Episode 1 - Professor Simon Young

In this episode, Professor Simon Young, Associate Dean at the University of Hong Kong's Faculty of Law, joins Boase Cohen & Collins Senior Partner Colin Cohen to discuss a number of important topics.

Chief among them are how Covid-19 has affected students and lecturers alike and the impact of the national security law on university teaching. As a scholar of constitutional law, Simon also gives his thoughts on Hong Kong's recent electoral reforms.

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Host: Colin Cohen
Director: Niall Donnelly
Producer and VO: Thomas Latter

Transcript

Colin Cohen: Welcomes Simon. tell me a little bit of what's keeping you busy today. 

Simon Young: Thank you very much, Colin, it's a real pleasure to be here. I basically wear three hats on daily basis. I'm an academic at Hong Kong University Faculty of law, I'm also a practising barrister, I'm also an editor of several publications.

Colin Cohen: Great. And at the moment now - being an external examiner of the university. So I know about students, I see what's happening. COVID-19 how has this affected life at the university, especially with the learning process, the examination and how staff and students are really coped with online learning.

And has this compromise the quality of teaching at the law faculty for both PCLL and the law students. 

Simon Young: We have sort of alternated sometimes with four online courses and we've also had, we call it the hybrid or the mixed teaching where some students are in the class and others are online. Those take getting used to, of course, when I had my first mixed class, I ended up basically doing it all on the computer.

In other words, I had. my computer in the classroom and the other students were in the classroom, but I was speaking to everyone through the computer. that's I think the only effective way to do that, you can't be walking around and pretending that it's still a classroom setting. so we had to get used to things like that.

And how has it affected student learning? Well, I think most students have come to terms with it. I mean, they're, I think quite adapted to the online environment. I think some really like it simply because they don't have to travel all the way to school for class. They just roll out of their bed and turn on their computer, and they're engaged.

Colin Cohen: One thing I noticed as an external examiner - I saw the results last year seem to have slightly fallen in that those students who need help. Are having difficulties and I may be wrong. I'd like to get your views. 

 I remember when I was teaching, knocking on my door around exam time, wanting to see me and be able to sit and down and give them some guidance and how to defeat the examiners.

Simon Young: I completely agree with you, Colin. it's not entirely satisfactory. . You don't have the additional conduct that you get. whether it's during the break. After the class. I think students are also more hesitant to ask questions in the online environment.

So the learning during that classroom setting is not complete. And let me put it that way. I think students, you have to count on the students and this is where it's usually the better students to be proactive, to do follow up emails or to do a one-on-one zoom session with you. Those are the good students.

That's why they continue to do well. But as you say, Colin, it's the weak ones. And I have noticed in my assessment of papers most do well, and that's expected of the JD class, which is what I teach. But surprisingly I'm seeing some really low marks not a lot, but in fact, I failed my first exam student. I won't say which course, but one of my students failed in their exam.

And I was entirely shocked as that never happened before. So you're right. I think the weaker students unless they take proactive steps, they're going to fall behind.

Colin Cohen: I remember when I was at Cambridge, our tutorials, we were spoiled was into the tutor's room five or six of us. The port was poured out and that was a very testing environment, talking the philosophical aspects of law. 

Simon Young: To some extent you can still imitate that with the one-on-one zooms. but again, it requires a student to proactively requests them.

Colin Cohen: Yeah, I'm totally zoomed out. So at the moment disliked zoom intensely. Anyway, today's an all specious day, the 4th of June, and it's this big elephant in the room. So I really need to push you a little bit on that. national security law changes. what's the impact. How's that affected your teaching?

Are there other red lines that, you can't cross at the moment

Simon Young: Yeah, well, so that's a really big topic. Let's start with June the Fourth. Yes. And I've done one interview on this already and I found the questions very difficult to answer. in the past the questions, of course. So what can you say, what can you do tonight in Victoria Park or on the street, or even on your home?

And so I had to really think about this because one has to now consult the national security law, the offence of subversion. Now, look at the elements of that fence. but what I did tell the journalists is the purpose of that offence is not to criminalize commemorations, you know honouring the dead.

If that's your purpose, you cannot be committing any offence. Right. It's only if you have the intention to subvert state power. Right. and so the tricky parts, of course, is all of these other restrictions that we have about gathering together because of the health restrictions. And then also we have the public order restrictions as well. Those I think are more problematic and we saw someone who's arrested already from possibly inciting unauthorized assembly. So there are a lot of traps out there but in principle, someone by themselves, commemorating those who passed away in 1989, holding a candle should not be offence.

Whether you do that at home or outside.

