葉劉淑儀 GBM,GBS,JP

REGINA IP

LAU SUK-YEE

NEW PEOPLE'S PARTY CHAIRWOMAN

政綱 PLATFORM
"One Country, Two Systems" Works For You

"One Country, Two Systems" is, first and foremost, China′s reunification project designed to resolve the question of the future of Hong Kong. In recognition of the historical realities about the different capitalist systems and lifestyle practised in Hong Kong for more than a hundred years, Mr. Deng Xiaoping put forward this bold and highly innovative concept in the early 1980s with a view to accommodating Hong Kong within China′s socialist systems.

One of Mr. Deng′s most memorable quotes in the 1980s was "Hong Kong people can carry on dancing and enjoy horse-racing!", which encapsulated Hong Kong people′s most treasured pastimes at that time.

The Sino-British Joint Declaration is a pair of linked statements made by the Chinese and UK Governments - the former saying that it will resume the exercise of sovereignty over Hong Kong on 1 July 1997, with the latter confirming that it will restore Hong Kong to China with effect from that date.

There is no reference whatsoever to democracy or universal suffrage in the Sino-British Joint Declaration. In response to Hong Kong people′s representations, Articles 45 and 68 of the Basic Law say that the Chief Executive could be elected by universal suffrage as the ultimate goal, "in the light of the actual situation" in the HKSAR and subject to "gradual and orderly progress". The same pre-conditions apply to formation of the Legislature by universal suffrage as the ultimate goal.

Universal suffrage based democracy developed much faster after 1997 than during the more than 160 years of British rule. All appointed seats of District Councils were abolished in 2016. The number of seats in geographical constituencies in the Legislative Council increased from 20 in 1998 to 35 in 2012, with 5 additional directly elected "super seats" in functional constituencies.

However, the increase of the elective element in the legislature only led to more chaos and obstruction within the Legislative Council, and heightened polarisation and lawlessness in our society.

In September 2014, an unlawful movement to occupy Central and other business districts in Hong Kong to pressurise the Central Government into making more political concessions led to paralysis of Hong Kong′s main business districts for 79 days.

In early 2016 another violent flare-up occurred in Mongkok, causing damage to property and injury to law enforcement officers.

Within LegCo, the self-styled democrats persistently opposed any legislative or spending proposals aimed at enhancing China′s security, Hong Kong people′s national identity and integration with our motherland. The situation went from bad to worse in 2016 when a number of newly elected legislators decided to use the oath-taking ceremony in LegCo to insult China.

In 2019, months-long violent protests broke out over objection to a government bill to facilitate the rendition of fugitive offenders to Mainland China, Taiwan and Macau. The demonstrations started as peaceful, civil protests, but quickly morphed into a violent anti-China insurgency - blocking roads, vandalising LegCo, laying siege to Police stations and the Central Government′s Liaison Office in Hong Kong, occupying university campuses and vandalising the mass transit railways and China-related businesses. Large quantities of dangerous explosives and other offensive weapons were seized and serious damage was caused to property, triggering a rapid downturn of our economy.

The Police and other disciplined services bore the brunt of the violent attacks, and played a pivotal role in defending our city.

Fortunately, the Central Government, demonstrating great resolve to support Hong Kong and uphold "One Country, Two Systems", enacted a national security law for Hong Kong which came into effect on 30 June 2020. The law introduced new offences relating to secession, subversion, terrorist activities and collusion with external forces to endanger national security, and quickly restored law and order in our society. We can now go out without fear of being mobbed or beaten up for disagreeing with the demonstrators. Our economy steadily recovered.

In March 2021, the National People's Congress made a Decision to improve Hong Kong′s electoral systems, to ensure that Hong Kong will be governed by patriots who truly support the Basic Law and are loyal to the HKSAR. Hong Kong being an inalienable part of China, it makes no sense for Hong Kong to be governed by people who are hostile to China or harbour plans to overthrow the constitutional systems laid down in China′s Constitution and in the Basic Law.

The decisive measures taken by the Central Government have restored our safety, security and political stability. The Central Government continued to pledge strong support for Hong Kong by positioning Hong Kong as a global financial centre, international shipping, trading, legal services, innovation, cultural interchange, intellectual property rights trading and civil aviation centre under the 14th Five-Year Plan. In addition, as announced in the Chief Executive′s Policy Address 2021, the Northern Metropolis Development Plan, linking our northern district with Shenzhen, will vastly increase our capacity for growth and technological development, apart from producing 600 hectares of land for housing.

It remains for us, Hong Kong people, whether local or expat, to seize the moment and grasp the opportunity to rebuild Hong Kong - rebuild confidence in our country, in ourselves and in our future. I am confident that with strong support from the Central Government, Hong Kong people will be able to revive our "can do" spirit, resolve our deep-rooted economic and livelihood problems, and restore harmony in our society.

Let′s Do Our Part to Safeguard National Security!

We have a constitutional duty under Article 23 of the Basic Law to enact local legislation to prohibit seven offences that endanger national security - treason, secession, sedition, subversion, theft of state secrets, foreign political organisations or bodies conducting political activities in Hong Kong, and political organisations establishing ties with foreign political organisations or bodies.

When Lord Irvine, Lord Chancellor of the United Kingdom, called on me in late 2002, he looked at the wording of Article 23 and agreed that it is a question of when and how Hong Kong fulfils this duty, not whether or not Hong Kong does it.

National security offences like treason, sedition, theft of state secrets, and espionage are nothing new. The offence of treason, which we inherited from the United Kingdom and regarded as the most serious of criminal offences, is set out in Section 2 of the Crimes Ordinance. We have the offence of sedition both in our statutory law (the Crimes Ordinance) and in common law. Official information is protected under the Official Secrets Ordinance which is based on UK′s Official Secrets Act of 1911, and updated in 1989. However, many of these provisions are outdated and incapable of countering national security threats in today′s technology-driven environment.

For example, under Section 3 (1) (a) of the Official Secrets Ordinance, a person commits the offence of "spying" if he or she "approaches, inspects, passes over or is in the neighbourhood of, or enters, a prohibited place" (such as a naval base). Modern spying is no longer conducted by way of trespassing or proximity.

The national security law enacted by the National People′s Congress Standing Committee, which entered into force in Hong Kong on 30 June 2020, has plugged serious loopholes in our legislation by adding the offences of secession, subversion, terrorist activities and collusion with external forces. Our city quickly returned to peace and stability. But we need to do our part to update our legislation and ensure that they are effective in countering modern hostile state threats and any other attempts to endanger national security.

Many countries and regions around the world have enacted national security legislation to protect their sovereignty, unity, territorial integrity and the integrity of their political systems. The US has a wide array of legislation on national security, including national security education. The UK has recently completed a two-month consultation on legislation to counter "hostile state threats". Australia has enacted a large number of statutes to counter terrorism and foreign interference. Singapore has, in early October, enacted the Foreign Interference (Countermeasures) Act 2021 to counteract foreign interference in the public interest.

Macau has enacted local legislation to implement Article 23 in 2009. We have yet to do our duty. I urge the HKSAR Government to take early action to fulfil our constitutional responsibility.

How to Reduce Poverty and Achieve "Common Prosperity"

Reduction/Elimination of Poverty Depends on How You Define Poverty

Whether a government can eliminate or reduce poverty depends on how you define poverty. Our government has adopted the "relative poverty" concept (adopted by many European countries, but not China or the US), defining all those families whose monthly income falls below the monthly median household income as falling below the poverty line, irrespective of assets. The trouble with this approach is that as the bell curve moves, there will always be households falling below the poverty line. Moreover, if economic growth is faster than the increase in welfare payments, there will be more "poor" people as our society becomes richer.

Moreover, as this approach does not take assets into account, those falling below the "relative poverty" line could be asset-rich people.

