode in Hong Kong’, International Journal of Cultural Studies 4(3) (2001): 259–​278. 5 According to the government, up to 4 October 2000, there had been arrests at nine of the 6,600 demonstrations; the police had objected to five planned demonstrations on the grounds of public safety and order, and three of those went ahead after the organisers agreed to change the arrangements (SCMP, 4 October 2000). 6 Ming Pao, 29 September 2000.

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178 A.S. Ku 7 Ming Pao, editorial, 29 September 2000. 8 SCMP, editorial, 6 October 2000. 9 Ming Pao, 22 August 2000. 10 Ming Pao, editorial, 29 September 2000. 11 HKFS, 27 August 2000. 12 Movement organiser, SCMP, 9 October 2000. 13 Alvin So, ‘Social Protests, Legitimacy Crisis, and the Impetus Toward Soft Authoritarianism in the Hong Kong SAR’, in The First Tung Chee-​hwa Administration: The First Five Years of the Hong Kong Special Administrative Region, ed. Lau Siu-​kai (Hong Kong: The Chinese University Press, 2002), 1–​39. 14 Apple Daily, 6 October 2000. 15 Economic Journal, editorial, 9 October 2000. 16 SCMP, 26 October 2000. 17 The student leaders, especially the president of the Student Union of the University of Hong Kong, were cast as playing an outstanding role on the side of justice in the earlier scandal about an alleged infringement upon academic freedom at the university. 18 Economic Journal, 28 August 2000. 19 Ming Pao, 26 October, 2000. 20 Tsoi Yiu-​cheong, an organiser of the campaign (Ming Pao, 6 January 2001). 21 On 6 and 20 November, the HKFS mobilised, respectively, fewer than 40 and about 70 people in an anti-​Public Order Ordinance demonstration, which was compared to the high tide of more than 1,000 in early October. 22 The Human Rights Monitor, the Human Rights Commission, the HKFS, The Frontier, the Association for Democracy and People’s Livelihood, and the Democratic Party jointly suggested retaining a notification system without decriminalising a failure to notify, and recommended specific safeguards against possible abuses of power by the police. 23 Tsang Yok-​sing, Ming Pao, 10 October 2000. 24 Quoted in SCMP, 26 November 2000. 25 Ming Pao, 5 November 2000; SCMP, 5 November 2000. 26 Beijing’s position was expressed by a vice-​director of the legal affairs commission of the National People’s Congress Standing Committee in early December (SCMP, 7 December 2000). 27 SCMP, 29 October 2000. 28 SCMP, 19 November 2000. 29 Economic Journal, 18 December 2000. 30 Ming Daily, 22 November 2000. 31 Economic Journal, 22 December 2000. 32 Democratic Party chair, SCMP, 26 December 2000.

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10 The artwork of Hong Kong’s Occupy Central Movement Marco Wan

Hong Kong’s Occupy Central Movement, or the Umbrella Revolution as it became known in the international media, was an event that changed the city’s cultural fabric. From its origins as a peaceful protest against the package of electoral reforms imposed on the city by Beijing, as well as against the city’s slow pace of democratisation more generally, it turned into an event that divided Hong Kong society in an unprecedented way, exposing divisions between people of different generations, political persuasions and aspirations. As the title of this volume indicates, any form of civil unrest has implications for the maintenance of law and order, and much of the local discussion of Occupy Central has focused on its legal dimension. For instance, there have been lively debates about whether it constituted a form of civil disobedience, as its organisers claimed, or whether it was merely a form of reckless public disorder for which they should have been punished.1 There have also been concerns about the abuse of police powers and whether the authorities used an inordinate amount of force to contain the protesters.2 Another strand of the discussion around Occupy Central has focused on its artwork. As one online art magazine noted during the movement, ‘colors abound [on] the streets … as protesters create public art and turn occupied areas into surreal exhibition spaces’.3 Arguably the most iconic artwork was the ten-​foot-​ tall wooden statue of The Umbrella Man by the artist Milk. This towering figure with an outstretched hand holding the symbolic umbrella of protest became an artistic focal point for the movement. However, the street art produced during Occupy Central extends far beyond The Umbrella Man, encompassing a plethora of hand-​drawn pictures, printed images and graffiti. There was keen awareness that once the government cleared the streets, much of this artwork would be lost. The Umbrella Movement Art Preservation project, or UMAP, was established as a way of archiving and preserving these images, although at the time of writing its digital archive is still under construction.4 This chapter moves beyond discussions of Occupy Central’s legality to explore the cultural significance of some of the images that this momentous event generated. Civil unrest cannot be understood in isolation from the societal forces that produced it, and the artwork of Occupy Central provides one medium for understanding such forces. This chapter therefore focuses on the movement’s

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180 M. Wan aesthetic, rather than political or legal, dimension. It argues that its street art provides a point of entry into questions of identity in Hong Kong. In other words, the images can be interpreted as reflections of the ways in which Occupy Central perceived itself, as well as the ways in which some Hong Kongers imagined their own sense of self. These images suggest that Occupy Central was an event that did not have a unitary or unambiguous notion of itself, and that this multifaceted self-​conception may be tied to the complex sense of self amongst many Hong Kongers in the early part of the twenty-​first century. Seeing Occupy The first thing to note about Occupy Central is that it was an intensely visual event. Much of its power came from the sight of thousands of people gathered in the streets of Hong Kong; the visual impact of a seemingly unending sea of protestors blocking the major thoroughfares of the city was itself testament both to the strength of the demands for a quicker pace of democratisation and the government’s unpopularity. Moreover, it is significant that in its early days the movement was galvanised by images of the police using tear gas and pepper spray on the protestors. As footage of non-​violent protestors consumed by tear gas, attacked with pepper spray and surrounded by baton-​wielding policemen circulated on television screens and social media, more people joined the movement out of anger and frustration with the police response. The pro-​and anti-​Occupy camps also identified themselves visually: supporters of the movement identified themselves by wearing yellow ribbons, whilst those who opposed it wore blue ribbons. Confrontations between the two groups on the streets and in the city’s metro system were common throughout the protest.5 The street art of Occupy Central constitutes one of the most important components of the movement’s visual dimension:  the sheer volume and diversity of images to which the event gave rise, and their ubiquity at the protest sites, means that any analysis of Occupy Central’s cultural impact should take them into account. As one online news report noted: the umbrella motifs whipped up by the dab hands of the city’s graphic designers were shared far and wide over the art gallery that is the internet, while everything from sticky notes to bunk beds, banners, and, of course, umbrellas made the rainbow of this color-​coded movement glow vividly on the streets.6 How can we begin to understand the significance of the artwork, both to Occupy and to Hong Kong society, at this particular historical juncture? One way of approaching this question is to think about these images in relation to the question of identity –​both the identity of Occupy Central and the paradoxes of Hong Kong identity that cultural studies scholars have long grappled with.7 As T.V. Reed has argued in the context of social movements in the United States, ‘identity becomes an issue only when it is no longer presumed,

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The artwork of Occupy Central 181 taken for granted. This means that identities emerging from self-​conscious political struggles are always unstable formations’.8 Occupy Central can be understood as an event through which such ‘unstable formations’ of identity emerged. As such, the prolific artwork it produced can be interpreted as attempts by the protestors and artists involved to articulate identity in visual form. In other words, the images with which Occupy Central represented itself reflected the ways in which it saw its mission, reasons for existence and modus operandi, in addition to –​or perhaps in spite of –​any formal verbal articulation of what the movement was and what it aimed to achieve. Analysis of the aesthetics of Occupy Central can show us something about the movement and about Hong Kong culture that more conventional political or legal discussions about civil disobedience or police powers may overlook. As a starting point, it is worth noting the difference in tone between the verbal articulation and visual manifestation of the movement. Occupy Central’s manifesto is a confident, focused explication of itself:  as a ‘campaign’ for ‘the election of the Chief Executive by universal and equal suffrage in 2017’, it sees itself primarily as a political movement with the single aim of establishing a democratic electoral system for the city.9 The manifesto posits three principles:  the electoral system must be established in a way that would ‘satisfy international standards’ for universal suffrage; the details of the proposal for such a system must be decided by a democratic process; and any act of civil disobedience must be ‘absolutely non-​violent’. It further outlines four steps for achieving its aim: the signing of a covenant, a deliberation day, citizen authorisation and civil disobedience. The entire campaign was to be driven by participants’ ‘love and concern for Hong Kong’. From the outlining of the movement’s motives to the description of its projected implementation, it is possible to sense a surety of tone and clarity of vision. When one turns from the manifesto to the images with which Occupy Central represented itself, however, one obtains a much more complex picture. The street art presents different, and at times conflicting, modes of self-​representation, and thus complicates the understanding one obtains from the manifesto. The artwork suggests that the movement hovered between different registers and that participants simultaneously saw it as a peaceful protest, an act of anarchism, a revolution, a form of vigilante justice and a striving for utopia. Peaceful protest One set of images corresponds to the movement’s self-​description as a form of civil disobedience that is ‘absolutely non-​violent’.10 As noted above, one of the major reasons for discontent was the police’s heavy-​handed tactics against protestors who were doing no more than sitting peacefully in the streets without weapons of any kind and without any noteworthy indication of an intention to cause disorder. One of the images shows Paddington Bear wearing a yellow raincoat and holding a yellow umbrella. The alignment of the protestors with this popular children’s literary character is evident in the picture: yellow is the colour of the

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182 M. Wan pro-​Occupy camp, and the umbrella became the de facto symbol of the movement because it was the main instrument the protestors used to protect themselves from tear gas and pepper spray. Opposite Paddington Bear we see the hand of a policeman; he is holding up a shield and screaming ‘Freeze! I said freeze!’ Above the policeman, in large writing, are the words ‘You’re such a thug’, presumably spoken by the policeman to Paddington Bear. In this image, the fact that a policeman feels the need to hold up a shield to protect himself from a character as innocuous as Paddington Bear, and that he labels him a ‘thug’ whose bodily movements should be restricted (‘freeze!’), indicates first of all that the police reaction was completely disproportionate, for no one would imagine a teddy bear to pose a threat of disorder. Moreover, it also indicates that the movement considered itself to be as harmless as this lovable character, with no intention or capacity to instigate a riot. Another image from the Occupy period, which the author recuperated from one of the protest sites, depicts a child with his arms around his knees. The child is wearing a red backpack with a red heart at the top. A tear falls from one eye, and his entire body is crouched beneath a yellow umbrella. Once again, the ­yellow umbrella suggests that this is a portrayal of a participant in the movement. The red heart suggests that the protestor is out on the streets because of his love for the city. The self-​representation of the protestor as a crying child hugging his knees in fear and self-​pity suggests once again that the movement saw itself as non-​violent, and indeed vulnerable –​a fearful child is no match for police armed with tear gas. Act of anarchism Another set of images, however, suggests that Occupy Central regarded itself not as a peaceful protest, but as an explicit act of anarchism. Throughout the duration of the movement, it was possible to find pictures of the mask from the film V for Vendetta on the streets of Hong Kong, with protestors themselves occasionally donning the mask. In a number of images that can still be found on the Internet, men wearing black hoodies (or T-​shirts) and masks hold up yellow banners with the words ‘I want genuine universal suffrage’ prominently displayed. The 2006 film V for Vendetta, directed by James McTeigue, is itself based on a graphic novel of the same name written by Alan Moore and illustrated by David Lloyd. The mask is commonly understood as a reference to Guy Fawkes, the best-​known member of the perpetrators of the Gunpowder Plot, which aimed, but failed, to blow up the House of Lords in England in 1605. The symbol ‘V’ with a circle around it in the film can be interpreted as an inverted symbol of the international anarchist movement, which is an ‘A’ with a circle around it. The ubiquitous references to McTeigue’s film on the streets of Hong Kong are pregnant with meaning: the proliferation of the Guy Fawkes mask during Occupy Central not only linked it to other Occupy Movements around the world, but also suggests that at least some of the protestors regarded the movement as a means of overthrowing the established order.

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The artwork of Occupy Central 183 Revolution In the centre of one image stands a woman in yellow. She holds a book close to her body with one hand, and with the other hand proudly holds up a yellow umbrella with a light at the tip. Behind her, in the background, are a number of people wearing face masks. These face masks can be interpreted either as a reference to the masks the protestors wore to prevent the inhalation of tear gas or as a form of political silencing. The female figure holding up a light with one hand and a book close to her body in the other is reminiscent of the Statue of Liberty in the United States, the icon of a nation founded on revolution. As such, this figure in yellow can be interpreted as a figure of revolution, suggesting that at least some of the protestors saw themselves as engaged in an act of revolution against injustice. This interpretation is further confirmed by a piece of street art that reworked the famous nineteenth-​century painting Liberty Guiding the People by the French Romantic painter Eugène Delacroix. The original Delacroix commemorates the French Revolution of 1830, which brought an end to the reign of King Charles X. Liberty, depicted as a young woman, stands in the centre of the painting proudly displaying the tricolour flag, which was the flag of the first French Revolution and remains the national flag of France today. Liberty wears the Phrygian cap, also known as the liberty cap, which signified the pursuit of liberty and individual freedom in nineteenth-​century France. Behind her are the French people, from a variety of social classes, who follow her to freedom, including a male member of the bourgeoisie (as identified by his jacket and tall black hat), a student from the École Polytechnique (as identified by his bicorne) and a young urban worker (the boy with two pistols). In the reworked Hong Kong image, the figure of Liberty holds a yellow umbrella instead of a tricolour flag, and the urban worker’s pistols have also been replaced by umbrellas. This artistic reworking taps into the spirit of revolution captured by Delacroix’s nineteenth-​century image, and at the same time expresses the anti-​government sentiments of the twenty-​ first-​century Occupy protestors. An image that is based on a painting with such a clear link to the 1830 revolution, and that so clearly identifies the symbolic yellow umbrella with the tricolour of the French Revolution, once again suggests the revolutionary fervour of some participants in Occupy Central. Vigilante justice Some images suggest that Occupy Central was also seen in part as an act of vigilante justice. At the heart of vigilantism is the view that citizens can take the law into their own hands if the existing means of enforcing the law and maintaining order are defective or inadequate. Hence, vigilantes by definition operate outside the law.11 Batman arguably constitutes the most iconic figure of a vigilante in popular culture, and, throughout the movement, the image of the bat from Batman’s costume could be found at the protest sites. The postcard-​sized picture in Figure 10.1 is one amongst many images alluding to Batman that were stuck

