They Shook the Earth!

It happened that I encountered some people who were obsessed with questions about jumping together.  The favorite scenario was about gathering all the people on earth and then asked them to jump together.  They wanted to know whether the earth would be moved by such momentum.  Some went further and thought that the rotation of the earth, or even the orbit of its revolution around the sun would be affected.

We tended to brush such question off by some common sense arguments.  It was impossible to gather so many people together.  They needed to be in a relatively small area so as to focus the momentum and not to have the forces cancelled out each other.  Not only that those people needed to synchronize in jumping up, it would be more important for them to land at the same time.  The list could go on forever without attacking the question head on.

However, some scientists, maybe influenced by the famous thought experiments of Einstein, took the question seriously.  Randall Munroe in his blog (what-if.xkcd.com) and then his book (What If?: Serious Scientific Answers to Absurd Hypothetical Questions) defined the question: What would happen if everyone on earth stood as close to each other as they could and jumped, everyone landing on the ground at the same instant?  In a site which claimed to fight ignorance since 1973 (straighdope.com), a similar question was post as early as 1986, and it involved Chinese: If every man, woman, and child in China each stood on a chair, and everyone jumped off their chair at exactly the same time, would the earth be thrown off its axis?  In scienceblog.com, a blogger did some calculation taking into account the mass of the earth, the mass of all the people on earth, the gravitational field, the height that people jumped, velocity of the earth, action and reaction forces.  As I did not understand the calculation, I could only tell you the simplified result was that there would not be any detectable effect.  The main reason was that the mass of the earth outweighed the mass of the total population by a factor of over ten trillion.

Randall Munroe chose to go into more details of the jumping experiment.  He assumed that all people really gathered in Rhode Island, as he figured that it needed an area the size of Rhode Island to accommodate all the people on earth.  He came to the same conclusion that the earth would not be moved, though he added that there would be a loud sound resulted from the synchronized landing of so many people.  Then came his further analysis.  There would be no signals for mobile phones.  The people found it very difficult to leave either by plane, by train or by car.  People did not speak a common language.  There were insufficient food and water supply.

In October 2016, 19 doctors planned to shake the earth.  They formed an alliance and got started to take part in the Medical Subsector Election of the Election Committee.  They formulated a seemingly unrealistic goal of getting all 19 members into the Election Committee.  They vowed to change the Chief Executive and to change the system of election of the Chief Executive and Members of the Legislative Council.  Their causes were shared by pro-democratics of other subsectors.  There was actually a bigger alliance which aimed at getting more than 300 votes in the Chief Executive election.  At the same time, there was a shared common platform among the majority of all candidates for the election: the Chief Executive had to be changed.

Then, at 3:30pm December 9, 2016, the earth stopped spinning for a fraction of a split second.  While Hong Kong people were gloomy about their fate, the Chief Executive, CY, announced that he would not go for another 5 years.  Before those guys started to jump, their mere gathering had shown power.  Statistics clearly showed that the coming Election Committee would not favor the present Chief Executive to continue his heroic acts.  CY got his red light.

I felt the earth shaking on December 12, 2016 when the results of the Election Committee were announced.  All the 19 doctors were elected.  And they were not alone.  Whole cabinets were elected in many other subsectors for the bigger alliance.  Having the whole cabinet elected was quite historical in elections of the medical profession.  The 19 doctors were different in weight.  Their abilities to jump differed.  They even did not synchronize to start jumping.  However, most importantly, they were able to land together perfectly and delivered their unified force.  They had clear and admirable causes.  They had strategies, energy and discipline to execute.  Voters were moved by their enthusiasm.  All the members got similar number of over 3000 votes.  This clearly reflected that voters supported the team as a whole.

At the same time, when they landed, they delivered a unified and resonating voice.  It was clearly heard.

They really shook the earth!

(Source: HKMA News December 2016)

The election of the Election Committee for the election of the CE

“The election of the Election Committee for the election of the Chief Executive” is such a clumsy heading.  But it well reflects the indirect way of the election of our CE.  The 2016 Election Committee subsector elections will be held on December 11, 2016.   The Election Committee will consist of 1200 members, with 1,044 members elected from 35 subsectors, 60 members nominated by the Religious subsector and 96 ex officio members.  The function of the Election Committee is to elect the CE.  Thus it is natural that it precedes the election of the CE, which will be held on March 26, 2017.  While we read hints and moves about who is going for the CE, there has been news about people announcing how they would cast their votes as to-be-members of the to-be-formed Election Committee, and strategies about getting as many members with similar stance elected in the sub-sector elections as possible.