Last year, when Hong Kong's economy was hard hit by Covid-19, the overall poor population rose to 1,652,500 and a poverty rate of 23.6% before government intervention by recurrent or non-recurrent cash or in-kind subsidies, the highest on record. After government intervention, the numbers fell to 553,500 poor population and 7.9% poverty rate. However, social scientists point out that one-off subsidies are not a good way to alleviate poverty. The poorest grassroots people - those without work or doing low-paid jobs, continue to lack assistance.

I recommend that we switch to the "absolute poverty" approach, as in China and the US, establishing a poverty line based on the costs of basic necessities. Naturally, "basic necessities" need to be properly defined. After deducting the support provided by government in the form of public housing and other welfare subsidies, we can establish more precisely the numbers of people falling below the poverty line post-transfer.

This approach can enable us to better direct our limited resources to the neediest people. It will also help us to better understand the nature of poverty in Hong Kong - who are the poorest people in Hong Kong? What are their most pressing needs? I suspect many will be those living in subdivided cubicles or caged beds.

I think we should take a page from China′s "poverty-elimination" strategy by 1) establishing more accurately the numbers of the poorest people who deserve our help as a matter of urgency; and 2) help the poor people to help themselves by helping them to upgrade their skills and do better jobs. To do so, rather than relying on welfare payments, we need to adopt a more growth-oriented economic strategy that broadens our economy and creates jobs with decent pay for people with different skills levels.

How to Achieve "Common Prosperity"

I disagree with the Chief Executive that in a capitalist economy like Hong Kong there is little the government can do to reduce the wealth gap other than by making welfare payments. In fact, our recurrent expenditure on social welfare has, in Mrs. Lam′s own words, risen by 62% to $105.7 billion in the past four years, accounting for 20% of our overall recurrent expenditure. Such runaway increase is clearly not long-term sustainable, given the slow pace of our economic growth.

Governments can certainly play a role in reducing poverty and narrowing the wealth gap whether in socialist or capitalist society. Many European countries do so by fiscal measures, imposing hefty wealth tax and profits tax for corporations, and cross-border measures against "base erosion and profit shifting".

The Chinese concept of "common prosperity" does not mean robbing Peter to pay Paul, or helping everyone get rich at the same time, or ensuring that every person has an equal share of wealth. As some of China′s earlier economic experiments show, that could end up making everyone equally poor. The Chinese leadership believe that you can achieve "common prosperity" by adopting re-distributive measures at three levels:

  1. At the primary level, adopt measures like establishing minimum wage; setting ceilings on excessively high pay (such as those demanded by popular mainland Chinese stars); taking measures to rein in corporations which have become too big, hitting monopolistic or anti-competitive practices; helping SMES; limiting tutorial hours for children of well-to-do families, etc;
  2. At the secondary level, adopt fiscal measures that ensure the wealthy members of our society and corporations contribute more to the public purse;
  3. Encouraging big corporations to make charitable contributions.

The Chinese leadership also stressed that spiritual satisfaction is equally important. That means nurturing a greater sense of job satisfaction and sense of achievement and fulfilment arising from doing one′s job well. People are not born equal in talent. There cannot possibly be equality of outcomes in any society. But there ought to be equality of opportunity.

What We Can Do

I think we should adopt similar measures, such as providing more help for SMES other than loan guarantees; curbing monopolistic and anti-competitive practices especially by bodies established by the government to provide public services; adopting appropriate educational and skills training policies to ensure equality of opportunity; and, above all, adopting housing policies that provide larger numbers of our society with decent, affordable homes.

To achieve the above, we need to adopt a more proactive economic strategy to re-distribute wealth and reduces disparities. Re-distributive fiscal measures should also be considered so long as they do not undermine the long-standing advantage of our economy as having a simple and low taxation system.

Adequate Housing is a Human Right, Not a Commodity

The Chief Executive had said in her Policy Address that housing is not a simple commodity, implying that the government regard housing as a commodity. While it is free for investors and private individuals to commoditise housing and use it as a vehicle for investment, I agree with the UN Special Rapporteur that housing is an important human right. As the Special Rapporteur pointed out, "Adequate housing is more than a roof over one′s head, it is the right to live in safety and dignity in a decent home". It is also "the basis of stability and security for an individual and family".

With roughly 226,340 people living in abject conditions in sub-divided cubicles, it can be said that our government has failed to safeguard the fundamental human right of these people. In fact, the numbers of those living in inadequate housing are higher if those living in illegal structures in the New Territories are taken into account.

Despite the pandemic, different classes of home prices continue to reach new highs. A public housing unit in Tak Tin Estate with a usable area of only 376 square feet was sold for $3.07 million in September, setting a record of $8,172 per square foot for Green Form subsidised housing. New record in sale price was also set by the sale of a Home Ownership unit in Shatin last month. Affordable housing is becoming an increasingly tantalising problem for large numbers of our citizens, including many mid-income families.

In my opinion, the prime responsibility of our government must be to prioritise the provision of adequate housing for those living in abject, unsafe and insecure conditions. For this reason, I supported the government′s amendments to the Landlord and Tenant (Consolidated Amendments) Ordinance 2021 to regulate rental increase of sub-divided units and to provide greater security of tenure. This is only a small step forward, but is necessary to provide some measure of relief to the inhabitants of sub-divided cubicles.

I also support the government′s transitional housing programme to re-house those living in sub-divided cubicles. However, the government′s programme provides only 20,000 such units, way below the demand from those living in abject conditions.

The need for transitional housing has arisen mainly because the government has failed to keep up its public housing programme to meet continuous demand. From 2001-2021, the Housing Authority and the Hong Kong Housing Society have produced 331,147 public housing units, including subsidised sale flats. Production peaked in 2001-2002. But after the Asian financial crisis, the government slackened in its production of public housing. In 2006-2007, public housing production fell to 8,968 units.

The slowdown in land and public housing production during Donald Tsang Yam Kuen′s administration is the chief reason for the sharp run-up of home prices, the long waiting time for public housing applicants and the return of large numbers of local residents living in abject conditions. The hillside squatter huts which proliferated in the 1950s and 60s were cleared by the administration through an ambitious 10-year public housing programme launched in the 1970s. The return of sub-divided cubicles is a poignant reminder that there must not be any let-up in our effort to keep up our land and housing production programmes to provide adequate and affordable housing for all and stability and security in our society.

Recommendations

I recommend that -

  1. The government must prioritise taking care of those living in abject housing conditions.
  2. The government must double-down on its land production efforts to produce more land for public housing and to help our citizens secure affordable homes.
  3. The Housing Authority should speed up its production of public housing through using latest construction technology.
  4. When housing is in short supply, the government should not fuel the speculative bubble by allowing Home Ownership units to be sold without payment of premium. It should not be the objective of the government to help owners of highly subsidised sale flats to reap substantial profit from the sale of their flats in the secondary market.
  5. The MTR has a monopoly of the best housing development sites on top of MTR stations, and will make hefty profits from home sales from its railway extensions in the coming years. The government should negotiate with the MTRC to set aside a portion of its topside developments on its stations for sale to middle-income families as subsidised public housing.
  6. Other than pinning its hope for large-scale land production on the Northern Metropolis Development, which is estimated to take at least 20 years to materialise, or the controversial Tomorrow Lantau Vision, the government should explore other options for land production, such as re-provisioning the container ports in the Kwai Tsing area. That would release at least 300 hectares of prime, harbour-front land for re-development.
  7. The government should put all options on the table - other than reclamation and increase of plot ratio, redevelop brownfield, green belt sites, Tuen Mun River Trade Terminal, amend the New Territories Ordinance to unlock the Tso/Tong lands in the New Territories, reduce the buffer zones for wetlands and simplify and streamline land premium assessment procedure. These options were finally included in the Chief Executive′s 2021 Policy Address, but should have been explored much earlier.
  8. The government should also review and streamline town planning, land resumption and other developmental procedures to fast-track land production.
  9. Last but not least, in planning new development areas and mega projects, the government should make sure transport infrastructure development can keep pace with the rapid increase of population in any location.