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184 M. Wan

Figure 10.1  Batman logo 

onto the display windows and walls of buildings at the protest sites. The words ‘Hong Kongers Save Ourselves’ appear together with the Batman symbol in this picture. The fact that the words ‘Hong Kongers’ are placed inside the outline of the bat suggests that any Hong Konger is a potential Batman. This set of images can be interpreted as a call for the city’s inhabitants to take the law into their own hands in light of the government’s inability to bring about a satisfactory pace of democratisation. It reflects the notion some protestors had of engaging in a heroic attempt to fight for what is right in the face of government inaction and complacency. Utopia Finally, one striking aspect of the Occupy street art is that it used characters from Anglo-​American cartoons and Japanese anime to express a political message: the Smurfs, Chibi Maruko-​chan, figures from Robert Hargreaves’s Mr Men series, Hayao Miyazaki’s Totoro and robots from the 1980s Japanese Gundam series were frequently depicted holding yellow umbrellas and waving to passers-​by from within their picture frames. There are multiple ways of interpreting this turn to cartoon and anime characters in the Occupy street art. One interpretation is that they expressed the youthful vitality of the movement: the reliance on icons from the world of children emphasises that Occupy Central constituted a generational conflict, one in which the new, younger generation of Hong Kongers voiced

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The artwork of Occupy Central 185 their opposition to the established order and its outmoded ways of doing politics. Indeed, very early on Occupy Central merged with local student protests to the extent that some of the movement’s most prominent faces were those of university and even high school students, such as Joshua Wong, Alex Chow and Lester Shum. Another possible interpretation is that these characters express a vision of fantasy or utopia. The movement’s utopian streak has been noted by a number of commentators:  its participants created an alternative community in which they freely shared resources such as food and water, frankly exchanged ideas, bonded over their sense of mission and even helped one another with their homework. An article in the British newspaper the Guardian at the time noted that, with its ethos of self-​help, sharing and artistic innovation, ‘the pro-​democracy movement has evolved into a functional utopian collective’.12 In a similar vein, CNN observed that ‘the civil disobedience movement has turned into what feels like a self-​governed street utopia’.13 In this light, Occupy Central’s self-​representation through cartoon or anime characters can be understood as a striving for an alternative, utopian world, or a simpler, more innocent political order that could be imagined by the artists but did not yet exist in concrete reality. From blue men who run through the forests like the Smurfs to robots soaring through the galaxy like Gundam and its allies, it is possible to visualise different communities with norms and values very far from those of our own societies. The domain of cartoon and anime is a domain where anything is possible, and one’s imagination is the limit. The prominence of characters taken from such a domain in the Occupy Central artwork can perhaps be taken as an indication of the movement’s strong utopian dimension. Overall, the street art of Occupy Central indicates that the movement’s self-​conception was more complex than its manifesto’s tone of confidence and single-​mindedness would indicate. The artwork literally paints a different, and more varied, picture than that offered by the movement’s verbal articulation. The images suggest that the movement did not have a central mode of self-​ representation, and instead presented itself variously as a peaceful movement, a form of anarchist activity, a revolutionary force, a kind of heroic vigilante justice and a utopian fantasy. Seeing Hong Kong identity: postcolonial paradoxes It is not only the self-​representation of Occupy Central that is multifaceted and complex. The artwork further suggests that Hong Kong identity at the time of the movement was itself in a state of flux and self-​contradiction, and it is perhaps because of the multiple dimensions of cultural identity that were at stake that Occupy Central could not present itself in any simple or unitary manner. This section explores the different aspects of cultural identity revealed in a number of images. As cultural critic Howard Y.F. Choy has noted, Hong Kong identity can be said to be caught in the tension between the values and habits inherited from the

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186 M. Wan city’s British past and the new sense of affiliation arising from its present status as an integral part of the People’s Republic of China. Prior to Hong Kong’s handover from Britain to China in 1997, many Hong Kongers imagined themselves to be a harmonious blend of Britishness and Chineseness, and the city to be a bridge between ‘East’ and ‘West’. Choy argues that in the post-​handover period, the city is still undergoing a prolonged process of bringing together these two different cultural voices to the extent that post-​colonial Hong Kong identity can be described as ‘schizophrenic’.14 He posits that before it was colonized by the British and thus forced to depart from China, Hong Kong had never pondered upon the problem of its Chineseness. And now, when departing from Britain, the issue of becoming Chinese again, or re-​Sinicization, cannot be discussed without reference to its Britishness.15 Accordingly, the schizophrenic anxious return from being the United Kingdom’s ‘crown jewel’ to becoming the Middle Kingdom’s Special Administrative Region before and after the fin de siècle changeover characterizes a collective failure of resuming a single, clear-​cut identity for a postcolonial global city.16 The images of Occupy Central can be interpreted as symptoms of the evolving, self-​questioning and self-​contradictory identity that Choy diagnoses as schizophrenic, and underscores not only the multiple dimensions of the movement itself, but also the tension between the British and Chinese elements constitutive of cultural identity. On the one hand, the movement can be said to reflect a desire for the return of the colonial past. For instance, reproductions of the colonial flag with the blue ensign, the Union Jack and Hong Kong’s former coat of arms could be seen plastered on the walls of buildings at the protest sites, and some protestors wore T-​shirts displaying the Union Jack or colonial flag. Moreover, it was not uncommon to see signs carrying the words ‘KEEP CALM AND OCCUPY CENTRAL’, a message often accompanied by the outline of the British Crown. This text is adapted from the ‘Keep Calm and Carry On’ posters that the British government produced in 1939 in preparation for the Second World War. The original message was meant to boost morale across the British Isles during a time of war. The allusion to these motivational posters in the images of Occupy Central, together with the proliferation of the colonial flag across the protest sites, indicates that the movement was at least in part fuelled by a sense of colonial nostalgia. On the other hand, the street art also suggests that the protestors conceived of Occupy Central as a distinctively Chinese resistance movement. Figure 10.2 is a case in point. The image shows a figure in traditional Chinese military attire; he could be a Chinese deity or a military general. He holds an umbrella, the symbol of the movement. At the top right-​hand corner of the image is a Chinese character that means both ‘to hold upright’ (the umbrella) and ‘to resist’ (the

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The artwork of Occupy Central 187

Figure 10.2  Chinese military general/deity with umbrella 

electoral system imposed by Beijing). The figure and text are in yellow, the colour of the movement. The reference to Chinese history (if this is a military general) or Chinese mythology (if it is a deity), as well as the use of a Chinese character to articulate the sentiment of resistance driving the movement, suggests that there was more to the protests than simple colonial nostalgia, for that sentiment also expressed itself in an unequivocally Chinese register. Another image that draws on distinctly Chinese cultural artefacts to give form to the motivational forces of the movement is shown in Figure 10.3. The number ‘689’ refers to Hong Kong Chief Executive Leung Chun-​ying, who was elected with just 689 votes by a special selection committee. In other words, the number is a reminder that Leung was not elected by a popular vote, and hence cannot be said to be the choice of the Hong Kong people. The characters in the centre of the image can be translated as ‘689 [C.Y. Leung] should be banished to the eighteen levels of hell’. The reference to the 18 levels of hell is loosely taken from Buddhist texts. Also, in Chinese mythology hell is a place where sinners are subjected to various forms of torture, including dismemberment, burning and

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Figure 10.3  Talisman 

boiling. The characters are written on a yellow piece of paper reminiscent of a Taoist talisman or written charm used to counter Chinese vampires. The image therefore condenses the protestors’ frustration with the city’s leader into a culturally specific form: C.Y. Leung is here imagined as a vampire that needs to be destroyed, and the reference to the gruesome punishments of hell underscores the intense aversion the protestors felt towards him. One more image reflects the importance of the Chinese linguistic and cultural identities at play in the movement. At the Mong Kok protest site, a sign for a major thoroughfare was replaced with a Chinese pun: the characters on the sign read ‘真普選喺邊道’. The first three characters can be translated as ‘genuine universal suffrage’, and the last three make up the Cantonese phrase for ‘where?’ Hence, in its entirety the phrase can be translated as ‘Where is genuine universal suffrage?’ The operative part of the pun is in the final character, ‘道’, which is also the Chinese character for ‘street’ or ‘boulevard’. The sign’s phrase can thus also be translated as ‘Where is genuine universal suffrage street’. To understand the pun, it is necessary to understand the Chinese language, and specifically the Cantonese dialect. The street art constituted by this defaced street sign again indicates the movement’s strong sense of Chineseness: the legibility of the

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The artwork of Occupy Central 189 protestors’ demands, here articulated in the form of an exasperated question, extends only to those who are linguistically invested in the city. From the artwork discussed above, it can be seen that Occupy Central expressed itself through both historical British references and distinctively Chinese cultural forms. The co-​existence of these images reflects not only the multiple dimensions of the movement’s self-​conception, but also the deeper conflicts in the ways in which the city understands itself. The images suggest that Hong Kong identity remains caught in the tension between the city’s colonial past and its Chinese present.17 As one political commentator has noted, Hong Kong is ‘a former British colony still unsure of how Chinese it wants to be’, and the two sets of images together function as symptoms of this collective uncertainty.18 Seeing Hong Kong identity: the self as bricolage Beyond its colonial images and Chinese iconography, the artwork of Occupy Central reflects the ways in which local artists draw on a myriad of cultural forms in their attempt to express a vision of Hong Kong identity. These cultural forms include elements of popular local culture such as television programmes or Cantopop songs, characters from Japanese anime that were broadcast in Hong Kong in the 1980s and 1990s, images from classical art or high culture, satirical drawings of the city’s political figures, and famous figures from Chinese or British history, to name just a few. Each image says something about Hong Kong identity and culture. In other words, each image can be interpreted as explicitly or implicitly asking the question ‘What is a Hong Konger?’, and formulating an answer through a visual representation of what Hong Kong cultural identity is or could be. The street art of Occupy Central can be collectively interpreted as a visual manifestation of the movement’s search for a Hong Kong identity. Yet, even though its images give us certain expressions of what it means to be a Hong Konger, they do not combine or crystallise into any single, coherent picture, and nor can any single image be said to capture the essence of the city’s Zeitgeist. It is therefore possible to interpret the multiplicity and variety of images as an indication that in the post-​colonial period, Hong Kong identity can only exist as bricolage, cobbled together from the diverse cultural resources at hand: a cartoon character here, a pop song there, a political figure here, a historical personality there … all are part of Hong Kong, but none holds the key to a definitive understanding or visualisation of cultural identity at this particular point in the city’s history. The remainder of this section explores some of the images that Occupy Central turned to as a way of expressing its vision of Hong Kong identity. The first is a depiction of the local cartoon character McDull. McDull is a cartoon pig who speaks and behaves like a human being. The characters of the McDull series are inextricably tied to Hong Kong culture. Created by Alice Mak and Brian Tse, McDull is one of the few cartoons produced by local artists in late twentieth-​century Hong Kong. McDull’s mother is a typical Chinese parent with high expectations for her son: she wants him to do well at school and become

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190 M. Wan a professional. The McDull storyline draws on readily recognisable aspects of the experience of living in the city, such as trips to dai pai dongs (local cafés) or discussions of the problems of rote learning at school. As Mak notes, McDull’s storylines ‘are very realistic’, and each story focuses on ‘something that happens in real life’ in the city.19 McDull’s popularity is reflected in the fact that he went from being a minor character in another series to having his own comic books, television programme, films and soundtrack. He even boasts a statue on Hong Kong’s Avenue of Stars, alongside other of the city’s icons, including film director Wong Kar-​wai, martial arts star Jet Li and Queen of Cantopop Anita Mui. In the image of interest here, McDull and his mother are both wearing yellow: McDull wears a yellow T-​shirt that says ‘We are the 99%’, and his mother wears a yellow ribbon on her chest to demonstrate her support for Occupy Central. They both hold their yellow umbrellas up high, and above McDull are the words ‘Go Hong Kong!!’ (‘香港加油!!’). Both McDull and his mother have proud, confident smiles on their faces, and they are holding hands in a gesture of solidarity. The reference to McDull is not an accidental one; the turn to this specific cartoon character created by local artists and much-​loved by many people in the city suggests that the issues, experiences and values depicted in the McDull series form an integral part of what it means to be a Hong Konger. The second image under discussion features a giant storm cloud and a hand holding a yellow umbrella. One way of interpreting the storm cloud is to read it as a reference to a famous speech made by a judge of the city’s highest court a mere two years before the protest. In a speech made to mark his retirement, Justice Kemal Bokhary’s parting words referred to ‘a storm of unprecedented ferocity’ gathering over the rule of law in Hong Kong.20 In that context, the image seems to suggest that Occupy Central was an umbrella under which Hong Kong could weather that storm. On the picture of the storm cloud are superimposed Chinese characters that can be translated as ‘holding tight to our freedom despite the wind and the rain’. The line is a culturally significant one: it is part of the lyrics to the pop song ‘Boundless Oceans, Vast Skies’ (海闊天空) released by the local band Beyond in the 1990s. The song is about the pursuit of freedom in the face of obstacles, and became the de facto anthem of Occupy Central. According to one protestor, Nikki Lau, participants in the movement sang the song almost ten times a day.21 The lines ‘Forgive me for embracing freedom in my life/​But also fear of falling down some day [sic]/​To give up one’s hope isn’t hard for anyone/​ It would be fine if there’s only you and me’ seemed to echo particularly strongly in the minds of the protestors.22 This image makes reference to Cantopop, a variety of music specific to Hong Kong culture, as a way not only of expressing the aspirations of Occupy Central, but also as a way of creating a sense of community: people growing up in Hong Kong in the 1990s would presumably recognise the line from the song, and that connection would then create a bond amongst the city’s inhabitants. As Lau notes, ‘Boundless Oceans, Vast Skies’ is ‘part of the collective memory of Hong Kong people’.23 Moreover, a reference to the 1990s arguably evokes a happier moment in the city’s history, a moment marked more by economic prosperity

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The artwork of Occupy Central 191

Figure 10.4  Totoro 

than by political strife. Beyond’s song therefore arguably also functioned as a signifier of ‘a better time when everything was much simpler’. The third image taken from the streets of Occupy Central, and shown in Figure 10.4, is a complicated amalgamation of different aspects of Hong Kong life. The image shows the Japanese anime character Totoro holding a yellow umbrella and yelling a phrase comprising both English words and Chinese characters at an imaginary listener who lies beyond the image frame. The Chinese characters denote ‘political reform’, and hence place the image firmly in the context of the debate surrounding the future of Hong Kong’s electoral system. The English phrase is ‘delay no more’, and so in its entirety the bilingual phrase means ‘Political reform delay no more’ or ‘Do not delay political reform anymore’. However, there is more to the image than the literal message it conveys. The phrase ‘Delay No More’ is readily recognisable to Hong Kongers as the slogan of the furniture and lifestyle shop Goods of Desire, more commonly known as G.O.D. The slogan is a playful one, as ‘Delay No More’ is phonetically close to the Cantonese expression for ‘Fuck your mother’. The phrase in the image can therefore also be read as ‘Fuck political reform’ by those who are able to recognise the genesis of the expression ‘delay no more’. The picture thus expresses two very different sentiments, which were simultaneously felt by the protestors: on the one hand, a sense of urgency and optimism about the possibility of effective political reform (as in ‘Do not delay political reform anymore’) and, on the other hand, a sense of frustration and defeatism (‘Fuck political reform’). To add a further layer of meaning to the image, G.O.D., like McDull, has a special place in the Hong Kong cultural imagination. It was started in 1996 by two local architects, Douglas Young and Benjamin Lau. The name G.O.D.  is

