Monday, March 26, 2007

Blocked!

Bali, Indonesia

The Indonesian government appears to be blocking access to
blogger.com. I base this on the fact that I can visit all of my other
usual websites, yet Blogger always returns as "The Page Cannot Be
Found." I'll post when I can.

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Wednesday, March 21, 2007

Taking Wing

Bandar Seri Begawan, Brunei

Having confirmed that Brunei is the most boring country in the world (albeit with excellent subsidies and benefits as long as you're not hung up on voting and elections and things like that), I am off to Bali in Indonesia. Using a cheap, subsidized ticket on Royal Brunei Airlines, of course.

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Sunday, March 18, 2007

The Corridors of Power


The Corridors of Power by Liu Zhenyun (Panda Books 1994).

Liu Zhenyun’s novellas have made their accommodation with the Chinese Communist Party by portraying China on a sub-atomic level. Liu’s stories revolve around a few characters, employed in old-style Communist work units. In the four-story collection The Corridors of Power, Liu never directly criticizes the Party or the national government. But Mrs. Qiao, the work unit’s Party leader, is a bitter and capricious woman; no one would associate with her by choice, but everyone is forced to appease her if they want to improve their lot. You can draw whatever inference you like.

Liu -- who is now also a screenwriter -- describes a lost world of rationing and central planning. In the story “Ground Covered With Chicken Feathers,” Young Lin wakes at six each morning to stand in line for one hour and receive his family’s daily allotment of bean curd. His wife, vocally unsatisfied with her husband’s lack of connections, must spend four hours a day commuting by bus, because they can’t convince a Party official to transfer her to a closer work unit. The couple is pressured by the Party to purchase “patriotic cabbage” for the winter, leaving the young man and his wife with 500 pounds of cabbage stacked in their flat. Meanwhile, the struggling couple feels obligated to prepare dinners for the stream of guests from Young Lin’s village who arrive requesting favors, because the couple lives in Beijing, and all rural villagers know that everyone who lives in Beijing is powerful and rich.

China’s shift to capitalism has relegated many of these concerns to history; some things haven’t changed, though. Now as then, a Chinese person’s creature comforts are directly related to his or her standing with the Party. In “The Corridors of Power,” an ambitious Party member is disheartened to learn that his assignment is local enforcer of the country’s one-child policy, a post which will make him unpopular and harder to promote. Party members still try to avoid involvement with the failed population plan. (The policy is self-enforcing for loyal Party members – who are expelled if they have more than one child – and is generally unenforceable for everybody else – who don’t have or don’t want Party membership.)

Today, membership in the Party can make someone a multi-millionaire with a literal license to steal. In the 1970s and 1980s, it brought the meanest of perks. Newlyweds could live by themselves in a one-room apartment instead of being forced to share two rooms with another couple. Train stations had separate waiting rooms for Party members (still do; I’ve seen them), large and drafty rooms with stuffed armchairs and a few free colas. When they got to their destination, Party members could stay at drab government-owned hotels -- higher-ranking members sleeping two to a room, lower-ranking members four -- with terrible food and hateful service (still can; I’ve stayed at them). It barely seems worth the effort, yet Liu (pictured) describes back-scratching and –stabbing that would fit seamlessly into the court of the Borgias.

Liu’s writing style is reminiscent of Frank Norris and the Progressive realists, who may have been a direct influence. For reasons I haven’t ascertained, the Party allows the distribution, in English and Chinese, of many of the Great Works of American and British literature but seems to draw a line around 1940. The serious contemporary fiction of the post-World War II generation is harder to find. Many Chinese bookstores jump directly from F. Scott Fitzgerald to Danielle Steel, with little in between. In context, it’s not surprising that a Chinese author writing in the 1980s sounds like an American writing in 1900.

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Saturday, March 17, 2007

Kowloon Tong


Kowloon Tong by Paul Theroux (Hamish Hamilton 1997).

(Spoiler: This post discusses the conclusion of the book.)

One of Hollywood’s articles of faith is that heroes must be likeable. Even a cynical anti-hero must have qualities which ultimately redeem him. That’s why Han Solo re-appeared at the climax of Star Wars to blast the TIE fighter on Luke’s tail, or why the fictional Bugsy Siegel planned a patriotic assassination of Mussolini.

Bunt Mullard is not likeable. He’s pitiable. The protagonist of Paul Theroux’s Kowloon Tong is a 43-year-old Brit, the part owner of a Hong Kong stitching factory. He is dominated by his mother, with whom he lives. He is ineffectual and friendless, confining himself to a closed universe composed of his mother’s house, the factory, the race track, the cricket club and the bordellos in the red light districts.

It is 1996, and Britain’s impending handover of Hong Kong to China is the only topic of news and conversation, but Bunt and his racist mother refuse to listen to a word about the “Chinese Take-away,” the impending theft of the crown colony by the Chinky-Chonks, as she puts it. The two maintain their colonial routines refusing to acknowledge that their world is changing radically. They are pathetic insects who are about to be squashed under a boot, yet you feel some sympathy for them when it happens.

The Chinese co-owner of the factory dies, bequeathing his half share to Bunt. A gruff businessman from mainland China, Mr. Hung, quickly offers to buy the factory from Bunt and his mother. The mother wants to cash out of the colony before the yellow hordes invade, but Bunt resists, in part because he would have no identity if he didn’t show up at the factory every morning and play boss. But Mr. Hung will not take no for an answer, and his demands become increasingly menacing.

The set-up is classic noir. The orderly life of a milquetoast is interrupted by the predations of an evil stranger. In most books – and certainly in the movie -- Bunt would take a few punches, find his spine and turn the tables on Mr. Hung.

Bunt doesn’t do that. Bunt doesn’t do anything. He doesn’t save the factory. He doesn’t save the girl. He doesn’t save himself. He doesn’t even try. I have rarely been as angry at the end of a novel as I was upon finishing Kowloon Tong.

Does that make it a bad book? Certainly, there are passages where I wished Theroux would hurry it up. Theroux keeps the curtain down long after it’s obvious what’s going on. And one crucial plot point involving the wiring of funds remains maddeningly unresolved.

On the other hand, the invoking of a strong emotional reaction is usually the mark of a talented writer. The various characters in Kowloon Tong are obvious allegories, so the book’s frustrating and defeated anti-climax is intentional.

Theroux wanted me to be mad. Deng Xiaoping bullied Margaret Thatcher the way Mr. Hung bullied Bunt. The United Kingdom abandoned Hong Kong just as Bunt and his mother did. The Hong Kongers of real life, like their fictional counterparts, were left to fend for themselves against corrupt mainland officials who saw the jeweled city as a treasure chest to be sacked and carried back to Beijing.

As it happened, the dystopian aspects of Theroux’s allegory have not occurred. Miraculously, pragmatists in the Chinese Communist Party realized that Hong Kong was worth more to them the way it was. Thus, under the philosophy of “one country, two systems,” Hong Kong has retained its freedoms and much of its independence.

But that doesn’t change the fact that it was abandoned without a fight, that no likeable hero rose to its rescue.

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Thursday, March 15, 2007

The World’s Strangest Appellate Hearing: Hong Kong Law, Part 2


(This is the second of three posts about the unique legal universe of Hong Kong. Part One is here, and Part Three is here.)