Colin Cohen: Yes. I've been asked to advise people are going onto their balconies and with your mobile phone, putting your light on and putting their lights out. I do not believe that is a breach of national security law. In your own home? freedom of speech.

I do believe that it's still there. I think what concerns me is the freedoms we're all facing. Vis-a-vis the sort of so-called COVID restrictions. For the last 40 days, no local infections. So, is this all reasonable Lord Sumption gave a wonderful podcast whereby he said, well, your civil liberties are being affected with COVID being the excuse.

And at the moment, now it's not there. 

Simon Young: No. 

Colin Cohen: Stopping people just going out to under the basic law, freedom of assembly, freedom of speech is COVID being used as the excuse or as a way out or not. 

Simon Young: Of course there is always some justification for these restrictions, but I think what people need to understand that this is the exception, right? This is not the norm. We keep talking about the new normal restrictions on your rights should not be the norm. It should be the exception.

if we truly believe in the principle of proportionality, once things get better than those restrictions should be relaxed.

Colin Cohen: Yeah, well, I hope so. I don't entirely agree with you. I am interested in seeking your views. we're very fortunate that Hong Kong U alumni, a new Chief Justice, Andrew Cheung, who I taught on the PCLL, believe it or not, have been appointed our first local-trained chief justice.

And yet today in the Times Newspaper, Lady Hale a great jury decides that she's not going to renew or ask for another term. And obviously a source of pride for faculty to have someone as chief justice. But how is he going to sort of cope with these sort of tensions which are now coming out? 

Simon Young: Yeah these are certainly in the most difficult times, I think for the judiciary. and in fact, it's good on him that he's decided to take on this, very challenging role. And this news today, which broke, I think in a way deals kind of a blow to our system of foreign judges, because the question then is what next is this the beginning of a domino effect? I hope it isn't. She did Lady Hale give specific reasons to herself. and hence, hopefully, it's just in respect to her situation. So hopefully it's not a kind of a domino effect because, the court of course has only recently appointed another permanent judge.

And in fact, they'd been down permanent judge for several months. And so it'd been actually relying a lot more on its non-permanent judges. And so the foreign judges are really critical in helping the court in its work. but yes, you're absolutely right. Very difficult times. As to Chief Justice Cheung, excellent choice. I had the opportunity to appear before him before in public law cases.

Very bright man. So I think he'll continue to be exemplary in that way and also really great judicial sort of behaviour and it's always a pleasure to sort of be a heinous court.

Colin Cohen: We had a very good hearing before him in the court of Final Appeal, which resulted in a win very rare, but the recharge is now taking place, it's a criminal case, which is not his area, but he was still asking very pertinent questions. The other elephant in the room. I do want to ask you about is students, how are they reacting to the national security law?

Has it been taught as part of your curriculum? 

Simon Young: Well, it's still playing out. Many of our students, were either may be involved in the protest. they're obviously very sympathetic. To the protestors. So it's very hard for them to sort of swallow, but of course, I think they're trying to learn as much as they can about it in terms of what we have to do in teaching.

There's two things we're actually offering some courses in this area, just in our faculty. We have one colleague who will be teaching a more academic kind of course, but then as universities are expected generally. To teach national security for all students in all disciplines. and so that's now sort of playing out and, and our faculty has been asked to help generate some course material in that regard.

it'd be more sort of basic material. so we have some opportunity to make a contribution there. hopefully, we can present a more full and balanced view of the topic.

Colin Cohen: I find it quite interesting that my six-year-old grandson and a French international school with vermin to have national security for. 

I just noticed something about Hong Kong U, generally speaking. Being a part of the alumni, having taught there. I see it's now ranked 21st best law school globally, that must give some, you know, to yourself and to your Dean.

And think that's important for your recognition. You must have had a bit of a kudos and how do you get higher up those rankings? 

Simon Young: No, it's certainly noteworthy. Of course, these things can change. And the way in which these rankings are done, sometimes it's, maybe a bit superficial and driven by data. So we of course pay attention to them, but nothing rises or falls because of these rankings, but they are very well received simply because they allow us to help attract very good students, we already get the good local students, but it's the international students I think is quite important for them to see these rankings and then also staff as well. And then also just it helps our collaborations. So, those who are also in the top 20 or 25, more willing to sort of collaborating with us, on different activities.

So it is, an accord important kudos. We welcome and we hope that we continue to maintain. 

Colin Cohen: Well, many congratulations. You are still very sought after practising barrister, but how do you balance that with your university commitments? I think I should give a full and Frank disclosure here. One reason why I left the faculty was that I was doing a lot too much practice and I had to make a choice to go to private practice.