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192 M. Wan a pun and is phonetically close to the Cantonese expression for ‘living better’ (住好啲), hence its choice as the name for a furniture and lifestyle shop. One of the company’s major principles is that its products should be inspired by elements of Hong Kong history and culture:  the designs of G.O.D.  goods often depict items from Hong Kong’s past such as postboxes from the colonial period, school exercise books from the 1970s and religious artefacts commonly found in Chinese households. As a result, its products are easily recognisable by their brand of Hong Kong retro-​chic. Young and Lau also established the Hong Kong Street Culture Museum as a way of preserving cultural artefacts from colonial Hong Kong, many of which then became an inspiration for the products sold in the shop itself. As Young explained in an interview: Hong Kong people, like a lot of other Asians, like foreign brands, exotic sounding brands. So instead of disguising ourselves as being foreign, which a lot of local brands actually try to do, we decided to go the other way. We just blatantly tell people we are from Hong Kong and we are proud of it.24 From its name to its marketing strategy to its products, G.O.D. is a shop that proudly displays its roots in Hong Kong. The reference to the G.O.D.  slogan ‘Delay no more’ in the image appearing on the streets of Occupy therefore activates multiple levels of association: one has to possess a certain amount of cultural knowledge about Hong Kong –​and, by implication, one needs to be a Hong Konger –​to understand the dual meanings of ‘delay no more’, to trace the origin of that slogan, and to identify the place of G.O.D. in Hong Kong consumer culture and in Hong Kong culture more broadly. The image suggests that having such cultural knowledge is a crucial dimension of having a sense of belonging to the city. The three pieces of street art discussed in this section  –​McDull, the storm cloud and line from Beyond’s 1990s hit, and Totoro and the multi-​layered message about political reform  –​collectively constitute visual representations of Hong Kong identity. In each of these instances, the images draw on cultural forms as diverse as comic books, Cantopop and consumerist slogans, not only to express a particular message about Occupy Central, but also to create a sense of community. Whilst it may be possible to understand the expressions of sympathy with the movement or frustrations with the pace of democratic reform by looking at these images in a de-​contextualised way, having in-​depth knowledge of recent Hong Kong culture, as well as an understanding of the nuances of the Cantonese dialect, deepens one’s understanding. The affective response to these images by a person who has grown up watching McDull cartoons, listening to the music of Beyond and/​or shopping at G.O.D. will arguably be more intense than that of someone with less cultural knowledge of the city. However, despite the wide range of cultural references that these images draw upon, none of them can claim to provide a definitive answer to the question of what a Hong Konger is: although McDull, Beyond and G.O.D. arguably constitute part of the experience of living in Hong Kong, they form only disjointed and even random

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The artwork of Occupy Central 193 parts of that experience. The Occupy street art therefore comes together not so much to give a complete picture of Hong Kong identity, but to show that Hong Kong identity at the time of Occupy Central existed as bricolage. One can catch glimpses of that identity through the artwork discussed herein, but that artwork cannot be said to reveal its essence. Conclusion The law is a profession of words: law students who formulate answers to exam questions, lawyers who make arguments in court and judges who write legal opinions all make expert use of language. Yet as legal-​cultural scholar Richard Sherwin has argued, in an age when some legal proceedings are broadcast on the television screen, when visual material such as videos and taped victim impact statements are presented as evidence in court, and when courtroom dramas shape how the general public views the legal process and its institutions, it is important for lawyers to be versed not only in the use of language, but also in the analysis of images. In other words, in an age when the ‘law goes pop’, lawyers need to cultivate visual literacy.25 Sherwin’s argument is of particular relevance here. Occupy Central was a movement that arose in reaction to a constitutional question about how Hong Kong’s leader should be selected. Yet this specific legal issue was only the trigger point for an event that came about for many other reasons, including –​but not limited to –​questions of economic inequality, generational disputes, frustrations with ineffective government policy and the intricacies of cultural identity. To obtain a fuller understanding of the movement, it is necessary to go beyond questions such as the definition of civil disobedience or the use of police powers. This chapter has turned to the artwork, or aesthetic images, of the Umbrella Revolution in an attempt to approach the movement from a different angle. It has argued that when one stops attempting to read the movement, but stands back and views it, one comes to a different understanding of what it is about. The images suggest that despite the assertions it made about the need for universal suffrage and democratic elections, Occupy Central was as much about questions of identity –​both the movement’s own identity and that of Hong Kong more broadly –​as it was about politics or law and order. The number of images generated by the movement is so vast that I have been able only to discuss a small selection here, but I hope that the analysis of some of the images presented in this chapter contributes to a fuller understanding of the momentous legal-​political-​cultural event in Hong Kong history that is Occupy Central. Acknowledgements I would like to thank the participants at conferences and workshops at the University of Warwick, the Georgetown Law Center and the University of Technology Sydney for sharing their thoughts on these images with me. I would also like to thank the students in my ‘Law and Film’ course at the University of Hong Kong in the 2014/​2015 academic year, with whom I  first shared some

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194 M. Wan of the ideas presented here and whose insight has immeasurably enriched my thinking on the topic. Whilst every effort has been made to trace the copyright holders of the images reproduced here, this has not been possible in all cases. Any omissions brought to the attention of the publisher will be remedied in future editions. Notes 1 See, for example, the Chief Executive Office’s comment that Occupy Central constitutes a form of ‘illegal action’ in ‘CY Leung Digs in as He Admits Occupy Central Protests Could Last “A Long Time” ’, South China Morning Post, 30 September 2014, accessed 18 July 2016, www.scmp.com/​article/​1604384/​ hong-​kong-​wakes-​third-​day-​civil-​disobedience. 2 See, for example, Simon N.M. Young, ‘Was it Lawful for the Police to Use Tear Gas on Protesters in Hong Kong?’, HKU Legal Scholarship Blog, 29 September 2014, accessed 14 May 2016, http://​researchblog.law.hku.hk/​2014/​09/​legal-​authority-​ for-​police-​to-​use-​tear.html. 3 ‘Occupy Central Hong Kong Turns Street into Art Galleries’, Art Radar, 10 October 2015, accessed 14 May 2016, http://​artradarjournal.com/​2014/​10/​10/​occupy-​ central-​hong-​kong-​streets-​art-​galleries/​. 4 Umbrella Movement Art Preservation website, accessed 16 May 2016, http://​ umbrellaartpreserv.wix.com/​umap. 5 Liam Fitzpatrick, ‘Hong Kong Is Bracing Itself for More Anti-​Occupy Violence’, Time, 4 October 2014, accessed 18 July 2016, http://​time.com/​3462996/​occupy-​ hong-​kong-​central-​democracy-​blue-​ribbon-​anti-​protest/​. 6 Crystal Wilde, ‘The Art of Democracy: The Fight to Save Hong Kong’s Protest Art’, Coconuts Hong Kong, 17 October 2014, accessed 10 May 2016, http://​hongkong. coconuts.co/​2014/​10/​17/​art-​democracy-​fight-​save-​hong-​kongs-​protest-​art. 7 See, for instance, Ackbar Abbas, Hong Kong: Culture and the Politics of Disappearance (Hong Kong:  Hong Kong University Press, 1997)  and Yiu-​ Wai Chu, Lost in Transition: Hong Kong Culture in the Age of China (Albany: SUNY Press, 2013). 8 T.V. Reed, The Art of Protest: Culture and Activism from the Civil Rights Movement to the Streets of Seattle (Minneapolis: University of Minnesota Press, 2005), 309. 9 Occupy Central with Love and Peace, ‘Manifesto’, accessed 14 May 2016, http://​ oclp.hk/​index.php?route=occupy/​book_​detail&book_​id=11. 10 Ibid. 11 For a further discussion of the place of Batman in popular culture, see Timothy D. Peters, ‘Beyond the Limits of the Law: A Christological Reading of Christopher Nolan’s The Dark Knight’, Griffith Law Review 24(3) (2015): 418–​445. 12 Jonathan Kaiman, ‘Hong Kong’s “Umbrella Square” One Month On: How Are Protesters Living?’, Guardian, 2 November 2014, accessed 18 July 2016, www.theguardian.com/​ world/​shortcuts/​2014/​nov/​02/​hong-​kong-​umbrella-​square-​wifi-​bottled-​water. 13 Wilfred Chan, ‘How Tear Gas Brought Hong Kongers Together’, CNN, 1 October 2014, accessed 18 July 2016, http://​edition.cnn.com/​2014/​10/​01/​world/​asia/​ hong-​kong-​democracy-​tear-​gas/​. 14 Howard Y.F. Choy, ‘Schizophrenic Hong Kong:  Postcolonial Identity Crisis in the Infernal Affairs Trilogy’, Transtext(e)s Transcultures:  Journal of Global Cultural Studies 3 (2007): 52–​66. 15 Ibid., 55. 16 Ibid., 56. 17 For a discussion of this tension in the context of Hong Kong theatre at the time of Occupy Central, see Marco Wan, ‘Spectrality, Electoral Reform and the Question

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The artwork of Occupy Central 195 of Hong Kong Identity in Marcus Woo’s Find Ghost Do the CE’, in Economies of Interpretation: Derrida, Agamben, and the Political Theology of Law, ed. Peter Goodrich and Michel Rosenfeld (New York: Fordham University Press, forthcoming). 18 John Delury, ‘Hong Kong’s New Citizens’, Foreign Affairs, 13 July 2015, accessed 18 July 2016, www.foreignaffairs.com/​articles/​china/​2015-​07-​13/​hong-​kongs-new-​​ citizens. 19 Grace Tsoi, ‘Interviews: Alice Mak’, Hong Kong Magazine, 16 August 2012, accessed 18 July 2016, http://​hk-​magazine.com/​article/​inside-​hk/​interviews/​9823/​alice-​mak. 20 ‘Retiring Court of Final Appeal Judge Kemal Bokhary Warns of Legal Turmoil’, South China Morning Post, 25 October 2012, accessed 18 July 2016, www.scmp.com/​ n ews/​ h ong-​ k ong/​ a rticle/​ 1 069047/​ r etiring-​ c ourt-​ f inal​appeal-​judge-​kemal-​bokhary-​warns-​legal-​turmoil. 21 Joyu Wang, ‘The Story Behind the Hong Kong Protests’ Unofficial Anthem’, The Wall Street Journal, 1 October 2014, accessed 18 July 2016, http://​blogs.wsj.com/​ chinarealtime/​2014/​10/​01/​the-​story-​behind-​the-​hong-​kong-​protests-​unofficial-​ anthem/​. 22 Ibid. 23 Ibid. 24 ‘Five Questions with G.O.D. CEO’, CNBC, 11 March 2011, accessed 14 May 2016, www.cnbc.com/​id/​42024544. 25 Richard K. Sherwin, When Law Goes Pop: The Vanishing Line Between Law and Popular Culture (Chicago: University of Chicago Press, 2000).

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11 Who speaks for Lion Rock? Pro-​Cantonese campaign (or lack thereof ) in Hong Kong Chu Yiu-​wai

Introduction One of the most spectacularly memorable moments during Hong Kong’s Umbrella Movement (a pro-​democracy campaign that began as Occupy Central with Love and Peace and whose goal was to achieve ‘genuine universal suffrage’) from late September to early December was the hanging of a monumental yellow banner from Lion Rock, one of the most representative symbols of Hong Kong. On 22 October 2014, a group of rock climbers who collectively called themselves ‘The Hong Kong Spidie’ draped a huge yellow banner –​reading ‘I want genuine universal suffrage’ –​from the highest point of Lion Rock. Thanks to the Cantonese popular song ‘Below the Lion Rock’, famously known as Hong Kong’s unofficial regional anthem, Lion Rock is widely seen as a symbol of perseverance and solidarity in Hong Kong. After hanging the banner from Lion Rock, the Hong Kong Spidie released an online video showing how and why they had hung it, using as the video’s background music the unofficial theme song of the Occupy Central with Love and Peace movement, ‘Under a Vast Sky’ by legendary Cantorock band Beyond. This spoke volumes for the importance of Cantopop in articulating the so-​called ‘Lion Rock Spirit 2.0’, as the 1.0 version also originated in Cantopop. However, there has been a dramatic decline in Cantopop, and in Hong Kong television and cinema as well, over the past decade.1 The waning of Cantonese popular culture has dealt a considerable blow to Cantonese (the language spoken by more than 90 per cent of the Hong Kong population), which was already being overshadowed by the steady rise of Putonghua (generally known as Mandarin in English). The Hong Kong Education Bureau (EDB) has promoted the use of Putonghua as the medium of instruction (PMI) for the Chinese language subject in primary and secondary schools in Hong Kong since the former colony’s reversion to China: According to two concern groups (Putonghua as Medium of Instruction Student Concern Group and Societas Linguistica Hongkongensis), about 70 per cent of the city’s 569 local primary schools and 40 per cent of its 514 secondary schools use Putonghua for Chinese-​language lessons, although the Education Bureau says it lacks such statistics.2

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Who speaks for Lion Rock? 197 As Putonghua  –​the so-​called ‘common language’  –​is the official language of the government, education and national media in the mainland, students in Guangdong Province, who are supposed to be able to speak Cantonese, speak only Mandarin at school. (Putonghua/​Mandarin and Cantonese generally use the same characters for the same words. Whilst the two are mutually intelligible in written form, they are incomprehensible to each other’s speakers when spoken.) As one 28-​year-​old media worker in Guangzhou, the capital of Guangdong, commented, ‘at home, their mum will speak to them in Cantonese but the kids will respond in Mandarin’.3 In January 2014, the EDB published an article on language learning on its website, stating that Cantonese is ‘a Chinese dialect which is not a statutory language’.4 This ‘monumental gaffe’5 hit a raw nerve with the Hong Kong people. Having stirred up a heated debate in a city where almost 97 per cent of the population speaks Cantonese (according to figures supplied by the EDB in the article in question), the Bureau subsequently decided to cool the debate by removing the article. It then posted a new one citing a rule in the Official Languages Ordinance: ‘The English and Chinese languages are declared to be the official languages of Hong Kong.’6 Notwithstanding this move, it has become apparent that, in the minds of government officials, Chinese is becoming increasingly slanted towards Putonghua. Back in 2000, the EDB’s Curriculum Development Institute made it clear that ‘teaching Chinese by Putonghua’ was a long-​term goal.7 Whilst primary and secondary schools have been able to choose between Putonghua and Cantonese as the medium for teaching Chinese since the PMI policy was introduced in 2008, more and more schools have turned to Putonghua for various reasons. The increasing use of Putonghua at school will almost certainly have a big impact on Cantonese. Despite the marked rise in local consciousness and the determined struggle for their own system in recent year, however, the people of Hong Kong have been surprisingly indifferent to the pro-​Cantonese campaign. For example, whilst Guangzhou saw more than a thousand people take to the streets to defend Cantonese in 2010, only about 200 Hong Kongers reportedly marched to government headquarters in Hong Kong to support the Guangzhou protestors. Compared with recent controversies over universal suffrage and moral/​national education, PMI and the continued side-​ lining of Cantonese in favour of Putonghua have attracted much less attention. This chapter explores the lack of support for the pro-​Cantonese campaign and its impact in the context of the intricate correlation between local consciousness and the recent social movements in Hong Kong. The third wave of the pro-​Chinese language campaign Before Hong Kong’s reversion to China, the spoken form of Chinese in the then-​ British colony was Cantonese, although the written form has always been modern standard Chinese. Hong Kong’s people have thus become accustomed to speaking Cantonese while writing standard Chinese. They are also not unfamiliar with campaigns to defend what they speak and write. In the colonial era, for example, English was the only official language before 1974.8 Thanks to what later became

