Hong Kong’s government lawyers say court failed to recognise its lack of expertise in national security risks when it refused ban on protest song

Government lawyers say court did not give ‘the greatest weight and deference’ to Chief Executive John Lee when it ruled against a ban on ‘Glory to Hong Kong’ protest song
Justice department outlines its case for an appeal against court decision not to grant injunction against 2019 song and says court lacked national security knowledge

Hong Kong national security law (NSL)

Brian Wong

Published: 9:42pm, 9 Aug 2023

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Hong Kong’s justice department has criticised a court for what it said was a failure to recognise a judicial lack of expertise in assessment of national security risks after it refused to ban promotion of a 2019 protest song often played in error instead of the country’s national anthem.

The Department of Justice on Wednesday explained the legal basis for asking the Court of First Instance’s permission to appeal against its dismissal of a proposed injunction on “Glory to Hong Kong”, which became popular during the social unrest four years ago.

Government lawyers argued in a 20-page draft appeal application published on the department’s website that the court had not given “the greatest weight and deference” to Chief Executive John Lee Ka-chiu when it decided on the merits of the proposed ban.

They said Lee’s determination that promotion of the song would undermine national security was binding and the court should in general accede to the assessment of executive authorities because of the judicial lack of sensitive intelligence, institutional capacity and expertise on threats to the country’s safety.

The Department of Justice has outlined its arguments as is seeks to quash a decision by a court not to ban the protest song “Glory to Hong Kong”. Photo: Handout

“Where it is the assessment of the executive authorities that a proposed measure is necessary or may be effective or have utility [in safeguarding national security], the court should accord due weight and deference to such assessment and grant the injunction unless the court is satisfied that it shall have no effect,” the department’s filing said.

“The learned judge was wrong to hold that the court is in a proper position as if it were in as good a position as the executive authorities to make an assessment in this respect.”

The justice department, on behalf of Secretary for Justice Paul Lam Ting-kwok, earlier announced its intention to appeal the court’s decision amid calls from Beijing loyalist politicians to suppress the song’s circulation as soon as possible.

The unprecedented ban, if granted, would bar anyone harbouring criminal intent from “broadcasting, performing, printing, publishing, selling, offering for sale, distributing, disseminating, displaying or reproducing in any way” the song.

The order would also cover individuals and bodies that assisted, caused, procured, incited, aided, abetted, knowingly authorised, permitted or allowed others to commit the prohibited acts.

Authorities insisted the ban would give the government greater leverage in its demands that internet service providers remove content related to the song.

But legal experts have suggested foreign tech giants such as Google were unlikely to comply.

Mr Justice Anthony Chan Kin-keung, approved by Lee to oversee national security proceedings, blocked the government bid last month over fears of the ban’s lack of effect.

He also highlighted potential conflicts with criminal law procedures, such as bail requirements and commencement of legal proceedings inside specified time periods.

Chan’s ruling rejected the government’s argument that the court should act as it was instructed.

He said he could not abdicate his judicial responsibilities especially when innocent third parties could be affected.

But the department’s lawyers insisted the “overriding principle of national security” was of paramount importance, which a judge had to take into account when discharging his constitutional duty to enforce the Beijing-imposed national security law.

They argued Chan had set the threshold for granting an injunction too high by requiring the authorities to show the legal change would provide a greater deterrent than that already available under existing criminal law.

The court should have been satisfied the proposed ban could assist criminal law enforcement as long as it was not proven that it would have no effect, the government legal team said.

Government counsel also highlighted the difficulties and time required to investigate offences related to the song in suggesting a civil injunction could provide additional deterrence on top of existing criminal sanctions.

But the government team argued that an injunction, a civil remedy, was not comparable to a conviction for a criminal offence and that the two would not be in conflict.

They added the legal prohibition on double jeopardy – trial for the same offence twice – would not be infringed because judges could still disallow parallel proceedings against people that arose from a single unlawful act.

Government lawyers also dismissed the judge’s warning of a potential chilling effect that could be created by a ban.

They said the government only wanted to “amplify the same deterrent effect under the criminal law”.

A hearing date has yet to be fixed.

Standard civil procedures require anyone asking for an appeal against a temporary order to first get permission from the presiding judge.

But a party can still take their grievance to a higher court even if the first attempt fails.