Turning the Northern Metropolis Development Plan into Reality

In her Policy Address 2021, the Chief Executive unveiled the Northern Metropolis development plan, an ambitious project to vastly expand Hong Kong′s capacity for growth and land supply for housing. The idea is to turn lands south of our boundary with Shenzhen into a "Shenzhen-Hong Kong Boundary Control Points Economic Belt". The integration will be facilitated by new control points and co-location of border control facilities at enlarged control points north of our boundary.

The "Twin Cities, Three Circles" blueprint is designed to cover, from west to east, the "Shenzhen Bay Quality Development Circle", the "Hong Kong-Shenzhen Close Interaction Circle" and the "Mirs Bay/Yan Chau Tong Eco-recreation/tourism Circle". The Shenzhen-Hong Kong I&T Co-operation Zone under planning will be expanded and conjoined with the Shenzhen I&T Zone to form the Shenzhen-Hong Kong I&T Co-operation Zone of approximately 540 hectares. Five new railways will need to be built to improve the infrastructural links with Shenzhen.

On completion, the Northern Metropolis development is estimated to produce an additional 600 hectares of land, accommodating up to 2.5 million people and creating 650,000 jobs, including 150,000 I&T related jobs.

If successfully implemented, the Northern Metropolis plan will mark a giant step forward toward overcoming Hong Kong′s spatial and resource constraints, and help jumpstart Hong Kong′s technological development through leveraging the technological resources of Shenzhen.

Innovative Measures Required to Translate the Northern Metropolis Vision into Reality

The government estimates that completion of this development plan will take 20 years. This is an optimistic forecast. Many hurdles need to be overcome before the plan can be translated into reality.

  1. We need new infrastructure not only connecting Hong Kong with the hinterland of Shenzhen, but also with Hong Kong′s urban areas. With an anticipated 2.5 million people living in this economic belt, not all will find work within the belt or north of Hong Kong, however seamless the cross-border arrangements for people movement. Another East MTR railway may be needed to connect the north to the south of Hong Kong.
  2. The construction industry is suffering from shortage of labour at all levels - from construction workers to surveyors to technicians and engineers. The undertaking of massive infrastructural projects within a tight time-frame will push up prices and labour costs. Import of labour and professionals is unavoidable.
  3. Government red tape in approving and supervising construction plans must be minimised.
  4. The existing monopoly the MTR holds in the construction of rail extensions needs to be reviewed. More completion in rail construction needs to be fostered to avoid handing the MTR excessive profits and over-stretching its capacity.

Costs, Finance and Need for New Procedure

The Policy Address is silent on the costs of this gigantic project and how to finance it. The Chief Executive promised to improve implementation by creating a Deputy Secretary of Department post to strengthen internal co-ordination and collaboration with Shenzhen. The Chief Executive also undertook to streamline various statutory and administrative procedures ranging from "technical studies, planning permission, detailed design of works, works gazettal, public objection handling, funding application, land resumption, rehousing and compensation, land formation and provision of infrastructure." (para.94 of Policy Address 2021). The government cannot be faulted for not keeping these procedures under review and speeding development up as much as possible. But the procedures remain far too long. Reliance on reviews of existing procedures is inadequate to deliver the desired outcomes.

I suggest that the government should adopt a bolder and more daring approach in implementing the Northern Metropolis plan, as follows :

  1. Enact a new statute, tentatively the "Northern Metropolis Development Ordinance" to introduce a new set of streamlined planning and development procedures to implement new elements of this project.
  2. Set up a special purpose vehicle, or some appropriate corporate structure, to raise the funds necessary to finance this project. The government should not view this project as an expenditure item on the government′s books, but an investment item. It can raise funds through Public-Private-Partnership, and can even publicly list this corporation so that Hong Kong people can have a share of the profits.
  3. The government should spell out a timeline for development and a roadmap to completion. It cannot inspire hope and confidence on the part of the people unless the people can see a concrete plan for implementation.

A Better Education Initiative

Sharp Rise in Education Expenditure Produce Disappointing Outcomes

Since the government implemented the New Secondary School (NSS) education reform and extended compulsory free education to 12 years in 2009, education expenditure increased sharply from $54.5b in 2011-2012 to $120.4b in 2019-2020, falling slightly to about $100 b in 2021-2022 because of budgetary constraints. Despite the skyrocketing expenditure, the outcomes have been highly disappointing.

There is a wide disparity in academic attainment between students of elite schools (international, "direct subsidy" and "independent" schools) and those at the bottom tier of publicly funded schools. In 2021, 130 Hong Kong students scored a maximum 45 points in the International Baccalaureate Diploma Programme, accounting for 11% of the global total. On the other hand, employers often complain about the poor language proficiency, bad manners and work attitude of local graduates.

The 2019 riots exposed serious problems of our reformed education system. Over 80 teachers and large numbers of young people, including students as young as 12, were arrested for unlawful activities ranging from rioting, taking part in unauthorised assembly, possession of offensive weapons and even dangerous explosives. Young people chanting anti-China slogans and desecrating the national flag are a wake-up call to China that the Hong Kong administration has failed miserably to promote a greater sense of national identity, despite allocation of substantial funds.

What Went Wrong with Our NSS Curriculum Reform?

A lot of the problems can be attributed to the NSS curriculum reform. In pursuance of the stated objective of "whole person education and lifelong learning", the NSS curriculum reform introduced four core subjects (Chinese, English, Mathematics and Liberal Studies). Students were expected to choose two to three other electives. But to gain admission to universities with high marks, students tended to choose two electives only, therefore crowding out the study of many subjects fundamental to "whole person" education, such as basic humanities and science subjects, resulting in a narrowing of the students′ general knowledge and life perspectives.

In 2021, among the roughly 50,000 students taking the Diploma of Secondary Education examinations, only 10,124 took Physics, 6,193 took Chinese History, 5,236 took History, 1,387 took Chinese Literature and 259 took English Literature.

Test of proficiency in Chinese in the Chinese exam was reduced to testing the ability to read, write, listen and speak Cantonese. The decline in English proficiency is understandable when so few students studied English literature.

The core Mathematics subject was dumbed down and students who want to do Maths at a higher level can do either M1 or M2. Many engineering professors have complained about admitting students with poor mathematical standards who have not done calculus.

As for the core Liberal Studies subject which has six modules, including "Hong Kong Today" and "Modern China", the subject is plagued by a lack of approved textbooks and teaching materials and frequent updating of textbooks to keep pace with developments. Despite the inclusion of six modules, DSE exams had focused on political issues, and the classroom had been abused by teachers with strong political bias to promote separatism and negative, one-dimensional views on China. The NSS curriculum also introduced many "integrated" subjects like "Integrated Science", "Combined Science" with poor recognition overseas and low student attendance. Many "Applied Learning" subjects had the same problems - low student attendance and little utility in preparing students for further learning. The lack of rigour and dumbing down of standards have driven many middle-class parents, including government officials involved in education, to send their children to international or direct subsidy schools.

Another problem with the NSS is the lack of emphasis on cultivating a fine sense of values, whether respect for elders and love of the family, or simply good manners. Young students and even young professionals indulging in foul language in workplace is reported to be commonplace.

I note that Chief Executive Carrie Lam had finally spoken on the importance of promoting traditional Chinese family values in para. 140 of her Policy Address 2021.

How to Put Things Right?

Primary and secondary school education, especially the latter, needs to be put right in five areas - curriculum (a return to basics and academic rigour); more rigorous vetting of textbooks and teaching materials, including "school-based" materials; supervision of setting of examination questions in HKDSE exams (to avoid setting politically biased questions and leaks); enhancement of teacher quality and training; and tougher supervision of school administration and use of school premises and facilities.

Proliferation of "Self-financing" Tertiary Institutions a Primrose Path to Disappointment

In 2000, then Chief Executive C.H. Tung pledged to increase the proportion of school-leavers attending tertiary institutions to 60% in ten years. The numbers of publicly funded university places has increased only by 500 places in the past ten years (from 14,500 to 15,000), but we achieved the target of putting 70% of school-leavers in tertiary institutions in 2015-16 - by rapid expansion of self-financing tertiary institutions.

