Justice secretary Teresa Cheng Yeuk-wah: now numbered among law breakers as a result of illegal structures in properties she owns

Cheng has to go, because the credibility of the Department of Justice can hardly be sustained when the person leading it is of more concern than the work of her department

PUBLISHED : Wednesday, 31 January, 2018, 12:26pm
UPDATED : Wednesday, 31 January, 2018, 10:48pm

What’s the point of a law that is either impossible to enforce or only capable of arbitrary enforcement?

It’s a question that must have occurred to the beleaguered justice secretary Teresa Cheng Yeuk-wah, who is now very firmly and infamously numbered among law breakers as a result of illegal structures in properties she owns.

The law acknowledges no defence on the lines of ‘I’m only doing what others get away with’ yet, as a report in this newspaper has noted, something like one in four properties in Hong Kong contain illegal structures. 

This figure is derived from Buildings Department records but, as anyone living in the New Territories can confirm, it is highly likely to be an underestimate.

The aim here is not to come to Cheng’s defence because the way that Hong Kong’s most senior judicial officer has handled this matter and shown disregard for the law beggars belief and is pretty hard to defend.

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Nevertheless there is a wider point here and it stretches far beyond the question of illegal structures because many aspects of Hong Kong law are regularly flouted or circumvented in ways that render the law to be pretty meaningless.

If a law is demonstrably not fit for purpose or is widely ignored, even by law enforcement officials; what’s the point of it?

Companies and individuals play fast and loose with their tax returns. Drivers wilfully ignore a whole host of traffic regulations. Laws aimed at preventing collusion have also proved to be ineffective. Plus there is widespread flouting of practically every law governing the use of commercial buildings. 

I could go on, but the basic point is that if a law is demonstrably not fit for purpose or is widely ignored, even by law enforcement officials; what’s the point of it?

Coming back to where we started and to the place where the overwhelming bulk of both individual and corporate wealth is located, namely in property, the dangers of having a regulatory system that has not a hope of being comprehensively implemented are clear to all.

The fantastic web of petty regulations, embedded in a system that is supposed to safeguard building standards and ensure fairness in land tenure is operated by the Buildings Department in a manner calculated to bring the system into disrepute. 

Everyone knows the system is rotten and crying out for reform but every government, not least the current administration, shies away from this herculean task not just because of its enormity but also because of the political hornet’s nest that reform entails.

Out in the New Territories, where the illegal structures problem is most acute, there is also widespread abuse of the much discredited Small House Policy, alongside illegal land occupation and illegal construction. 

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Yet the government dare not confront the powerful defenders of the status quo in the shape of the Heung Yee Kuk, which provides a bulwark of government support and has close ties with Beijing officials.

All of this matters because, at the expense of yet again stating the obvious, Hong Kong’s overwhelming competitive advantage lies in its reputation as a place where the rule of law prevails

Reform cannot be achieved without upsetting “the Kuk”, not to mention other powerful property interests with hotlines to all the right people in Western and Beijing itself. 

So, instead of even contemplating wholesale reform, the small army of Buildings Department bureaucrats focus their efforts on petty violations and conducting fire fighting exercises to extinguish the most high profile breaches of the rules. Occasionally, usually after a disaster, they are also mobilised to tackle extreme safety issues.

The net result is that the law becomes a matter of haphazard implementation rather than a code of rules with universal application. 

That then brings us to the question of how this impacts on the integrity on the legal system as a whole.

Admittedly some people would argue that its integrity is facing even bigger political challenges and is caught in an agonising conundrum between the two systems of an independent judiciary operating the common law system and the legal oversight of a completely different legal system in mainland China. 

All of this matters because, at the expense of yet again stating the obvious, Hong Kong’s overwhelming competitive advantage lies in its reputation as a place where the rule of law prevails. 

Were it only a matter of reassuring overseas investors it would probably be quite enough. But for most people who live here this belief in the rule of law forms a core part of their confidence in their system as a whole.

So, if anything positive is to emerge from the Teresa Cheng fiasco it must be that the first baby steps should be taken to reform the hopeless morass of building regulations – kicking out the petty and inconsequential parts of the laws and ensuring that what really matters remains and is implemented. 

As for Cheng herself, well, she has to go, because the credibility of the Department of Justice can hardly be sustained when the person leading it is of more concern than the work of her department.