Before 2012, people tended not to view the Election Committee as something with vast difference from a rubber stamp.  Afterall, it might not be practical to choose Alan LEONG against Donald TSANG.  There was no real competition between the pro-establishment and the pan-democratic camps, or among the pro-establishment camp.  The highest aim of the minority was to put up a debate, or to have a chance to vote.  However, in 2012, with 3 candidates participating in the CE election, 689 members voted for a change to Hong Kong.  We then faced changes in Hong Kong.

Since then, people figured that apart from showing that they were famous, popular, and patriotic; apart from having chances to publicize their political stances; apart from various reasons of pride and prejudice; there existed a chance that they might actually take part in electing the CE by being elected into the Election Committee.  So this year, you would expect more escalated competition in the election of the Election Committee.  In the Medical subsector, we have 30 seats.  Do not underestimate our influence on the result of CE election to be 30/1200.  It should be 30/601, which is not an insignificant proportion.  This had been demonstrated in 2012 when quite a number of votes from the Medical subsector fell to our existing CE.

For a minority of doctors and dentists, they take part as candidates and need to think about how to be elected into the Election Committee.  For the majority of doctors and dentists, they need instead to think about how to choose members to represent them.  For a significant number of doctors and dentists, they do not care.  In the previous few elections, 3 strategies had been adopted by the candidates.  However, in this year’s election, there appears one common platform among all subsectors.  Focus of the media also converges on a single question: whether you sell ABC or not.  In case some readers are staying too far away from news and politics (and Hong Kong), ABC is the short form for “anyone but CY”.  Of course this is not a good criterion for choosing the CE of Hong Kong, as not a single area on policy is mentioned.  It only shows how desperate the candidates and the media perceive Hong Kong people are.

The tradition way to get support from voters is to tell them how reliable you are.  You are honest, rational, experienced and wise to make a choice for them.  No one knows how and how well this since-ancient strategy works.  In election of the Election Committee, voters choose to believe in an agent so he can choose a CE of whom they are not able to choose to believe in.

Another common practice is to get affiliated with groups.  It can be political camps or whatever.  It is believed that voters tend to vote orchestrated.  Of course the other side of the coin is that your affiliation might actually be a negative asset.

The third way is to make promises.  The most obvious example this year is the slogan ABC.  The candidate promises that he would never vote for CY no matter who else takes part in the CE election.  The message is clear and non-ambiguous.  However, it is common practice for politicians to eat their words.  Even such straight-forward ABC promise cannot be whole-heartedly relied upon.  The actual voting is by secret ballot.  We still do not know exactly where the 689 votes came from; we cannot guarantee that candidates will cash their ABC promise.  Somehow, that goes back to point number one about integrity.

A huge promise was made in 2012 by an alliance of candidates (the Alliance) formed with perceived relations with the HKMA.  The promise they made was that they would cast their votes, if elected, to the CE candidate according to the result of a survey carried out by the HKMA.  It was claimed that all doctors and dentists had their say.  The design was likened to a subsector universal suffrage.  The beauty of the design was that the Alliance made use of all 3 aforementioned methods to attract votes.  Candidates of the Alliance were mostly well-known to the profession. They had the affiliation to the HKMA.  And they made a promise, an attractive promise.

It turned out that not everyone voted for the Alliance.  Although most of the candidates were famous, they lost their personal charisma of decision making, as they had to vote according to the survey result.  It did not matter who the candidates were, because they would just vote accordingly.  Another point was that not everyone wanted the majority win.  Some just wanted to win, the others wanted to be the majority.  A surer way of getting your favorite CE candidate winning was to vote for those who promised to support him.  What the majority of the medical profession thought was not their priority.

There was no way to quantify how well the idea of subsector universal suffrage was received.  However, before we commented on the results of clinical studies, we were taught to look at the designs and procedures.  Technically, the HKMA had never been a professional body in carrying out polls.  In the yearly election of the HKMA Council, a third party (an accountant) was involved to ensure more fairness.  However, no such mechanism had been used in surveys.  The process was by no means comparable to the stringent requirements in formal polling carried out by the government.  Had voters’ information, especially mailing addresses, been updated?  Was notice formal with enough coverage and time?  Was the process of survey fair and transparent?  It would be hypocritical to say that one could rely on a fax machine assessable to any staff in the office with no mechanism to verify the authenticity of the questionnaires returned.  But of course the HKMA was not to blame.  Afterall the HKMA was just doing a survey, a survey no different from other surveys that it carried out year-round.  The HKMA would not know that there might be other parties using the survey results for other purposes.  At the same time, the Alliance was relying on a survey result of the biggest organization in the profession.  There was no way the Alliance could have intervene the process or the results.  The best was said to have been done.