Hong Kong, China

I expected a Court of Appeal hearing in Hong Kong to be a little different from what I was used to in California. I didn’t expect it to be a through-the-looking-glass fantasia that challenged everything I knew about appellate procedure.

This is what happens when you appeal a judgment in the United States: The parties prepare and submit transcripts and copies of the important trial documents; that’s called “the record.” Each side submits legal arguments in writing; these are called “briefs” and run from 25 to 50 pages. About a year after the attorneys submit the paperwork, they argue their respective clients’ cases in front of three judges; each side gets anywhere from 10 to 30 minutes to talk and answer questions from the bench. Sometimes, the judges think the case is so simple that they send the attorneys a letter stating that the case will be decided on the papers and that they needn’t bother coming to the courthouse, thank you very much. The attorneys who do argue before the court spend several weeks thereafter dissecting the questions and mannerisms of the judges for clues on how they might rule. About two to six months after the oral arguments, the attorneys receive in the mail a decision which is usually different from what anybody expected.

This is not what happens in Hong Kong.

In my quest to watch barristers in robes and wigs plying their trade, I decided to visit a Court of Appeal hearing. I figured it would be a light and enjoyable way to spend a morning. I could not have been more wrong.

But, first, the background of the case I watched, because this is the type of dispute that gives law and courts a bad name.

”Busybodies”

Man Fai Tai Enterprise Ltd. had been operating a concrete batching plant in a part of Hong Kong called Sha Ling. There isn’t really a good place to put a concrete batching plant, but this one was wedged between an animal rendering facility and a cemetery, so that’s as a good a place as you’re likely to find. Problem: the land was zoned for agricultural use, not industrial use. Solution: Man Fai Tai applied for a waiver. It’s called a “non-conforming use,” it’s done all the time, and, in this case, a series of temporary waivers had allowed Man Fai Tai to be in the concrete business for the past 15 years.

When the waiver came up for renewal in 2003, Man Fai Tai said in its application that it was expanding its product line to include asphalt. No problem, said the city, here’s a three-year waiver and may the Chinese New Year be prosperous. So Man Fai Tai is happy to sell a new product, the city’s happy to have a tax-paying employer on some grotty land, and there aren’t any (living) neighbors to complain. Who’s sad?

The people who already make asphalt in a different part of Hong Kong, that’s who. They leased industrial land, which costs a lot more than agricultural land, and they’re deeply peeved to have a new competitor, especially one that’s paying markedly less for land. Why, with its lower costs, Man Fai Tai could sell comparable asphalt at a lower price! “This will not stand!” screamed the Asphalt and Macadam Association of Hong Kong, which is a fancy way of saying “The Other Companies That Make Asphalt In Hong Kong.”

So – despite the fact that they are not parties to this transaction and do not even contend that they are located near the property in question -- four asphalt companies filed suit against the city, seeking to have the waiver quashed. They argued, among other things, that the city did not properly investigate whether the asphalt production would truly be a temporary use, as opposed to a permanent use pretending to be temporary.

This is what is called a “process argument,” because it claims that the process was flawed. The problem with a successful process argument is that, at the end of the court proceedings, all the victor has won is another chance to make its argument. The city planning board would then be required to follow the process ordered by the court, but the board could still come to the same conclusion. Unless there has been an intervening change in the identity of the decision makers, process arguments often aren’t worth the expense.

The trial court judge, Andrew Chung, told the asphalt men to get out of his courtroom. He ruled that the asphalt companies did not have a sufficient interest in the board’s decision to have standing (which is called locus standi in the English tradition) to challenge the waiver.

Another trial court judge, A. T. Reyes, adjudicating a later, different challenge filed by the asphalt companies, went further and derided the companies as “busybodies.”

“To put it bluntly, the Applicants’ grievance is that, by the Director’s decision, persons occupying the relevant lots may conceivably be able in the short term to produce asphalt more cheaply than the Applicants,” ruled Judge Reyes. “The Applicants’ choice to use industrial land was one made of their own volition. Nothing prevented the Applicants in the past and nothing hinders them now or in the future from themselves leasing agricultural land and applying for waivers similar to those granted here.”

So, having twice been handed their hats for transparently anti-competitive legal maneuvers, the asphalt companies did what anybody would do after two public dressings-down: they appealed.

In Which Our Hero Finds What He Has Been Looking For

Robes and wigs! Four barristers were standing in the front row, preparing for the hearing, and they were wearing robes and wigs! My quest to watch bona fide English-style barristers was over.

The tableau was decipherable to any litigator. The two barristers in the middle were older gentlemen, probably in their 50s, one Chinese, one European -- the lead counsel. Both were silks, the most senior lawyers. Each was flanked by a younger attorney -- the co-counsel.

Behind the barristers were the solicitors and clients, and, spread out across the second and third rows was what looked like an array of assistants and paralegals. The counters were covered with black three-ring binders, red folders, brown files and law books with yellow Post-It notes sticking out. The quantity of materials looked more like what you would bring to a trial than an appeal, and I soon found out why.

The court personnel were present. Three women sat at the clerk’s table, organizing papers. A young man sat alone in the jury box, holding a notebook; I assumed he was the judges’ law clerk.

Twenty-one people were in the courtroom, including myself. “This is an awful lot of people for an appeal,” I thought. In California, it’s common for one attorney to appear per side, and a retinue of four people – including transactional counsel and client – is large.

The barristers’ robes looked great. The black robes lent an air of dignity and authority to the wearers. The barristers most in favor of maintaining the ultra-formal dress are reportedly young barristers and women, because they believe the costumes place them visually on par with their more experienced opponents.

I watched the city’s lead barrister, Simon Westbrook, S.C., and I noticed that, when he walked, the robe punched out in the back like a cape, making him look like the hero of a swashbuckling 1930s serial. In his spare time, Westbrook races a vintage TVR Roadster and, if he did that in his robe, he would look like an Errol Flynn character.

To my American eyes, the wigs looked ridiculous. Imagine Johnnie Cochran giving his closing argument in the O.J. Simpson trial while wearing a little old lady’s wig. The curly, white-haired headpieces were particularly incongruous atop Chinese men and women with straight black hair. The wigs are reportedly hot and itchy, and courtroom jousting is complicated enough without having a hunk of horsehide on your head.

”May It Please The Court”

This is what would have happened if this case were being heard by the California Court of Appeal:

The attorney for the asphalt companies would have stood up and said,

“May it please the Court, the city was under a legal obligation to consider whether the stated use was truly temporary. My brief, which I will not here repeat, cites the case law which recognizes the obligation, and the brief also cites to the board minutes and other evidence in the record which demonstrates that the city didn’t bother to consider the issue. End of case. Standing, your honors? My clients are directly and adversely impacted by the illegal actions of the city, acting illegally, to grant an illegal waiver to Man Fai Tai. And it was illegal.”

The judges would have asked some questions, and the attorney for the asphalt companies would have answered by adroitly returning to the main arguments in the clients’ favor. After about 20 minutes of this, the attorney for the city would have stood up and said,

“Busybodies! Interlopers! Meddlers! And, by the way, the city had no obligation to investigate the temporary nature of the use, and, even if it did have an obligation, the city did so in fact or is presumed to have done so as a matter of law, and anyway it’s way too late for these protectionist clowns to raise the issue now. Why, your honors, are these sore losers wasting your time when we could all be outside racing vintage motorcars?”