Thanks to the policy of "commercialisation" of education launched by then Chief Executive Donald Tsang Yam-kuen in 2009 and the financial support given to self-financing institutions and their students, in 2020/21, Hong Kong has 29 self-financing colleges, providing 791 programmes and admitting 32,500 students.

These "self-financing" institutions receive substantial subsidies from government in the form of land grant, loans, financial support for targeted programs and funding for "enrichment" of programmes and facilities, loans and financial support for students amounting to $30,000 per year. In spite of all that, students still pay hefty fees. Many such institutions have very low student admission. With steady decline in student population, many such institutions will find their business unsustainable.

As it is easier to launch programmes with lower set-up thresholds, there is a proliferation of programmes in business and other "soft" subjects. Degree inflation and college proliferation (as in Taiwan) are unlikely to enhance the job opportunities and career prospects of their graduates, resulting in disappointment and even anger at government for providing them with an inferior college education.

Mismatch of Resources, Societal Manpower Requirements and Expectations

After the Asian financial crisis, the government launched two-year associate degree programmes to alleviate youth unemployment, but, unlike in the US, without providing transition to full degree college programmes. The government is repeating the same mistake by supporting massive self-financing degree programmes without consideration of societal manpower requirements and the career prospects of their graduates. The government should disabuse parents and students of their fixation on college degrees when some of their children may be better suited for vocational, technical and professional education. The government is expending roughly $ 2.8 billion on vocational, technical and professional education under the aegis of the Vocational Training Council, but there remains insufficient interest in pursuing vocational, technical and professional education on the part of young people.

It should be noted that under Article 13 on the right to education of the International Covenant on Economic, Social and Cultural Rights, parties to the Convention should provide free and compulsory primary education for all, but higher education should be made equally accessible to all, on the basis of capacity, and by appropriate means.

It is well-known that there is severe shortage of manpower in ship and aircraft maintenance and repair, air-conditioning and elevator maintenance and repair, construction and allied medical professionals at various levels. The government should drum up interest in vocational, technical and professional education and better prepare our young people for the skills demands of our society and skills requirement of the future. Higher diploma graduates are as indispensable to our society, and rewarding to the graduates, as properly educated university graduates in rigorous disciplines.

A Better Public Finance Management Strategy

Narrow Tax Base and Wild Fiscal Gyrations

Hong Kong has prided itself on its simple, low taxation system and "free port" status, and derived great benefit from these advantages. But it also means that Hong Kong′s economic and fiscal position is susceptible to wild fluctuations from sudden shocks. The wide swings in our fiscal position from 2017-2018 to 2021-2022, as the attached chart shows, is a perfect illustration of these risks.

In 2017-2018, we had a record fiscal surplus of close to $150 b. In 2019-2020, the months-long anti-government protests led to a deficit of $10.6 b. In 2020-2021, the impact of Covid-19 and the government′s extra expenditure to save the economy gave rise to a record deficit exceeding $250b. In 2021-2022, the Financial Secretary estimated a fiscal deficit of $101.6 billion. In fact, the real deficit is more like $159.6 b, if we take into account the repatriation of $23b from the Housing Authority′s Reserve and receipts of $35 b from the issue of Green Bonds.

The Financial Secretary commented recently that the estimated fiscal deficit for 2021-2022 is likely to be considerably smaller, thanks to the revival of the domestic economy as Covid-19 got under control, and healthy land sales and land premium from land use modifications. The recent sale of Site 3, the prime harbour-front site in Central, at a record $50.8 b. greatly enriched the public coffers. The heavy reliance on land revenue is the chief reason why the government has historically been reluctant to adopt any measures that might torpedo the property sector.

If Hong Kong is to adopt the Singapore model of ratcheting up the public housing component of the property sector to 80%, it must diversify its economy to be less dependent on land revenue, and get recurrent expenditure under control so that it won′t have to look to the property sector to save the day. These tasks are not easy, but they must be the government′s prime objectives if it′s is really determined to bring down Hong Kong′s property prices over time so that more Hong Kong people can have affordable homes. Reducing the reliance on the property sector would also release more resources for diversification into other sectors.

Prudent Public Financial Management Crucial to Our Monetary Stability

Healthy public finance, which includes maintaining a hefty fiscal reserve and substantial foreign exchange reserve, is crucial to supporting our linked exchange rate, which has served Hong Kong well in ensuring monetary stability since its introduction in 1983. That is why Article 107 of the Basic law mandates that "The Hong Kong Special Administrative Region shall follow the principle of keeping expenditure within the limits of revenue in drawing up its budget, and strive to achieve a fiscal balance, avoid deficits and keep the budget commensurate with the growth rate of its gross domestic product."

Our recurrent operating expenditure has jumped more than 200% from $150 b in 1997-1998 to $470 b in 2021.The rate of increase has far exceeded our forecast economic growth rate of 3.3% in real terms per annum from 2022-2025. As the Chief Executive has indicated in her Policy Address 2021, our recurrent expenditure on welfare, medical and health services and education has grown 60% since she took over. As the disastrous outcomes of the senior secondary education reform launched in 2009 show, increase in expenditure does not necessarily produce the desired outcomes. We must ensure that we do not breach Article 107 of the Basic Law by spending more than we earn; and the money we spend on public services truly produces socially desirable outcomes.

Explore Ways to Increase Revenue

Introducing a Goods and Service Tax was tried in 2007 and quickly foundered. Even a 0.13% increase in stamp duty on stock transactions in this year′s budget was frowned on by the securities industry. I think the government should seriously consider increasing the betting duty on football gambling, which has registered increases of more than 10% since 2018. The Hong Kong Jockey Club holds a monopoly on gambling in Hong Kong, and it is about time it makes more contributions to the public purse.

Annual budget surplus/deficit 2017/18 – 2021/22
Budget Surplus/Deficit (billion)
2017/18 138
2018/19 58.7
2019/20 (37.8)
2020/21 (257.6)
2021/22 (forecast) (101.6)
Source: The Budget

Our Expectations for a Better and Greener Transport System

Hong Kong prides itself on running an efficient multi-modal public transport system, providing commuters with choices including the mass transit railways, franchised buses, minibuses, taxis, and ferries. We expect our public transport system to be efficient, reliable, easily accessible, reasonably priced and, with climate change upon us, conducive toward reduction of carbon emissions.

With vehicular traffic accounting for 18% of Hong Kong′s carbon emission, I support the government′s policy to encourage the public to switch to e-vehicles and the rail-based transport system. Our government has declared that it aims at achieving "carbon neutrality" by 2050, and cut back carbon emissions by 50% before 2035 as compared to the 2005 level. To achieve this objective, extension of the existing mass transit rail system, rationalisation of bus routes, banning fuel-propelled vehicles and making greater use of technology for traffic control are essential.

Toward a Safer, More Comprehensive and Reliable Mass Transit Rail System

The mass transit railways are the backbone of our public transport system. The MTRC′s reputation for excellence in management has in recent years been dented by substantial cost overruns and time delays in its construction of the high speed rail and the Statin-Central Line, (SCL), shoddy works at the Hung Hom platform of the SCL, and problems with installing a new signals system, which led to a train collision.

In my opinion, it was a mistake to publicly list the MTRC in 2000, and to merge it with the Kowloon-Canton Railway in 2007. Lack of competition has given the MTRC a "dual monopoly" in the construction of extensions of its railways and in residential development on Hong Kong′s prime sites on top of MTR stations. Profit maximisation has driven the MTRC to be penny-pinching in setting its rail fares, and bent on extracting the best terms from the government under the "rail-plus-property" model. From the public′s point of view, it is all too apparent that the MTRC would only agree to railway extensions if the government agree to give it land for residential development. MTRC′s profits far exceed other railway operators in the region mainly due to its access to land for residential development. In the first half of 2021, MTRC made a profit of $2.67 billion, thanks to substantial revenue derived from its property development business. Such business is so profitable that the MTRC, established originally as a public transport operator, is now acting like a developer. It submitted a tender for Site 3, the prime harbour-front commercial land, in spite of its heavy railway construction commitments.

