不如歸去

“不如歸去，不如歸去……”  It was said that cuckoo birds sang like this.  I had heard cuckoo sang.  I could not link together the sounds it made and the four Chinese words spelling out the desire to leave and to return to wherever one belonged.  Not until this month. 

A neurosurgeon one year senior than me collapsed and died during a hiking trip.  A hall-mate in his fifties chose to end his life.  A colleague had a sudden stroke and stayed in ICU for a few days.  We were all sad to hear such news.  Dormant Whatsapp groups became active again with self-debriefing messages.  Some stressed on the impermanence of lives, recalling the brief encounters few days before those tragic incidents.  Some wrote canned encouraging proverbs, reminding everyone to treasure what we had.  Some literally turned the Whatsapp group into Personal Emergency Link Service and asked everyone to call for help there no matter what devastating problem they faced.

Suddenly, 不如歸去 rang in my head.  If you said it in Putonghua, it matched.  There was even a tingle of sadness and helplessness in it.  It was our mind that painted the world.  It was perception that mattered.  Tired and weary travelers were homesick.  Whatever the cuckoo sang, they could fill in similar lyrics.  The cuckoo reminded me of 歸去，也無風雨也無晴。Working diligently or chasing for goals seemed meaningless.  Was it time to leave all these and return to tranquility, where glory or hardship did not matter?

Cuckoos sang via Whatsapp also.  Many friends got the message of 不如歸去.  Retiring became a hot topic in discussion groups.  Work was stressful physically and mentally.  Performing surgery pumped your adrenalin, but it also exhausted you.  Post operative management disturbed sleep.  Family doctors had very long working hours and virtually deprived them of private lives.  What if we retired and left work alone?  Most said that they would do things they were interested in but did not have time to enjoy before.  I had heard this vague idea from my patients too often.  Reality was that most of them became depressed after retiring for a while, as they had all along been absorbed in work and what they thought they were interested in were all fantasies.  As we had not retired yet, sharing fantasies did no harm.  Some said that they wanted to travel around the world.  Others challenged that one could not wander for years.  One said that he would like to run a coffee shop, so that he could chat everyday with customers.  I hinted that he could continue his practice as family doctor, as patients from all walks of life paid to chat with him already.  Some wanted to learn something new.  Others then posted information on CME and various courses.  Finally, an ophthalmologist honestly admitted that he was most interested in going to clinic and seeing patients everyday.  Messages gradually tailed off with most of us realizing working was not that bad.  We might just need to adjust our schedules and attitudes. 

不如歸去 was more than retiring.  Life was more than work.  You might get more frustration if you stopped working and had more time, unless you cut yourselves off from all the news and social media.  I was not talking about the inequalities and wrongs done that appeared too often.  We were not living in a utopia.  These things were bound to happen.  They made you sad or angry.  They would not frustrate you.  It was how the society reacted to such wrongs that frustrated you.  Prevarication was introduced and worshiped.  Eventually, while people still maintained the common sense interpretation of right and wrong, they spinned that there was no act of wrong-doing; or at least they did not see any cogent evidence of such act.  Finally, people decided to dispense of all the trouble.  As morality was common belief of the society, just worked on to change the meaning of “wrong” would do.  Facing such corruption, one could do nothing.  It was this learned helplessness that called for  不如歸去.  I was sure that Professor Yuen heard that cuckoo songs clearly when he decided to quit.  But, where to go?  Where to hide from one’s consciousness?

Cuckoos, please keep singing.  Please keep singing to those people.  Hope that one day, they would realize that what they seemingly gained did not worth what they had done.  不如，歸去。

(Source: HKMA News February 2016)

Medical Council Deformed

The first shocking news of the medical profession in 2016 was the announcement, interestingly via news media, of proposed reform of the Medical Council by the government through introduction of an Amendment Bill to the Medical Registration Ordinance (MRO).  In this issue of the News, you must read the page from Lai Eve.  She had nicely summarized the content of the reform proposal and divided them into “controversial” and “straight-forward” categories.  The most ingenious was the title she coined this reform proposal:  The Medical Council Deform.

You might say that it was exaggeration to describe the proposal as deforming the Medical Council.  Or some might argue that it is necessary to deform the Medical Council if there is a need to do so, so as to serve the public better.  I shall high-light a few points before going into discussion.  