The judges would have asked some more questions, and, half an hour later, at the most, everybody would have been outside, stuck in traffic.

Appeal by Way of Re-Hearing

The lead barristers were discussing vacations to Indonesia and – I kid you not – Rumpole of the Old Bailey. The junior lawyers were nervously writing and preparing, but the two silks had an easy, clubby manner. In a U.S. courtroom, the two lead counsel would have been ignoring each other to show they were tough.

Three loud knocks. “It always sounds like they’re checking for woodworm,” Westbrook joked to his opponent, Benjamin Yu, S.C., the counsel for the asphalt producers.

Everyone rose, and three judges walked out and bowed. Everyone in the courtroom bowed and sat down.

In addition to their robes, the three judges were wearing "bench wigs,” which looked like albino versions of early 80s bubble perms. They arguably looked more preposterous than the barristers’ bar wigs, but that’s a matter of personal preference, like “What tastes worse? Shasta or Tab?”

As the barrister for the asphalt companies, Yu spoke first. I immediately sensed something was different, because Yu was not speaking in the rapid bullet points of U.S. litigators. Rather, Yu embarked on a detailed and not-at-all rushed discussion of the law and the various points of evidence supporting the law. At one point, he quoted at length from a prior court decision, something American judges would not allow.

Judge Geoffrey Ma Tao-li, the chief judge of the High Court, dominated the questioning, and he nailed the weaknesses of the case. “There’s since been a new application. Why isn’t this case academic?” “Why does the switch to asphalt mean the use is now permanent?” “Couldn’t a permanent structure be torn down at the end of three years?”

Yu would give lengthy answers, and I kept waiting for one of the judges to hurry him along. But it never happened. After one hour, the city’s barrister had yet to speak, and Yu had plenty more to say. Then Judge Ma asked a blood-curdling question.

“Mr. Yu, do you think you are going to finish today?”

What!?! The hearing was going to take all day? The oral arguments for one side were going to take all day?

The hearing was, in fact, calendared for two days. In Hong Kong, an appeal is heard “by way of re-hearing,” which means that the attorneys and the Court of Appeal methodically review the law and the evidence. The barristers walk the judges through their clients' cases, reading from transcripts or quoting precedent at length. No witnesses are called, and fresh evidence is generally not allowed. The tenor of the proceedings is akin to a trial based only on documents.

In the United States, the written brief is the principal vehicle for appellate argument. Lawyers learn early to put everything in the brief. New arguments aired for the first time in the courtroom will be met with a raised judicial eyebrow and a demand for an explanation of why the argument wasn’t in the brief. The hearing has an essentially auxiliary role. In American courts of appeal, it is entirely proper for an attorney to say, “Your honors, all of my clients’ arguments are in the brief, and I am here solely to answer questions. Do you have any?”

In the Hong Kong Court of Appeal, the hearing is the pre-eminent appellate event. A “skeleton” of the arguments is submitted to the court – sometimes only days in advance – but its purpose is to aid the judges in preparation. The barristers are expected to make their case in the courtroom, which is why the rows were packed with assistants carrying documents and clients available for consultation. In Hong Kong, the hearing is the appeal.

Oral arguments in the asphalt zoning case lasted seven hours and forty-five minutes, spread over two days. This is unheard of in America. The U.S. Supreme Court arguments in Bush v. Gore lasted one and a half hours -- and there was slightly more at stake than a zoning decision. Seven hours and forty-five minutes is longer than many American attorneys spend preparing for oral arguments.

I stayed for every minute. It became a test of endurance, and I resolved that I was not going to let the tedium of the proceedings win. Besides, I thought, something interesting might happen. It did.

Denouement

Neither Yu nor Westbrook were the second coming of Clarence Darrow or even Bill Clinton, but their sometimes soporific speaking style made sense. Expected to speak for hours, they paced themselves.

“The application is bogus on its face. It’s bogus,” said Yu, implying that Man Fai Tai secretly intended to make asphalt permanently on the site. Yu discussed several Hong Kong and English court decisions, noting the facts and the holdings in a detail I had not seen since law school. Discussion of precedent is rarely so intensive in American courts and, if it is, the debate is usually confined to one or two pivotal cases. Yu was plowing through more than half a dozen.

Westbrook responded in kind. He distinguished Yu’s cases by noting that all were from denials of waiver applications, while this dispute was based on the granting of an application. A decent point. He then struck at the heart of the asphalt companies’ case by noting that none of Yu’s court decisions stated that the city was required to consider whether the use was temporary or permanent. The one court decision which noted the distinction did not use it as a basis for its ruling, which means the city was not obligated to follow it. An excellent point.

This went on for hours. On the afternoon of the second day, the judges put their heads together and whispered. I had never seen appellate judges in America do that.

“We will allow the appeal,” Judge Ma said.

That was it. The asphalt companies had won. Judge Ma promised to write a decision quickly. Everyone bowed as the judges left the courtroom.

I was stunned. Appellate judges in California never announce their decision from the bench at the end of oral arguments. The trade off in Hong Kong was a much longer hearing in exchange for an immediate ruling.

I was surprised at the judgment. While I thought Yu had done a somewhat better job as an advocate, I thought Westbrook had the better case. To my literalist American mind, the question of whether Man Fai Tai’s intended use was temporary or permanent was irrelevant, since the company only had three years of permission in any event. The next time Man Fai Tai applied for a waiver, the city could deny it and order the company to raze the asphalt plant. Therefore, the asphalt making was, as a matter of law, a temporary use. It could only be permanent if the city granted a permanent waiver.

Hong Kong is a loser-pays jurisdiction, which means that the city is currently on the hook for the asphalt companies’ attorneys’ fees. The city will therefore probably request leave to appeal to Hong Kong’s highest court, the Court of Final Appeal, to have the issue decided once and for all. As it happened, I visited the Court of Final Appeal several days later and . . . .

TO BE CONTINUED


UPDATE: The Hong Kong Court of Appeal issued its written judgment on March 31, 2007.

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Monday, March 12, 2007

East, West


East, West by Salman Rushdie (Jonathan Cape 1994).

When Salman Rushdie writes about Britain and things British, he is an engaging, insightful writer. When Rushdie writes about India and things Indian, his words explode and dance and whisper and turn every shade of color the human eye can perceive. It is obvious where his heart is.

East, West is a collection of nine short stories, some set on the sub-continent, some in Europe, and some in the space created by the intercourse of the two. The quality of the stories varies from Rushdie’s best (“The Free Radio”), to his average (“Christopher Columbus and Queen Isabella of Spain Consummate Their Relationship (Sante Fe, AD 1492)”), to his worst (“Yorick”).

Rushdie’s best fiction is the reason why, sometime next decade, he will be awarded the Nobel Prize in Literature. Rushdie’s mediocre stories are still better than almost anything else you might choose to read. But Rushdie’s worst – pee-yuu, as one of his teenaged Anglo-Indian characters might say. Rushdie at his worst is undisciplined, in-jokey and too busy showing off how clever he is to tell a tale.

