Published: 01:41, August 1, 2023 | Updated: 15:37, August 7, 2023
High Court judge erred in refusing to ban protest song
By Lawrence Ma

Hong Kong High Court Judge Anthony Chan Kin-keung made an error on Friday when he refused a request by the government of the Hong Kong Special Administrative Region to ban the protest song Glory to Hong Kong, which was widely circulated during the city’s social unrest in 2019.

In his ruling on an injunction filed by the SAR’s secretary for justice to prohibit the song, the judge began with a wrong understanding of the government’s move when he said the justice chief “does not enjoin lawful activities, nor does the injunction constitute a blanket ban” on the song. But, the injunction is aimed at prohibiting any party from broadcasting, performing or publishing the lyrics of the song with the intention to commit secession. However, Judge Chan said, “there can be little doubt that the song has been effectively used by people with the intention” to advocate “Hong Kong independence”. So, how can the song be played lawfully without intent of secession?

The SAR government says that, without an injunction, the protest song would continue to be played and could not be effectively restrained. So if an injunction could provide greater deterrence than what the city’s criminal law already imposes, then it’s necessary. The SAR government is seeking a civil injunction to support the existing criminal law that punishes people who have committed a criminal act. But through a civil injunction, the government could prevent or pre-empt criminal acts before they are committed.

Judge Chan then examined the criminal offense of secession and found it carries a sentence of life imprisonment. He concluded that if people still risk being put behind bars for a long time and continue to play or broadcast Glory to Hong Kong, they would continue to remain undeterred by an injunction. So, it’s “useless and unnecessary”.

The SAR judiciary, under the National Security Law for Hong Kong, has a duty to “effectively prevent, suppress and punish” those who endanger national security, which the judge himself acknowledged

This logic is plainly wrong. Without an injunction, if someone broadcasts or sings the song, he or she will be arrested, charged, put on trial and face the consequences — a process that could take months, if not years. With an injunction in place, any person committing the offense would be swiftly dealt with — detained, brought before a court for contempt, and immediately sent to prison for breaching the injunction. Justice comes swiftly, and any criminal act would be dealt with more efficiently.

In his judgment, Justice Chan wrote that, “There’s little in specifics on how an injunction could reduce prevalence of the song”, and “it’s unlikely that offenders will be deterred by an additional injunction”. But common sense tells us that if a person knows fully well that he or she would be imprisoned for violating the injunction — in a much shorter time — wouldn’t that have a deterrent effect?

It’s also wholly inappropriate for the judge to say that a “more effective tool (to discourage people from broadcasting the song) may be education”. Undoubtedly, the Education Department has a role to play under the National Security Law for Hong Kong and, by saying it’s their problem, the judge’s mindset is clear — evading responsibility. The SAR judiciary, under the National Security Law for Hong Kong, has a duty to “effectively prevent, suppress and punish” those who endanger national security, which the judge himself acknowledged. But one can only see in his judgment that this duty has not been fulfilled, even though the judge openly said, “There can be little doubt that the song is designed to arouse anti-establishment sentiment and belief in seceding Hong Kong from the People’s Republic of China.”

Judge Chan was also wrong in distinguishing other public injunction cases from this case and choosing not to follow suit. The SAR government had cited a number of public injunction cases, including one involving a defendant who had unlawfully doxxed police officers and members of their families, in which the High Court granted an injunction against the public at large. Judge Chan said those cases had occurred under “extreme circumstances” in 2019, when Hong Kong had come under attack by black-clad rioters. He said a public injunction should only be granted in times of chaos, although he acknowledged in his ruling that the protest song was extremely popular — with no less than nine videos of the song shown on YouTube, attracting 6 million views and more than 200,000 “likes”. There were also 19 other channels publishing different variations of the song. The judge was totally aware that the song was titled “Hong Kong’s national anthem” and had been erroneously and repeatedly played as the SAR’s “national anthem” at international sports events. Such incidents were highly embarrassing to many Hong Kong people and may have hurt their feelings. Yet this was considered not serious enough; the judge’s view was quite awkward and twisted.

The SAR government should now consider appealing Judge Chan’s ruling, and the Court of Appeal should correct these errors in judgment.

The author is chairman of the Hong Kong Legal Exchange Foundation and a member of the Election Committee (Legal Sector).

The views do not necessarily reflect those of China Daily.