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198  Y.W. Chu known as the first Chinese language movement in Hong Kong, the government enacted the Official Languages Ordinance, declaring English and Chinese, which possessed equal status, ‘the official languages of Hong Kong for the purposes of communication between the Government or any public officer and members of the public’.9 After many preludes in the 1960s, the Chinese language movement was formally launched when the student association in Chung Chi College at the Chinese University of Hong Kong organised a conference on ‘Chinese as the Official Language’ in January 1968.10 The movement, which was restricted to the academic sector, did not gather sufficient momentum to develop into a social movement until 1970, when Urban Councillor Denny Huang initiated the establishment of a united task force to promote Chinese as an official language (All Hong Kong Working Party to Promote Chinese as an Official Language) in June of that year. Facing immense public pressure generated by a series of pro-​Chinese language campaigns across different social sectors, the government enacted the Official Languages Ordinance in January 1974. Even after becoming an official language, Chinese remained marginalised in the then-​British colony. Another conflict surfaced when the government published the White Paper on Senior Secondary and Tertiary Education in 1978, proposing that only English be required for candidates of the Advanced Level Examination. Although it was ostensibly an official language, it was clear that Chinese was not genuinely respected by the government. In response to the White Paper, the second wave of the Chinese language movement broke out, albeit still mainly confined to the academic sector, voicing the discontent of local educators. Although the Examination Authority announced in December 1978 that a pass in the Chinese language subject in the Hong Kong Certificate of Education Examination was a requirement for Advanced Level Examination candidates, Chinese was not required in the Advanced Level Examination itself, which constituted the entry examination for the University of Hong Kong. The fight for the official status of Chinese in these two waves can be seen as an anti-​ colonial movement. Interestingly, however, as the government did not define its interpretation of ‘Chinese’, it remained ambiguous, although ‘[g]‌iven the sociolinguistic situation in Hong Kong, Cantonese [became] the most often used verbal medium of official communication in practice’.11 In the 1950s and 1960s, immigrants speaking a variety of Chinese dialects swarmed into Hong Kong, where Cantonese was the lingua franca. According to a study by John Bacon-​ Shone and Kingsley Bolton: the dominant language of Hong Kong has consistently been Cantonese, with 91% of the population claiming the variety as their ‘usual’ language in 2006. Since 1911, moreover, the consistent trend for minority home dialects in the territory has been downwards, with ever smaller proportions of the population claiming varieties such as Hakka and Fukien as ‘usual’ languages.12 With the rise of Hong Kong’s Cantonese popular culture in the 1970s, Cantonese further acquired the status of cultural trendsetter in Chinese communities across

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Who speaks for Lion Rock? 199 the globe. There was thus no pressing need to define ‘Chinese’ in the special context of Hong Kong until 1997. When the government of the Hong Kong Special Administrative Region (HKSAR) adopted a ‘bi-​literacy and tri-​lingualism’ policy (wherein Hong Kong students have to learn three spoken languages  –​Putonghua, Cantonese and English –​and two forms of writing –​English and traditional Chinese characters) after the reversion to China in 1997, no one expected the swiftly rising importance of Putonghua and the heightened conflict between Hong Kong and the mainland. Perhaps, as most Hong Kongers would agree, it is necessary to learn Putonghua; however, PMI is another story. In the special context of heightened conflict between mainlanders and Hong Kongers, the anti-​PMI movement, or pro-​Cantonese movement, can be understood as the third wave of the Chinese language movement,13 although the term may sound a bit awkward. It was the third wave in the sense that the Hong Kong people spoke up for their mother tongue, although it was not effectively focused as Chinese was still ambiguously defined in Hong Kong. As noted above, the EDB tried to remove the ambiguity by stating that Cantonese was a Chinese dialect, not a statutory language. With this proclamation, it became apparent that education policy with regard to the Chinese language subject in primary and secondary schools in Hong Kong would continue to be slanted towards Putonghua.14 As detailed in a discussion item during a Legislative Council Financial Committee meeting on 10 January 2014 (FCR [2013–​14] 49), the Standing Committee on Language Education and Research recommended allocating about HK$225 million for the Scheme to Support Schools in Using Putonghua to Teach Chinese Language Subject (which involved extra funding for schools seeking guidance from ‘mainland teaching experts’ and local consultants to teach Chinese in Putonghua instead of Cantonese), an exceedingly large amount compared with the HK$85 million allocated for the Quality English Language Education at Pre-​primary Level Project. According to the document, ‘by encouraging and supporting more schools to implement the use of Putonghua to teach [the] Chinese language subject, the Scheme [will] play a significant role in the attainment of the long-​term vision of using Putonghua to teach [the] Chinese language subject’.15 It was estimated that the subsidy received by schools adopting PMI would double. Not surprisingly, PMI has thus been welcomed by schools, most of which have faced budget problems in recent years. In order to tempt more students to turn to PMI classes and/​or schools, many primary and secondary schools have used a variety of means to encourage both them and their parents to accept PMI. Examples include demonising/​ghettoising Cantonese by restricting its use in classrooms and/​or formal activities. An infamous video produced by the EDB’s Educational Television in 2004 is a prime example. In the video, the devil-​like villain tries using Cantonese to rule the world, but is ultimately defeated by Putonghua-​speaking heroines.16 This demonisation of people’s native tongue is a common strategy in colonial language education, as renowned Kenyan writer Ngũgĩ wa Thiong’o has demonstrated in writing about his school experience:

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200  Y.W. Chu one of the most humiliating experiences was to be caught speaking Gikuyu [his mother tongue] in the vicinity of the school. The culprit was given corporal punishment –​three to five strokes of the cane on bare buttocks –​or was made to carry a metal plate around the neck with inscriptions such as I AM STUPID or I AM A DONKEY.17 Less crude than but similar to such punitive measures, Hong Kong PMI schools have reportedly prohibited students from speaking Cantonese on campus.18 The EDB, however, knows very well that it would be more effective to promote PMI with carrots than with sticks. At the school level, the carrot is the extra funding mentioned above. Within schools, it is the privileging of Putonghua by offering ‘elite’ PMI classes for high-​calibre students, which is an effective way to attract students and/​or parents to PMI classes. The myth of the effectiveness of PMI has thus been conjured up, and was openly declared by EDB Director Eddie Ng in a speech to the Legislative Council claiming that PMI would enhance the standard of written Chinese.19 The rather indifferent attitude towards protecting Cantonese can be understood as a result of the continued marginalisation of the local dialect, which has been driven mainly by political and economic factors but also masked by a number of myths that privilege PMI. Because of these myths, pro-​Cantonese campaigns have not gathered sufficient momentum amongst the general public to prevail. Deconstructing the PMI myth For the sake of brevity, in this chapter I  tease out the myths behind PMI in accordance with the following arguments:  (1)  monolingualism:  Putonghua is the only form of spoken Chinese; (2) Cantonese is just a dialect; (3) PMI will enhance Hong Kong students’ standard of written Chinese; and (4)  PMI will ensure better career prospects. First, the claim that there is only one standard spoken Chinese language is a widespread and misleading myth.20 It is a myth that is, ironically, secured in part by Westerners who see Putonghua as the only form of standard Chinese. Whilst the monolithic nature of such a standard is untenable in theory, in reality it can be something worse, as Rey Chow’s inspiring story illustrates: In the West, meanwhile, this untenable standard is precisely what continues to be affirmed in the pedagogical dissemination of Chinese. When there are job openings in the area of Chinese language and literature in North American universities, for instance, the only candidates who will receive serious consideration are those who have verbal fluency in Mandarin. A candidate who can write perfect standard Chinese, who may have more experience writing and speaking Chinese than all the Caucasian members of a particular East Asian language and literature department combined, but whose mother tongue happens to be (let’s say) Cantonese would be discriminated against and disqualified simply because knowledge of Chinese in such cases really

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Who speaks for Lion Rock? 201 does not mean knowledge of any kind of Chinese speech or even command of the standardized Chinese written language but, specifically, competence in Mandarin, the ‘standard’ speech that most white sinologists learn when they learn to speak Chinese at all.21 Unfortunately, the situation that prevails in North American universities has become, albeit ridiculously, rather common in Hong Kong universities as well. Worse yet, it is not limited to the areas of Chinese language and literature but is also found in other academic departments. The monolithic nature of a standard Chinese, in this special context, is all the more unquestionable when the ‘Chinese’ in Hong Kong universities ‘naturally’ means Putonghua. My own experience can be used to further elaborate on this. I  taught in the Chinese Department of a local university for 20  years before moving to a newly founded department at another university. During the first seven years or so (in the 1990s), most of the courses were taught in Cantonese, and departmental meetings were conducted in Cantonese as well. At a certain point, however, new colleagues who did not speak Cantonese arrived, and the medium of communication of departmental meetings changed. Not long thereafter, increasing numbers of Putonghua-​speaking colleagues arrived, and, by the time I left the Chinese Department, more than half the courses were instructed in Putonghua. This mirrors what the EDB would like to see happen in primary and secondary schools in the near future. Second, this ‘untenable’ standard is being rationalised by a two-​pronged strategy: to show that Cantonese is an informal dialect and that the use of Putonghua in schools will raise students’ standard of Chinese. Although, as noted above, the EDB removed the article stating that Cantonese was a Chinese dialect and not a statutory language from its website after it sparked heated disputes, it should be clear by now that it is government policy to treat Cantonese as a dialect. According to Noam Chomsky’s definition in Language and Problems of Knowledge, however, it is safe to say that Cantonese is a language, as ‘language’ refers to ‘an individual phenomenon, a system represented in the mind/​brain of a particular individual’.22 Victor Mair, a staunch supporter of Cantonese, has also made it clear that, as a ‘vivid, imaginative language full of colorful expressions that cannot be found in other Sinitic languages’, Cantonese has been Hong Kong’s language of culture and identity for so many years that we need to get beyond the trite notion that a ‘language is a dialect with an army and a navy’.23 That Cantonese cannot be written also constitutes a problematic argument. Whilst Cantonese is peppered with slang, it also preserves the sounds, vocabulary and structure of classical Chinese. Don Snow’s Cantonese as Written Language, amongst others, holds that ‘written Cantonese can and should be considered a written language variety in its own right’.24 In other words, the claim that Cantonese is a written language is not an ungrounded one. This is not the place to start a new discussion of the notion of Cantonese writing and/​or literature, but a very brief account of the role of Cantonese in Hong Kong literature would be useful. In the eyes of left-​wing scholars in Hong Kong in the 1940s, Cantonese,

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202  Y.W. Chu Chaozhou and Hakka were not only written but also literary languages. The insightful account of Hong Kong author Huang Guliu written by late scholar and writer-​cum-​critic Ping-​Kwan Leung underscores the value of literary works written in simple vernacular Chinese, mixed from time to time with Cantonese and transliterations of English.25 In addition, in her account of Hong Kong literature as Sinophone literature, Shu-​mei Shih touched on the importance of Cantonese in Hong Kong and on Hong Kong’s ‘neocolonial’ situation: The Hong Kong consciousness that undergirded the rise of Hong Kong studies in late (British) colonial Hong Kong was linguistically specific to the prominent deployment of the local Cantonese language, which implicitly challenged Putonghua and China-​centric disparagements of Hong Kong as a ‘cultural desert’.26 Hong Kong’s vibrant hybridisation of different languages –​Cantonese, modern standard Chinese, classical Chinese and sometimes English –​actually embodies what the Sinophone approach holds in esteem. Dichotomies such as centre and margins, East and West and, arguably, spoken and written are not delimiting in Hong Kong’s self-​writing. In the example Shih uses from the essay ‘Crazy Horse in a Mad City’ written by Xinyuan (later known as writer-​cum-​critic Ping-​Kwan Leung), ‘Cantonese is prominently deployed throughout the narrative to register a distinctly local sensibility in transition between British colonialism to something that was anticipated with sarcasm, thinly disguising a deep sense of foreboding and helplessness’.27 Probably the most important middle-​aged Hong Kong novelist is Kai-​Cheung Dung, who is famous for his heteroglossic narratives such as Works and Creations: Vivid and Lifelike, which also utilise Cantonese frequently and creatively. Bik-​Wan Wong’s Children of Darkness, which won the prestigious 2014 Dream of the Red Chamber Award (an award that goes to the ‘world’s most distinguished novel in Chinese’ in a given year), also deploys Cantonese as a literary language in an original and imaginative manner. In his short story ‘Can Do Restaurant’, the cultural critic-​cum-​novelist Koon-​Chung Chan also adopts a creative hybridisation of different language codes, including the one creatively adopted by local ‘tea restaurants’. Rey Chow’s interpretation of Ping-​ Kwan Leung and of another Cantonese-​speaking author, Kwok-​Ming Ma, highlights their importance in serving ‘both as reminders of the intractable power politics in play and, paradoxically, as stimulants for alternative thinking’.28 This ‘alternative thinking’ is one of the crucial characteristics of Hong Kong culture, and it is ‘the vitality of Hong Kong’s language’ that, to borrow Kwai-​cheung Lo’s words, ‘lies precisely in its intractability to … taming by standard Chinese’.29 Third, although Cantonese is not simply a dialect, it may well become one if PMI continues to dominate the school curriculum in Hong Kong. Guangzhou has already become a victim, and Hong Kong is perhaps the last line of defence for a language spoken by more than 60 million people in China, according to the state-​run China Daily.30 As noted above, Hong Kong students have acquired the ability to distinguish between what they speak and the way things are expressed in