Fortunately, the term “short story” is literal, so the few bad stories in East, West are brief, and they’re overpowered by the good ones. Rushdie isn’t really a short story writer; he’s a novelist. He’s best when painting on a massive canvas, and he lacks the miniaturist sensibility of Jorge Luis Borges or O. Henry.

Many of the best short stories allow you to observe a tiny, closed universe, as expertly crafted and manipulated as the workings of a Swiss women’s watch. With Rushdie, you’re always aware of the huge, seething world just outside the character’s apartment door. It’s to his credit that you generally want to open that door and spend several hundred pages exploring what lies beyond.

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Saturday, March 10, 2007

Hunting The Wild Barrister: Hong Kong Law, Part 1


[This is the first of three posts regarding the unique legal universe of Hong Kong. Part 2 is here, and Part 3 is here.]


Hong Kong, China

I don’t know why I was surprised that the Hong Kong High Court was attached to a luxury shopping mall. Everything in Hong Kong is attached to a luxury shopping mall.

I had come to the city’s principal courthouse with pen and notebook, searching for my quarry: an actual barrister, wearing black robes and a wig. I had read about such beasts, even seen them on TV, but I, an American litigator, had never actually been in the presence of my counterpart, the English barrister. (Hong Kong, a former British colony, inherited England’s split legal profession, with solicitors conducting paperwork in their offices and barristers arguing cases in court.)

I rode the metro to Admiralty Station and crossed the skywalk into the Pacific Place Mall, which is the type of ludicrously high-end mall where you can select from hundreds of jewel-encrusted watches but you can’t buy a newspaper. Attached directly to the mall was an office tower containing municipal departments and, next to that, another tower containing the High Court.

I consulted my field notes and moved into position. The hunt was on.

The Plumage of the Wild Barrister

Lawyers in the United States, as everyone knows from television, wear business suits in court. The general rules are that darker suits give you more gravity than lighter suits, but don’t wear a black suit because that reminds people of funerals. In front of juries, it’s important to look like a dependable, upper-middle-class burgher, the kind of guy a juror would trust to invest the kids’ college fund. Looking flashy, stylish or wealthy can offend some jurors. A tiny number of attorneys can pull off the colorful, cravat-in-pocket boulevardier-dandy thing, but chances are you can’t, so just buy a solid navy blue suit from Brooks Brothers.

Courtroom lawyers in the English tradition don’t have to make these sartorial decisions. Barristers are required to present their cases while wearing a black robe. The most experienced barristers – those who have been granted the title “Queen’s Counsel” or “Senior Counsel” -- wear a robe made of black silk and are referred to as “silks.” Junior counsel – and all barristers, regardless of age, who are not silks are called “juniors” – wear a black robe made of more common material.

Barristers wear wigs in court. Why? Because wigs were the height of fashion for upper-crust European gentlemen in the 1600s and also helped prevent the spread of lice in Jacobian England; ergo, barristers wear them in 2007. Once you have been trained to “think like a lawyer,” this explanation makes complete sense.

The wigs are made from horsehair, often by the London boutique of Ede and Ravenscroft. There are three types of English barristers’ wigs: a “bar wig” worn by the advocates, a “bench wig” worn by judges and a “full-bottom wig” worn by the most senior members of the Bar on ceremonial occasions when they want to look like cocker spaniels. The wigs cost between US$800 to US$4,000, according to The Washington Post, but many barristers buy second-hand wigs, in part because an older, yellowed wig is a symbol of status and experience.

The costume is completed with accessories. Many barristers wear a special white collar, with a tie composed of two flat pieces of white cloth. Silks wear an additional waistcoat. Silks may also bring their own podium for use in court.

I figured I would just visit courtrooms until I bagged a barrister. Lugging around all that ridiculous clothing (and perhaps a podium), they certainly couldn’t run fast.

The Habitat and Hunting Grounds

The Hong Kong High Court is just another office building. While the city’s highest court, the Court of Final Appeal, is housed in a memorable red brick building which fronts the picturesque Anglican Cathedral, the High Court is located in a grey 19-storey office block on Queensway, one of Hong Kong’s widest and busiest roads. In addition to the Pacific Place Mall, the High Court is connected by skybridges to the Lippo Center and the United Center, two buildings in which many barristers have their offices, which are called “chambers.”

“High Court” is a collective term for two different courts, the Court of First Instance, which is the principal trial court for large-dollar civil disputes and serious criminal accusations, and the Court of Appeal, which reviews civil and criminal appeals from the Court of First Instance and certain other tribunals.

Although Hong Kong is a part of China, the city-state is allowed by a 1984 treaty to apply English common law until 2047. Joint Declaration, paragraph 3(3). Thus, most legal proceedings are conducted in English, with a Cantonese interpreter.

The courtrooms in the High Court are utilitarian and modern, with lots of tan wood. The judge’s raised bench is long, more than 15 feet long, so that it can be used by one judge for trial court proceedings or by two or more judges for appellate court proceedings. Above the judges’ platform is the round, red seal of Hong Kong. There is no flag, seal or emblem of the People’s Republic of China.

In front of the judge, facing the courtroom, is a long counter at which the court clerks sit. In front of them are three long benches with counters, facing the judge. The first bench is for the barristers arguing the case. The second bench is for the solicitors and clients. The third bench – which not every courtroom has – is for additional clerks or helpers.

The most striking feature is in the back of the courtroom, and it is literally a cage, with vertical and horizontal bars on the sides and across the top to form walls and a roof of bars. Litigants who are in custody are escorted in and out of the cage by law enforcement officers through a separate door. This is where incarcerated litigants spend their courtroom time, locked in a box at the back.

To the judge’s right is a jury box, which is one row of chairs along the wall behind a wooden divider, all perpendicular to the judge's bench. Hong Kong, like England, provides a limited jury trial right, i.e., for serious crimes and a small number of civil actions, such as defamation. A Hong Kong jury is seven to nine people.

To the judge’s left, facing the jury, are several rows of benches and seats which comprise the public gallery, split in two by the aisle leading to the two sets of double doors that lead to the courthouse hallway. The first two rows of gallery seats have writing ledges and appear to be for the press. The rest of the rows are for the general public. Quite nice courtrooms, all and all.

First Shot

“Motion For Summary Judgment.” That looked good.

The Daily Cause List was posted on the ground floor. As I reviewed the calendar, I noted that the judges of the Hong Kong High Court were not overworked. Most of the judges had one to three items on their calendars. It’s not unusual for a Los Angeles Superior Court judge to have ten items on her morning calendar and, after disposing of those, spend the rest of the day in trial.

A Motion For Summary Judgment is a request in a civil case to end proceedings on the grounds that the opposing party does not have evidence to support its claims or defenses. The opposing party responds by laying out all of its evidence. Consequently, a motion for summary judgment is one of the law’s most efficient evidence-gathering devices.

I walked into the courtroom and took a seat. Two women clerks were busying themselves, and neither said anything to me. About ten minutes after the scheduled time of the hearing, two Chinese lawyers and the defendant, who was representing himself, walked in and spoke at length with the clerks in Cantonese, handing her several multi-page documents. After the conversation, the lawyers and the litigant sat in the first row, and one of the clerks left the courtroom, using a door on the raised judge’s platform.

