Protesters at a rally against a new national security law in Hong Kong on July 1, 2020, on the 23rd anniversary of the city’s handover from Britain to China. – Hong Kong police arrested more than 300 people on July 1. (Photo by Anthony WALLACE / AFP) (Photo by ANTHONY WALLACE/AFP via Getty Images)

SocietyJuly 22, 2020

Between a rock and a hard place: New Zealanders in Hong Kong on an uncertain future

The Spinoff

Staff writers

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Protesters at a rally against a new national security law in Hong Kong on July 1, 2020, on the 23rd anniversary of the city’s handover from Britain to China. – Hong Kong police arrested more than 300 people on July 1. (Photo by Anthony WALLACE / AFP) (Photo by ANTHONY WALLACE/AFP via Getty Images)

The harsh new national security law has cast a shadow over Hong Kong, but the threat of Covid-19 is still big enough to keep many New Zealanders in Hong Kong from leaving. The Spinoff spoke to four people living in Hong Kong during a time of historic upheaval.

On June 30 a draconian new national security law was enacted in Hong Kong intended to counter secession, subversion, terrorism, and “collusion with foreign forces”. Critics say the wide-ranging law will have a chilling effect on freedom of speech and the right to protest, making it much easier for the Chinese government to punish protestors and prevent criticism of its policies. Beijing has the final say in how the law should be interpreted, rather than any Hong Kong-based body.

It’s all concerning stuff, but many New Zealanders in Hong Kong aren’t keen to leave; to them, Covid-19 is an equally terrifying prospect.

In October last year, Hong Kong chief executive Carrie Lam banned the wearing of face masks, which were worn by people trying to avoid tear gas and dodge surveillance cameras during the long-running protests against the Chinese government. In April of this year, almost four months after Covid-19 had reached the country, the mask ban was largely upheld by authorities despite health experts recommending otherwise; the ban was widely ignored by citizens. Following a recent uptick in cases, the government has now reversed course and made mask wearing mandatory.

Despite the authorities’ early reluctance on masks, Hong Kong’s efforts against Covid-19 have been largely successful. There have been only 14 deaths in the nearly six months since the virus’s arrival – eight fewer than in New Zealand, despite a 50% larger population and a 30km land border with China. The local government closed borders early on and required all arrivals to quarantine from mid-March. The vast majority of citizens wore face masks at all times, and those in quarantine were equipped with mandatory geo-fenced bracelets to avoid escapes.

Ruby*, a dual citizen of Hong Kong and New Zealand, said the dangers of the pandemic have made her reluctant to leave Hong Kong, despite the new national security law. “I feel much safer in a country like Hong Kong that has dealt with outbreaks before [like SARS]. We also have a much better sense of community responsibility here, so I trust that my neighbour or colleague would do the right thing and take the situation seriously.”

Dylan*, a New Zealander in Hong Kong on a working visa, agreed Covid-19 was a strong incentive to stay in Hong Kong. “They were leagues ahead of the rest of the world with masks, sanitiser, and so on,” he said. “Considering our proximity to the epicentre [Wuhan], I was surprised and stoked we haven’t had it worse, though I suppose it’s an old hang up from the SARS days.”

The 2003 SARS outbreak was especially destructive in Hong Kong, where the virus took the lives of almost 300 people.

“Besides Taiwan, Hong Kong was probably the best place to be [during Covid-19],” said Dylan. “Hongkongers were masking up in January, before the virus arrived in Hong Kong and before the government made any statements about it.

“Hongkongers look out for each other. They have to, because no one else ever has.”

A tracking wristband for quarantine monitoring seen worn by a passenger who landed in Hong Kong (Photo: Willie Siau/Echoes Wire/Barcroft Media via Getty Images)

Ruby said the new security law will affect New Zealand-based family members who intended on retiring to Hong Kong. “I don’t think I would be comfortable with that decision anymore and am now looking into other options for them,” she said. “I never thought it would happen overnight.”

Ellen*, a New Zealander in Hong Kong on a dependant visa, says she thinks about going home all the time. “It’s a strange feeling to have missed funerals, birthdays, and other special events. I understand why, and I am so fortunate compared to others who have been fighting to get home for genuinely compelling reasons.”

She said the dialogue around returning New Zealanders – including the news that returnees may soon by required to pay for their time in managed isolation – is upsetting. “Something that hurts to read is when people comment that expatriates deserve to be locked out because they’ve abandoned their country to chase money,” she said.