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Who speaks for Lion Rock? 203 standard written Chinese. In terms of language acquisition, Hong Kong students have long been using Cantonese in listening and speaking and modern standard Chinese, which is closer to Putonghua, in reading and writing.31 PMI, however, will deprive them of the chance to read written Chinese characters in Cantonese, which, in the long run, will make it difficult for Cantonese to remain a language.32 Hong Kong people are well aware that ‘the norm that they should follow in writing is that of a written language  –​Standard Chinese  –​rather than that of their Cantonese speech’.33 To say that PMI will enhance the standard of written Chinese amongst Hong Kong students is clearly unfounded. Not unlike many other language systems, the spoken and written forms of the Chinese language are two separate systems. Unless the goalposts are moved by setting new grading criteria in favour of spoken Putonghua, such as replacing Cantonese expressions –​ which are equally valid in standard Chinese –​with Putonghua expressions,34 it would be dogmatic, to say the least, to conclude that PMI will raise the standard of written Chinese. Shek-​Kam Tse, a Chinese-​language education specialist, drew this conclusion from an in-​depth study on the medium of instruction: ‘Reading is what boosts language proficiency.’35 Tse was also invited by Hong Kong Now TV to conduct research on the effectiveness of PMI in Hong Kong, during the course of which he found that the standard of written Chinese of an elder twin brother learning Chinese through Cantonese was better than that of his younger brother learning through Putonghua.36 There are also other studies showing that PMI may even exert negative impacts on students’ standard of written Chinese.37 Despite the far from substantial reasons for adopting PMI in Hong Kong, there has been no widespread resistance against it. The three arguments discussed above relate to the marginalisation of Cantonese as a dialect that should be restricted to unofficial use in Hong Kong. The fourth argument is a pragmatic one, having to do with the rise of mainland China and its economy. Seeing that the mainland market has enormous potential, realistic Hong Kong people fully understand the importance of learning Putonghua. The example of Mr Lau is quite typical in Hong Kong. When he was scouting out a nursery school for his daughter, he realised that in a city where the overwhelming majority of the population speaks Cantonese it would be very difficult to find one using Cantonese as the medium of instruction: ‘Most nursery schools have adopted Putonghua and English as their medium of instruction. Parents see playgroups as a way to learn a new language.’38 This is understandable, as parents think that Putonghua fluency will ensure better career prospects for their children. Although Abrahim Chan, a leading Cantopop lyricist, recently stressed the importance of Cantopop in shaping Hong Kong’s identity, he also made the following remarks: ‘I want the use of Cantonese to continue … But at the same time, I don’t think it’s wrong for Putonghua to rise –​it’s unavoidable; we must accept that we will be more connected to the mainland.’39 The reality may be that, given the rising importance of Putonghua, it is necessary for Hong Kong students to learn the language, and perhaps the earlier the better. However, that does not necessarily mean that they should do so through PMI. In this regard, Lily Li, the former host of a popular television programme teaching Putonghua that premiered in 2002, made the

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204  Y.W. Chu very interesting point that ‘Putonghua is a must-​learn, but that doesn’t mean we have to give up Cantonese, which is part of our daily life, part of who we are’.40 Known for her almost native-​quality Putonghua, Li grew up speaking Cantonese. She put it extremely well when she said: ‘It’s important for Hongkongers to learn Putonghua, but the city will gain only if that language ability is put to use to link up China with the world.’41 In short, two lessons can be learnt from Li. First, one can learn Putonghua well without PMI; second, Hong Kong’s unique value lies in its international exposure. That PMI is a guarantee of good career prospects is a myth that needs to be deconstructed.42 Pro-​Cantonese campaigns and social movements According to an RTHK report issued in August 2014, a total of 357 primary/​ secondary schools, that is to say 35 per cent of all schools, in Hong Kong have adopted PMI.43 More and more Hong Kongers have come to believe that PMI is an irresistible trend because of realistic concerns: better written Chinese if you learn the language in Putonghua and brighter job prospects if you are able to speak Putonghua. Hong Kong parents, misled by government officials, have bought into the idea that the use of Putonghua as the medium of instruction for Chinese classes will enable their children to grow up not only more fluent in the language but also equipped with better written Chinese. ‘I think it’s very important that my son learns Putonghua’, said a Mr Chan when interviewed about his eight-​year-​old son’s education. ‘The trend in Hong Kong is shifting towards working in the mainland due to its economic growth. If you don’t know Putonghua, it’s difficult for you to grow your business in China. If my son is able to become fluent in [Putonghua], this would be an advantage.’44 Parents see these language skills as critical to their child’s future career prospects, so to speak. In this context, whilst the first two waves of the pro-​Chinese movement –​ in which the spoken dimension remained ambiguous –​received public support in general, the third wave has drawn much less attention amongst Hong Kong people, of whom over 90 per cent speak Cantonese as their first language. The battle to protect Cantonese in Hong Kong formally began in 2010, when Hong Kongers echoed the pro-​Cantonese movement in Guangzhou, a southern Chinese city where roughly half the population speaks Cantonese as their first language.45 Guangzhou has faced a similar if not more serious crisis than Hong Kong in recent years. First, a plaque carrying the battle cry placed at the base of a statue honouring Ming Dynasty general Yuan Chonghuan in his native city of Dongguan in Guangdong was removed by local authorities. Second, the Guangzhou Municipal Committee of the Chinese People’s Political Consultative Conference, a political advisory body to the city’s party committee, proposed in 2010 that Guangzhou’s most popular television channels should broadcast in Putonghua instead of Cantonese. In response, more than 1,000 protestors showed up for a pro-​Cantonese rally at a Guangzhou metro station in July of that year, which was extraordinary in mainland China.46 In Hong Kong, once known as ‘The Protest Capital of Asia’, in contrast, parallel rallies to support the

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Who speaks for Lion Rock? 205 protestors in Guangzhou received unenthusiastic support, with only around 200 people attending. Compared with the previous waves of the pro-​Chinese movement, the campaign to protect Cantonese received much less attention, notwithstanding the fact that the local consciousness of the Hong Kong people has been growing since the reversion to China. The anti-​moral and national education curriculum movement in 2012 provides a good benchmark to demonstrate the general public’s indifference towards the pro-​Cantonese rally in Guangzhou. The HKSAR government was forced to shelve the proposal to adopt the curriculum after 100,000 angry protestors took to the streets in July 2012 to say no to what they deemed a ‘brainwashing’ project. Branded as a movement against ‘national education 2.0’ by local activists, the anti-​PMI campaign failed to attract anything like the same amount of attention. The attitude of Scholarism, the activist group of secondary school students that led the protests against the government’s plan to introduce the moral and national education curriculum, towards the anti-​PMI campaign resulted in heated discussion. If PMI was considered ‘national education 2.0’ amongst the Hong Kong people, it would have been natural for the student group to stand firm against it. However, when the EDB published the article stating that Cantonese was a Chinese dialect rather than a statutory language in January 2014, Scholarism was criticised for not taking a proactive stance.47 Passion Times, a paper run by local activist group Civic Passion, reported that Scholarism did not openly condemn the EDB’s marginalisation of Cantonese until more than a month later (after online debates went viral), when it made a public statement claiming that it would stand against the government’s coercive implementation of PMI.48 Scholarism argued that the government should have held consultations before making any policy changes. The problem was that, as noted above, the implementation of PMI was not just a coercive move. More importantly, the EDB was using extra funding to lure primary and secondary schools to adopt PMI. The ambiguity here, compared with the unambiguously upright stance in the anti-​moral and national education curriculum campaign before and after the Umbrella Movement, is in some senses baffling. ‘They just want to get rid of Cantonese’, Andrew Chan, a spokesperson for Societas Linguistica Hongkongensis, explicitly stated, continuing ‘[y]‌ou can see this by the way resources are distributed in language education’.49 To this concern group, the move towards PMI was unmistakably a political strategy to promote Hong Kong’s integration into the mainland by marginalising the city’s mother tongue. In the aftermath of the EDB’s infamous essay, Societas Linguistica Hongkongensis initiated a ‘One Person One Letter’ campaign encouraging people to say no to PMI. Chan subsequently lamented in an interview that only about 300 people, far less than expected, had responded to the group’s call.50 The previous Chinese movements were conceptualised at a social, if not political, level and promoted as anti-​colonial campaigns. The Guangzhou saga is a good example of how the Chinese versus Western dichotomy is no longer an effective framework for articulating pro-​Cantonese concerns. The official response of the Guangzhou government to the short-​ lived pro-​ Cantonese campaign in Guangzhou was

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206  Y.W. Chu that the government had never considered a ‘promote Putonghua, abandon Cantonese’ policy. Hence, all of the protests were nothing more than a false proposition to challenge authority and a political move masterminded by foreign imperial powers.51 In a similar vein, some supporters of PMI repudiated the promotion of Cantonese by saying that it was simply a nostalgic  –​in some senses colonial  –​ strategy to defend the cultural hegemony of Hong Kong secured back in the colonial years.52 The first two pro-​Chinese waves received wide support from the public because they were seen as both national and local anti-​colonial movements. Unlike the first two waves, in which the definition of ‘Chinese’ remained ambiguous, the third wave held the Cantonese flag high. Using the social movements of the 1960s to highlight two strands of social participation, Stephen Wing-​Kai Chiu and Lui Tai-​Lok argued that [o]‌n the one side, university students actively participated in local social affairs (organizing the university reform campaign, visiting and delivering services to poor households, supporting protest actions, and launching a mass campaign calling for the adoption of Chinese as an official language) and on the other, a search [for] cultural identity (organizing visit[s] to mainland China and organizing the ‘defend Diaoyutai Movement’). The former brought university students to encounter the restricted space of social and political participation under the colonial administration. The latter was later developed into nationalistic fervor. Under the political parameters of colonial rule, at the early stage of the student movement, the two strands coexisted and together ha[d] the chemical effect of boosting student activism.53 The chemical effect between anti-​colonial and national fervour has in recent years become a conflict between the anti-​national and pro-​establishment camps in Hong Kong. As the third wave of the pro-​Chinese movement had to differentiate Cantonese from Putonghua, the target of the anti-​colonial dimension shifted to Putonghua. Against this backdrop, as shrewdly noted by Andrew Chan, most Hong Kong social activists have focused their attention on ‘universal’ issues related to political reform and universal suffrage.54 The anti-​PMI movement, in contrast, has been categorised as a particularly ‘localist’ issue, which accounts for the lukewarm support it has received from the general public. Epilogue As a matter of fact, people in Hong Kong started learning Putonghua long before the reversion to China, at least as early as the 1980s when increasing numbers of economic opportunities surfaced in the mainland. A 1991 survey showed that 52 per cent of primary schools and 37.8 per cent of secondary schools had begun offering Putonghua classes, most of them for one or two periods a week, and that a large number of schools had introduced it as an extra-​curricular activity.55 Learning Putonghua to better communicate with the mainland is utterly

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Who speaks for Lion Rock? 207 different from using Putonghua to teach the Chinese language subject in primary and secondary schools. From the early years of their education, Hong Kong students acquire the ability to ‘memorize not only the composition of the written characters (which exist in an order independent of speech) [when they write in simple prose], but also the way things are said in standard written Chinese (the grammar of which corresponds to speech in Mandarin/​Putonghua rather than to speech in Cantonese)’.56 The use of spoken Cantonese, in other words, does not necessarily have adverse effects on written Chinese. Meanwhile, PMI is not a legal issue, as the Law of the People’s Republic of China on the Standard Spoken and Written Chinese Language is not included in Annex III of the Basic Law, entitled ‘National Laws to be Applied in the Hong Kong Special Administrative Region’. The Basic Law strictly defines only the written language, but the new PMI policy shows clearly that the EDB and other government departments interpret Putonghua as the spoken language. ‘The increasing emphasis on Putonghua at the expense of Cantonese among local schools is causing concern –​and some resentment –​among Hongkongers’,57 according to Elaine Yau and Vanessa Yung, because it will have a profound influence on Hong Kong identity, which has been shaped by Cantonese cultures for many years. The harsh reality is that the Hong Kong people have been misled into believing in the myth of PMI, which has neither a legal nor educational basis. The controversies concerning Cantonese are closely linked ‘to social and political problems as well as some confusion over the linguistic terms’, Sze-​Wing Tang has pointed out.58 The negative impacts on culture and society, however, have been masked by certain not-​yet-​justified economic reasons, and the defence of Cantonese, in the midst of other recent controversies in Hong Kong, has been inaccurately categorised as a particularly ‘localist’ issue. ‘The difference in languages between Hong Kong and the mainland, where Putonghua is dominant, [has] served as a very useful barrier to reinforce the boundary that separate[s]‌the two places’, argued Robert Bauer, a fluent Cantonese speaker who has penned several books on Cantonese phonology.59 In other words, Cantonese can be interpreted as part of the ‘One Country, Two Systems’ promise that guarantees the distinctive culture of the HKSAR. As shrewdly put by local writer and scholar Chi-​Tak Chan, although the cultural mission has been superseded by realistic concerns and personal interests, it will continue to exert an influence: ‘Hong Kong’s cultural, literary and social movements have told us that the transcendence of [that] mission always start[s] with the imperceptible progressive power generated by the people.’60 Despite the lack of a major social movement in support of the city’s language, power against the institutional discouragement of the use of Cantonese has been generated by various endeavours to promote/​protect Cantonese on both sides of the border. In both the mainland and Hong Kong, there have been a number of pro-​Cantonese attempts, including but not limited to new media projects (e.g. the 2012 online video ‘Cantonese at the Tip of My Tongue’), academic research on pro-​Cantonese campaigns, the launch of a Cantonese school in Shanghai and a new Cantonese-​to-​Cantonese dictionary project currently in progress.61 The majority of people in Hong Kong