A moment of silence was followed by a quiet knock. Everyone came to order. Three loud knocks were heard, and everyone stood up. The judge, a Chinese man in his 60s wearing a business suit, came out and walked to his chair. He stood in front of his chair for a moment and bowed, at which point everyone in the courtroom bowed. We all sat down. There was no pledge of allegiance or other introductory ritual.

“My clerk informs me,” the judge said in British-accented English, “that you have settled the case and would like me to sign and read the Consent Judgment into the record.”

“Yes, my lord,” said one of the lawyers.

“And do you, sir, agree to end this lawsuit by entering into this agreement,” the judge asked the defendant. A woman with a court I.D. badge stood next to the defendant and translated.

“Yes, my lord,” said the defendant.

“Very well,” said the judge, who then spent five minutes reading an English-language settlement agreement into the record. The judge leaned forward and spoke directly into a microphone, which was connected to an unseen recording system. No court reporter was present. The translator did her job (although I'm sure the judge could have translated the agreement as he read).

The crux of the case was that the defendant was an industrial supply salesman who had started his own company. His former employer believed that the salesman was pitching to their client list and brought suit for infringement of trade secrets. In the settlement, the defendant agreed not to use the client list and to return any copies, and the plaintiff agreed to drop the case in exchange for monetary damages in an amount to be decided later. It was a garden-variety customer list case. When the judge was finished, he stood up, everybody bowed, and he exited the courtroom by his door.

No one was wearing robes and wigs! Neither of the lawyers were, and neither was the judge. Feeling vaguely robbed, I returned to the Daily Cause List to find me a proper barrister.

Second Shot

“Motion For Interlocutory Injunction.” That looked great. An injunction hearing is usually high drama, as the moving party tries to shut down the other side’s operations. I wondered off to the designated courtroom.

This case was farther up the legal food chain than the trade secrets dispute. The courtroom was filled with lawyers, mostly Chinese men, with a few Chinese women. No Anglos. Everyone was wearing business suits.

The attorneys had rows of black binders in front of them. Also arranged on the counters were several law books, all in English, including one titled “Hong Kong Civil Procedure.”

The case was a piece of civil litigation which arose from an alleged fraud upon the Bank of China. The civil case had about 20 defendants, which explained all the lawyers.

An older Chinese couple, who looked like the most harmless people in the world, sat in the cage at the back. They were Defendants 16 and 17, a husband and wife, and they were currently in prison relating to the criminal charges. Four court officers sat with them, which seemed like overkill. Before the proceedings, the court officers laughed and joked among themselves, while the couple looked lost and pathetic.

Three knocks. Everyone stood. A judge, wearing a business suit, came out and bowed. Everyone bowed back.

The senior Chinese lawyer addressed the Court in English about the proposed injunction order, which was more in the nature of a scheduling order than a blood-and-guts, close-the-bad-guys-down injunction. The criminal cases were working their way through the judicial system, and the moving parties were requesting that certain proceedings in the civil case be stayed until the criminal cases were completed. The various lawyers argued for twenty minutes about scheduling issues. It was as dreary as it sounds.

The judge asked the incarcerated couple in the cage, who were representing themselves, if they had anything to say. The man spoke Cantonese from a prepared text, which was translated into English (although I’m sure everyone in the courtroom other than myself understood him).

The man’s statement was mercifully short by the standards of self-represented defendants, but it made the classic mistake of pro se pleading: It began with a litany of complaints and waited until the end of the speech to make a request -– the order should be the reverse. After discussing the quality of the treatment he was receiving in prison and his impoverished circumstances, he requested that a deadline in the draft order be extended from 45 days to 65 days. The judge granted the request and ended the hearing.

No wigs! No robes! Chinese lawyers speaking Cantonese to each other and the court clerks and then presenting their cases in English to judges who no doubt speak Cantonese. What was going on?

As for the lack of wigs and robes, it appears that I fell through a procedural crack. The two hearings I watched were each categorized as a “Chambers Conference (Open To The Public),” while the ultra-formal clothing appeared to be reserved for hearings categorized as “Open Court.”

As for the strange use of English in disputes where everybody is Chinese and speaks Cantonese, the "language issue," as it's called, is one of the peculiarities of Hong Kong law. The common law of England applies, and the common law is written in English, so Hong Kong barristers and judges speak English in court. As a nod to reality, proceedings in some of the lower courts are now conducted in Cantonese with opinions written in Chinese (citing British law), but the High Court and the Court of Final Appeal operate in English.

By 11:30 a.m., almost all of the courtrooms were dark. No, the High Court judges were definitely not overworked. My morning on the hunt for a robed and bewigged barrister had failed. But, as Scarlett O’Hara said, tomorrow is another day.

TO BE CONTINUED

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Service (of Process) With A Smile

Kota Kinabalu, Malaysia

Adam Liptak of the The New York Times writes an overview of libel suits launched against restaurant critics. In the United States, the claims never succeed, in part because a restaurant is a limited purpose public figure, requiring the plaintiff to prove the existence of "actual malice," i.e., that the writer published things she knew were false or with a reckless disregard for their truthfulness. In other common law jurisidictions -- which do not apply the "actual malice" standard -- the claims sometimes succeed because an opinion must be proven to be "honestly held" to be a defense, Liptak reports.

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Meghan Moves To Monday


Kota Kinabalu, Malaysia

The Los Angeles Times' best columnist, Meghan Daum, has been promoted from Saturdays to Mondays. You can read her recent columns here, and I recommend her collection of essays, My Misspent Youth, especially the title chapter about going deeply into debt for a prestigious but impractical Ivy League degree.

Wednesday, March 07, 2007

The Queen


The Queen (U.K. 2006). Written by Peter Morgan. Directed by Stephen Frears. Starring Helen Mirren and Michael Sheen.


She was never supposed to be queen. She was expected to spend her days as a minor member of the royal family, living quietly and occasionally cutting ribbons on new wings of provincial old age homes. She wasn’t supposed to be of any importance at all.

History intervened.

In 1936, her grand-father, King George V, was dying, and government and palace officials were contemplating with horror the prospect that Edward Windsor, the Prince of Wales, would become the sovereign of the United Kingdom and the Emperor of India. Edward was, to put it bluntly, a moron, easily led, with terrible judgment – the perfect argument against any form of hereditary monarchy. He was also in thrall to his mistress, a grasping American socialite named Wallis Simpson.

King George V died in January 1936, and Edward automatically became King Edward VIII. He quickly confirmed everybody’s suspicions of his inadequacy. He watched his own proclamation of accession from a palace window in the company of Mrs. Simpson – something new monarchs do not do. He made unauthorized public comments about politics – something constitutional monarchs are forbidden from doing. The British and American intelligence services, aware of the gathering storm on the Continent, grew increasingly concerned about Mrs. Simpson’s friendships with Nazi officials and her access to government documents.

Months of controversy reached their height when Edward announced that he would marry Mrs. Simpson when her divorce proceedings were final. Legally, he could marry her and remain king. But factions within the government used the marriage as the excuse needed to convince the idiot that he had to abdicate the throne, which he did in December 1936.