1. It was stated that this proposed Amendment Bill was only an interim action.  More thorough reform might be introduced after the review from the Steering Committee on Strategic Review on Healthcare Manpower Planning and Profession Development in Hong Kong.
2. This interim action was called for because there was a recent High Court case in which the judge severely criticized the delay by the Medical Council in handling complaints, and there had been mounting public pressure for urgent improvements.  
3. Another immediate concern was that the Medical Council needed more flexibility in approving a longer period of up to 3 years for application for limited registration of non-locally trained doctors to practice in Hong Kong.  
4. In the proposed Amendment Bill, the most controversial item is to increase the number of appointed lay members in the Medical Council from 4 to 8.

I am not going to argue whether there are urgent needs to introduce reform while the report of the Steering Committee is due to complete.  I have to point out that the increase in appointed lay members from 4 to 8 vastly disturbed the balance in the composition of the Medical Council, while serving no actual purpose in addressing the 2 stated objectives.  

Complaint handling is but one important function of the Medical Council.  Complaints are first screened by the Preliminary Investigation Committee (PIC).  The PIC would refer the case for an inquiry if a decision on whether the doctor is guilty is needed.  It is statutory requirement for a lay member to form the quorum both in a PIC meeting and in an inquiry.  Therefore, there seems a need to increase the number of lay members in the Medical Council if more PIC meetings and inquiries are to be held.  However, this complaint handling function is purposely segregated from the other functions of the Medical Council for fairness and for the guarantee of independent decision making by individual members.  PIC cases and inquiry details are never discussed in policy meetings or among members.  Therefore the issue of needing more lay members to meet PIC and inquiry quorums can be addressed by adjusting the role of assessors.  

Assessors are persons who can take part in an inquiry.  They will not take part in any other meetings or decision making of the Medical Council.  One of the purposes of such design is to relieve the workload of members of the Medical Council.  In the proposed reform, there are important modifications to the numbers and roles of assessors.  A lay assessor can replace the lay member in a PIC meeting or an inquiry to form the quorum.  The number of lay assessors appointed would be raised from 4 to 14.  All these changes can in fact address the issue of lay persons in complaint handling without disturbing the composition of the Medical Council.

Another often proclaimed problem about complaint handling not mentioned in the reasons for reform is “doctors protecting doctors”.  It is argued and propagandized that increasing the number of lay members is important and useful to address this issue.  However, the proposed reform keeps the majority of doctors in both PIC meetings and inquiries.  Therefore, increasing the number of lay members is irrelevant in this respect.

Increasing the number of lay members from 4 to 8 changes the ratio of lay members to doctor members from 4:24 to 8:24 (1/6 to 1/3).  Lay members are still the minority.  However, one should not overlook the fact that all lay members are appointed by the government.  Within the Medical Council, there exists a delicate balance of appointed member to elected member of 14:14.  When the number of lay members is increased by 4, the ratio of appointed members to elected members would be 18:14, with clear majority votes by appointed members.  

It has been hinted by some, and overtly expressed by many, that elected members in the Medical Council tend to protect the interest of doctors rather than the public.  A too often quoted example is that non-locally trained doctors are not allowed to practice in Hong Kong without sitting for an examination because of oppositions from doctors in the Medical Council.  This is frankly inaccurate and the example is inappropriate.  The power of the Medical Council originates from the MRO.  The Medical Council simply does not have the power to allow non-locally trained doctors to practice in Hong Kong without sitting for an examination and fulfilling certain requirements.  In certain situations, such as the applications for limited registration, the Medical Council can approve non-locally trained doctors to practice in the 2 Universities and Hospital Authority (HA) without sitting for an examination.  In the past few years, the HA has used this mechanism (with objections from a significant number of Hong Kong doctors) to  employ non-locally trained doctors to work in various departments.  So far, the Medical Council has posted practically no resistance to the applications.  The non-locally trained doctors are also able to successfully renew their limited registrations yearly.

While it certainly undermines the wisdom of doctor voters, it is to a certain extend true to say that elected members have an inclination to take interests of the profession more seriously.  However, by the same token, members appointed by the government will incline to support government proposals.  It is this delicate balance in power of difference stake-holders that decisions acceptable to all parties can be negotiated.  Having a clear majority of appointed members will distort the Medical Council to the extent that professional autonomy is affected.

