Hong Kong's whale met a sad end, but do we really need a new law?

Our local whale saga, like Moby Dick, ended badly for the whale.

The young Bryde’s whale which had loitered in Hong Kong waters, apparently convalescing after being hit by a propeller, died.

whale carcass AFCD sai kung boat — A whale carcass found in Hong Kong waters on July 31, 2023 is lifted out of the sea. Photo: Kyle Lam/HKFP.

Media reports then promised that there would be a “necropsy,” which is apparently what we call a post mortem these days, at least if applied to large fish. This would determine the cause of death, currently unknown. But this did not stop much speculation that the whale had been hit by another propeller, and that the providers of whale-watching trips were to blame.

This was pure speculation and defied common sense. After all the pilot of a whale-watching boat has one characteristic not shared with the rest of the seafaring population: he is looking out for whales.

Most boats in Hong Kong waters are looking out for other boats, shoals, rocks and such like hazards. A small whale does not count as a hazard. At night, captains use radar, on which whales do not show up. A whale-watching expedition requires daylight and it requires the pilot to look specifically for whales.

Also your whale-watching industry has an important and relevant vested interest: it requires a live whale. I am prepared to believe that indiscriminate whale-watching involving lots of boats getting too close is stressful and unpleasant for the whale concerned. But if you are in the whale-watching business the last thing you want to do is run over the star of the show.

This was not a thought uppermost in the minds of most commentators, who called as one voice for new legislation to protect whales from intrusive spectators.

Members of the public approaching the whale spotted in Sai Kung. Photo: Ocean Park Conservation Foundation, Hong Kong.

This highlighted an interesting point about the way Hong Kong works these days. Before the “reforms” which produced a legislature effectively chosen by the government, passing a new law was a potential problem.

True, the government had a guaranteed majority on almost any topic except the raising of the fixed penalty for illegal parking – an innovation which even the most proletarian-sounding parties resisted. But still, a new law presented problems.

Many legislators in both camps owed their seats to electors, who might be opposed to the new idea. In the sceptical atmosphere at the time the majority of the population might be hostile.

Pro-government legislators could be persuaded to vote for whatever the government wanted, but if it was electoral poison they would certainly not speak up for it. Indeed it was a common complaint among the producers of current affairs programmes in those days that the difficult part of achieving “balance” was finding someone who would defend an unpopular official line.

As relations between the government and its unofficial opposition soured, the obstruction to new legislation became more creative and effective, even though the minority remained a minority.

The result of this was that legislation became a last resort rather than the go-to solution for every problem. Governments avoided controversial offerings until former chief executive Carrie Lam upset the whole apple cart by proposing the extradition bill.

Officials now look back on this period as a sort of legislative Dark Ages, in which it was difficult for them to change the law when they wished to do so. Those of us who are not officials may take a different view. Many changes to the law are not improvements and the increasing volume of legislation may itself be an obstruction to justice.

We have now swung to the other extreme. The new-look legislature understands its constitutional role, which is to provide a fragile fig-leaf for a regime which can do whatever it likes. Whatever you think of a new proposed law, whether to protect whales, reorganise the Chinese University of Hong Kong’s council, or put housing on a golf course, the one thought which does not cross your mind is the possibility that the Legislative Council will reject it. They know their place.

As it happens, I think the proposed whale-protection law is a really bad idea. In the first place whales should already be covered by guidelines on dolphin-watching. In the second it is a waste of time and effort to legislate for things which are seriously unlikely to come up.

The whale story was news because whales in Hong Kong waters are almost unheard of. No doubt the odd one has strayed in and out in the past, but they do not linger. In the last 40 years, to the best of my memory, this is the first story of an immigrant whale.

In fact the only other large fish story which springs to mind was the man-eating shark scare in the early 1990s, in which the boot was on the other fin, as it were. Shark-hunters appeared and were encouraged, though they never caught anything.

Perhaps we all need to remember that there is one thing that fishing stories traditionally have in common: exaggeration.

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