And of course, we're in battle in a week's time in the court of appeal to try to change the law. So tell me how you deal with that with the balance between the two it's not easy. I know it from firsthand experience. 

Simon Young: That's right, not easy at all. And well, partly, I was inspired to do this by my own teachers. I had the very great fortune to have teachers at the University of Toronto and at Cambridge who also did similar things, practice plus teaching. And that's what I thought I would want to do as well, but it is very, very difficult.

Plus also a university administration these days also takes away a lot of time. But the university, of course, imposes strict restrictions on how much I can practice. Every case that I do, I have to obtain permission through an outside practice approval mechanism. but I tried to do cases that can help complement my teaching and research.

and in that way, they're sorta symbiotic, and in many ways then, because I have some expertise or knowledge in that particular area, then it helps it facilitates the time I need to maybe prepare for the case. So there are efficiencies that can be made on both ends. Because of course, my exposure to practice gives me a lot of ideas for research and I find I'm a much better teacher.

I find students have a lot of practical questions and I make more and more able to answer them. So it's been a great experience in that sense and being able to do both.

Colin Cohen: Especially the case we are doing there will be sure it's, we'll have an interesting point of law. I won't say anything about it now, but it certainly could be of great interest. I hope to come up to the university and do a joint seminar with you. The other area, which I do want to talk to you about is viz constitutional law, this electoral reforms, the new bit, ordinance, which is now going to be in place, it's going to come into effect with regard to the elections and all the rest as well. Views your comments. How do you feel about this? 

Simon Young: Yeah. So I did a blog post for a German blog on this. And I think generally speaking. I welcome the purposes. I think the dysfunction in Legco has been most unfortunate that we haven't been able to achieve very much with Legco in the last few years. So I welcome that, but at the same time, I wonder if they had to do so much in taking away people's rights to vote.

And also in having a screening mechanism and nomination restrictions. in some ways, I think they have gone a bit too far and particularly you have to remember, we still have a constitutional right to vote and also to stand for elections without unreasonable restrictions. And, in my post, I will question, whether some of the hurdles now or amount to unreasonable restrictions for example The fact that you can't judicially review the decision of this vetting committee, I think is problematic.

I think having the additional two nominations from every sub-sector of the election committee before you can run for Legco is a kind of an overkill, especially when there's going to be a vetting committee, who's going to be looking into, your national security worthiness. 

 Why do you have to also get two additional? So it's going to be difficult to enter politics. It's going to deter people. We might not get the full quality and the talent that we want to have for Legco But I look in the long term because I'm hoping that we'll see how it goes this time.

And the standing committee can relax and hopefully, they will be going forward. The political system that they put in place is not meant to be static. Right. It's meant to be dynamic. And hopefully, we move towards Universal Suffrage, right? Universal Suffrage was not possible last time because you have the opposition.

And if that did not change, it would never have been possible. At least now there's a possibility.

Colin Cohen: Yeah. I totally agree with you. I'm concerned myself over our legal, functional constituency. The first time I ever knew about this China Law Society was when it came up, I had no idea and I still do put it aside. I that's hoping they'll be candidates of stature.

And I think we've been quite lucky in the past that the people who have stood in our constituents have been, I think, been overall good people. But anyway, Hong Kong, been for challenging two years, the social unrest, COVID, significant new legislation, national security governance. how do you assess the future of our city?

Are you optimistic? 

Simon Young: Well, it's changed that we've never had before. And I think if one accepts that there are some things, that have changed and they won't come back. But yet, there are other goals and other things to look forward to. then I think when can accept what's going on, as long as you don't compromise your bottom line, as you say, right.

And for me, of course, our fundamental rights and freedoms, our rule of law. These are the bottom line for me, for the most part. That is still left intact, and it's still strong. so as an academic, I'm always excited and interested in, changes in the law and how the law develops.

So that intrigues me intellectually but of course, will our way of life change it. At this point, not really, unless you're sort of in the pro-democracy camp. Obviously, things have gone very bad there, and that's most unfortunate, but I think also people who hold power, now they will change as well.

And with people changing, on that front, maybe there might be some changes in policy as well.

Colin Cohen: My view is that as long as I'm able to descend anybody and part of being a lawyer has the ability to - prosecution to prove their case. I'm there to defend. I remember when I was at Cambridge, Professor Perry gave this lecture to even Eichmann the worst war criminal, deserved the right to be properly defended.

So back to me. It's when we are prevented from doing our jobs. But we're nowhere near that at the moment. I would hope that we're able to deal with this. Professor, friend Simon, thank you so much for being part of the Boase Cohen and Collins Podcast. Best of luck and looking forward to having you with us again. Thank you very much. 

Simon Young: Thank you very much.