Having analysed all these, readers do not take me wrong that I am against any party making any promise to solicit votes.  Some promises are better than none.  We are not the aged waiting for tourist buses to lift us to stamp after an average quality full meal.  I just want to remind you that we know critical analysis.  Look before you vote, although there is always the insurmountable uncertainty of secret ballots.

Nowadays, you just can’t believe in anyone.    

  (Source: HKMA News October 2016)

Voting

Congratulations to the Hon. Dr. Pierre CHAN!

If election is interesting, election by voting is more interesting.

September 4, early in the morning, I went to cast my 2 votes for the Legco election.  I was again allocated to the polling station at the Hong Kong Park.  It was not a very much user friendly station.  Actually there were few residential blocks nearby.  So it was not in actual vicinity of walking distance.  It was quite far away from the MTR Admiralty station, though people were not expected to take public transport before they could vote.  There were a few metered parking spaces.  But the design of the road created a bottle-neck area leading to the peak tram station and a taxi station.  So there were always taxis and tourist buses going in and out.  That was the reason why I drove there early morning.  In previous years, I could secure a parking space if I was early enough.  Voting in the afternoon or evening would be more difficult.  This year, there were many cars there already before 9 am.  My prediction that there would be a new record for the number of voters turned out to be correct just from my simple observation.

I waited and waited.  Then I could park my car at the curb with minimal obstruction to other traffic.  Those behind me were not as lucky.  One of the many police officers wandering around immediately came to me and asked why I parked my car illegally-by-definition there.  I told him: “I have to cast my vote.”  I left without caring what he was going to do to my car, or to me when I returned.  I reminded my friends to plan how they were going to the polling stations by describing my experience.  They teased me whether I had asked if the police officer knew who I was.  That was quite an infamous quote used not too rarely by famous people.  I was no famous person.  But if I did say so, I would tell the officer that I was among the most power people in Hong Kong.  I am one of the citizens of Hong Kong.

To exercise my power, I had 2 votes.  The vote for Functional Constituency Election was simple.  I got one vote, and there was only one seat.  No matter how many candidates there were, I needed only to choose the one whom I wanted to represent me.  The majority won.  However, the vote for Geographical Constituency Election was not as simple.  I got only one vote, but there were a total of 35 candidates assorted in 13 lists.  And there were 6 seats.  The dynamic behind was very complicated.  By no means I could choose my favorite 6 candidates to fill the 6 seats.  I would then worry that if all my friends shared my view and chose the same candidate as mine, the other 5 seats might go to those candidates we wanted least to represent us.  Our second and third choices might receive 0 vote in extreme cases.  A natural tendency would be to evenly distribute votes among friends and family members to the 6 candidates of our choice, or at least to focus on 2 to 3 candidates instead of one.  Then how about other votes who shared similar beliefs but did not know each other?  Could there be a common platform where people could refer to and vote smartly?  This year, the ThunderGo arose out of such demands.  This was an ultra-complicated system to allocate votes.  Many, candidates and voters alike, blamed the plan as lacking transparency and making things worse.  I wonder there was any way to evaluate or ascertain the usefulness of the system, as there was no way to know what the results would have been without the system in play.

The ThunderGo was new, but large scale vote allocation was nothing new.  Many people treated it as a fact that there existed one or more strong organizations that could master the results of elections.  It was not enough to move voters, they could orchestrate voters.  They were experts in planning and executing vote allocations.  It is the norm in some developing countries to orchestrate voting.  Farmers, elderly and less educated people are mass-transported to polling centers to fit in the jigsaws.  In Hong Kong, the conductor was in superb advantage in the District Council (Second) Functional Constituency Election where 2 million voters were going to elect 5 members with one vote from each voter.  Theoretically, the results of elections should be easily fixed with high confidence interval.  However, election results were as unpredictable as the stock market.  Even with the power of a wealthy country and acting-out-of-the-box interventions, manipulation of the stock market was as good as coaching a bad lover.   