Recommendations

As the key public transport operator, the government should -
As the controlling shareholder of the MTRC, exercise stronger control on the MTRC to require it to focus on railway construction and plough back more of its property development profits to the public in the form of fare concessions and public housing for the middle class.
Require the MTRC to focus on constructing the railways already in the pipeline, such as the long-awaited Northern Line, the Tuen Mun South Extension, and the Western Extension of the Hong Kong Island Southern Line, a must to meet the transport demands of the residents in Pokfulam on re-provisioning of Way Fu Estate.
Work out feasible plans to construct the five new railways, such as extension of the Northern Line to the new Huanggang port in Shenzhen, as part of the Northern Metropolis Development plan. The government should ask other railway companies to take on the construction work if it estimates that the MTRC would be over-stretched and overburdened.
Re-consider constructing the Tuen Mun-Tsuen Wan railway to relieve traffic congestion on Tuen Mun highway.
Divest unprofitable overseas businesses such as railway operations in Sweden and S. E. England, a major distraction to top management from running local rail operations.
The MTRC has agreed to set aside some of the housing development as subsidised public housing on re-developing its depot at Siu Ho Wan in northern Lantau. The government should require the MTRC to set aside more of its topside residential development as subsidised public housing for sale to the middle class.
Require the MTRC to explore ways to reduce its railway construction costs, which are estimated to cost a whopping $14.4 billion per km for the western extension of the East Tung Chung Line!

Other Transport Problems Need to be Addressed

There are frequent complaints about rampant illegal parking and double parking in busy thoroughfares and steep hillside roads, posing much danger to pedestrians. The Police must step up enforcement action. Transport Department should provide adequate parking spaces for motor cars and motor cycles, and take effective measures to curb private car growth and improve traffic management. The Transport Department and Highways have resisted widening a narrow and dangerous stretch of Borrett Road on the ground of engineering difficulty and the a fake excuse to preserve "old trees" and "historical buildings". A fatal accident has occurred at a traffic blackspot on Borrett Road, and the Transport and Highways Departments must be held to account if its much-touted Real Time Traffic Signal System is unable to reduce traffic congestion and risks to motorists, cyclists and pedestrians in that area.

A More Cost-effective and Responsive Healthcare

In recent years government has poured billions into the Hospital Authority (HA), which operates 43 public hospitals and health centres, provides 29,000 beds and employs 84,000 people. In 2020-21, the HA′s financial provision amounted to $95.9 billion, up 53% compared to the previous year. Once admitted to the HA′s hospitals, patients pay very little for the comprehensive care they receive. Charges are $120 per day for hospital admission and $180 for treatment at the accident and emergency centres.

For the little tax most Hong Kong people pay and absence of obligation to pay for compulsory medical insurance, Hong Kong people are fortunate to have most of their medical and healthcare needs met by the public system. Yet there are rising complaints about ever-lengthening waiting times for specialty treatment, frequent cases of medical negligence, excessively heavy workload for medical and healthcare staff at HA and growing numbers of resignations.

Long Waiting Times, and Ever Increasing

Latest statistics show that patients have to wait 68 weeks for referral to internal medicine, 60 weeks for referral to ENT, 55 weeks for ophthalmology and 41 weeks and 35 weeks respectively for referral of stable new cases to surgery and gynaecology. Waiting times have increased across-the-board compared to the previous year.

Excessive Workload for Doctors and Rising Resignations

Doctors at the HA are well paid but many have left because of excessively heavy workload at all levels. From 1 July 2020 to 30 June 2021, resignation rate of doctors and dentists was 4.6%, while that for nurses was 6.5%. While some have left because of emigration, most complained about unbearable caseload.

Medical Registration (Amendment) Ordinance 2021

The amendment legislation enacted on 21 October 2021 would help to open the door slightly to non-locally trained doctors to relieve severe shortage of doctors at the HA and the Department of Health. But it is by no means certain how many would be recruited from overseas, given stringent requirements for service in the public sector before full registration.

Solutions Lie Not in Additional Resources, but Better Management

As experts within and outside government have pointed out, rapidly rising demand for HA′s services - driven by ageing population and ever-increasing healthcare expectations - cannot be met simply by pouring more resources into the HA. HA management needs to do a better job balancing need and demand against cost, and do a better job in manpower development and resource management.

The government has to do its part in promoting family medicine and primary health care.

Strengthening primary healthcare - establishing more general out-patient clinics in the HA and Health Department to relieve the demand on the HA and curb unnecessary referrals to specialists. The community should be encouraged to make greater use of family doctors.

District Healthcare centres established in the past four years should be strengthened by providing consultation by family doctors.

The HA has often been criticised for its outdated and conservative management culture, uneven distribution of resources and favouritism. The government should conduct an in-depth management study of the HA to modernise its management culture.

The HA should afford its doctors with management potential to enrol in advanced healthcare management courses with a view to introducing modern management concepts. Doctors willing to undergo advanced overseas management or overseas specialist training should be given study leave, as in government. Doctors who benefit from specialist training from the HA should be asked to sign undertaking to serve at the HA for 3-5 years before switching to the private sector.

Government should ensure adequate supply of nurses and other allied medical professionals, such as clinical psychologists, physiotherapists, and occupational therapist, for whom there is acute demand. There is no point in building hospitals without the service of adequately trained staff.

The government should provide more traditional Chinese medicine clinics as part of the public healthcare system to enhance primary healthcare for the general public. Currently the Chinese medicine clinics are not part of the HA′s system. The considerable disparity in pay and upward mobility for traditional Chinese medicine practitioners is a waste of the training they received in local and mainland universities.

The government should include traditional Chinese medical services as part of the medical benefits for civil servants and pensioners.

An increasing number of hospital beds are occupied by elderly patients with chronic diseases. The pressure on the HA should be relieved by providing more residential institutions for elderly patients who require long-term health care.

More Effective Measures to Re-open the Border with Mainland China

Re-opening of our border with mainland China is no doubt the topmost concern of most people in Hong Kong, whether locals with family, work or business in the mainland, or expatriate businessmen using Hong Kong as a launch pad for expanding their businesses in mainland China. Much hardship has been caused by closing our border with the mainland for coming up two years.

With the Chinese New Year approaching, the government should adopt more decisive measures to minimise risks to the mainland so that border re-opening could be implemented as soon as possible. A multi-prong approach should be adopted, including the following:

Upgrade the capability of the LeaveHomeSafe app, so that seamless convergence with the mainland tracking system could be achieved;

Mandate by law, if necessary, the use of LeaveHomeSafe for admission to government premises, restaurants and public places, to widen the coverage of the app.

Introduce vaccine passports for admission to government premises, restaurants and public places, as other countries have done, to boost the level of vaccination, especially among the elderly.

Strengthen controls against infection risks spread by imported cases, such as air crews, by increasing the frequency of testing and blocking loopholes in existing arrangements.

How to Enhance Hong Kong′s International Status and Influence

Thanks to Hong Kong people′s prodigious industry, we have transformed ourselves from a small fishing village to an entrepot; then a light manufacturing hub and now a global financial centre. In the process, we have established an extensive network of trade, business and people connections overseas, unmatched by any other parts of China.

By virtue of our outstanding performance as an export-oriented trading economy and with China′s blessing, we became a separate Contracting Party to The General Agreement on Tariffs and Trade (GATT) in 1986, and a founding member of the World Trade Organisation (WTO) in 1995. Even before 1997, Hong Kong had become self-standing members of many international organisations open to non-state parties, such as the World Health Organisation (WHO), the Asia Pacific Economic Cooperation (APEC), the Pacific Economic Cooperation Council (PECC) and the Asian Productivity Organisation (APO).