Adding lay members to the Medical Council does not address the “urgent” needs stated in the proposal.  However, the HKMA is not against adding more lay members.  We have a deeper understanding of the proposal.  To safe-guard professional autonomy, we insist that the ratio of appointed members to elected members be maintained.  One simple method is to add 4 elected doctor members together with the addition of 4 appointed lay members. 

(Source: HKMA News January 2016)

Big Guns, Tree-gun, and Election

 

I wish you a Merry Christmas and a Happy New Year!

Wish all members Merry Christmas and Happy New Year.  The blessing goes particularly to one of our young member, Dr. KWONG, who defeated the Kowloon City District Council Chairman LAU Wai Wing in Whampoa West in the 2015 District Council Election.  My wish also go to “Tree Gun”, which is the name better known of the ex-District Councilor Christopher CHUNG Shu Kun.  He was defeated by a newbie TSUI Chi Kin in Yue Wan District.  It was said that TSUI decided to run the election to challenge the “big gun” only on the last day of the nomination period.  What newspapers described TSUI was that he was that he was almost never heard of in the political field.  Of course my wish here is not slightly comparable to the celebration held outside Tree Gun’s to-be-ex-office when the news broke out that he was voted out.  Champagne bottles were opened, poppers were set off, and there came as usual Paula TSUI Siu Fung’s celebration song for losers.

Elections are too common.  When you read this Editorial, the results of the Medical Council election should have been known.  There is only one young candidate this year.  See if he can make it.  Next Year, in 2016, which is just a few days ahead, there will be new office bearers election for the HKMA, the Medical Functional Constituency election for the Legislative Council, and the Election Committee Subsector election for electing the Chief Executive.  

It is always interesting to speculate potential candidates and results of elections.  Legislative Council election is for big guns.  I wonder if any young doctor or newbie will run for the Medical Constituency election.  LEUNG Ka Lau has been our Legislator for 2 terms.  He was first elected in 2008 (2217 votes) when he ran against KWOK Ka Ki (1869 votes), who was the Councilor of the Medical Constituency at that time, HO Pak Leung (2138 votes) and YEUNG Chiu Fat (580 votes).  LEUNG succeeded to stay in the LEGCO in 2012 by beating TSE Hung Hing by a lead of 2336 votes (4541 against 2205 votes).  Although the 2012 result was promising, I speculate that LEUNG will not run for another term.

It would be a wise bet to put your money on Ho Pak Leung.  From limited statistics, HO shared the same group of voters with LEUNG (adding up to around 4500).  Although he is a microbiologist, I guess he has the macroscopic wisdom to enter the playing field.  If you are to bet on who would come out as candidates, a better bet would be on TSE Hung Hing.  TSE is the Immediate Past President of the HKMA.  He might also run for the Presidency of the HKMA just like in 2012.  However, he has added advantage compared to 2012 as he is now a Justice of Peace and might gain much support from pro-governmental voters.

If my memory does not fail me, I remember reading in newspaper some time ago that CHOI Kin would like to run for the LEGCO and the HKMA Presidency in 2016.  Appeared as the “Angry Man” of the HKMA, CHOI has an out-spoken image.  This has been more so with his full-of-sound-bites-if-not-wisdom criticism against the current President of the HKMA.  CHOI has been very successful in various elections.  However, he has never been a candidate for the LEGCO.  If CHOI Has not changed his mind, he needs to take care of the fact that TSE shares the same group of voters with him from the private sector and from the HKMA.  One obvious difference between CHOI and TSE would be their attitude towards the Umbrella Movement.

Of course, there can be other candidates who are surely capable of getting more than 2000 votes to take part.  There can also be spoilers to intervene.  Prediction is never easy.  

While it is interesting to speculate about the LEGCO election, it is difficult to arouse discussion in lunch meetings about the HKMA Presidency election.  Between 2004 and 2015, we have CHOI Kin as President for 3 terms, TSE Hung Hing for 2 terms, and SHIH Tai Cho whose term will end in 2016.  We were only given the chance to cast our votes twice.  Once was CHOI Kin against FUNG Yee Leung in 2004, and the other was CHOI Kin against YEUNG Chiu Fat in 2010.  For the 2 terms of TSE, for one term of CHOI, and for the current term of Presidency of SHIH, they were all “elected” ipso facto.  Each time, there was only one candidate nominated for the post and no voting was needed.  I speculated that it did not happen that there was only one person coming out to take the challenge.  However, negotiation was preferred to election.  Deals were made among a few.  For members, they could not ask what believes the candidates held towards important issues.  The only candidate did not need to make any promise to all and there was no problem of failure to cash his promise in his term.  In the term 2012 to 2014, there was election of the Chief Executive.  In the current term of 2014 to 2016, there was the Hong Kong Electoral Reform consultation and legislative proposal.  The role of the President was vital in leading the HKMA to take part in these issues.  We were not able to ask, to understand, to challenge or to choose.  We could not even vote the candidate out because there was no other choice.  Some might view this as a sign of unity.  However, something that feels good does not mean that it is healthy.  For example, gaining weight continuously is surely not healthy.

