Hong Kong court voices concerns over lack of clarity in proposed ban on ‘Glory to Hong Kong’ protest song, despite ‘lawful acts’ exemption
- Court says parts of draft ban ambiguous and fail to meet required legal standards, asking justice chief Paul Lam to re-amend injunction order
- Ongoing appeal is second attempt by authorities to outlaw protest song, which has been mistaken overseas for China’s national anthem
The appeal is the second attempt by the Department of Justice, on behalf of Lam, to outlaw the song composed during the 2019 anti-government protests.
In its appeal, the justice department has argued that the lower court failed to offer “the greatest weight and deference” to Chief Executive John Lee Ka-chiu, who pronounced the song’s circulation a threat to national security in a move that was binding on the judiciary.
Benjamin Yu SC, for the justice minister, on Saturday submitted at the appellate court’s request an amended version of the intended ban, which specifically targeted YouTube videos of 32 renditions of “Glory to Hong Kong”, including instrumental covers and versions sung in foreign languages.
The revised order under review also contained an exemption clause setting out the “lawful acts” that would not be sanctioned, namely academic research and journalistic activity.
Yu contended it was “beyond controversy” that any use of the 32 recordings would be illegal, saying “Glory to Hong Kong” was designed to be used as an “army song” to arouse anti-government sentiment at protests.
But the bench remained unconvinced, as judges highlighted various parts of the draft order which they found to be ambiguous and had failed to meet the required legal standards.
High Court Chief Judge Jeremy Poon Shiu-chor pointed to the exemption clause and stressed the public could not be left to speculate what acts might be safe.
“Is it sufficient or adequate enough for the purpose of certainty and informing a reader as to what he should or should not do? Lawful activity or lawful act does not add anything further, because without an injunction you can do whatever you want,” he said.
The senior counsel conceded that his team had failed to come up with other reasonable excuses other than the two specified in the amended terms.
Madam Justice Carlye Chu Fun-ling noted that the provision which purported to exempt “lawful acts” not identified by the authorities might create confusion as to what actually fell within the safety net.
Fellow Madam Justice Anthea Pang Po-kam added the clause would be meaningless if an activity sought to be exempt was already stated to be lawful.
Abraham Chan Lok-shung SC, who joined the proceedings as an impartial party, said a court ban on the song would risk bewildering the public and obstructing the smooth operation of the criminal justice system.
He argued that the chief executive’s binding decision to label the song a national security threat was insufficient to prove that anyone using the 32 videos must harbour criminal intent.
“It is not so straightforward to say that the only possible intent could have been seditious. One can be ignorant [or] with the intention to denigrate the national anthem. One can simply be a teenager in jest,” Chan said.
The lawyer also warned against permitting the justice secretary to reformulate arguments on appeal, stressing that “there is no special treatment given to applicants representing government departments”.
The appellate court will decide whether additional hearings are necessary after the Department of Justice submits a re-amended draft order by March 11.
Poon said the bench was expecting to rule on the appeal in four months’ time after the re-amendment if no further sittings were called for.