The Basic Law Safeguards Hong Kong′s Unique International Status and External Network

Chapter VII of the Basic Law on "External Affairs" enables the Hong Kong Special Administrative Region to issue its own passports and travel documents and implements its immigration control system. To date, the HKSAR passport has secured visa-free access to 168 countries and territories, thus ensuring Hong Kong permanent residents′ freedom of travel.

The Basic Law allows Hong Kong to participate in international organisations confined to state parties as members of China′s delegation. A good example is the International Monetary Fund, where Hong Kong participates through China.

The Basic Law also allows Hong Kong to participate in international organisations not limited to states in its capacity as "Hong Kong, China". As such, Hong Kong plays an active role in the WTO, the WHO, the World Intellectual Property Organisation (WIPO), APEC and PECC, just to name a few. Hong Kong also participates in the Trade Committee, and other committees on financial markets and taxation of the Paris-based Organisation for Economic Co-operation and Development (OECD) as Observer.

Hong Kong has a network of 14 economic and trade offices covering North America, London, Europe, the Middle East, East Asia and South East Asia. These are valuable assets which enable us to continue to develop our commercial relations with our major markets around the world, and make timely representations to foreign governments on matters which affect Hong Kong′s interests.

Hong Kong also keeps a separate shipping register and is authorised by the Central Government to negotiate and conclude air services agreements, visa-waiver, taxation and other bilateral agreements with foreign countries.

The Nations′ 14th Five-Year Plan Consolidates Hong Kong′s International Position

On 11 March 2021, the National People′s Congress approved the 14th Five-Year Plan as the blueprint and action agenda for the social and economic development of the country in the next five years. Hong Kong is privileged to have been named the country′s "international centre" in eight areas - finance, transportation, trade, legal and dispute resolution services in the Asia-Pacific Region, aviation, innovation and technology, intellectual property trading, and international cultural exchange.

Hong Kong no doubt has the hardware to further strengthen its leading position in many of the above-named areas - it′s international airport′s third runway system is on schedule for commissioning in 2024. It is almost like adding a new airport and will have the capacity to handle 120 million passengers and 10 million tons of cargos every year. The recently opened M+ Museum in our West Kowloon Cultural District claims to showcase "the world′s foremost twentieth and twenty-first century visual culture". By its side and scheduled to be opened next year is the Palace Museum, which will exhibit national cultural treasures provided by the Palace Museum in Beijing. With its excellent infrastructure, Hong Kong is well positioned to resume its leading position in the eight areas mentioned above once Covid-19 is globally under control and international travel returns to pre-Covid levels.

Covid-19 quarantine requirements clip Hong Kong′s wings, but only for now

I fully understand that our city′s tough quarantine requirements have caused much hardship to many families and businesses. Our government is working hard to introduce measures that satisfy mainland health authorities′ requirements for border-reopening. Our next goal must be to enable Hong Kong residents to resume mainland and international travel.

Longer term, to live up to the nation′s expectations and to realise our potential to the full, I recommend that -

  1. Hong Kong should continue to upgrade its infrastructure and work with other cities and region in the Greater Bay Area to maximise its regional advantage. An obvious candidate for re-location and greater automation is the container ports in Kwai Tsing. With falling throughput, the government should actively pursue re-provisioning them at a suitable location to release land in the urban areas for re-development and to better co-ordinate with ports in the Greater Bay Area;
  2. Improve Hong Kong people′s proficiency in English and putonghua, so that Hong Kong people can function more effectively as intermediaries between the mainland of China and the rest of the world;
  3. Promote greater understanding of the national agenda and developments as well as maintain an open, diverse and inclusive culture in Hong Kong, so that Hong Kong can truly function as an international cultural exchange centre.
  4. Make full use of our network of overseas economic and trade offices to expand our external commercial relations and people connections;
  5. Cultivate a broad-based contingent of spokespersons for Hong Kong, from both public and private sectors, to raise Hong Kong′s profile in the international arena, and rebut biased and factually incorrect reporting by foreign media;
  6. Expand opportunities for posting of officials to mainland government departments, China′s overseas missions and international organisations to broaden their horizon.
  7. Play an active role in supporting the Belt and Road project through maximising Hong Kong′s connections with overseas Chinese communities in Southeast Asia and trading relations in other parts of the world covered by the Belt and Road.

Toward a More Sustainable Development

The United Nations adopted "the 2030 Agenda for Sustainable Development in 2015" to end poverty, protect the planet and improve the lives and prospects of everyone around the world. The Agenda includes 17 goals, which are - End poverty in all its forms, Zero Hunger, Health, Education, Gender Equality and Women′s Empowerment, Water and Sanitation (Goals 1-6); Energy, Economic Growth, Infrastructure, Industrialisation, Inequality, Cities, Sustainable Consumption and Production (7-12); and Climate Action, Oceans, Biodiversity, Forests, Desertification, Peace, Justice and Strong Institutions, Partnerships (13-17).

These goals have encapsulated all the key actions that mankind should take to sustain our long-term development. China had incorporated the 2030 Agenda and its goals into its national policies, and has undertaken "Voluntary National Reviews" in the past five years. President Xi Jinping re-iterated China′s commitment inter alia to eradication of extreme poverty, climate action, food security, anti-epidemic contributions, peace, partnership and regional co-operation in his speech at the 76th session of the UN General Assembly.

Hong Kong′s Role

If we want to eradicate extreme poverty as China has done, we need to abandon our poverty alleviation approach based on the concept of "relative poverty" so that we can re-focus our resources to help those in the greatest need of help. Rather than relying on welfare support and one-off subsidies, the government should help achieve "common prosperity" by formulating smarter policies to promote equality of opportunity, retraining and up-skilling and broaden the economic structure so that people with diverse talents can have a greater share of our prosperity.

Climate Action

Hong Kong is committed to achieving "carbon neutrality" by 2050. Our carbon emissions had peaked in 2014. Our main sources of carbon emissions are power generation (roughly 66%), transport (roughly 18%) and waste (roughly 7%), our government has taken vigorous actions to -

  1. Mandate the use of green energy for power generation - renewables and green hydrogen.
  2. Reduce waste by encouraging waste reduction, separation and recovery, introducing a statutory scheme for charging of municipal solid waste (MSW), and using technology to treat sludge and turn waste into energy.
  3. Replace fuel-propelled vehicles by electric vehicles by 2050.

Government Plans Must be Matched by Effective Execution

All these plans are laudable, but the devil lies in execution. It won′t be easy to change habits and enforce the statutory MSW charging scheme to reduce waste and encourage waste separation. The government needs to do a much more effective job step up publicity and public education in the next 18 months (when the new law on MSW charging takes effect).

The government has re-introduced tax incentives for purchase of EVs but supporting infrastructure (charging facilities and repair and maintenance capabilities) remain inadequate. There has been a lot of talk about using smart technology to manage traffic and little has been done to better manage road congestion.

More Action Needed on Environmental and Health Hazards

There has been a general deterioration of Hong Kong′s environmental and sanitary conditions in many congested, old urban areas. Rodent infestation remains a stubborn problem. Feeding of pigeons and monkeys in urban areas also cause environmental and health hazards.

In recent years, there have been an increasing number of incidents of injuries/nuisances and damage to farmlands caused by the rapid increase of wild boars and their forays into the urban areas (30 such cases from 2018 to October 21). The government must educate the public that wild boars are potentially dangerous and should not be confused with pets. A recent incident in which an auxiliary policeman was severely injured by a wild boar charging in the urban area is a wake-up call to those unaware of the hazards posed by wild animals.

I am glad Dr. Leung Siu-fai, the Director of Agriculture, Fisheries and Conservation Department, has made a statement on 21 November clarifying the hazards and the actions his department will take to reduce the risks to life and property posed by wild boars. The Department′s sterilisation and relocation plans have clearly failed. I support the Department′s re-introduction of plans to culls wild boars in well-controlled circumstances, and to increase penalties for feeding of wild boars.