The traditional view is that elections are for big guns.  However, with the recent “Tree-gun Incident”, let us see if this view point will hold true in the coming elections.  

(Source: HKMA News December 2015)

Be happy

Happy November!

I decided to be happy in November and I wish everyone happiness in November.  I came to such decision when I thought about the topic of the Editorial.  I reviewed the past 10 issues in this year and realized that most of them were gloomy and heavy.  It is time to be happy, to relax and to inspire hope.

Like most people, I first tired to figure out a reason to be happy.  November is followed by December and there will soon be Christmas.  November is the month when graduates, filled with hope and joy, take photos in university campuses.  In November, you can usually enjoy discounted tours and flight tickets.  November 2015 is better than November 2014 as there is no more mass demonstration.  Or is it better?  Maybe try the other way round: there is no reason to be unhappy in November.  

Finding a reason seemed not very much inspiring.  As I had written on before, and exemplified by the teachings of Zen Master Thich Nhat Hanh, happiness is the way to happiness.  You do not need to find a reason to be happy.  You just need to act to be and to become happy.  This is like some sort of behavioural therapy.  Sadly, acting happy is also as difficult as self behavioural therapy.  It is in fact more difficult, because it is circular self bahavioural therapy.  You are not happy, therefore you cannot act happy.  A hundred thousand dollar watch would not move time faster in a boring meeting.  A 450PS car would still be caught in traffic jam, with the addiction worry of an over-heated engine.  There are reasons why people down stronger and stronger coffee; and move from beer to vodka.

I remembered in the past, going movie was a big event.  It was entertainment.  Entertainment by definition should make you happy.  At least there was no harm trying, as it was not costly.  Nowadays cinemas are more comfortable.  It was not a bad idea to fall asleep for a while for the whole 2 hours.  I watched Bridge of Spies and The Martian.

James Donovan (Tom Hanks) was a New York insurance lawyer in 1957.  By some hard-to-believe reasons, he became the defense lawyer of a Russian spy Rudolf Abel (Mark Rylance).  He succeeded in sparing Abel from the electric chair.  He then miraculously exchanged Abel for an American spy caught in the Soviet Union and an innocent American student claimed to be a spy by East Germany.  His success was because of his insistence and his ever fighting.  Steven Spielberg, the director, convinced us by filing a constantly deeply frowned Donovan.  I even got headache after watching his tense corrugator supercilii for 2 hours.  When confronted with the whole world and then the FBI agent, Donovan explained, “My name’s Donovan.  Irish, both sides, mother and father.  I’m Irish, you’re German.  But what makes us both Americans?  Just one thing.  One, one, one: the rule book. We call it the Constitution and we agree to the rules.  And that’s what makes us Americans.  And it’s all that makes us Americans.  So don’t tell me there’s no rule book.”  This was in stark contrast to the expressionless face of Abel.  When asked by Donovan why he seemed not worried, he answered with a question: “Does it help?”

In The Martian, Mark Watney (Matt Damon) was left alone in Mars after an accident during their mission.  All he got was a mission base with 300 odd days of food to support minimal daily calories.  However, even if NASA found out that he was alive there, a rescue team could only reach him in 4 years.  Luckily he was a botanist and he invented various “Home-alone” tools, techniques and strategies and “made a living” in the Mars.  He survived until somehow the original space shuttle came to rescue just in time.  Of course there were many accidents and near escapes.  What made the movie a fiction was not all the pseudo-science.  It was how (come) Mark could always maintain his mood and spirit.  He was, again, never giving up.  As an over-kill move, the movie ended with Mark teaching survival classes after his return.  He preached, “At some point, everything’s gonna go south on you and you’re going to say, this is it.  This is how I end.  Now you can either accept that, or you can get to work.  That’s all it is.  You just begin.  You do the math.  You solve one problem and you solve the next one, and then the next.  And if you solve enough problems, you get to come home.”