The cover story is that King Edward voluntarily renounced the throne to be with the woman he loved. In reality, he was pushed, and he was pushed hard. His brother George became king. George had no sons, but he had two daughters, the elder of whom was named Elizabeth.

Which is how a 10-year-old girl found herself in line to be the queen (pictured). Her life was meant to be fairly free and private, but, over the twelve months of 1936, her freedom drained away, never to return, and all without her consent. One can only wonder how well she understood at that age what was happening and how it would transform her life.

As depicted in the film The Queen, Elizabeth Windsor lives in a lavish jail, of which she is both prisoner and warden. She could retire at any time and pass the crown to her son, but she would never do that. She has her duty, her role to play, and she wouldn’t consider for an instant acting in a manner that she believes is inappropriate.

The movie is about the clash between two opinions of what is appropriate after the 1997 death of Princess Diana Spencer. Elizabeth believed that the death of her ex-daughter-in-law was a private affair of the Spencer family, while newly elected prime minister Tony Blair believed that the public mood demanded an acknowledgement of grief from the royal family.

Importantly, the film presents both sides of this debate and, if anything, sympathizes with the queen’s stiff upper lip attitude, a characteristic which, she says, is why the world admires the British. I admire the British because they make films in which calm and restraint are virtues, while American dramas are Oprah-infused emotional saunas. At the few instances in the film when a member of the royal family sheds tears, it’s exactly correct in terms of character, not a plot device to manipulate the audience.

The filmmakers cared that little things were done well. The fusty wallpaper in the rooms at Balmoral told its own tale, as did the Range Rovers driven by the royals. The film barely depicts Princes William and Harry, who had just lost their mother, because their story would be a different movie. The only inaccuracy that I spotted was that the stack of newspapers handed to the queen in the morning did not contain The Racing Post, which is reportedly on the top of the pile.

The casting and characterization of the smallest roles was considered. In one scene, the queen visits an adjoining estate and is greeted by a Scottish gamekeeper who does not flinch at her presence. His manner is incongruous when compared with the obsequiousness of the palace staff, but it makes sense. The gamekeeper probably worked on the estate most of his life and had probably seen her dozens of time. At that moment, they were two senior citizens discussing hunting. When was the last time an American movie, even a self-proclaimed “serious” film like Babel, made you wonder about the backstory of a character who appeared for less than five minutes?

Although Elizabeth’s own backstory is mentioned only once – when Blair states that she has a job “she never asked for” – it frames the action like a proscenium arch frames a play. In 1936, a young girl was forced to adapt to circumstances she didn’t fully understand and, in 1997, history repeated itself.

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Off To Borneo

Hong Kong, China

I'll post when I can.

Borneo is the only island divided among three nations, i.e., Indonesia, Malaysia and Brunei.

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Monday, March 05, 2007

Cambo Tales: Living on $750 a Month

Hong Kong, China

Khmer440 posts an analysis of the cost of expat living in Phnom Penh, Cambodia. It ain't high.

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The Tipping Point


The Tipping Point:How Little Things Can Make a Big Difference by Malcolm Gladwell (Little Brown 2001).

The Tipping Point is journalist Malcolm Gladwell’s attempt to apply the principles of epidemiology to trends and consumer products. It’s an appealing argument, albeit sometimes superficially made.

Gladwell notes that the popular acceptance of a product – be it a new product like hybrid seed corn or the revitalization of a musty standard like Hush Puppies shoes – comes in discrete waves. First, a small number of Innovators give it a try. Based on the Innovators’ example, a slightly larger group, called the Early Adopters, follow. If the product has appeal, the big money arrives in the next phase, when the Early Majority start buying, followed by the Late Majority. The Stragglers are the last to market, like the audiophiles who finally purchased a CD player in 1994 after years of grumbling how digital recording “distorts the high end.”

That’s what happens; Gladwell wants to know why it happens. His research led him to two reasons, the message and the messengers.

The key to a message is its “stickiness,” the degree to which a person hearing the message will remember it and act upon it. The smallest changes in the message can increase or decrease its stickiness, as direct mail marketers have known for years. Concrete examples are more likely to trigger comprehension and reaction than information in the abstract. Yale University found that students were more likely to request a free tetanus vaccine if the flyer included a map to the campus health clinic. The original pilot of Sesame Street bombed with kids, because the humans and the puppets were in separate segments; when the humans and puppets interacted, kids were more likely to watch and, by doing so, learn the alphabet.

The discussion of “stickiness” is the weakest chapter of the book, because Gladwell is describing what producers call “creative choices,” which can’t be systematized. Hollywood and Madison Avenue certainly try, but there is no formula for a hit film or a successful advertising campaign. Three of the biggest stars in the world couldn’t save the film Miami Vice, and relentless promotion hasn't convinced customers to purchase a Zune mp3 player. But Borat and March of the Penguins were unexpected hits, as were the Geico advertisements featuring an offended caveman. “Nobody knows anything” is how screenwriter William Goldman put it.

Once you have a message, though, the type of messenger matters a great deal, and this is something that can be quantified and controlled. Gladwell argues that there are three types of messengers which can be key to the success of a product or idea.

Mavens are the people who often come up with new or unusual ideas. They’re not necessarily social, and many are motivated to act against conventional wisdom. In their tiny sphere, their knowledge is comprehensive or their skills and insights are far ahead of the curve. Bill Gates and Steve Wozniak circa 1977 were classic Mavens.

But Mavens usually can’t get the message out. That’s what Connectors are for, the people who seem to know everybody. In the famous observation that there are six degrees of separation between any two people, most of the links are made by a relative handful of Connectors. While common sense would indicate that strong and deep personal relationships are best for business, the research indicates that the best-connected people have a myriad of superficial relationships which tap them into different worlds. That’s why most people find jobs through acquaintances, not close friends. Connectors are ideal for getting out the word, since they can contact a Fortune 500 CIO and the hot new DJ and a scrap metal recycler.

The Salesmen put it all together. They can take the ideas of the Mavens and talk to all of the people referred by the Connectors and give each potential customer a pitch adapted for maximum stickiness. These are the great closers and convincers, the Ricky Romas and Frank Abagnales and Joe Jamails of the world. They know every objection you will raise, and they not only know what counter-arguments to make but exactly how to phrase those arguments so that the customer’s resistance will evaporate.

Some Salesmen don’t even know they’re Salesmen. Teens are well aware of the dangers of smoking, yet smoking by teens rose during the 1990s. The reason, Gladwell argues, isn’t that smoking is cool, but that smokers are cool. The most rebellious, independent teens are smokers, and teens who tend to extroversion and defiance will start to smoke in imitation. Anti-smoking ads don’t work, Gladwell concludes, because they use the wrong message to counter the wrong Salesmen. Tobacco executives aren’t selling cigarettes, kids are.

Of Mavens, Connectors and Salesmen, any one of these people could be the Tipping Person, the “permission giver” who creates a new norm. I see it here in Hong Kong. Most pedestrians will wait until the green Walk light is lit before crossing the street, even if there is no traffic. This makes sense, since the Hong Kong Police Department issues tickets for crossing against the light. But, at most intersections, someone jaywalks and, once the first person does, a group immediately follows. Permission was given by a Salesman. The Early Adopters follow the example of an Innovator.

