Last week, Hong Kong judge Anthony Chan delivered a decision that was reported around the world. At issue was whether a popular pro-democracy song, Glory to Hong Kong, should effectively be banned. Argued on July 21, the case was decided just a week later, on July 28.
Hong Kong secretary for justice Paul Lam initiated the case, naming no individual defendants. Instead, they were simply listed as all “persons conducting themselves” in the way that Lam wanted the court to prohibit.
The defendants “were not represented and did not appear”, but members of the Hong Kong bar acted as friends of the court, suggesting other factors for consideration.
Chan’s decision to reject Lam’s application made international news because the pro-Chinese government in Hong Kong seldom suffers any judicial reverse and because the decision was based partly on concerns for freedom of expression.
Chan pointed out that under Hong Kong’s national security law (NSL), courts must “effectively prevent, suppress and impose punishment for any act … endangering national security”. But it also “imposes a duty on authorities (including the court) acting to safeguard national security, to ensure that human rights ‘shall be respected and protected’”. He said it’s never easy to balance “the important countervailing interests of society”.
What the judgment refers to as “the Song” was initially posted on YouTube, quickly spreading to other platforms. By June 1, the nine videos of it on YouTube had 6-million views, while different versions appeared on 19 other channels. Some comments on the videos advocated for the separation of Hong Kong from China.
Glory to Hong Kong was played extensively during the huge 2019-2020 demonstrations against proposed laws for Hong Kong and, on some platforms, it is titled “Hong Kong national anthem”. It has even been played instead of the national anthem at several international sports events.
“Such incidents were highly embarrassing and no doubt hurtful to many people of Hong Kong
— Hong Kong secretary for justice Paul Lam
Chan noted Lam’s claim: “Such incidents were highly embarrassing and no doubt hurtful to many people of Hong Kong.” But there have been relatively few convictions as so many people disseminating the song don’t use their real names, Lam added.
The injunction he wanted would have prevented anyone — the whole world in fact — from broadcasting or reproducing the song, its lyrics or melody, including on the internet, with the intention of inciting secession.
Some news reports said Lam’s application was aimed mainly at addressing Google’s refusal to remove the song from search results; it is apparently already unavailable on Spotify, iTunes and Facebook, among other platforms.
Journalist organisations complained that Lam’s application, if successful, would create an impossible situation for news coverage, and so the petition was modified to make clear that “lawful acts” related to news articles, in or outside Hong Kong, would not be affected.
Lam said that, if granted, the court’s finding would be published on government web pages, with a notice at the police headquarters that included a QR code linked to the order.
An ‘exceptional course’
But Chan cautioned that while he had power to grant an injunction “against the world”, it was an “exceptional course to take”, and the court had to safeguard “the fundamental rights of third parties who may be adversely affected”.
He concluded that, given the NSL’s “extensive and robust” security provisions, the injunction sought by Lam would make little difference, while there was “a real risk that [it] would conflict with the criminal law … in terms of enforcement”.
In addition, freedom of expression, though not absolute, is “a highly important right” that may be restricted only if clearly justified. While the injunction was aimed at criminal acts, “innocent parties” might feel compelled to refrain from “lawful and constitutionally protected conduct” for fear of the severe consequences if they made a mistake about what was allowed.
It’s a fascinating decision; while the judge picks a delicate path through Hong Kong’s legislative and political minefield, readers won’t miss the irony that colonial-era laws on sedition, still in place and referring to “Her Majesty” and “Her dominions”, are used to justify applications such as this.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.