“Fuck that. I paid taxes for 15 years, and I haven’t abandoned anything. I’m overseas to try and pay off my student loan, and save money for my first home in New Zealand because wages aren’t rising in line with the cost of living, and it’s impossible to get ahead there.”

Ellen understands that the new security law will change her life in Hong Kong significantly. “I am now forbidden to express an opinion about [the law],” she said. “The punishment would be swift and severe. It’s as simple as that.”

The UK responded to the law by extending the privileges held by British National (Overseas) passport holders; in 1997, Hong Kong citizens were given these as a way to allay fears about the handover. UK foreign secretary Dominic Raab said BN(O) passport holders will now be able to live and work in the UK for up to five years, and be able to apply for settled status and then citizenship at the end of that period.

On Monday, Raab announced a suspension of its extradition treaty with Hong Kong alongside an extension of its arms embargo on China. Economic sanctions could seriously impact the future of Hong Kong, which has become a global financial hub over the past few decades.

Here in New Zealand, foreign minister Winston Peters has said he will monitor the impact of the legislation’s effect on Hong Kong residents and conduct a review of our country’s relationship with Hong Kong .

Dylan said that to people who live in Hong Kong, Peters’ words are little more than lip service. “I think New Zealand, and the rest of the world, needs to take a good look at what China is doing not just to the people of Hong Kong, but to the people in Xinjiang and all the other blatant disregards for international law,” he said. “Condemnations clearly aren’t working and there needs to be something more concrete before anything changes.

“It breaks my heart that in one fell swoop China crushed their freedom and the world stood by and said ‘please don’t’.”

Kate* is a Hong Kong citizen born before the 1997 handover. During a visit to Tibet in her early 20s, she realised the political situation of her country. “Nobody was talking about what was happening there; no one outside of Asia understood. It was like the world not only forgot Tibet existed, but they were purposefully turning a blind eye,” she said.

“I realised then that what had happened to Tibet could easily happen to Hong Kong, and the thought terrified me.”

Kate’s family is from mainland China, and her father is one of those who fled from China to Hong Kong via the Shenzen border during the cultural revolution in an event termed “The Great Exodus”. He doesn’t talk about it much; the family avoids political discussions.

Now a pro-democracy activist, Kate has been closely monitoring global responses to the implementation of Hong Kong’s national security law. She said while she’s grateful for words of support from New Zealanders, petitions likely won’t make a difference. “China is not a country that will back down just because it’s under pressure, nor are they open to self-reflection or critique,” she said. “They need to have concrete actions.”

Kate said sanctions against government officials and corporations that support China’s actions could be more effective than a petition. “Freeze any assets and funds these individuals and corporations have in their jurisdiction,” she said.

“If the rest of the world takes protection of human rights even halfway seriously, it must prepare to punish China with their actions, otherwise there will be more and more victims.”

*Names have been changed to protect interviewees from the new law.

OPINIONSocietyJuly 20, 2020

The ruling that lays bare the gross injustice of the three strikes law

Andrew Geddis

Contributing writer

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The court said a prison sentence was ‘manifestly unjust’, but it had no alternative, explains Andrew Geddis.

In some New Zealand prison sits a man called Daniel Clinton Fitzgerald. He has been behind bars since December of 2016. Unless something happens, of which more later, he may stay there until December 2023. All because he unwantedly tried to kiss a woman passerby on the mouth, instead kissing her on the cheek when she moved her head.

Well, maybe “all because” is not quite right. Every human story has more than one single, simple thread to it. And I note at the outset that this particular account misses the perspective of the person who suffered this indecent assault (for that is what his kiss was), as she did not provide a victim impact statement at Fitzgerald’s sentencing. Although I focus on the way the justice system has punished Fitzgerald for his action, I don’t mean to imply that her experience was somehow trivial or unimportant. A crime was inflicted on her, and that needs to be noted.

Nevertheless, this basic truth regarding Fitzgerald cannot be denied: we are imprisoning him for seven years for kissing a stranger on the street.

How can this be, you wonder? It is what the Court of Appeal last week reluctantly ruled must happen under the previous National government’s “three strikes” sentencing regime. Fitzgerald’s sentence is “manifestly unjust”, the Court says. It also says it unjustifiably breaches his right to be free from “disproportionately severe” treatment, as guaranteed by the New Zealand Bill of Rights Act 1990. Nevertheless, it is The Law, and so allows for no other outcome.

You see, Mr Fitzgerald has what we might charitably call a problem with personal boundaries. More accurately, we could label him a recidivist offender. He has twice before been convicted of indecently assaulting women in public, in ways that are somewhat more serious than his last unwanted kiss.