This year, the Legco Election result was unpredictable to me.  And I wondered if there was anyone who could foresee it.  If the mastermind behind was so powerful and resourceful, why couldn’t it halo all the candidates it blessed?  Some blamed the ThunderGo.  Some gave credit to CY.  The controversial disqualification of 6 potential candidates by the Electoral Affairs Commission might add fuel to the opposite camp.  Whether the dropout of a near-zero-support candidate served as a straw could be a good research subject.  The final day strategic dropout of 5 pro-democratic candidates was surly significant, especially for the District Council (Second) Functional Constituency.  But on the other “hand”, there were trucks loaded with loyal voters.  Employers and employees of large companies were mobilized.  Even civil servants were given hearty reminders of how to vote.  Government officials appeared on TV repeatedly and stated their opinions of how to vote, not unlike speculators of the stock market.

This was a beautiful demonstration of gestaltism.  The whole had a reality of its own.  I guessed the aforementioned factors did affect the result.  But butterfly effect was more important.  Hong Kong played Chuck Close and painted an interesting picture with each citizen, voters and non-voters inclusive.  It was a question of chicken and egg, that whether a city deserved bad rulers when citizen so chose not to vote, or to be truck-loaded to vote.  But you never knew whether our oldies were wise enough to ignore the numbers written on their palms, and exercised their free wills.

People usually refer to these as collective wisdom.  I like the term collective karma more.

  (Source: HKMA News September 2016)

Elections

I like elections.

Don’t take me wrong.  I do not like to take part in elections.  I just like to watch elections.  There is nothing funning about this.  It is just like many football fans who have never run in a football field, or even have never kick a real football.

I am particularly interested in elections of the medical profession.  This interest was cultivated when I worked as an MO the first few days.  I was approached by my senior with an entry form for the HKMA and then a ballot paper to vote for him for the position as an office bearer (I remember what post, but I am not going to disclose here).  It was only after 2 months that I realized I had to pay an entry fee for becoming a HKMA member.  The department secretary told me and chased me for the payment that had been advanced.  Then I came across several books from Jeffrey Archer on election of Members of Parliament of the UK.  They were not political analyses, but were stories on how the characters ran for the elections and the strategies and tricks behind.  Of course these were Jeffery Archer and were over-simplified and far-fetched as usual.  But they were interesting.

To go for an election is to win in the election, you might think.  But there is only one winner, or a fixed number of winners, for a particular election.  There ought to be other reasons behind some of the candidates.  Some might run to get more public exposure, and at the same time to gain some experience, so as to prepare for the next round.  Some might act as spoilers, either with or without insights.  So basically you can safely conclude that candidates are for winning, for themselves or for others; now or in the future; in the elections concerned or in other arenas.

The straight-forward way to win is to get more votes.  This has been achieved via different ways: radiating your personal charisma, standing firm on your visions and views, making bare promises, beating your opponents in public debates, telling every voters that they are right, providing tangible or intangible benefits (or both), appearing with your spouse; and strangely, organizing campaign concerts with pop stars and much shouting and screaming.  A more straight-forward way to some is to minimize votes to opponents.  Some might pray for bad weather on voting days so that not-so-die-hard fans of their opponents would stay at home.  Smearing is quite effective.  Scandals work better.  Planting spoilers is another tradition way.  In small area elections, like District Council Elections where voters are in the range of 1000, it is reported in newspaper that spoilers can be inexpensive costing only $100,000 each.  Of course spoilers can be free of charge provided that they can be convinced of being supported and having the chance to win.

A surer way to win is to eliminate your opponents.  In some I-don’t-know-more-or-less civilized places, this is achieved by physically eliminating them with bullets.  In Hong Kong, it seems that scandals, or better named them “black materials”, work better.  Recently, a new move was introduced.  The original plan was to ask potential candidates of the September Legislative Council Elections to sign a new form, a supplement to the standard declaration, to acknowledge three parts of the Basic Law that state Hong Kong is an inalienable part of China.  This move highlighted that a relatively new ideology of “Hong Kong Independence” is against the Basic Law.  It turned out that a potential candidate, LEUNG Tin Kei, did sign the form and declared that he would abide by the Basic Law.  However, he was still disqualified by the returning officer.