Mark survived.  He was somewhat elated for the whole stay on Mars.  I was not sure it was because of hyperbaric oxygen, food deprivation, or the vicodin he took with potatoes after he ran out of ketchup.  But I did not think he was happy, either on Mars or back on Earth.  Donovan was able to save three people, and most importantly, to keep his faith to the rule book.  He did not say that he was happy.  Instead, he was tired.  

After the movies, apart from the headache, I was none the happier, but tired.  What kept echoing in my head was Abel saying, “Does it help?"

(Source: HKMA News November 2015)

When Logic kills you

Last month, when I was in a discussion group, the group leader threw out the following quiz: “Imagine waiting in line at the post office.  There is one person in front of you and another behind.  The door suddenly bursts open and in walks a man.  He has a bag containing 4 hats (2 white and 2 black).  The man makes everyone in the line shut their eyes, takes 3 hats from the bag and places one on each person’s head.  Then he tells you all to look straight ahead and open your eyes, thus ensuring that each of you can only see the colour of any hats directly in front of you.

The man then issues his ultimatum.  “First, you are not allowed to say anything to one another.  Now, if any of you can correctly state the colour of the hat you are wearing, all 3 of you will live.  However, if you get it wrong then something nasty will happen to all 3 of you.  

Not surprisingly, you are shocked.  After all, you only came in for some stamps and a bar of chocolate.  After about a minute of pin-dropping silence you suddenly name the colour of your hat.  There are no mirrors or reflective surfaces in the post office, so how do you do it?”

I knew the answer right away.  That was not because I was smart, but because I had read this quiz in the book Puzzled: 101  Cunning Conundrums and Sneaky Solutions by one of my favourite writers Richard Wiseman.  And in fact I could vaguely remember encountering similar stories in novels by Taiwan writers when I was in secondary school.  Soon enough, some members of the discussion group came to the right answer.  No one asked, and thus I did not know whether they were smart or they had read about it.  Have readers got the answer yet?  If not and if you want to try on it, don’t read the following paragraph yet, as I shall give the answer.

The answer was pretty straight-forward.  The colour of my hat was different from that of the one in front of me.  The essential point was that you did not miss the important “minute of pin-dropping silence”.  Of course the one in front could not see anything including the colour of his hat.  But the one behind you also did not give an answer.  That meant he did not see 2 hats of the same colour in front of him.  Otherwise he could deduce easily that his hat was of the other colour because there were only 2 white and 2 black hats.  So, I was wearing a hat with a different colour from the one in front of me.  

That was not the end of discussion.  Otherwise it was super “primary-school-chicken” and I would not have joined.  The follow-up question was, “You were killed in the incident even though you worked out the answer.  Logic killed you.  Why?  Do readers have any ideas?“

There were not one, but unlimited answers to it.  But all those answers could be summarized in one sentence: “You are living in the real world!”  In the real world, any one of you might freak out and run around, causing the man to kill you all.  The other 2 might not be intellectual enough to understand the complicated instructions.  The one in front might be a gambler and knew nothing about logic, and just yelled out whatever colour that came to his mind.  The one behind might be silent just because he was too shock to think or to say anything.  Last but not the least, the man was likely to be crazy.  Crazy man did not talk logic.  He would just kill you, no mater how smart you were and what you said.

Remember?  I did not say what occasion or what discussion group it was.  In fact it was a survival skill discussion group: survival skills in recent hostile environment.  Here and now is where and when logic would likely get you killed.  There are numerous examples involving government officials, law enforcement bodies, and even scholars of renowned institutes.  It is logical to list some examples.  But do not forget that I have equipped myself with survival skills.  So, please figure them out yourselves.

The discussion group did not end by bringing your thought out of the box but leaving you with learnt-helplessness.  We were guided to come up with some strategies to survive this real-world-illogical-scenario.  We were given video clips and newspaper replica of how people who appeared in Yahoo’s Top Local Searches talked and behaved.  Although readers have not paid for the discussion group, I am generous enough to give you some hints and directions.  You know what?  We even had role play to work out who could survive and who definitely died.  The fittest guy confessed that he was inspired by the movie of Stephen Chow.  He first assessed correctly the man was in power, no matter his power was legitimate or not.  He then knew that he should figure out what would be in the man’s mind, no matter he was crazy or not.  He acted according to his conclusion.  He took off his expensive watch and handed it to the man.  He survived.