While Gladwell’s evidence is often culled from scientific studies, Gladwell is not a social scientist himself. He is a journalist and a successful one, having served as the New York City Bureau Chief for The Washington Post, one the top jobs in the scribbler’s world.

Consequently, The Tipping Point is eminently readable, but, upon scrutiny, some of the chapters are thin. For example, Gladwell places significant weight on the premise of Judith Rich Harris’ book The Nurture Assumption (that peers have more influence over a child’s behavior than parents) while giving short shrift (two sentences) to the many criticisms of Harris’ book. Many of Gladwell's chapters boil down to the author’s conclusion supported by a few seemingly cherry-picked studies and one or two interviews.

None of which has stopped The Tipping Point from becoming a massive bestseller. Apparently, a Maven named Gladwell had an idea for a book, and some Salesmen at Little Brown talked it up to some Connectors who . . . .

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Robert Siegel, Call Your Agent

Hong Kong, China

Blogger Michael Petrelis pulled some public filings and learned the salaries of the five highest-paid on-air personalities on NPR:

Renee Montagne
Compensation: $308,374
Contributions to benefit plan: $30,640

Steve Inskeep
Compensation: $301,856
Contributions to benefit plan: $35,572

Robert Siegel
Compensation: $288,795
Contribution to benefit plan: $24,480

Scott Simon
Compensation: $266,821
Contribution to benefit plan: $33,572

Alexander Chadwick
Compensation: $235,173
Contribution to benefit plan: $29,564

Interesting. Robert Siegel is NPR's biggest star, but he isn't paid the most. Nina Totenberg is NPR's second-biggest star, and she didn't even make the top five. To me, a star is someone who gets listeners to specifically dial in. When was the last time you heard someone talking about how they couldn't wait to hear the latest from Renee Montagne?

BTW, the talent at NPR has the opportunity to augment their incomes through speaking engagements. One or two of the network's on-air personalities are reported to be rather aggressive in their moonlighting.

My concept of pay scales has been permanently damaged by years in Hollywood, but I think these salaries are low. In private radio, local morning jocks can get paid this much, and the NPR people are national.

The Law Machine


The Law Machine (5th ed.), by Marcel Berlins and Clare Dyer (Penguin 2000).

The Law Machine is a jumbled and confusing layman’s overview of the English and Welsh legal system which is inexplicably in its fifth edition.

Written by two lawyers, the book is a mess. Ostensibly divided into chapters (e.g., The Courts, The Judges, Divorce), the text jumps from topic to topic. Some issues are not introduced from first principles and instead appear to assume that the reader has some prior familiarity, strange in a book designed to be a beginner’s guide.

The writing is the worst sort of legal scratching. Many topics are treated in a vague manner, while others are discussed in too much detail. For example, within the first two pages, the authors go from noting that Parliament passes 45 to 60 new acts a year (a proper place to start) to discussing the “850 community-based independent advice agencies affiliated to the Federation of Independent Advice Centres” (a strange place to be on Page 2). As you can see from the single quoted phrase, the sentences have an overloaded, staccato rhythm that repels reading; the sentences do not flow, which means the paragraphs do not flow, which means the book becomes unreadable.

The Law Machine is too disorganized to be enjoyable, too detailed to be interesting and yet too general to be informative. The book is a waste of time and money.

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Saturday, March 03, 2007

Hong Kong


Hong Kong by Jan Morris (Penguin 1988, revised 1996, 2000).

The symbolic heart of Salman Rushdie’s Midnight's Children is a peculiar real estate deal with unexpected consequences. The Englishman William Methwold was leaving Bombay and sold his house to the local Sinai family, but Methwold demanded one unusual stipulation. The house would be transferred with all of his clothing and furniture and British totems, and the Sinais were forbidden from removing or re-arranging any of the property for a certain period of time.

The Sinais agreed and, because it was convenient, they began to wear Methwold’s Saville Row suits and drink tea from his porcelain cups and comport themselves in a British manner. This is not Animal Farm; the family did not become British, but they become something else, a specific Anglo-Indian hybrid which, Rushdie argues, is the state of modern India. Without consciously deciding to do so, a family of Indian Muslims acquired some of the habits and tastes of Anglicans from the Home Counties.

The Anglo-Saxon Chinese

Such is the state of Hong Kong, observes Jan Morris, who is a historian and a travel writer and, by that combination, much more. Hong Kong Island was ceded by the Chinese Qing Emporer to the United Kingdom in 1841, with the tip of Kowloon Peninsula following in 1860. But the peculiar real estate deal with unintended consequences was a British lease of the surrounding countryside, called the New Territories.

Completed in 1898, at the height of British imperial power, the lease ran for 99 years which, as Morris observes, was an eternity to the British and a blink of an eyelash to the Chinese. The moment the lease was signed, British Hong Kong was doomed. The tiny portions ceded in perpetuity to the U.K. could not survive without the vast New Territories, which was the source of water and food and was the location of industry and, after World War II, millions of people housed in “New Towns.” As in the United States, the suburbs became more important than the city center.

In 1997, the lease expired, and the British gave the suburbs back -- and the rest of the place too – because there was no possibility of the Chinese Communist Party renewing the lease. What the Beijing government received was a city of more than 7 million Cantonese-speaking Chinese who wore suits hand-made by Indian tailors, drank Darjeeling tea from porcelain teacups and had become used to a quality of life approaching that of England.

Hong Kong is a Chinese city. There are wet markets and open-air butcher shops and laughing Buddhas and ancestor temples and stray cats and vases filled with spent incense sticks sitting beside doorways. But the marks of Britain are everywhere, from place names like Pottinger Street and Victoria Harbour to judges in wigs and robes applying English common law to the presence of U.K. retailers to the fact that even the Chinese-language newspapers lead their Sport sections with the wins, losses and draws of the English Premier League.

A Barren Rock

Jan Morris had been visiting Hong Kong for more than 20 years before she started to write Hong Kong, and Morris’ intimacy with the city makes her book one of the best. It’s a personal tour of the city by a witty, urbane local historian.

Morris alternates between chapters of history and chapters discussing the modern city. One of her many gifts as a writer is to recall the past eras of Hong Kong as if they were today. She captures the sense of larcenous enterprise that propelled the colony in its infancy and the sense of malaise that struck in the 1920s and the horrible period of Japanese occupation, when British civilians were interred in a seaside camp for three years and resistance fighters were beheaded on the beach.

Morris begins the history with the story of a man undone by his “out of the box” thinking. In today’s business world, thinking outside the box is praised to the hills, but it’s all hot air. In reality, people are only happy with an unorthodox approach if (1) the approach is successful and (2) someone else took the risk of failure. If the unconventional strategy fails, everyone looks at the innovator and asks what on earth he was thinking.

Such was the fate of a Royal Navy Captain named Charles Elliot (sometimes spelled with two ts). The British were selling opium at the Chinese port of Canton – the only port in China at which commerce with Westerners was allowed – when the Chinese government, around 1840, decided to end the illicit trade. In retaliation, the Royal Navy roughed up the Chinese, and Captain Elliot arrived at a clever solution to the various problems affecting the China trade. Instead of trade concessions (which were reliant on political winds for their longevity), Elliot demanded and received perpetual British ownership of Hong Kong Island, surmising that his country’s interests were best protected by the presence of a permanent colony near Canton.