Rights, Liberty, the Rule of Law and Democracy

Hong Kong has long enjoyed a reputation for being an open and free society, but formal, statutory protection of fundamental rights and freedoms was not introduced until the enactment of the Hong Kong Bill of Rights Ordinance in 1991.

Following Hong Kong's Reunification, fundamental rights and freedoms are protected under the Basic Law. Article 39 provides for the two international human rights covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) to remain in force and implemented through the laws of the HKSAR. It also stipulates that "the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as provided by law". Such restrictions shall not contravene the provisions of the two international covenants cited above.

The ICCPR is a multilateral treaty adopted by the United Nations in 1966 and commits its parties to respect the fundamental civil and political rights of individuals, including the right to life, freedom of religion, freedom of expression, assembly, association, electoral rights, and the right to due process and a fair trial. It has 173 parties and six signatories which have not ratified the treaty.

The ICESCR is also a multilateral treaty adopted by the United Nations in 1966 and commits its parties to work toward granting their Non-self Governing and Trust Territories and individuals labour rights, the right to education, health and an adequate standard of living. As at July 2020, it has 171 parties. Four countries, including the US, have signed but not ratified it. The ICESCR differs from the ICCPR in that the rights under the ICESCR are regarded as commitments which parties to the treaty are allowed to achieve progressively, taking into account the social, economic and cultural conditions obtaining in their countries.

The Basic Law is the Ultimate Guarantee of Fundamental Rights and Freedoms

As Chief Justice (CJ) Andrew Cheung said in his speech at the Ceremonial Opening of the Legal Year in January 2021, the Basic Law is the ultimate guarantee of fundamental rights and of the jurisdiction of the courts to enforce them. The CJ also pointed out that:

"Whilst fundamental rights must be given a generous interpretation, most fundamental rights are not absolute in the sense that they are liable to be restricted for the sake of others or for the common good. However, any restriction must be justifiable by reference to its aim, relevance, necessity and proportionality."

Article 4, for example, permits derogations from State Parties' obligations under the Covenant "In time of public emergency" and "to the extent strictly required by the exigencies of the situation". The General Comment of this Article made by the UN Human Rights Committee specifies the conditions under which such derogations can be made and the safeguards which should be adopted.

Another example is para. 1 of Article 6 which prohibits the arbitrary deprivation of life. In order to enable states which have not abolished the death penalty to adopt the Covenant, such as the US, Article 6 permits the carrying out of the death penalty for the most heinous crimes in accordance with the law, and subject to safeguards which prohibits torture or cruelty or carrying out the death penalty in cases involving pregnant women or persons below eighteen years of age.

Hong Kong had abolished the death penalty since April 1993.

Article 19 concerning the freedom of expression has been the subject of much dispute and many judicial review cases in Hong Kong since 1997. Advocates of unfettered expression of the freedom of expression have challenged the legal or administrative restrictions imposed by the government on public assemblies and demonstrations (Leung Kwok Hung and others v the HKSAR (FACC Nos. 1 & 2 of 2005) and Cheung Tak Wing v Director of Administration CACV 577.2018; {2020}HKCA 124).

(a) For respect of the rights and reputations of others;
(b) For the protection of national security or of the public order (order public,
Or of public health or morals."

In most, if not in all of these cases, the courts had upheld the restrictions imposed by the government in accordance with the proportionality tests referred to by the CJ in his speech.

It should also be noted that in international human rights law, the doctrine of margin of appreciation (or state discretion), developed by the European Court of Human Rights, permits states to balance individual rights against national interests.

Despite the obsession with political rights in some quarters in our society, I believe the basic human right which our government must address as a priority is the right to adequate housing.

The Rule of Law is Alive and Well in Hong Kong

In response to concerns about the sustainability of the rule of law in Hong Kong in the light of a spate of decisions on national security, oath-taking and electoral reform made by the National People's Congress, the CJ gave a robust defence of the rule of law in Hong Kong in his speech in January. He pointed out that the independent exercise of judicial power is guaranteed by Articles 2, 19 and 85 of the Basic Law. Judges are appointed by the Chief Executive on the recommendations of the Judicial Officers Recommendation Committee. The appointment and removal of judges are governed strictly by the Basic Law. Judges must abide by their judicial oath and must be impartial and free from bias or prejudice. At the same time judges must be protected from political pressure, threats of violence or doxxing. Judicial independence does not mean that judges are not accountable. Complaints against judges are dealt with by senior judges accountable to the CJ, and disagreement with judgments can by dealt with by the well-established system of appeals and reviews. Hong Kong's court proceedings, with few exceptions, are open and transparent. The workload of the courts has been significantly increased by an exponential increase in criminal cases arising from the events of 2019, and judicial review cases, with non-refoulement cases going up from 60 in 2016 to 3700 in 2019. Other judicial review cases have remained constant at about 160 a year. The Judiciary is working hard to improve efficiency by making greater use of technology and streamlining procedures. The Judiciary is also enhancing judicial education through its Judicial Institute and recruiting high-quality judges. Non-permanent judges from overseas continue to play an important role on our Court of Final Appeal.

Equal Opportunity and Non-discrimination

The Equal Opportunity Commission (EOC) is a statutory organisation established in 1996 to enforce four anti-discrimination laws - the Sex Discrimination Ordinance (effective 1996), the Disability Discrimination Ordinance (1996), the Family Status Discrimination Ordinance (1997) and the Race Discrimination Ordinance (1998). Under these laws, it is unlawful to discriminate against a person on the basis of sex, disability, family status or race in employment, the provision of goods and services and/or facilities, disposal and/or management of premises, eligibility to vote for and to be elected or appointed to advisory bodies, participation in clubs and activities of the government.

In June 2021, legislative amendments were passed via the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 and the Sex Discrimination (Amendment) Ordinance 2021 to enhance protection from discrimination and harassment. New protection from breastfeeding discrimination was introduced, and harassment under the Sex Discrimination Ordinance was strengthened.

Despite these improvements, the EOC, which comes under the policy purview of the Constitutional and Mainland Affairs Bureau (CMAB), has failed to introduce legislative amendments to address a major of source of discrimination in Hong Kong - discrimination against new arrivals for settlement from mainland China. They had been maligned as "locusts", implying that they have come in swarms to decimate our resources, or in other pejorative terms. Complaints have often been received about newly arrived mainland families about children being discriminated in schools, and even in tertiary institutions.

Although Hong Kong has always been a peaceful multi-ethnic and multi-cultural society, in recent years there is mounting racist prejudice against Hong Kong residents from the Indian sub-continent, largely because of the sharp rise of asylum and torture claimants from the Sub-continent, resulting in considerable public expenditure and torturous procedures to assess their claims. Any unlawful claims or acts by these claimants should be dealt with firmly in accordance with the law, but we should not allow animosity toward these claimants to morph into discrimination against residents originating in the Indian sub-continent.

Another source of complaints received in recent years is discrimination against children from Police families, as the result of prolonged conflict between the protesters and the Police during the riots in 2019.

Legislators have for years urged the EOC to introduce legislative amendments to protect new arrivals from mainland China from discrimination, and insults against law enforcement officers and their families. But the CMAB has persistently declined on the ground that the existing definition of "race" under the Race Discrimination Ordinance means "race, colour, descent, national or ethnic origin of a person", but not the place of origin. The Security Bureau had hitherto taken the line that existing laws on insults against public officers are adequate.

We Should Work Toward Elimination of All Forms of Discrimination

Lord Bingham, in his book The Rule of Law, in referring to Article 14 of the European Convention on Human Rights, which states that 'the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.', advised that the article 'does not contain a free-standing prohibition of discrimination". That means a person cannot claim to have been the victim of discrimination without showing that person has been the victim of discrimination in the context of the enjoyment of one or more of the rights and freedoms protected under the Convention.