I was a dead man.

(Source: HKMA News October 2015)

Rules and Procedures

The 14^th day of the 7^th month in the lunar calendar is the Hungry Ghost Festival.  I guess the younger generation living in newly developed housing estates, especially those luxurious ones, might not have seen the rituals.  They might read in newspapers and magazines, electronic versions of course, about some of the ghost stories and taboos for the Hungry Ghost Festival.  I wonder how many would go and watch the Chinese operas held on temporary bamboo stages to praise the charitable and pious deeds of the deities.  My clinic is at Western District, one of the oldest parts of Hong Kong Island where very old buildings and old traditions are kept.  Even the MTR Sai Ying Pun Station features many photographs and pictures of the old days.  Each year, I can tell the beginning of the 7^th month by seeing and smelling people tending roadside fires and burning faux money and offerings.  These rituals climax on the 14^th and 15^th days.  People believe that business is linked somehow to ghosts.  Therefore shops take such rituals and offerings very seriously.  They practically set fire on the motor roads.  The fires easily reach 3 stories high and need hoses and fire extinguishers to put off after the ceremonies.

I always wonder: Is it dangerous to do so?  Would it block the roads and affect traffic?

Blocking the roads once or twice every year might be tolerated by the police and citizens.  It is however not unusual to find road-blocking every day.  When I sometimes cross the Western Harbour Tunnel to visit the Baptist Hospital, I have to be very careful at night time when going through Yau Ma Tei because up to 2 lanes might be blocked by workers loading and unloading boxes of fruits.  Of course I have to be careful not to run anyone down, or run into cargos.  But also I have to be careful not to sound the horn.  I have heard stories about lucky drivers being surrounded by loads of fruits after sounding horns at leisurely walking workers.  They are said to be lucky because the unlucky ones are surrounded by workers instead of fruits.

I am sure those workers block the roads and affect traffic.  I wonder if they are tolerated by law enforcement bodies because of historical reasons and the fact that road-blocking occurs at night time.

Not surprisingly, roads are blocked every day in daytime.  Take an example, in Central, Queen’s Road Central is blocked by cars in office hours and office days.  Some are lorries and vans for loading and unloading cargos.  More are private cars, expensive cars, with chauffeurs waiting for their bosses, or guests of their bosses.  Everyone knows that traffic is horrible in Central.  A don’t-know-stupid-or-clever guy even takes his time and money to write a report to look into the matter and comes up with a conclusion of cutting the trams off their rails.  Most people, or in fact most people with the power to control or to solve the problem, turn a blind eye to the obvious-to-everyone cause of the traffic jam.

I am naive to think that there are too many simple solutions to the Central traffic problem.  The police can station “Mong-Kok-officers-with-arm-extensions” there to wave illegally parked cars away.  Since money is the answer to many problems, the rich tycoons can easily solve their parking problems.  They can walk a little bit to exercise.  They can rent a dozen car parks nearby.  They can even build their own car parks on whatever locations they like as they own those buildings.

However, a hypocritical friend of mine told me that money is not used in this way to solve problems.  Money is used to enjoy privileges.  Money is to make sure that the owner is more equal before the law.  He speculates that if a police constable is complained unofficially by tycoons to his superior for carrying out his duty but at the same time causing inconvenience to them, he would sure be in trouble.  His superior would teach him a lesson so as to please the rich without costing himself a dime.  Of course he is hypocritical and I do not agree with him.

Everyone can see when a road is blocked.  Most would realize that some laws are broken without obvious consequences.  However, many a time it is not as obvious when rules are broken or when procedures are not followed.  You might not know why the University of Hong Kong Convocation has to pass a resolution to urge the University Council to act in accordance with established procedures and precedents.  You might not be surprised when the chairman of an association knows nothing about its articles of association or procedures of meetings.  You might not be as crossed as me when you find an action committee puts an important agenda item in the AOB section of a meeting and sends out documents at midnight the day before meeting.  You might not be able to stand firm when the chairman of a tribunal ridicules you only because you hold a different view from her.

Facing these, I must pay tribute to the Legco Chairman in the “Wait-for-Uncle-Fat Incident”.  He could have maneuvered not too difficultly the situation to the advantage of his affiliates.  However, maybe out of instinct, or out of respect of rules, or maybe out of conscience, he acted according to procedures.