While it will be the court to decide whether such disqualification is legitimate if there is a election petition, I cannot stop myself from forming college-standard common-sense opinions.  First, I disagree with many and think that the returning officer did have the power to disqualify a candidate.  Therefore there is no place for seeking of Basic Law interpretation.  The rules are clear.  The returning officer has the power.  However, it is how the power was exercised that matters.  The returning officer needed to justify her act and that the justification should satisfy logic and common sense.  I can think of a not-very-good example.  An officer of the Airport Security Unit can prevent a person from entering the airport, no matter what that person declares, if he is of the opinion that the person might pose a threat to the safety of the airport.  Whether the officer has abused his power is upon his justification.  The burden of proof is on him.  Of course LEUNG was not said to endanger the Legco.  He was decided not meeting the requirements to be a candidate.  But as a result, he did miss his plane.  

So it is up to the returning officer to justify herself.  Relevant considerations would include: How diligent had she collected and processed information on LEUNG?  Had she taken a deposition from LEUNG?  Had LEUNG been given a chance to defend himself?  What further action could LEUNG take if he were given a second chance, provided that he had signed the additional form and made declarations?  What if LEUNG had really given up his original ideology?  When would he be eligible again?  Taken the serious consequences in mind (that LEUNG would miss the chance for election and that there might be an election petition), how sure was the returning officer that LEUNG had not genuinely changed his stance?  What standard of proof should apply?  Should she be sure beyond reasonable doubt, or she could base her decision on a balance of probability?

Elections are interesting, provided that you are not taking part in them, particularly that you are not barred from taking part in them.  And, they are interesting provided that you can detach yourself from consideration of any consequence of the elections.  Just don’t think about: What next?

  (Source: HKMA News August 2016)

回顧

忽然想用中文寫一篇編者的話，因為在我來說，中文比較能夠表達感情。對，今期不說道理，也不說鬧得沸沸揚揚的醫委會改革。道理說盡，口水用乾，其業難擋。不如講我做了八年主編的感受。

挑戰

這八年裡，多得大家包容，並沒有出什麼大亂子。雖然有些題材敏感，表達個人意見也頗直接，可沒有受到投訴，更沒有收過律師信。

剛接手時，倒是因為有會員投稿論壇，內容涉及立法會選舉，被人告到廉署。我這個主編就要協助調查。我恃著丁點法律知識，也不跟隨其他會董請醫學會聘用律師。我自己就膽粗粗反盤問那盤問我的調查員，為什麼不先作警戒就誘使我回答可能令自己負上法律後果的問題。之後，拳腳來往幾個回合，就不了了之。

另一項挑戰，是舊年有一位會董忽發奇想，要求將中聯辦加入會訊的傳閱名單。大家都認為問題不大，持的理由是光明磊落，寫得出唔怕人睇。我，當然唔怕。我亦相信會員亦不怕。不過，需知道會訊註明是內部傳閱，內裡還有意思。我們不介意就會訊內容與會員作討論，亦歡近提出指正和批評。但假如任何一位業外人士，也可以名正言順公開指導，我可回應不了這許多的回應。

最後，費盡唇舌，大家有些明白，有些不明白。有些同意，有些不同意。但得以維持現狀。

目標

當年接任主編，為會訊定下目標，要作為橋樑，為會董會與會員之間提供方便和快捷的雙向溝通。還有，站在橋上，可使人以新的角度看事物。其實，沒有說出口，是橋往往是一處地方的地標，像金門橋、像倫敦橋。希望大眾提及醫學會，都能想到有會訊這本月刊。

改變

一本刊物，內容最重要，但當然還有共他細節。希望大家留意到，會訊現時每個月 23 至 25 號準時送到大家手中。紙張和印刷質素也有改善。但近年物價飛漲，郵費亦有增加。現時在嚴控開支下，每月成本約 10萬元。好消息是這 8 年裡，從未虧本，你需醫學會補貼之餘，每年還可以有 100 萬進賬。

維持收入靠廣告。但廣告收入絕對不是辦會訊目的。所以會訊宗旨、論調和方向，亦絕不會被會否影響廣告收入而左右。本著這個原則，會訊加入幾個「吸睛」版面，包括最初的訪問專欄，大家還記得剛上任的梁家騮、醫學生、選委事件、雨傘運動等訪問嗎？之後訪問換上了Lai Eve 寫的「醫食住行」，主題是講飲食，因為飲食稿從來受讀者和廣告商歡迎。至於以飲食來寫愛情、寫世情，那是意外變穫。另外，攝影會會員提供的靚相取代了會董出席活動的照片。還有，多謝幾位會員定期提供旅遊雜文，亦是大家的至愛。

不變

人事變，世事變，有時甚至變化到難以想像局面。不過，相信要維持會訊的方向和宗旨，未必很難。是看編者和讀者認為有沒有這個需要吧？

 (Source: HKMA News July 2016)

