Mediation, Disciplinary Procedures and Legal Procedures

 

I heard repeatedly people talking about mediation as the solution to the long waiting time for the Medical Council to handle a complaint.  I would like to point out that without drastic changes made to the disciplinary procedures, mediation would not work.  In particular, the definition of professional misconduct needs to be readdressed.

Mediation is a useful means of dispute resolution.  The special nature of being non-adversarial and non-fault-finding allows mediation to be flexible and to address the needs of both parties.  There can be a win-win outcome as decision of fault is not necessary.  Either party does not need to fight claws-and-nails to defend themselves.  It is therefore most useful in settling contractual disputes and matrimonial disputes.

However, it is also the nature of mediation that makes it not suitable for disciplinary purposes.  The aim of disciplinary procedures is to uphold professional standards, and thus ultimately to protect the public.  Clear rules are set to tell members of the profession what conducts are not acceptable.  Members falling below such standards result in disciplinary actions.  Such actions are not just for punishment.  They serve to deter undesirable behavior.  The criminal arm of legal procedures shares the same objectives with disciplinary procedures.  There is no room for mediation and settlement between parties in such respect.

In actual practice, disciplinary procedures are between the Secretary of the Medical Council and the defendant doctors.  They are not between complainants and defendant doctors.  Once the Medical Council proceeds with a complaint, even the complainant cannot withdraw it and stop the action.  They cannot settle among themselves.  This is because the Medical Council is not just answerable to the complainant.  The Medical Council has to investigate the case and decide on it so as to uphold the standard of the profession.  It is answerable to the public.

Therefore mediation cannot be incorporated into the current disciplinary procedures simply as an alternative to inquiries.  It needs to run parallel to the current procedures and with a different objective.  Mediation cannot uphold standards.  Rather, it provides redress to dissatisfied patients.  They serve different purposes and cannot replace each other.

There are 2 major difficulties in adding mediation to our disciplinary procedures.  First, talking about redress, apart from apologies, compensation in terms of money is involved.  The Medical Council needs to consider whether it wants to open another channel for compensation in addition to claiming personal injury in the area of tort.  Second, if the aim is to expedite disciplinary procedures, complaints need to be channeled to either inquiry or mediation, but not both.  To do so, a clear distinction between professional misconduct and non-professional misconduct cases is needed.  

However, the scope of misconduct now is exceedingly wide.  Anything fallen short of expected standards would be regarded misconduct, no matter how slight or trivial it is.  This resulted from a judgment from the Court of Appeal which ruled that the fallen short of standards needed not be serious.  It would be very difficult, if not impossible, to find cases not within such wide scope of misconduct.  Thus, mediation would not be helpful to lessen the case load of inquiry or shorten the waiting time.  Rather, mediation deals with some other new categories of complaints.

To further illustrate the interplay among legal procedures, disciplinary procedures and mediation, I use the case of the 7 police officers as an example.  7 police officers were charged with causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance.  They were found guilty of a substitute offence of assault occasioning actual bodily harm, which was of lesser degree than the original charge.  All of them were sentenced to imprisonment for 2 years.  The verdict caused dissatisfaction among the police and some citizens.  There were criticisms against the judge and there were assemblies to support the defendants.

In this case, it was the Hong Kong Government that prosecuted the 7 police officers.  It was not a case between the victim who was beaten up and the 7 police officers.  In criminal procedures, it is the role of the government to uphold law and order.  During the trial, lawyers representing the defendants argued on every fine detail of the case.  They challenged the authenticity of each and every video and photograph, the admissibility of each and every video and photograph, the identification of all the defendants, the credibility of every witness, and when and how the wounds on the victim were caused.  Much time was spent on issues such as the carrying of batons and the use of protective knee caps by the police officers.  However, not one of the lawyers argued that it was lawful to beat up someone after tying him up.  No one challenged the Offences against the Person Ordinance.

It was alarming to see members of the police who were law-enforcing personnel to opine otherwise.  The court had to act according to provisions and case laws.  There was no room to address requests for preferential treatment.  A clear message had to be sent against behavior that was sanctioned by the society.  The same applied for disciplinary procedures.  Once found guilty, the services of the 7 police officers had to be terminated without pensions.  Otherwise, a wrong message of endorsement of illegal acts might be conveyed.

Mediation does not focus on right and wrong.  It is not relied upon to send important messages to the public.  It aims at resolving dispute and addressing the needs of both parties.  Allowing all shades of gray, the conduct of the 7 police officers was not real evil.  At least some of their colleagues took it as if it was their norm.  The crime was out of rage and I did not think they meant to cause serious harm to the victim.