But, I guess, those were the days.

(Source: HKMA News September 2015)

Magna Carta and Voodoo Medicine

“When the Magna Carta was drafted and agreed upon, you doctors were still practicing voodoo medicine.”  A newly met pretty barrister told me proudly, as if I did not know.

Actually I had seen one of the four exemplifications of the original Magna Carta in the British Library.  It was the document recording the negotiation between King John of England and his barons.  In 1215, the barons were not satisfied with the King and captured London.  King John was forced to agree upon and abided by some terms.  Although it mostly dealt with medieval rights and customs, Magna Carta had become the symbol of liberty.  The most famous clause read: ‘No man shall be arrested or imprisoned except by the judgment of their equals and by the law of the land.  To no one will we sell, to no one deny or delay right or justice.’  The Magna Carta had vast impacts on the constitutional law of England and other countries including the United States.  It also nourished the concept of protection of human rights and the rule of law.  Lord Denning described the Magna Carta as "the foundation of the freedom of the individual against the arbitrary authority of the despot."

Well, 1215.  Micro-organisms were proved to be the causative agents for fermentation and then postulated to be the causative agents for human diseases by Louis Pasteur in 1857.  In 1928, penicillin was first discovered to be useful as an antibiotic.  Physics seemed to do better.  Einstein worked out the Mass-energy Law in 1905.  In 1689, Newton wrote his famous three Laws of Motion.  As early as 250 BC, Archimedes described the Archimedes Principle on floatation.

But, wait.  I had been researching on “discoveries”.  They were either discoveries of natural substances or natural laws that were already existing and governing the running of this planet Earth.  Magna Carta was surely not something natural.  In the contrary, regulations, charters or laws were always inventions.  They were created to help allowing human beings to live in harmony in a society.  If we were talking about inventions, I was sure there existed numerous inventions in medicine since Stone Age.  What mattered was whether such inventions could persist and be useful.

I dared not say that the Magna Carta was at the level of voodoo medicine, though I had the urge to refute the pretty barrister’s assertion.  However, I thought if I described it as rudimentary, no one would strongly object.  What it had done was creating a system in which law could evolve and improve.  I would like to say that we had evidence-based medicine.  But that was just as old as me.

The beauty of the Magna Carta was the introduction of the concept of “rule of law”.  This was against the long-recognized practice of the “rule of man”, or the rule of power.  Rule of law put “law” in the supreme.  Everyone, including the king, should be and needed to abide by it.  In 1885, an English Law Professor, A V Dicey popularized this important concept of rule of law in his “Bible of British Constitutional Law”: Introduction to the Study of Law of the Constitution.  Dicey thought that there were 3 facets to the rule of law:

1.  No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts.

2. Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts.

3. Whereas under many foreign constitutions the rights of individuals flow, or appear to flow, from the articles of the constitution, in England the law of the constitution is the result, not the source of the rights of individuals.

Rule of law was a seemingly simple but inherently complex concept. Even Dicey’s 3 points received much criticism and debate.  This was particular true for point number 3.  I of course by no means understood fully what rule of law meant.  I became alarmed when I read in newspaper repeatedly that rule of law had been threatened and undermined.  When there were protests and demonstrations, rule of law was said to be threatened.  When judges were criticized rudely, rule of law was said to be shaken.  When students marched into a meeting place of their university, rule of law was said to be undermined.  I went through definitions and explanations of rule of law.  I did not find that rule of law would be undermined when someone broke the law.  The rule of law would not be undermined even when someone broke the law and insisted that they were not guilty and were acting in whatever reasons behind.  The law still applied to them.  They might get arrested, tried, and punished accordingly if found guilty.  Only the public security and stability of the city would be undermined.

It was only the action of rulers and those in power that could undermine the rule of law.  It was the selective application of law in favor of those in power, or those favored by those in power, that caused problem.  Some called this selective action the “rule by law”.  I did not like to use this confusing term.  It still carried some sense of ruling according to existing laws.  If statutes were interpreted officially in a way causing mass demonstration, the rule of law would be threatened.  If court judgments were affronts to common sense, the rule of law would be threatened.  If due process in decision making was not following, the rule of law would again be threatened.

Pretty barrister, do you agree?

(Source: HKMA News August 2015)