The Tetralemma of Doing and Talking

Doctors need to provide options to patients before we treat them.  It was the ratio decidendi of the Montgomery case.  I always wonder, how comprehensive should the list of options be?  Of course we need to explain options that are effective and evidence-based.  However, there are forever the so-called-experts’ difficult-to-measure alternative treatments and state-of-art novel advances.  Is it our duty to mention such options?  Don’t forget that there should be an option of conservative treatment, which literally includes “no treatment”.  This is in contrast to the famous quote that “Quitting is not an option.”  So it is important to think out of the box.  Smart people always do that.  And sometimes they physically go out of the boxes.  You know what I mean.

Many a time, patients are in difficult positions when they need to make the decision of to treat or not to treat.  It is equally difficult for doctors to help them to make the informed choices.  This is called a dilemma.  Neither of the two possibilities offered is unambiguously preferable.  In Greek, dilemma means double proposition.  In Buddhist teachings, there is a kind of logic called tetralemma.  It does not carry the hint of negative sense of dilemma.  It just denotes the four possibilities of an event.  Thus “tetra” and “lemma”.  Let the event be “A”, then the four possibilities are: “A”; “non-A”; “both A and non-A”; “neither A nor non-A”.  This is in contrast to the traditional Three Laws of Thought: the Law of Identity; the Law of Non-contradiction; and the Law of Excluded Middle.  However, tetralemma logic is not very comprehensive to everyone and thus not really useful.

I am going into tetralemma.  It is just that while I am watching news, I think of an interesting set of four combinations.  It is about “doing” and “talking about”.  As we all know, for some kinds of things, we can only talk about them but not really put them into action.  Actually there are four combinations.  “Can talk about and can do”; “Cannot talk about but can do”; “Can talk about but cannot do”; “Cannot talk about and cannot do”.  It is interesting (sorry, I can only think of “interesting” as the description) to use this set of four to look at different events.  For example, about privileges, it all depends on how powerful you are.  Some can only talk about it; some can only do it but need to keep their mouths shut.  And of course there are always a few who can enjoy privileges while showing off to others.  Another example, the hot but forbidden topic of dependence.  Previously, it was generally understood that this was a topic that could be talked about but could not be actualized.  A few thought that it could be propagandized and acted upon.  However, now it is proposed that such topic is illegal even to talk about.

Life is not simple.  While we were students, professors repeatedly taught “one man one disease”.  This means that when a patient has several symptoms and signs, we cannot explain them by saying that the patient is suffering from more than one disease.  We have to think hard to find one condition that can explain all the findings.  However, when we become doctors, every day we see patients suffering from more than one disease.  We have to apply a different set, or in fact different sets, of upgraded and complicated logic to make a diagnosis of whether there is one disease to explain all, two different diseases in play, more diseases, or even normal variations.  This is also the case for tetralemma.  Apart from the “A”; “Non-A”; “Both A and non-A”; “Neither A nor non-A”; Nagarjuna, a famous Buddhist philosopher, came up with another set of four to the original one.  They are: “Not-A”; “Non-not-A”; “Both not-A and non-not-A”; “Neither not-A nor non-not-A”.  He found out that there was something that belonged to none of these eight groups.  That was his famous Eight Negations.

I am not a great thinker.  But to enrich my set of four, I add some by-standers.  Take the example of enjoying privileges again.  While someone is able to enjoy some privileges and talk about it matter-of-factly, others of course cannot enjoy the same.  More than that, they are not allowed to talk about this unfair situation.  There are altogether sixteen combinations.  I woon’t list them all out here.  Some of them look absurd.  However, apart from being complicated, life is sometime absurd.  What you always believe and enjoy might no longer exist when there is a change in space or time.

Both Tetralemma and the Eight Negations originated from Buddhism.  My sixteen combinations of doing and talking about came about with the aforementioned two.  Thus, they all share the same characteristics of Buddhist teachings.  You have to get the meanings and feelings of them by cultivation of your own wisdom.  I cannot explain further.

 

(Source: HKMA News June 2016)

「史」無前例

(Source: HKMA News May 2016)

Intent to kill

I would like to share with you a decision from the Supreme Court of the United Kingdom in February this year.  The decision was on two appeals (R v Jogee [2016 UKSC 8 and Ruddock v The Queen [2016] UKPC7) from two appellants who were found guilty of murder when they each acted in a joint enterprise.  This meant that the appellant did not actually do the murder, but was said to have encouraged or assisted the principal to do so.  The issue before the Supreme Court was on the proof of intent for the secondary party to a crime.  The law of secondary liability for crime has always been confusing.  To make sure that readers follow, I try to explain from scratch.