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208  Y.W. Chu perceive Cantonese as closely linked to their identity, and despite PMI attracting much less societal attention than recent controversies over universal suffrage and moral/​national education, it has sounded an alarm for the future. It is important to bear in mind that ‘[i]n some cases, indigenous languages can be swamped by intrusive ones over a relatively short period of time’.62 With Hong Kong losing momentum, it has become all the more important to preserve its language, the medium of its vigorous culture, which embodies its core values. The question of who speaks for Lion Rock and in what language is as important as the question of what form the next generation of Lion Rock spirit will take. Notes 1 Refer, amongst others, to Yiu-​Wai Chu and Eve Leung, ‘Remapping Hong Kong Popular Music: Covers, Localisation and the Waning Hybridity of Cantopop’, Popular Music 32(1) (2013): 65–​78. 2 Elaine Yau and Vanessa Yung, ‘Cantonese or Putonghua in Schools? Hongkongers Fear Culture and Identity “Waning” ’, South China Morning Post, 2 September 2014, accessed 29 July 2016, www.scmp.com/​lifestyle/​family-​education/​article/​1583037/​ argument-​continues-​over-​using-​cantonese-​or-​putonghua. 3 Felicia Sonmez, ‘China Is Forcing Its Biggest Cantonese-​Speaking Region to Speak Mandarin’, Business Insider, 25 August 2014, accessed 31 March 2016, www.businessinsider.com/​china-​is-​forcing-​its-​biggest-​cantonese-​speaking-​region-​to-​speak-​ mandarin-​2014–​8?IR=T. 4 See, amongst others, Beatrice Siu, ‘Bureau Stirs up Cantonese Issue’, Hong Kong Standard, 4 February 2014, accessed 29 July 2016, www.thestandard.com.hk/​section-​news.php?id=142132&story_​id=41478216&d_​str=20140204&sid=11. 5 Borrowed from Victor Mair, ‘Is Cantonese a Language, or a Personification of the Devil?’, Language Log, 9 February 2014, accessed 31 March 2016, http://​languagelog.ldc.upenn.edu/​nll/​?p=10303. 6 Cited from Hong Kong Legal Information Institute, CAP 5 Official Languages Ordinance, 1, accessed 29 July 2016, www.legislation.gov.hk/​blis_​pdf.nsf/​CurEng Ord/​3D26A2C71CB81FE4482575EE002B23B6/​$FILE/​CAP_​5_​e_​b5.pdf. 7 Curriculum Development Council, Learning to Learn: Key Learning Area –​ Chinese Language Education (Consultation Document) (Hong Kong: Curriculum Development Council, 2000), 7. 8 ‘There was no statutory provision for what constituted the official language(s) in Hong Kong between 1842 and 1974; English was by practice the sole language used for all official matters within all three (executive, judicial and legislative) branches of the government during the period.’ Quote cited in Daniel W.C. So, ‘Hong Kong Language Policy’, in National Profiles of Language Education in 25 Countries, ed. Peter Dickson and Alister Cumming (Berkshire: National Foundation for Educational Research, 1996), 41. 9 Ibid., 41; see also ‘Forty Years of “Official” Chinese’ [in Chinese], U-​Beat Magazine 114, 23 April 2014, accessed 31 March 2016, http://​ubeat.com.cuhk.edu.hk/​%E4% B8%AD%E6%96%87%E6%B3%95%E5%AE%9A%E5%9B%9B%E5%8D%81%E5%B 9%B4/​. All English translations from the Chinese are mine unless stated otherwise. 10 For details, refer to Wing-​sang Law, ‘Decolonization in the Midst of the Cold War’ [in Chinese], Thinking Hong Kong 6 (2015): 24–​30. 11 Moreover, ‘[i]‌n spite of extensive dialectal divergence within the Chinese language, the government chooses not to specify what constitutes the official variety of Chinese in Hong Kong. Instead, it leaves it to be determined pragmatically’. See So, ‘Hong Kong Language Policy’, 41.

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Who speaks for Lion Rock? 209 12 John Bacon-​Shone and Kingsley Bolton, ‘Bilingualism and Multilingualism in the HKSAR: Language Surveys and Hong Kong’s Changing Linguistic Profile’, in Language and Society in Hong Kong, ed. Kingsley Bolton and Han Yang (Hong Kong: Hong Kong Open University Press, 2008), 31–​32. 13 Chi-​Tak Chan, ‘The Third Chinese Language Movement’ [in Chinese], Sing Tao Daily, 14 April 2014, E07. 14 The response of the secretary for education to legislator Emily Lau’s question related to PMI was this: ‘In 2000, the Curriculum Development Council (CDC) stated in its Chinese Language curriculum document that the use of Putonghua to teach CLS [the Chinese Language Subject] is a long-​term goal.’ Cited in ‘LCQ11: Using Putonghua to Teach the Chinese Language Subject’, Hong Kong SAR Government Press Releases, 23 January 2008, accessed 31 March 2016, www.info.gov.hk/​gia/​general/​200801/​ 23/​P200801230177.htm. 15 Legislative Council Financial Committee, New Item ‘Grant to the Language Fund’ (FCR [2013–​14] 49)  for Discussion on 10 January 2014 (Hong Kong:  Legislative Council, 2014), 3; see also Legislative Council Panel on Education, Study Report on Factors Affecting the Use of Putonghua to Teach Chinese Language in Hong Kong Primary and Secondary Schools (LC Paper No. CB(2)2588/​07-​08(01)) (Hong Kong: Legislative Council, 2008). 16 Educational Television, ‘A Comparison of Cantonese and Putonghua’, HK Ed City Resources Depository, 25 April 2007, accessed 31 March 2016, http://​resources.hkedcity.net/​resource_​detail.php?rid=1956736380. 17 Ngũgĩ wa Thiong’o, ‘The Language of African Literature’, in The Post-​colonial Studies Reader, ed. Bill Ashcroft, Gareth Griffiths and Helen Tiffin (London:  Routledge, 1995), 288. 18 A leaflet published by the PMI Students Concern Group; details of the group can be found at www.facebook.com/​scholars.say.no.to.PMI, accessed 31 March 2016. 19 Legislative Council, Meeting Minutes of LegCo Panel on Education (LC CB(4)1244/​ 14–​15) [in Chinese] (Hong Kong: Legislative Council, 2015), 10. 20 ‘The myth that there is only a single Chinese (Han) language and that it is spoken by more than a billion people is as widespread, relatively recent, persistent, and obnoxiously misleading as the myth that the Great Wall was the only man-​made object on earth that could be seen from the moon. Furthermore, both of these myths were perpetrated by Westerners and foisted upon the Chinese.’ See Victor Mair, ‘How to Forget Your Mother Tongue and Remember Your National Language’, accessed 31 March 2016, http://​pinyin.info/​readings/​mair/​taiwanese.html. 21 Rey Chow, ‘Introduction’, in Modern Chinese Literary and Cultural Studies in the Age of Theory: Reimagining a Field, ed. Rey Chow (Durham, NC: Duke University Press, 2000), 8. 22 Noam Chomsky, Language and Problems of Knowledge:  The Managua Lectures (Cambridge, MA: MIT Press, 1998), 36. 23 Victor Mair, ‘Eighty-​one Cantonese Proverbs in One Picture’, Language Log, 27 February 2014, accessed 31 March 2016, http://​languagelog.ldc.upenn.edu/​nll/​ ?p=10717. 24 Don Snow, Cantonese as Written Language: The Growth of a Written Chinese Vernacular (Hong Kong: Hong Kong University Press, 2004), 62. 25 Ping-​Kwan Leung, ‘Two Discourses on Colonialism: Huang Guliu and Eileen Chang on Hong Kong of the Forties’, in Modern Chinese Literary and Cultural Studies in the Age of Theory, ed. Rey Chow (Durham, NC: Duke University Press, 2000), 81. 26 Shu-​mei Shih, ‘Hong Kong Literature as Sinophone Literature’, Journal of Modern Literature in Chinese 8.2–​9.1 (2008): 16. 27 Ibid., 16. 28 Rey Chow, Not Like a Native Speaker:  On Languaging as a Postcolonial Experience (New York: Columbia University Press, 2014), 79.

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210  Y.W. Chu 29 Kwai-​Cheung Lo, ‘Look Who’s Talking: The Politics of Orality in Transitional Hong Kong Mass Culture’, in Modern Chinese Literary and Cultural Studies in the Age of Theory, ed. Rey Chow (Durham, NC: Duke University Press, 2000), 182. 30 Sonmez, ‘China Is Forcing Its Biggest Cantonese-​Speaking Region’. 31 ‘It would be feasible to separate the spoken form/​medium of instruction (either in Cantonese or in the Beijing dialect) from the written form (i.e. modern vernacular Chinese) although consistency of the two forms would be more reasonable.’ See Sze-​Wing Tang, ‘Cantonese and Chinese: What Are the Controversies and Why?’ [in Chinese], Institute of Chinese Studies Bulletin 2 (2014): 11. In the special context of Hong Kong, however, consistency of the two forms is neither necessary nor desirable. 32 A warning from University of British Columbia linguistics researcher Zoe Lam, who said: ‘That’s worrying. For a lot of abstract concepts like political science or philosophy, they [Hong Kong students] may only know how to think in Mandarin, and not be able to express themselves very well in Cantonese.’ See ‘Chinese Government’s Preference for Mandarin Seen as Major Threat to Cantonese’, CBC News, 29 April 2015, accessed 31 March 2016, www.cbc.ca/​news/​canada/​british-​columbia/​ cantonese-​language-​could-​disappear-​says-​ubc-​linguist-​zoe-​lam-​1.3053933. 33 Snow, Cantonese as Written Language, 63. 34 The RTHK (Radio Television Hong Kong, the public broadcaster of Hong Kong) report on PMI stated that Pui Ching Middle School had adopted PMI in all forms in school year 2014–​2015, which, according to their Chinese panel teacher Ms Yik, had improved their written Chinese ability. Refer to ‘Primary School Decided to Adopt PMI in All Classes in the New School Year’ [in Chinese], RTHK News, 29 August 2014, accessed 31 March 2016, http://​rthk.hk/​rthk/​news/​expressnews/​20140829/​ news_​20140829_​55_​1033349.htm. Ms Yik’s argument was that the grammar of written Chinese is similar to that of Putonghua, and thus students in PMI classes will write tao chu lai (掏出來) rather than na chu lai (拿出來) (both mean ‘take out’ in Chinese). The important point to note is that although the former is used in Putonghua, the latter expression used in Cantonese is by no means wrong in modern standard Chinese. Lu Xun’s famous notion of na lai zhu yi (‘Grabbism’) is a good example. 35 Shek-​Kam Tse pointed out that in a global study conducted every five years by the International Association for the Evaluation of Educational Achievement on the reading achievement of fourth-​graders, Hong Kong ranked first amongst the 46 participating countries and regions in 2011, rising over the years from 14th place in 2001 to second in 2006: ‘If you argue [that] students learn better when they can read and write [the way that] they speak, Taiwan (ranked 7th) should perform better than us … Using this logic, students from northeastern China should perform the best at Chinese language as they come from Putonghua-​speaking areas. But that’s far from the case. The best [performers] are from Zhejiang, Hangzhou and surrounding areas where Shanghainese is spoken.’ Cited in Yau and Yung, ‘Cantonese or Putonghua in Schools?’. 36 ‘No Proof PMI Enhance Language Proficiency’ [in Chinese], Now News, 20 June 2015, accessed 31 March 2016, http://​news.now.com/​home/​local/​player?newsId=140310. 37 Lin-​Hong Cheung, Kwok-Chung Cheung, Chung-Kai Cheng, Lily Lili Leung, LaiPing Ng and Ching-Wing Lee, PMI: Questions and Answers [in Chinese] (Hong Kong: Hong Kong Institute of Education, 2002), 24. 38 Yau and Yung, ‘Cantonese or Putonghua in Schools?’. 39 Cited in Ben Sin, ‘Is Cantonese in Danger? Hongkongers Take Steps to Protect Their Heritage’, South China Morning Post, 18 March 2014, accessed 29 July 2016, www. educationpost.com.hk/​resources/​education/​140319-​education-​news-​is-​cantonese-​ in-​danger-​hongkongers-​take-​steps-​to-​protect-​their-​heritage. 40 Cited in Raymond Tsoi, ‘Are We Overstating the Importance of Putonghua?’, EJ Insight, 21 May 2015, accessed 31 March 2016, www.ejinsight.com/​20150521-​ overstating-​importance-​putonghua/​.

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Who speaks for Lion Rock? 211 41 Ibid. 42 For accounts of the importance of Cantonese and critiques of the PMI myth, refer to Chi-​Ming Pang and Ching-​Hang Cheng, eds, Hong Kong Cantonese, Hit It Hard! [in Chinese] (Hong Kong: Subculture, 2014). 43 ‘Primary Schools Decided to Adopt PMI in All Classes in the New School Year’ [in Chinese], RTHK, 29 August 2014, accessed 31 March 2016, http://​r thk.hk/​r thk/​ news/​expressnews/​20140829/​news_​20140829_​55_​1033349.htm. 44 ‘The Death of Cantonese’, Time Out Hong Kong, 8 July 2015, accessed 31 March 2016, www.timeout.com.hk/​big-​smog/​features/​73305/​the-​death-​of-​cantonese.html. 45 ‘That summer, a deputy director of the Guangzhou People’s Political Consultative Conference proposed replacing Cantonese with Putonghua on news and variety programmes on television. He said Putonghua broadcasts would make visitors feel more welcome during the Asian Games held in the city in November. This sparked protests and a campaign to protect Cantonese and resist what was seen as the hegemony of Putonghua.’ Cited in Stephanie Cheng and Vicki Yuen, ‘Defending Cantonese’, Varsity, 20 March 2012, accessed 31 March 2016, http://​varsity.com.cuhk.edu.hk/​ index.php/​2012/​03/​defending-​cantonese/​2/​. 46 ‘The Guangzhou protests were quickly shut down by police, which is not unexpected in a place where freedom of expression is a luxury.’ Cited in Yiu-​Wai Chu, Lost in Transition (Albany: SUNY Press, 2013), 147. 47 See, for instance, ‘The Wave of Anti-​PMI about to Be Triggered Off:  Where Is Scholarism?’ [in Chinese], VJ Media, 7 February 2014, accessed 31 March 2016, www.vjmedia.com.hk/​articles/​2014/​02/​07/​62515. 48 Scholarism, ‘Against the Coercive Implementation of PMI:  Refusing to Accept the Unification of Languages’ [in Chinese], Scholarism Facebook post, 16 February 2014, accessed 31 March 2016, www.facebook.com/​notes/​%E5%AD%B8%E6%B0%91%E6 %80%9D%E6%BD%AE-​scholarism/​%E8%81%B2%E6%98%8E%E5%8F%8D%E5%B0% 8D%E5%BC%B7%E5%88%B6%E6%8E%A8%E8%A1%8C%E6%99%AE%E6%95%99%E 4%B8%AD-​%E6%8B%92%E7%B5%95%E8%AA%9E%E8%A8%80%E8%A2%AB%E7%B 5%B1%E4%B8%80/​715909735108102. 49 ‘The Death of Cantonese’. 50 Wai-​ Wan Tong, ‘Student Organization Opposing PMI in Primary Schools’ [in Chinese], Voice of America, 5 September 2014, accessed 31 March 2016, www. voacantonese.com/​content/​hk-​students-​group-​protest-​against-​putonghua-​teach-​ chinese-​language/​2439646.html. 51 Chi-​Chen Lai, ‘Xiang Zhuang’s Performing the Sword Dance, but His Mind’s Set on Liu Bang: A False Proposition Aiming at Provoking Opposition and Dividing the Community’ [in Chinese], Wen Wei Pao, 3 August 2010, accessed 31 March 2016, http://​paper.wenweipo.com/​2010/​08/​03/​PL1008030001.htm. 52 Muk-​Chi Chen, ‘Defending the Social Standing of Cantonese:  Absolutely Not to Advocate Hegemony’ [in Chinese], Independent Media, 1 January 2015, accessed 31 March 2016, www.inmediahk.net/​node/​1030107. 53 Stephen Wing-​ Kai Chiu and Tai-​ Lok Lui, ‘Introduction:  Changing Political Opportunities and the Shaping of Collective Action:  Social Movements in Hong Kong’, in The Dynamics of Social Movements in Hong Kong:  Real and Financial Linkages, ed. Stephen Wing-​Kai Chiu and Tai-​Lok Lui (Hong Kong:  Hong Kong University Press, 2000), 7. 54 ‘The Death of Cantonese’. 55 Ping Chen, ‘Language Policy in Hong Kong during the Colonial Period before July 1, 1997’, in Language Planning and Language Policy:  East Asian Perspectives, ed. Nanette Gottlieb and Ping Chen (Richmond: Curzon Press, 2001), 125. 56 Chow, Not Like a Native Speaker, 45. 57 Yau and Yung, ‘Cantonese or Putonghua in Schools?’. 58 Tang, ‘Cantonese and Chinese’, 11.