Mediation is also about being down to earth.  It distinguishes between wants and needs.  The defendants might unrealistically want to maintain that they were innocent.  Some people might want the charges quashed.  However, did they really have no remorse at all?  Given another chance, would they do it again?  What they really need was rehabilitation.  Donations would be helpful.  But was it necessary to bundle donations with all sorts of wants from other parties?  During the trial, because of the adversarial nature, there was no chance for the parties to communicate, or to offer apologies to each other.  It would be of much benefit to the defendants, to the image of the police, and to the public if the 7 police officers and their colleagues could see their needs and moved on.

It is time to understand more on mediation, legal procedures and disciplinary procedures.  It is time to use them accordingly and appropriately.  

(Source: HKMA News March 2017)

There is a Reason

“One man one disease!” was one of the diagnostic principles taught by medical professors while I was a medical student.  It was not until I graduated and went into practice for a few years before I realized the beauty of this principle.  Of course in real life, one man could suffer from more than one disease.  But if we tried to explain different symptoms with several diseases causing each, such as influenza for fever, trauma for splinter haemorrhage, mitral valve prolapse for heart murmur and urinary tract infection for haematuria, then we might miss the important diagnosis of infective endocarditis.  This principle reminded us that in a diagnostic process, we should try to connect everything, to think hard for THE reason behind.  It was after such careful consideration that we could then talk about a patient with two diseases, or better an acute disease in a patient with a chronic condition.

I loved this diagnostic principle so much that I tried to generalize it for everyday life activities, particularly in speculating human behavior.  There was a reason behind why people acted in a one way rather than the other.  Again, there ought to be many underlying causes for an action.  It could be out of animal instinct, it could be just by chance, or it could aim at something, or actually it could be a result of all the reasons, known and unknown.  But first considering whether there was A reason served its purpose.  In Singapore, while you mocked at your local friend who carried an umbrella in a sunny afternoon, the next moment you got drenched.  In 1997, some people realized too late why others stayed away from the stock market.

It was difficult to preach with theory alone.  So I translated the theory into practical terms: “When you think others are stupid, first consider whether you are the stupid one.”  It was far too easy to think that others were stupid.  As you gained in experience and intelligence, it became more and more true that some people were real stupid.  You might see no reason why people acted in such strange manner, or more frequently, there were smarter ways to tackle.  However, follow my principle if you cannot afford to be the stupid one.  In Chapter 28 of Jin Yong’s (金庸) famous novel The Heaven Sward and Dragon Saber (倚天屠龍記), Zao Min was able to decipher the plot to escape of a council member of the Beggars’ Association by noticing his strange stance and posture.  Both of them were not stupid.

In real life, a candidate of the Chief Executive Election deliberately exposed her ignorance.  She did not know how to ride an MTR.  She described in detail her failure in tackling an obstacle of lacking toilet paper.  People from all walks of life regarded her stupid, or at least unskillful both in problem solving and in PR.  Guided by my principle, I searched for a reason behind.  It would be negligence for a candidate and her PR team to show clumsiness and ignorance in an arena of election activities.  It was not difficult to rehearse an MTR tour nor to proof-read a blog diary.  For election activities, apart from the consideration of sending what sort of messages, another concern was the target group.  It would be logical to deduce that the candidate tried to identify herself with the second-generation-tycoons who, in the mindset of her and her team, were deficient in the knowledge of MTR and toilet paper purchase.  By careful calculation, the side-effect of annoying the public was tolerated.

Working out the reason behind an action led to the question of whether we could make use of our finding.  If a candidate was willing to scarify her public image in exchange of potential votes, would it be possible for members of the Medical Subsector or Pan-democratic members of the Election Committee to negotiate for favorable terms and policies?

If we went back 5 years ago, CY was desperate for votes.  He got many crucial votes from our medical colleagues because he “was willing to listen to us and to consider our needs and concerns”.  What happened then was history.  Our concerns were addressed with policies trying to realize our nightmares.

Knowing the reason behind did not mean that you could make the quantum leap and get something useful out of it.  In the “Heaven Sward”, Zao Min could not stop that hypocritical beggar from gaining power even though she spotted out his hidden agenda.  Willing to identify oneself with the rich did not necessarily mean that one would negotiate with doctors.  Skillfully designed promises with calculated ambiguities built-in were just fantasies.  We could not sue the CE for breach of contract even if a real promise was made.  In a system where an orchestrated majority could be secured, there was hardly any say for third parties.

It is just mind-game.

(Source: HKMA News February 2017)

福

(Source: HKMA News January 2017)

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)