In criminal law, to find a defendant guilty of murder, two components need to be proved beyond reasonable doubt by the prosecution.  First, there has been an act of killing.  The defendant has killed the subject, or has acted in a way causing (not too indirectly) his death.  This component is called the actus reus. Second is the presence of intent.  The defendant has the intention to kill, or should have foreseen the causing of death from his action.  This component is called the mens rea.

In a joint enterprise, the law takes it that persons who are indeed together responsible for a crime are all guilty of it, whether as principals or secondary parties.  This is because it may not be possible to determine exactly whose hand performed the vital act.  For example, in an armed attack by two attackers, it is not possible to tell which one of them indeed killed the victim.  Taking the rule for actus reus in the strictest sense might lead to the injustice of finding both of them not guilty.  Thus, it suffices to prove that each defendant either did it himself or intentionally assisted or encouraged it.  In these cases, mens rea is relied on more heavily.

However, reality is always not as simple.  Under the basic principle of joint-enterprise, there exist cases where the intent of the secondary party is difficult to determine.  In Jogee, a drunk confrontation turned into a fight.  The victim was killed by the principal with a knife picked up in the victim’s kitchen while Jogee was yelling outside the house.  In Ruddock, the principal cut the throat of a taxi driver while Ruddock was present and was a party to the robbery.  Both Jogee and Ruddock were found guilty of murder.  The decisions were made following a precedent case: Chan Wing-Siu v R [1985] AC 168.  Chan Wing-Siu was a Hong Kong case in 1985.  The appellants were members of a gang who had gone to the victim's house to commit a robbery, arming themselves with knives.  During the robbery the victim was stabbed to death by a member of the gang and the defendants were convicted as accomplices to the murder.  The Privy Council dismissed their appeals.  It was held that for an accomplice to be guilty of murder it was sufficient for the prosecution to establish that he foresaw death or grievous bodily harm as a possible incident of the common design being carried out.

31 years later, the Supreme Court ruled that Chan Wing-Siu was decided wrongly and allowed the appeals of Jogee and Ruddock.  The error in Chan Wing-Siu was to treat foresight of the murder as automatic authorization of it.  In other words there was no need to consider whether the secondary party intended to kill the victim or not.  There was no actus reaus, nor actual mens rea.  Chan Wing-Siu also created a situation where the secondary party could be found guilty more easily than the principal.  For the principal, the prosecution needed to prove his intent to kill.  For the secondary party, the prosecution instead needed only to prove that he could foresee a real chance of the principal killing the victim, though he might have no intention at all to see the victim dead.  The unanimous conclusion of the Supreme Court pointed out that “foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage, which is the proper mental element for establishing secondary liability”.  The difference might be subtle but real.  In many cases, the continued participation in the crime and the foresight of a more serious second crime were strong pointers to intent.  However, distinguishing foresight and intent set the rule straight and in line with other areas of criminal law.

Note that even if the prosecution fails to prove intent, the secondary party will not be set free.  He would be found guilty of a lesser charge such as manslaughter.

Readers may wonder, why do I write on this topic which is ambiguous and unrelated to our practice?  The Supreme Court has specified that this rule is not confined to cases of homicide, or indeed to cases of violence.  I read this judgment while I was watching TV news.  Many people were charged with riot.  I remembered writing in the Editorial of July 2013 about doctors taking part in Occupy Central: “More important, what is going to happen during the movement will also be unpredictable.   The doctor needs to make sure he is not involved in anything drastic.   Even so, while he is looking at charges like ‘unlawful assembly’, the prosecution might charge him with more serious charges like ‘riot’”.  Luckily, that did not happen.  Unfortunately, in the Mong Kok Incident this year, many were arrested and charged with riot.  I just hope that this Supreme Court decision can help those who took part in a demonstration that turned into acts of violence. 

(Source: HKMA News April 2016)

Montgomery and Medical Council Reform

Doctors and lawyers are still talking about the Montgomery case.  On March 11, 2015 the UK Supreme Court decided that the Bolam test no longer applied to the consent for medical treatment.  Doctors could not rely on common practice or support from responsible medical opinion to omit rare but significant risks when getting consent from their patients.  Instead, we now have to take “reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.”