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212  Y.W. Chu 59 Sin, ‘Is Cantonese in Danger?’. 60 Chi-​Tak Chan, ‘The Third Chinese Language Movement’. 61 Refer to ‘Pro-​Cantonese: Different Methods Adopted by Hong Kong and Guangzhou Youngsters’ [in Chinese], ET Net, 19 August 2014, accessed 31 March 2016, http://​ m.etnet.com.cn/​column-​list-​EtnetcolB54/​35298.htm; for the Cantonese-​ to-​ Cantonese dictionary, refer to http://​words.hk/​; accessed 31 March 2016. 62 Suzanne Romaine, Language in Society: An Introduction to Sociolinguistics (Oxford: Oxford University Press, 2000), 49.

213

Index

1967 riots: and Cultural Revolution 63, 65, 68, 70, 71, 74; anti-​communist mentality 63, 67–​9; bomb attacks 65, 66, 70, 98; casualties 98; consequences 63, 71, 98; discussions on Hong Kong’s future 73–​4; divisions between leftists and mainstream society 66–​70; government’s evacuation plan 98; government’s publicity campaign 68; Hong Kong consciousness and sense of belonging 69–​70; Hong Kong identity 63, 69, 99; Lam Bun 64, 65; social reforms 70–​3, 98–​9; trigger 63, 65; Zhou Enlai’s intervention 66, 98 Acadians 27 Ackerman, Bruce 154 Advanced Level Examination 198 Ah Caan 108, 109 Alabaster, C.G. 35, 37 All-​Circles Anti-​Persecution Struggle Committee 64 All Hong Kong Working Party to Promote Chinese as an Official Language 198 annual candlelight vigils in Victoria Park 122, 123 anti-​article 23 Bill movement 133 anti-​moral and national education curriculum movement 124, 205 anti-​PMI movement 199, 205, 206; see also pro-​Cantonese movement Arnold, David 46 Asian Tigers 105, 106 Avenue of Stars 190; statues 190 Ayres, Dr. (Colonial Surgeon) 47 Bacon-​Shone, John and Kingsley Bolton 198 banishment see deportation

Basic Law 23, 122, 126, 127, 129–​32, 134, 164, 207; article 23 (BL 23) 122, 130–​1; Beijing’s interpretation 164–​5 Batman 183, 184 Bauer, Robert (author) 207 Bennett, Rev. Joyce 90 Beyond (Cantorock band) 190–​2, 196 ‘bi-​literacy and tri-​lingualism’ policy 199 Bill of Rights 126, 127, 129, 164 Black, Robert (Colonial Secretary) 39 Blaker, Peter (MP) 91, 92 Bokhary, Kemal (Judge) 190 ‘Boundless Oceans, Vast Skies’ (song) 190, 196 Bowen Road Hospital 38 boycotts of Japanese stores and products 12 Bray, Denis (Secretary for Home Affairs) 90, 91 British Medical Act 47, 48 Bryan, Sir Paul (MP) 91 bubonic plague 32, 49, 52, 58n17 Caine, William (magistrate) 28 Callaghan, James (British Foreign and Commonwealth Secretary) 88 ‘Can Do Restaurant’ (short story) 202 Cantonese as Written Language 201 ‘Cantonese at the Tip of My Tongue’ (video) 207 Cantonese language 188, 191, 192, 196–​208 Cantopop 107, 189, 190, 192, 196, 203 Captain Superintendent of Police 13, 30, 31 Caritas Social Centre 89 Cater, Jack (Deputy Colonial Secretary) 68, 72, 99 Central Fire Station 13

214

214 Index Central Police Station 13 Chagos Islanders 27 Chan Abrahim (Cantopop lyricist) 203 Chan A-​tai (pirate) 28 Chan, Chi-​Tak (writer and scholar) 207 Chan, Eason (Cantopop superstar) 107 Chan Kam-​lam (lawmaker) 64 Chan, Koon-​Chung (cultural critic-​cum-​novelist) 202 Chan Yuen-​han (FTU heavyweight) 67 Chaozhou 202 Charles X, King 183 Chen Zuo’er (Head of the Chinese Association of Hong Kong and Macao Studies) 97 Cheung, Jacky (Cantopop superstar) 107 Chiang Kai-​shek 37 Chibi Maruko-​chan 184 Children of Darkness 202 Chinese Association of Hong Kong and Macao Studies 97 Chinese Communist Party (CCP) 97, 98, 99; state in Hong Kong 37 Chinese customary laws 54, 60n41–​2, 61n43 Chinese Extradition Ordinance 36 Chinese medicine: confrontation with Western medicine 49–​50; and Confucianism 58n5; customary medical practice 54–​7; exclusion as oppression 50–​4; extra-​legal status 51–​4; free of regulation 47–​8; laissez-​faire policy 46–​7, 49; legal transplantation 59n30; limited opportunity to develop 53–​4; limited role in the public sphere 52–​3; normative restrictions 51–​2; orientalist prejudice 46; popularity among Chinese population 61n47; restricted scope of medical treatment 52; segregation 47 Chinese People’s Political Consultative Conference 204 Chinese Reform Association 39 Chiu, Stephen Wing-​Kai and Lui Tai-​Lok 206 Choi Yuen Village, demolition of 124 Chomsky, Noam 201 Chow, Alex (student leader) 185 Chow, Rey 200–​1, 202 Chow Wing-​sun, Nelson (emeritus professor) 69–​70 Christian Industrial Committee 67 Chung Chi College of Chinese University of Hong Kong 198 Chung, S.Y. 83

City District Officer scheme 72 City of Victoria 13 Civic Passion (activist group) 205 Civic Square, storming of 125, 132, 139n131 civil autonomy 163–​5, 176 civil disobedience: and cultural change 153–​5; defining features 143–​5; justifying factors 145–​6; loss of appeal 171–​3; nonviolence 145 civil disobedience, and the rule of law 141–​57, 158n32; justifications 143; legal professionals’ views 141–​2; protesters’ views 142; spirit of proportionality 145–​6 Civil Human Rights Front 123 Civil Liberties and Social Order 127 Civil Rights for Sexual Diversities 130 civil society 3, 77, 118, 124, 151, 154, 174; discursive field 163–​4 CNN 185 Colonial Office 28, 29, 30, 34, 35, 38, 48 Colonizing the Body 46 common law 4, 11, 12, 13, 18, 23, 24, 35, 125, 152, 164 communism 68; collapse in Eastern Europe 118 compulsory education policy 98, 100 Confederation of Trade Unions, the 67 ‘Crazy Horse in a Mad City’ (essay) 202 Cripps, Sir Stafford (KC, Labour Party member) 38 Cultural Revolution 5, 63, 65, 66, 68, 70, 71, 74, 98 Curriculum Development Institute 197 dai pai dong (local café) 190 d’Almada, Leo (solicitor) 13–​22 Davies, Derek (editor) 65, 70 Deane, W.M. (Captain Superintendent of Police) 30 de Certeau, Michel 121 Defence and Overseas Policy Committee (Britain) 73 Delacroix, Eugène (painter) 183 Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) 64, 65, 173 Deng Xiaoping 74, 110 Department of Justice 23, 128, 169, 170, 171, 173 deportation: automatic deportation 39; branding and tattoo 29; brief history 26–​41; Chatham Road camp

215

Index 215 39–​40; deportees 26–​7, 31–​2, 34–​5; destinations 29; in time of war 38–​9; ‘long procedure’ and ‘short procedure’ 33; origins of the policy 27–​30; political deportations 35–​8; rights to due process 33–​4; roles in the colony 26–​7; tightened laws 32–​5; widened net 30–​2 Deportation (British Subjects) Ordinance 35 Deportation of Aliens Ordinance 35 Deportation Order 44n38; re-​enactment 34 Diaoyu Islands 109, 206 Double-​Tenth riots 40 Douglas-​Home, Sir Alec (British Foreign Secretary) 73 Dream of the Red Chamber Award 202 Dung, Kai-​Cheung (novelist) 202 Dworkin, Ronald: persuasive strategies and non-​persuasive strategies 157n8 École Polytechnique 183 Educational Television 199 Elliott (later Tu), Elsie (Urban Councillor) 40–​1 Emergency (Deportation and Detention) Regulations 41, 45n55 Emergency Regulations Ordinance 38 European Convention on Human Rights 40 Examination Authority 198 Excess Population Reduction Committee 38 Executive Council 31, 82, 83 Expulsion of Undesirables Ordinance 39 extradition 26, 35–​6; Chinese fugitives 36; ‘Guangxi clique’ 37; Hung Shiu-​lun case 36; Kwok A-​Sing case 36; Li Zongren 37; of communists 37; presumption of innocence 36 Fabian Society 84 Faculty of Law of HKU 6 Far Eastern Economic Review 65, 70, 71 Fawkes, Guy 182; see also Gunpowder Plot Federation of Trade Unions (FTU) 64, 66, 67 First World War, the 38 flogging 26, 28, 33, 42n18, 43n22 Foreign and Commonwealth Office 73, 78, 79, 80, 81, 83, 85, 86, 89, 92, 93 freedom of association 11 freedom of expression 4, 11, 14, 24, 25n4, 150

Frontier and April Fifth Action, The 167 Fukien 198 Fuller, Lon L. 152, 160n74–​161n82 Fung, Anthony 110 Gandhi, Mahatma 168 Goods of Desire (G.O.D.) 191–​2 Goodstadt, Leo 71 Goronwy-​Roberts, Lord 83 governance, legitimacy of 2, 3, 5, 23, 68, 99, 108, 176 government campaigns: ‘Clean Hong Kong’ 100; Fight Crime Campaign 90; ‘Fight Violent Crime’ 100; ‘Hong Kong: Our Home Campaign’ 107 Government Headquarters 124, 165, 197 Government House 92 Governor in Council 26, 28, 30, 33, 34, 36, 40, 41, 48 Governor of Fiji 32; see also Sir Henry May Governors of Hong Kong: Bowen, Sir George 31, 36; Bowring, Sir John 28; Clementi, Sir Cecil 37; Davis, Sir John 28; Des Voeux, Sir G.W. 36; Grantham, Sir Alexander 40; Hennessy, Sir John Pope 29–​30; Kennedy, Sir Arthur 29; MacDonnell, Sir Richard 29; MacLehose, Sir Murray 72–​3, 76–​94; May, Sir Henry 32, 34, 36; Patten, Sir Chris 126, 164; Peel, Sir William 37, 38; Pottinger, Sir Henry 28; Robinson, Sir William 49–​50; Trench, Sir David 40, 72, 78, 82, 98 Grand Bauhinia Medal 64 Greenawalt, Kent 145 Grimm, Dieter 147 Guardian (newspaper) 185 Gundam series 184, 185 Gunpowder Plot, the 182 habeas corpus 27, 33, 35, 36, 37 Hakka 198, 202 Hargreaves, Robert: Mr Men series 184 Harrison, Mark 46 Ho Chi Minh 37; deportation from Hong Kong 37–​8 Ho, Eric Peter 90 Hogan Commission 40 Hong Kong: development of legal system 125–​7; dramatic transformation in economy 105–​6; economic miracle before 1990s 101; Four Key Industries 105–​6; GDP growth 101–​2, 104; GINI coefficient 101–​2, 104; median

216

216 Index monthly income 102–​3, 105; wealth disparity 101 Hong Kong Alliance in Support of Patriotic Democratic Movements in China 123 Hong Kong and Indian Ocean Department 82, 85 Hong Kong Artificial Flower Works 65, 98 Hong Kong Bar Association 141–​2, 167–​8, 175 Hong Kong Bill of Rights Ordinance 126 Hong Kong branch of Xinhua News Agency 65 Hong Kong–​Britain’s Responsibility 84 Hong Kong Certificate of Education Examination 198 Hong Kong Chamber of Commerce 175 Hong Kong College of Medicine for Chinese, The 53 Hong Kong Court of Final Appeal 11, 129, 142, 156, 164, 165 Hong Kong Democratic Self-​Government Party 40 Hong Kong Education Bureau (EDB) 196, 197, 201, 205, 207; policy on PMI 198–​200 Hong Kongers 3–​7, 63, 67, 68, 69, 101, 106, 109, 110, 124, 180, 184, 186, 191, 197, 199, 204, 207 Hong Kongers vs mainlanders: feelings of ‘otherness’ 109–​10; ‘People of a Strong Nation’ (geong gwok jan) 109; poor cousins (biu ze and biu suk) 109; sense of economic inferiority 109–​10 Hong Kong Federation of Students (HKFS) 100, 165, 167, 169, 174 Hong Kong: Long Term Study 73 Hong Kong Now TV 203 Hong Kong Spidie, The (rock climbers’ association) 196 Hong Kong Standard 55 Hong Kong Street Culture Museum 192 Hong Kong’s Watershed: The 1967 Riots 99 Hong Kong Television Network (HKTV) 100, 124 Hong Kong University Students’ Union, the 100 Hong Kong-​Zhuhai-​Macau Bridge 129 House of Commons 92 ‘House of Detention’ 33; see also Victoria Gaol House of Lords 182 Housing Ordinance, the 126 Huang, Denny (Urban Councillor) 198

Huang Guliu (author) 202 Hughes, Richard (journalist) 67–​8 Human Rights Monitor 175 Immigration Ordinance 38, 41 Independent Commission Against Corruption (ICAC) 6, 69, 98, 100 indigenous medicine: status in colonies 46 individual liberty 4, 11, 12 Industrial Relations Institute 89 International Commission of Jurists 152; Declaration of Delhi 159n41 International Committee of the Trades Union Congress 84 International Covenant on Civil and Political Rights 126, 131, 152, 164 International Covenant on Economic, Social and Cultural Rights 152 International Labour Organization 84 Ip, Regina (Secretary for Security) 168, 173–​6 Japan Chronicle 22 Japanese acquisition of Qingdao 12 Japanese occupation of Hong Kong 38 Jenkin, F.C. (KC, barrister) 37 Jiang Shigong (Deputy Director of Peking University’s Centre for Hong Kong and Macau Studies) 68 judicial independence 11, 14, 15, 17, 18, 19, 24, 142, 149, 153 ‘Keep Calm and Carry On’ posters 186 Kempeitei 38 Kennosuke, Noma (Commanding Officer of Kempeitei) 39 Kowloon Bus Company 90 Kung Yik Po 32 Labour Advisory Board 67, 71 labour movement 64, 88, 118, 121, 122 Lam, Carrie (Chief Secretary for Administration) 107 Lam Shuk-​yee (FTU president) 64 Language and Problems of Knowledge 201 Larceny Ordinance 30 Lau Chin-​shek (lawmaker) 67 Lau Chu Pak (community leader) 34 Lau Man-​shing (leftist) 67 Lau, Nikki 190 law and order: definition 1; ideology 164, 173, 177; implications 1; role in social movements 3

