Hong Kong judiciary questions vagueness in proposed ban of protest anthem

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25th February 2024 – (Hong Kong) The Hong Kong Court of Appeal expressed apprehensions about the ambiguity inherent in a proposed prohibition on the protest anthem “Glory to Hong Kong”. Despite government efforts to craft a specific exemption for scholarly and journalistic activities, the court’s three judges sought further clarity on Saturday.

Justice Paul Lam, Secretary for Justice, has been asked to refine the injunction he is advocating to halt the dissemination of the song, which has been mistakenly played in place of China’s national anthem at several international sporting events. The Department of Justice, acting on behalf of Lam, is making its second bid to legally restrict the song, which became emblematic during the 2019 demonstrations against the government.

The appellate court’s scrutiny follows an unsuccessful initiative in the lower Court of First Instance, where the proposed ban was deemed contradictory to the tenets of criminal justice and ineffective in its goal to impel internet behemoth Google to block the song.

During the appeal, the justice department asserted that the lower court did not accord sufficient deference to the Chief Executive, John Lee Ka-chiu, who deemed the song’s proliferation a national security hazard, a stance said to be compelling for the judiciary.

Benjamin Yu SC, representing the justice minister, presented the court with a modified version of the ban that explicitly targeted 32 versions of “Glory to Hong Kong” on YouTube, including instrumental and multilingual renditions. The amended order included a clause exempting certain “lawful acts,” but the justices found the language too indeterminate, leaving the public uncertain about which actions might be permissible.

The judges, including High Court Chief Judge Jeremy Poon Shiu-chor, questioned the efficacy of the exemption clause, emphasising the need for legal clarity for the public. Madam Justice Carlye Chu Fun-ling and Madam Justice Anthea Pang Po-kam echoed these concerns, suggesting that vaguely outlined exemptions could lead to confusion.

Abraham Chan SC, participating as a neutral observer, cautioned that enacting a court ban might sow public confusion and hinder the criminal justice system’s effectiveness. He challenged the assumption that usage of the 32 recordings inherently indicated criminal intent, highlighting the potential for ignorance or different interpretations among users.

The court will determine if further hearings are necessary once the Department of Justice delivers a revised draft order by the 11th of March. The bench, led by Poon, anticipates a ruling on the appeal within four months, pending the need for additional proceedings.