If you have studied law after 1997, or if you have read a bit about Bolam, you would not be shocked by the Montgomery case.  Bolam was decided in 1957. Since then, and especially in the recent 30 years, the Bolam test has been said to be “out” and no longer applied in various areas of medical negligence cases too frequently.  After reading Montgomery, I am happy that Bolam test is still treated as the rule with more than a few exceptions.  I foresee that soon Bolam test will become the exception in the decision of the standard of care in medical negligence.

Tracing back to 1985, in Sidaway, Lord Scarman, though as minority in dissent, had said that the Bolam principle should not apply to the issue of informed consent.  A doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed.  To me, the most important limitation set on Bolam was by Bolitho in 1997.  In Bolitho, medical opinions were divided on whether the claimant, a child in respiratory failure, should have been intubated.  If Bolam was followed, the defendant doctor should automatically be deemed not fallen below standard as she was supported by respectable medical opinion.  However, the House of Lords took the chance to announce that it was the Courts that set the law and not the medical profession.  Even if the medical practice was supported by a body of respectable medical opinion, it needed to be logically defensible.  Whether that particular medical practice stood on logic would be decided by the Courts. The decision would include the weighing of risks against benefits.

Embraced in the Bolitho decision is the insurance principle.  If the consequence of a risk is grave when materialized, it should be insured against especially when the cost of insurance is low.  Thus, in Montgomery, shoulder dystocia was considered a grave consequence of vaginal delivery of big baby that should have been communicated to the patient.  This 10% risk should have been insured against by letting the patient choose whether to adopt other modes of delivery or to take the risk.  In Sidaway, Lord Scarman insisted that a less than 1% risk of paraplegia should have been told as the consequence was grave.  For the patient to make a real and informed choice, the doctor needed to make sure that the patient understood what the risk was and how avoidable it would be.

Note that the risk here is the inherent risk of an intervention.  Although human factors do count, we are talking about unavoidable risk even in the best hands.  Stressing on the character or the skill of the doctor cannot dispense of the requirement of informed consent.

Interestingly, or sadly, I see from discussion on the recent Medical Council reform proposal that some doctors do not understand the concept of intrinsic risks and the insurance principle stressed in the above mentioned string of court cases.  To put it frankly, the reform proposal is to change the composition of the Medical Council.  The purpose of doing so is to facilitate the passing of policies in-line with the government.  This has been openly announced by a lawmaker and it is not denied by the government.  By adding 4 lay members, the composition of the Medical Council is changed in 2 aspects.  First, the number of lay members is increased while doctors are still in majority.  Second, the number of appointed members will be in majority by 4 to elected members.  It is the change to appointed member majority that would serve the purpose of railroading government policies.

Those “for” the proposal put forward arguments mainly on 2 fronts.  First, some appointed members do go through some process of selection.  Second, appointed members have their integrity and would not rubber-stamp proposals by the government.  These arguments stand no chance if Montgomery applies.  The intrinsic “risk” of appointed members is that they are pro-government.  It is nothing about right or wrong.  The government will naturally select those expected to behave in-line with it.  It will also keep them for another term and discontinue to appoint those who have “misbehaved”.  Any selection or election process will not be of much help so long as the members needed to be appointed.  To insist that appointing is mere formality is to ignore the facts in the cases of HKTV and Johannes Chan in the HKU pro-vice-chancellor selection.

On the other side of the same coin, elected members are no saints.  Voters would have a natural tendency to elect those behaving in ways beneficial to them.  Elected members would have a natural “risk” of appeasing, or at least not upsetting, their voters especially when the system allows re-election after members serve their terms.

I am not talking about which kinds of members are better, nor which forms of election better serve the society.  I am looking at changing a balanced council to one with appointed member majority.  There exists a material risk that decision making by the Medical Council will be dominated by government policies.  Of course this might not happen.  But this is the intrinsic risk of the system once the composition is changed according to the present proposal.

I am not sure whether Dr. KO Wing Man needs to explain to the medical profession about this intrinsic risk.  I am not sure whether he needs to make sure lawmakers understand the consequence before they vote to support the proposal.  I wonder if the lawmakers who are minority in the Legco and are busy filibustering will agree to a change in composition of the Medical Council to give the government a majority vote.  I envy Alvin YEUNG Ngok Kiu who is elected to Legco to prevent a foreseeable change to the Rules of Procedure in case there is a minority created.  

Again, it is not about vaginal delivery or not. It is all about informed consent.

(Source: HKMA News March 2016)