217

Index 217 Law of the People’s Republic of China on the Standard Spoken and Written Chinese Language 207 Lee Kuan Yew (prime minister) 108 Lee, Rance (sociologist) 55, 56 Lee Yau (banishee) 26 leftist camp 63, 64, 65, 66, 67, 68, 71 Legal Aid Department 129 Legco Security Panel 175 Legislative Council 27, 30, 77, 79, 81, 83, 84, 87, 88, 89, 90, 91, 93, 98, 122–​7, 130, 173–​5, 199, 200; composition 90; grassroots representation 90–​91; official and non-​official members 89 Leung, Anthony (Financial Secretary) 106–​7 Leung Chun-​ying (Chief Executive) 108, 187–​8 Leung, Ping-​Kwan (scholar and writer-​cum-​critic) 202 Leung Tat-​shing 89 Leung, Yvonne (student leader) 132 Liberal Party 130, 175 Li Hong Mi, deportation of 34–​5 Li Hou (deputy director of the Hong Kong and Macau Affairs Office) 66 Li, Jet (martial arts star) 190 Li Jishen 37 Li, Lily (former TV program host) 203–​4 Lindsell, Roger (Magistrate) 14, 15, 17, 18, 19, 20, 21 Lion Rock: ‘Below the Lion Rock’ (song) 106, 107, 196; symbol of perseverance and solidarity 7n3, 196; the spirit 6, 106, 107, 196, 208; the theme 106 Lloyd, David 182 Local Action 124, 129 Lo, Kwai-​cheung 202 Loseby, Frank (solicitor) 37, 38 Lui Tai-​lok 99, 206 McAdam, Doug 118 McCann, Michael W. 120–​1 McGovern, Rev. Patrick (Jesuit priest) 89, 90 MacLehose, Sir Murray (Governor of Hong Kong): China factor 85, 86, 93; “flying MPs” 91, 92; governorship 76–​94; local administration reform 91–​3, 95n41; main concerns 78–​80; political reform background 76–​8; pressure from UK 84–​8; reform in action 88–​91, 98; “tripod” for stability 88; view of political arrangements 80–​3

McTeigue, James (director) 182 Ma, Geoffrey (Chief Justice) 142 Magistrates’ Court 12, 13, 14, 17 Magna Carta 35 Mair, Victor (Cantonese supporter) 201 Mak, Alice and Brian Tse: McDull series 189–​90 Mak Mei-​kuen, Alice (FTU lawmaker) 64 Ma, Kwok-​Ming (author) 202 Mao Zedong 66, 71 Mason, Sir Anthony 11, 12, 18 maximum working hours 71 May Fourth Movement 12 Medical Committee 52 Medical Council 48 Medical Registration Ordinance 4, 47, 48, 51, 53, 54, 55 Milk (artist) 179; see also The Umbrella Man (statue) Ming Pao Daily editorial 172–​3 Miyazaki, Hayao: Totoro 184 Mok Ying-​kwai (barrister) 39 Moore, Alan (novelist) 182 Mui, Anita (Queen of Cantopop) 190 Mutual Aid Committees (MACs) and Area Committees 81, 85, 87, 89, 90, 91, 95n41 National Archives (Britain) 63, 66 National People’s Congress Standing Committee (NPCSC) see Standing Committee of the National People’s Congress (NPCSC) National Security Bill 130–​1 Neighbourhood and Workers’ Service Centre 129 Ng Choy see Wu Tingfang Ng, Eddie (EDB Director) 200 Nonet, Philippe, and Philip Selznick 156 Occupy Central Movement 107, 123, 124, 136n72, 179; civil disobedience 125, 132; identities 180; injunction orders 142; labour strike 100; legal dimensions 131–​3; legitimacy 119, 131; manifesto 181; ‘Occupy trio’ 124–​5, 131, 133; police use of tear gas 125, 132, 180, 182; prosecutions 133; protesters’ demands 108; social context 100–​1; steps for achieving its aim 181; transforming events 125; yellow banners 6, 107–​8, 182 Occupy Central Movement artworks: Anglo-​American cartoons and Japanese

218

218 Index anime characters 184–​5; Batman symbol and ‘Hong Kongers Save Ourselves’ 183–​4; British Crown 186; colonial flag, Union Jack and coat of arms 186; crying child with arms around his knees 182; giant storm cloud and a hand holding yellow umbrella 190; ‘KEEP CALM AND OCCUPY CENTRAL’ 186; Liberty Guiding the People (painting) 183; McDull and his mother 190; men wearing black hoodies (or T-​shirts) and masks 182; Paddington Bear and the policeman 181–​2; Totoro holding yellow umbrella and ‘Delay No More’ 191; woman in yellow holding up a light 183 Occupy Central Movement artwork varieties: act of anarchism 182; Chinese register 186–​9; colonial nostalgia 186, 187; Hong Kong identity: postcolonial paradoxes 185–​9; Hong Kong identity: self as bricolage 189–​93; peaceful protest 181–​2; revolution 183; seeing occupy 180–​5; utopia fantasy 184–​5; vigilante justice 183–​4 Official Languages Ordinance 197, 198 oil crisis of 1970s 6, 101 O’Keeffe, Laurence 85 ‘One Country, Two Systems’ 134, 207; cultural crisis 108–​10, 207 Orientalism 4, 57 Passion Times 205 Pati, Biswamoy 46 Peace Preservation Ordinance 30, 43n22 Pearl River Delta viii, 105 People’s Congresses Journal, The 97 Piggott, Sir Francis (Chief Justice) 33 political stability 1, 2, 6, 7n1, 121 ‘popular constitutionalism’ 131 Pritt, D.N. (KC, Labour Party member) 38 Privy Council 35, 36, 38, 44n38, 48 pro-​Beijing camp 63, 64, 65, 66, 71, 76, 79, 89, 164, 173, 174, 175, 176 pro-​Cantonese campaign 196, 197, 200, 204–​6 pro-​Chinese language campaign 197–​200, 205, 206 procession (under Regulation of Chinese Ordinance) 13–​22 Proposals to Implement Article 23 of the Basic Law 130

Protection of the Harbour Ordinance, the 126 Provisional Legislative Council 127, 173 Public Health and Buildings Ordinance 52, 53 Public Order Bill (1967) 164 Public Order Ordinance 3, 30, 123, 126, 127, 128, 163, 164–​5, 169–​77 Public Order Ordinance and Societies Ordinance 127, 164; major amendments 126, 127 Public Order Ordinance, dispute over: amendments of the ordinance 164–​5, 177n3; effects of government’s moves 175; government’s non-​prosecution decision 170–​1; government’s strategic moves 173–​4; government’s strategy of re-​scripting 173–​6; opposition discourse and civil disobedience 165–​70; struggle against 165 Putonghua 196, 197, 199; as medium of instruction (PMI) 196; deconstructing the PMI myths 200–​4; effects on language learning 203; long-​term goal of EDB 197; myths behind PMI 200 Qing Dynasty 30, 32 Quality English Language Education at Pre-​primary Level Project, the 199 Radio Hong Kong (RTHK’s predecessor) 68 Reed, T.V. 180–​1 ‘refugee mentality’ 121 Registrar General 31, 33 repatriation see deportation retirement protection 71 right-​of-​abode dispute 164, 165, 168, 176; trigger points 164–​6 Roberts, Denys (Attorney-​General) 41 Roman Catholic Union 16 Roosevelt, Alice 32 RTHK 68, 98, 100, 174, 204 rule of law: administrative limitation 149; and cultural beliefs 154–​5; binding by law 147–​8, 152–​3; constitutional limitation 151; developmental model 155–​7; goals and different understandings 146; institutional essentials 159n50; justice through law 151–​2; level approach 147, 152–​3, 156; levels of 152–​3; limitation by election 150–​1; limitation from law/​ judicial limitation 148–​9; localization 6;

219

Index 219 political limitation 150, 152; principle of the separation of powers 151; procedural justice 151–​2; thin and thick conceptions 147 rule-​of-​man legal system 24 ‘Sail On’ (song) 107 St. Joseph’s College 14, 16, 17 Scheme to Support Schools in Using Putonghua to Teach Chinese Language Subject, the 199 Scholarism (activist group) 205 Scott, Ian (professor) 68 Second Opium War, the 28 Second World War, the 12, 27, 38, 39, 55, 118, 186 Secretary of State 28, 31, 32, 35, 37, 72, 79, 80, 84, 85, 86, 90 separation of powers 11, 151 seven policemen assaulting Ken Tsang 133, 139n132, 140n146 severe acute respiratory syndrome (SARS) 107, 109 Shepherd, Lord Malcolm (Minister of State in the Commonwealth Office) 72 Sherwin, Richard (legal-​cultural scholar) 193 Shieh, Paul (Chairman of the Hong Kong Bar Association) 141, 142, 143 Shih, Shu-​mei 202 Shum, Lester (student leader) 185 Singapore 6, 29, 80, 102, 108 Sinn, Elizabeth 70 Sino-​British Joint Declaration 41, 73, 74, 122, 125 Sino-​British negotiations 77, 93, 96n63 Sino-​French War 30 Smale, Sir John (Chief Justice) 28, 29, 36, 42n12 Smart, Alan 99 Smurfs 184, 185 Snow, Don 201 social movements and the law 117–​34; definitions 117–​18; examples 118; political process theory 119–​20; resource mobilisation theory 119; theoretical framework 118–​21; social movements, in Hong Kong 121–​5; collective actions 121; examples 129–​30; ‘Golden Age’ 121; largest movement 124–​5; law as arena of struggle 130–​1; legal mobilisation 128–​30; legal space 127–​8; pro-​ democracy movement 122

Societas Linguistica Hongkongensis 196, 205 Society for Community Organization 129 Society for the Protection of the Harbour 129 South China Morning Post (SCMP) editorial 172 Stalin regime in USSR 38 Standing Committee of the National People’s Congress (NPCSC) 97, 123, 127, 131, 132; 31 August decision 97, 131 Standing Committee on Language Education and Research 199 Star Ferry riots 30, 40, 63, 66, 71, 72, 98 Star Ferry Terminal and Queen’s Pier, demolition of 124 state–​society relationship 163, 176, 177 Statue of Liberty, the 183 Straits Settlements 32 Stromseth, Jane, David Wippman and Rosa Brooks 154 Stuart, A.C. 82, 83 studenthood 163, 170, 172, 176 student movement 118, 122, 126, 164, 166–​70, 206 Sung Man Cho see Ho Chi Minh Sun Yat-​sen 32, 36 Supreme Court 26, 28, 30, 35, 36, 37, 54 Szeto Wah (legislator) 169 Taipingshan 49, 58n19 Tai, Yiu-​ting Benny (law professor) 125, 131, 132 Tamanaha, Brian 147; maintaining judicial independence 153; rule of law 154 Tang, Sze-​Wing 207 Ten-​Year Housing Programme 72, 98, 100 Thiong’o, Ngũgĩwa 199–​200 Tiananmen incident of 4 June (1989) 123, 164 Topley, Marjorie (medical anthropologist) 53, 55 Treaty of Tientsin 36 Treaty of Versailles 12, 23 Triad Society 30, 31, 40 Tse, Shek-​Kam 203, 210n35 Tung Chee-​hwa administration 122, 130 Tung Tau Fire 39

220

220 Index Tung Wah Hospital 47–​50, 52, 56, 58n7, 59n28, 59n30, 61n47, 61n58 Turner, Matthew (anthropology professor) 69 Umbrella Man (statue), The 179 Umbrella Movement (1919): common law as accomplice to colonial law and order 23–​4; due process unduly influenced 19–​20; Geopolitics of law and order 21–​3; Inspector Brazil 13, 14, 15, 16, 18, 19; judicial independence 14–​19; native goods (guohuo) 12, 15, 17, 22; newspaper reports 12, 13, 22; political prosecution 13–​14; reactions to trial outcome 22–​3; Regulation of Chinese Ordinance 13, 14, 15, 16, 18, 19, 20; Secretary for for Chinese Affairs 13, 17, 18, 20, 25n4; the umbrellas 12, 14, 15, 16, 17, 18, 20, 21, 22; the verdict 20–​1; trial in Magistrates’ Court 13–​20 Umbrella Movement (2014) see Occupy Central Movement Umbrella Movement Art Preservation project, the (UMAP) 179 Umbrella Revolution see Occupy Central Movement ‘Under a Vast Sky’ (song) see ‘Boundless Oceans, Vast Skies’ Union Jack 186 Unofficial Members of Legislative and Executive Councils (UMELCO) 81, 83 Urban Council 81, 89, 91, 92 US civil rights movement 1, 118, 119, 121 ‘utilitarian familism’ 121 Vagrancy Ordinance 38 V for Vendetta 182 Victoria Gaol 26, 31, 33, 34, 37, 38 Victoria Road Detention Centre 40, 67 Vietnam 27, 37

Wan Po (Wenpo) 51 Watson, Duncan (Foreign and Commonwealth Office Deputy Undersecretary) 85 Wei Yuk (community leader) 34 White Paper on Senior Secondary and Tertiary Education 198 Wolfe, Edward (Captain Superintendent of Police) 13, 15, 16, 17, 18, 19, 20, 21, 22 Wong, Bik-​Wan 202 Wong, Chi-​fung Joshua (student leader) 125, 139n131, 185 Wong Kar-​wai (film director) 190 Wong Kwok-​kin (FTU chairman) 67 Wong Lam 90, 91 Wong, Ricky (HKTV) 124 Wong Ting-​kwong (lawmaker) 64 Wong, Wah-​kay Franklin (Director of Broadcasting) 68 Wong, Yue-​chim Richard (economist) 102 Wong Yu Shi and Others v. Wong Ying Kuen 54, 61n44 Works and Creations: Vivid and Lifelike 202 Wu Tingfang (legislator and barrister) 30 Xinyuan see Leung Ping-​Kwan Yau, Elaine and Vanessa Yung 207 Yau Ma Tei boat people incident 92 Yeung Kwong (ringleader of 1967 riots and FTU leader) 64, 65 Ying To College 12 Youde, Edward 82 Young, Douglas and Benjamin Lau 191, 192 Yuan Chonghuan (Ming general) 204 Yuen, Rimsky (Secretary for Justice) 141, 142, 143, 148 Zhou Enlai 66, 98