And because this is now his third conviction for such behaviour, the three strikes law mandates that he receive the full sentence of seven years for this last offence. In the Court of Appeal, two judges grudgingly accepted this result was unavoidable. A third judge would have discharged Mr Fitzgerald without conviction (thus avoiding having to impose any sentence on him at all), but two judicial votes beat one and so the mandatory seven-year sentence stands. “Manifestly unjust” and “disproportionately severe” though it may be, it is The Law.

And so, in some New Zealand prison sits a man called Daniel Clinton Fitzgerald, jailed for seven years for unwantedly kissing a woman on the street.

The Court of Appeal, Wellington, where last week Daniel Clinton Fitzgerald’s seven-year sentence was upheld (Photo: Pear285/CC BY-SA) 4.0

Perhaps you feel the foregoing is all a bit too soft on Fitzgerald. After all, women also have a right to safety in public places. If Fitzgerald will not stop his unwanted advances, why should they have to continue suffering them? He has been told about the risks of his actions; at both his previous two sentencings, the judge formally warned him of the consequences should he continue to act in this way. Knowing this danger, he nevertheless carried on his behaviour anyway. Why, then, cry over his decision to spill the milk (as it were)?

At this point we may note that Fitzgerald is not a well person. As recounted in an earlier public court decision:

“[he] is a schizophrenic who first presented to Psychiatric Services, in a grossly psychotic state, as a 15 year old. He is now 45 years old and in the intervening period has had numerous engagements with mental health providers. He has consistently been on medication with varying success. He requires constant mental health input.”

Fitzgerald’s illness does not completely rob him of his agency. He has been found able to tell right from wrong, so can still stand trial for criminal behaviour. Being mentally ill does not excuse assaulting others, much less in a way that has a sexual element.

Equally, however, a thirty-year history with schizophrenia, exacerbated by head injury trauma and the use of alcohol and other drugs, does not lend itself to clear cause-and-effect decision making. The Court of Appeal summarises Fitzgerald’s condition as “characterised by disturbed behaviour, disorganisation in his thought processes, delusional beliefs and abnormal perceptual experiences.” If that is so, can we really say he now deserves the maximum sentence for his behaviour because he really ought to have known better?

And yet, in some New Zealand prison sits a man called Daniel Clinton Fitzgerald, jailed for seven years for unwantedly kissing a woman on the street.

What, then, should we take from Fitzgerald’s case? The first lesson, I think, is that it demonstrates why the three strikes legislation really needs to go from our statute books.

Although the New Zealand courts have done their best to soften some of the “batshit crazy” – my words, not the courts – effects of this sentencing regime, they can go only so far. The majority’s decision in Fitzgerald’s case shows the limits to judicial creativity in a legal system based on the presumption of parliamentary supremacy. They tell us that the sentence is unjust. They note that it is in breach of fundamental human rights. But it nevertheless is The Law, and so must stand.

As long as the three strikes regime remains a part of our law, it will continue to result in such manifestly wrong outcomes. This is something the current minister of justice, Andrew Little, knows all too well. He wanted to repeal it back in 2018, only to be stymied by New Zealand First’s intransigence. Perhaps after September he will be in a position to revisit that matter in more conducive circumstances.

But a repeal of the three strikes law will not help Fitzgerald. His sentence has been passed, and it will stand irrespective of any future legislative repeal. Parliament cannot help him here. So, perhaps his case could be appealed to the Supreme Court, where his argument that he ought to have been discharged without conviction (and thus have no sentence imposed) might meet with more favour. After all, one Court of Appeal judge thought this was an available option under current law.

Such an approach, however, likely will involve months of papers being filed, hearings being held, matters being considered and judgments being written. The wheels of justice grind slowly. Even if Fitzgerald should “win” before the Supreme Court, he loses the time it will take to deliver that victory.

Who, then, can step in to undo the manifestly unjust and rights-infringing position that Fitzgerald is in? The governor general retains the power, under the “prerogative of mercy”, to “grant a free or conditional pardon, suspend the execution of any sentence, or remit a sentence.” In reality, this power is exercised on the advice of the minister of justice, Andrew Little. The man, remember, who recognises that the entire three strikes regime is fundamentally wrong in principle.

And so … in some New Zealand prison sits a man called Daniel Clinton Fitzgerald, jailed for seven years for unwantedly kissing a woman on the street. If that is wrong – and it is wrong – then why not now do what is needed to put it right?