Decontainerisation is really under way

You’ll have read in the newspapers about the closure of container yards as a result of orders for goods for Europe and America drying up and of factories in Guangdong closing down. I can confirm that it is true. On my route to town along the Fan Kam Road at least three sites are empty. Another large one at Kwu Tung, once full of giant lorries, lies locked and deserted. Walking our two younger dogs near Lok Ma Chau on Sunday two weeks ago, the huge parking area for trucks was not one-tenth full: well, yes, it was the weekend, but in the boom times drivers rarely had days off.

Which all rather puts into different perspective the stand-off at Fairview Park between the estate management and villagers over use by container vehicles of the bumpy straight road which leads from the expressway to the estate’s front gate. Apparently the developer of Fairview Park in the 1970s kept nearby villagers onside by promising them that they could use the road. Of course no one then dreamt of cross-border juggernauts or of rural land being used for industrial storage. The developer probably envisaged that mainly bicycles and carts, plus the odd motorscooter and Japanese saloon car, would take up the invitation. The heaviest vehicle foreseen would have been an occasional Mercedes owned by a villager newly returned with a fortune (strictly cash) from running a fish and chip shop in suburban Britain or a restaurant in Vancouver’s Chinatown.

Deng Shau Ping and the Court of Appeal changed all that; Mr Deng with his special economic zones and open-door policy provided the demand for container space, the judges with their strict construction of the contents of the schedules to old Crown leases provided the means to supply it: words such as ‘dry cultivation’ and ‘padi’ were descriptive and not restrictive, they said. Welcome to the world of open storage. The surface of Fairview Park Avenue, pounded by heavy wheels, would never be the same.

But things have changed again. Since the opening of Route 3, with its tunnel through the country park making access to town so much easier, the areas between the yards have become gentrified with opulent new housing developments. Now the great recession has quelled demand for places to park containers and lorries. Our port has fallen from first to third in the rankings of the busiest. The future therefore seems to be more luxury housing and the transformation of the northern New Territories into a suburb – but a suburb of Shenzhen rather than of Hong Kong.

Don’t mention the BATNA

There are still some containers around Fairview Park, however, as was evident one recent lunchtime when we popped in to do a bit of shopping there (the supermarket has excellent fresh bread). Security guards had set up barriers along the avenue and were turning back the larger trucks, telling the drivers to use the beautiful, new but longer Kam Pok Road to the highway. Traffic was backed up; there seemed to be a standoff. We were fortunate to escape onto the new road and find that the restaurant on the corner does decent yam cha.

Prospects looked pretty grim but next day the problem was suddenly solved. Lau Wong Fat, executive councillor and king of the NT, known to the rural community as Uncle Fat, had stepped in to broker a settlement. Ironically I heard this whilst undergoing self-improvement at an intensive mediation training course organized by the Bar.

On the course we had to learn a completely new approach to solving disputes and a new language too. In mediation you have to forget the law and concentrate on the parties’ interests. You must first win their respect and trust. This involves being friendly, asking open questions and doing a lot of listening, or giving the parties “air time” as the jargon has it. If they become intransigent, you can “reality check” by asking about their BATNA: the best alternative to a negotiated settlement, which usually involves money, time and worry. And so on.

I don’t suppose that Uncle Fat had received tuition in mediation skills. He probably managed to persuade the disputants to settle their differences without giving them a lot of air time or mentioning their BATNA. But then it must help if you are the local king.

Mediation the Hongkong way

The course was exhausting and demanding but certainly taught me a lot, not just about mediation but also about human nature. The skills practiced, use of body language for instance, can be deployed outside the mediation context. This is just as well because I remain sceptical about the demand for mediators in Hong Kong. Two mediators who attended the same course a couple of years ago and who came along to play roles this time admitted that they had been asked to do not a single mediation.

One suspects that when mediation becomes quasi-compulsory in civil litigation, parties and their lawyers will resist it, perhaps going through the motions to say that they tried or thinking of clever excuses for not trying it. Promoters of mediation claim that it has a 70 per cent success rate elsewhere. It’ll be interesting to see if the percentage is similar here.

There is at least a thirst to learn more about the subject: the 18 original places on the course were quickly filled and I was allowed on only because some extra trainers were persuaded to fly out. Mind you, a third of the original places were snapped up by members of the judiciary wishing to understand mediation better before extolling its virtues to solicitors and their clients. During the course, I asked the judges whether they preferred judging or mediating. They all said judging.

A long innings closes

Happy, our 14 year-old dog whom I wrote about last time, passed away on Sunday 28th March. We had been warned by the vets that she could go at any time and that eventually one of the cancerous growths would affect and then stop her heart. We hoped that this would take weeks and that we would be able to identify when it was happening so as to put her down before she suffered too much.

I was worried that she would die before my birthday celebration in mid-March, or during the mediation course when my mind had to be elsewhere. No need, her timing was perfect. Immediately after the course she went into decline. She had done this three or four times before and recovered, so we waited in hope of another rally. Instead, on the Saturday her condition worsened and we decided that Sunday would be the day we had been dreading for so long, that of the final journey to the vet.

On Sunday they couldn’t give us an appointment until 5.15 in the evening. After lunch Happy summoned her remaining strength to stagger into the garden and collapse under a tree, her breathing laboured. At 4.40 I picked her up, all skin, hair and bones, and laid her in the rear of the hatchback for the final journey. She shifted slightly; I stroked and reassured her; her breathing altered: then I knew that the vet would not be required. Seconds later, her heart stopped beating.

Malcolm Merry is Associate Professor of Law at the University of Hong Kong and a Hong Kong barrister. He is the author of Hong Kong Tenancy Law (4th ed, LexisNexis 2003) and co-author (with Paul Kent) of Building Management in Hong Kong (2nd ed, LexisNexis 2008).