Lord Bingham also advised that the ambit of Article 14 is 'remarkably broad'. The list of the stated grounds is not exhaustive and the expression 'on any other ground such as' is broad enough to include grounds which have not been listed in the Convention. He pointed out that "A person's professional status, employment status, military rank, place of residence and previous employment by KGB have all been held to qualify.'

Lord Bingham went on to say that this article gives effect to the principle of equality before the law - 'It would not be tolerable if people's right to enjoyment of the rights and freedoms in the Convention could lawfully be reduced because they were female, or homosexual, or belonged to an unpopular race, or were black, or Jewish, or Gypsies, or spoke a minority language, or were communists or aristocrats or landowners. It is unpopular minorities whom charters and bills of rights exist to protect.'

Article 2(1) of the ICCPR and Article 1(1) of the Hong Kong Bill of Rights echo the same principle in Article 14 of the European Convention of Human Rights. In accordance with this principle of equality before the law, the HKSAR Government should legislate to prohibit enjoyment of the rights and freedoms protected under the ICCPR and the Hong Kong Bill of Rights by virtue of Article 39 of the Basic Law on the ground of place of birth, or language spoken, occupation, age, sexual orientation or political affiliation. It is about time the reach of our anti-discrimination laws be broadened.

Support for Equal Rights for LGBT Couples

Hong Kong's courts have in one case after another upheld the core rights of LGBT couples (in W and The Registrar of Marriages (FACV No. 4 of 2012), upholding the right of a person who had undergone sex re-assignment surgery to marry her same sex partner); QT and Director of Immigration (FCAV N0.1 of 2018), upholding the right of the same sex civil union partner of QT to equal treatment by the Director of Immigration; Leung Chun Kwong and Secretary for Civil Service, Commissioner of Inland Revenue and International Commission of Jurists (FCAV No. 8 of 2018 [2019] HKCFA 19), upholding the right of Leung's same sex spouse to equal benefits for spouses of civil servants; Ng Hon Lam Edgar and Secretary for Justice (HCAL 3525/2019 [2019] HKCFI 2412), upholding the right of the same sex spouse of Edgar Ng to a share of an apartment purchased by Ng as their matrimonial home for home ownership and probate purposes; Nick Infinger and the Hong Kong Housing Authority (HCAL 2647/2018 [2020] HKCFI 329), upholding the right of same sex couples to apply for Public Rental Housing built by the Housing Authority.

Consequent to these rulings, the government dropped its fight against the bid by the gay widower of Edgar Ng Hon Lam (who subsequently committed suicide) to handle his late spouse's after-death arrangements. The government conceded that the relevant government departments should accord all same-sex couples equal treatment in such matters.

I believe equal rights for LGBT couples should be respected in accordance with the independent judgments made by our courts on the core rights protected by the Basic Law. However, the courts have stressed that they would not interfere in the question of reform of our marriage laws to legalise same sex marriage. The courts recognise that this is a far more contentious issue which should be left to the legislature to decide after thorough consultation in our society. I fully agree with this stance.

Time to Consider Introduction of Laws Proscribing Hate Speech

When people complain about diminution of the freedom of expression in Hong Kong, few are aware that the UK and many other European countries have long enacted laws that proscribe words, spoken or written, that can cause harm. The UK has plenty of examples of legislative provisions against:

  1. 1. The use of 'threatening, abusive or insulting words or behaviour' that might give rise to 'fear or provocation of violence' (section 4 of the Public Order Act of 1986);
  2. 2. 'Intentional harassment, alarm or distress' - by using 'threatening, abusive or insulting words or behaviour or disorderly behaviour; or displaying 'any writing, sign or other visible presentation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress (section 4A of the Public Order Act of 1986);
  3. 3. 'Harassment, alarm or distress' - 'A person commits an offence if he uses threatening or abusive words or behaviour or disorderly behaviour; or display any writing, sign or other visible presentation within the hearing or sight of a person likely to be caused alarm or distress thereby' (section 5 of the Public Order Act 1986);
  4. 4. The 'use of words or behaviour or display of written material' which is 'threatening, abusive or insulting' (section 18 of the Public Order Act 1986);
  5. 5. 'Hatred against persons on religious ground or ground of sexual orientation' - A person commits an offence 'if he uses threatening words or behaviour, or display any written material which is threatening, if intended to stir up religious hatred or hatred on the ground of sexual orientation' (section 29 A & B of the Public Order Act 1986);
  6. 6. 'Chanting of an indecent or racist nature' - A person commits an offence by taking part at a designated football match in chanting of an indecent or racist nature' (Football Offence and Disorder Act of 1999);
  7. 7. 'Improper use of public communication network' - this offence involves the 'improper use of an electronic communication network to send a message which is 'grossly offensive or of an indecent, obscene or menacing character', or a message that the sender knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another' (Communications Act 2003);
  8. 8. 'Encouragement of terrorism' - It is an offence to publish a statement with intent to encourage directly or indirectly others to commit, prepare, or instigate acts of terrorism' (Terrorism Act of 2006).

There have long been calls from the civil service for new offences to be enacted to proscribe insult against law enforcement officers. Overseas legislation on hate speech such as UK legislation cited above can be studied before proceeding to strengthening our legislation to proscribe harmful expressions or behaviour on religious ground or sexual orientation or occupation.

Hong Kong's Democratic Development - Our Way Forward

Pundits who interpret our electoral reform as a step backward in democratic development have overlooked the fact that, with Beijing's support, the HKSAR Government has actually made much faster progress in broadening popular participation in governance since 1997 than in the 160 years of British rule. The British authorities only started to push democratic development in the 1980s after they learned that China's resumption of the exercise of sovereignty over Hong Kong in 1997 is non-negotiable. The Green paper on The Further Development of Representative Government in Hong Kong published in July 1984 introduced the first set of indirect elections to the Legislative Council in 1985 and 1988. The first set of direct elections to the Legislative Council by universal suffrage in geographical constituencies were introduced in 1991. In 1995, there were only 20 seats in LegCo which were directly elected. In 2016, the number had doubled to 40 (including 5 elected in so-called "super-seats" comprising legislators elected in five at-large constituencies).

Under articles 45 and 68 of the Basic Law, it is possible for Hong Kong to elect its Chief Executive and the entire LegCo by universal suffrage as "the ultimate aim", subject to two conditions: "in the light of the actual situation in the Hong Kong Special Administrative Region" and "the principle of gradual and orderly progress". On 31 August 2014, the National People's Congress Standing Committee made a Decision to allow Hong Kong people to elect its Chief Executive by universal suffrage, subject to compliance with its requirements governing the composition of the nominating committee. Unfortunately, this arrangement was rejected by legislators in the pan democratic camp in June 2015, thus depriving Hong Kong people of the chance to elect their Chief Executive by universal suffrage.

On the way forward, it would clearly not be in the public interest to hold elections when a pandemic is raging, nor to further broaden the franchise when the electoral process had been hijacked by anti-China elements to turn Hong Kong into an independent political entity. Hong Kong reached a dangerous moment late 2019, when its electorate was in the grip of fear and hatred of the establishment, after months of violent and destructive protests against the government. For that reason, the National People's Congress made a Decision in March 2021 to reform our electoral system with a view to restoring order, balance and rationality in our legislature, and facilitating good governance.

After serving 13 years in the legislature, I am saddened by the way our opposition had become increasingly anti-China and radicalised, using filibuster tactics to obstruct government business and any measure that would enhance integration with mainland China. As a SAR of China, it is not in our interest to have a legislature dominated by obstructionists and anti-China elements. The principle that only true patriots should be allowed to govern Hong Kong is a no-brainer.

Under our new system, our legislature will be broadened to 90 people, drawn from three sectors - 20 elected in geographical constituencies, 30 in functional constituencies and 40 by the Election Committee. I am participating in election by universal suffrage in the geographical constituency of Hong Kong Island West. I hope to be elected, and look forward to working in a more inclusive, more broadly based, civilised and competent legislature in the New Year.
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