Elliot’s forward thinking pleased no one. The British merchants were furious that Elliot did not obtain trade concessions they could immediately cash in. The Royal Navy felt their victory yielded too few spoils. The colonial press mocked the deal. Lord Palmerston, the Foreign Secretary, dismissed the island as a “barren rock.” Young Queen Victoria remarked that “it appears that our man Elliot has attempted to get the lowest terms possible from the Chinese.”

Elliot was recalled and punished with the backwater assignment of charge d’affaires to the Republic of Texas. To this day, there is no monument to Elliot – not even a street name – in the city he created.

The Magnificent City

What a city it now is! History proved Elliot exactly correct. Hong Kong became a safe trading post for British and Western merchants operating in Asia. The largest financial companies in the world have their regional offices here. The city’s short on music and museums and local culture, but Hong Kong has always been about making money, not art.

Morris understands this, and she judges the city on its own terms. Life in Hong Kong had its poverties. Government policies in the 1950s led to sweatshop conditions in certain industries (which were resolved not by government intervention but by the market, as jobs requiring unskilled labor migrated over the border to mainland China). A small number of Chinese billionaires has far too large a say in how the city is governed. Wealthy Hong Kongers tend to garish displays, as demonstrated in the hoary statistic that Hong Kong has the highest per capita rate of Rolls Royce ownership of any city in the world.

Yet Hong Kong provides the highest standard of living in the People’s Republic of China. Hong Kong has a free press and freedom of religion and an elected city council. Contracts in Hong Kong will be enforced by the local courts and cannot be abrogated on the whim of the local Communist Party cell. Hong Kongers enjoy by far the highest per capita income of any city in China and the highest level of household wealth as well. The heavily fortified border between Hong Kong and mainland China has the same function it did in colonial times: to keep mainland Chinese out, not to keep Hong Kongers in.

Morris captures the many faces of the city-state. Her prose is learned yet familiar, informative but light. Again, think of the best possible local tour guide, and there you have Jan Morris. You will greatly enjoy her tour of Hong Kong, a peculiar and triumphant real estate deal.

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Friday, March 02, 2007

The Chinese


The Chinese by Jasper Becker (John Murray 2000).

These are the facts, to the hazy extent they are known: As recently as 1996, about 71% of Chinese women could not read or write. Court cases are not decided by judges but by local officials of the Chinese Communist Party, who instruct the judges how to rule. The National Audit Office admitted that Communist Party officials stole at least US$13 billion in funds in 1998. Party members receive free health care, while rural families become indebted to afford treatment. When the wife of a political prisoner attempted to hand a petition to the United Nations Human Rights Commissioner in the lobby of the Beijing Hilton, the police hauled the screaming wife away in full public view.

About two-thirds of Chinese students who study abroad refuse to return to China. Who can blame them? For all the globalist hype, China is a closed, repressive society in which the benefits of economic engagement are felt by a small number of favored cities and in which power is horded by a tiny fraction of the population.

These under-reported aspects of Chinese life and governance are the focus of The Chinese by Jasper Becker, the former Beijing bureau chief for the South China Morning Post. Becker is more of a reporter than a writer, and the details he unearths directly contradict Beijing’s attempts to portray itself as an essentially benevolent force slowly moving toward democracy.

Here are some more facts: The Chinese government has attempted to prove, contrary to all science, that the Chinese people did not evolve from ancient Africans but from a genetically distinct -- and superior -- source. Officious older women are recruited by the Party to head neighborhood committees, a position which empowers them to spy on the 15 to 40 households in their jurisdiction and to enter homes at will. Chinese courtrooms have signs that state “Confess and seek leniency.”

Becker is a policy wonk, which makes The Chinese an informative book but somewhat of a chore to read. He’s a digit head, but his mastery of statistics doesn’t make it fun to absorb all of his numbers. The book’s chapters are disjointed, forcing the reader to find the larger picture in the many details.

Here are some final facts: The Party adheres to a jurisprudential doctrine called Legalism, under which laws apply to citizens but not to the Party or its members. The Party suppresses any reference to the fact that elections for provincial and national assemblies were held in China from 1909 to 1948. The Party provides economic incentives to overseas Chinese businesspeople to prevent them from financing pro-democracy or opposition movements. In today’s China, anyone, at any time, can be arrested and confined to jail or a labor camp for years without evidence or trial.

If I were one of those Chinese students studying abroad, I wouldn’t return either.

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Thursday, March 01, 2007

The Tipsy Coachman, The Crying Judge and the Ditsy Model


Hong Kong, China

Florida’s intermediate appellate court yesterday affirmed Judge Larry "Overshare" Seidlin’s ruling with regard to the disposition of Anna Nicole Smith’s body. Opinion here (press "02-28-07 2d").

The Florida court ruled that Seidlin had arrived at the correct result – the body is the property of the minor child, who acts through a court-appointed attorney – but by the wrong legal reasoning – applying an irrelevant Florida statute instead of the correct common law.

The appellate court therefore affirmed Seidlin’s ruling under the “Tipsy Coachman Doctrine,” one of the law’s more colorfully named rules.

The Florida Supreme Court explained the doctrine in a 2002 appeal from a second-degree murder conviction:

“We start with the proposition that generally, if a claim is not raised in the [trial] court, it will not be considered on appeal. However, notwithstanding this principle, in some circumstances, even though a trial court's ruling is based on improper reasoning, the ruling will be upheld if there is any theory or principle of law in the record which would support the ruling. [¶] This longstanding principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine, allows an appellate court to affirm a trial court that reaches the right result but for the wrong reasons so long as there is any basis which would support the judgment in the record." Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (internal citations and punctuation omitted).

Hopefully, this will be the last ruling on this A.N.S. burial issue. Unlike many state supreme courts (which can hear any case they want), the Florida Supreme Court has limited jurisdiction, and this dispute does not seem to fall under any of its heads of jurisdiction. Fla. R. App. P. 9.030.

Although I have not researched the legal history, I assume the doctrine got its name shortly after a drunken coachman in the 1800s took the wrong route through London but got a Court of Appeal judge home in one piece.

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Ode To Flying Pig


Hong Kong, China

Ordinary Gweilo posts about the fact that the South China Morning Post did not run a review of the Rogers Waters concert last month but ran a letter to the editor complaining about the lack of a review.

The letter writer argued that a picture of the giant inflatable pig that was launched during the song "Sheep" would have made a great feature photo, since the new Chinese lunar year is the Year of the Pig.

While the SCMP's lack of a review shows its stodginess, the absence of a pig picture is understandable. Before the show, I spoke with the photographers from AFP and Getty, and they confirmed that, per industry standard, they were only being allowed to take photographs during the first three songs of the concert. "Sheep" was deep into the show, well after the news photographers would have been escorted out.

But not running a review of one of the few international acts to hit town? That's lame.

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"I'd Like To Thank My Accountant"

Hong Kong, China

Now that awards season is over, Hollywood accountants and business managers may want to bookmark the IRS Gift Bag Questions And Answer Page. Riveting reading.

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