Judge warns ‘Glory to Hong Kong’ protest song ban might not have effect government wants

Mr Justice Anthony Chan says injunction might not be any different from national security law sanction against use of song with seditious intent
He adds ban may also breach double jeopardy rule, but admits if song presented national security threat, that outweighs ‘chilling effect’ of prohibition

Hong Kong courts

Brian Wong

Published: 6:53pm, 21 Jul 2023

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Proposed restrictions on a Hong Kong song popular during the 2019 anti-government protests may not accomplish what the city authorities want to achieve, a judge has told a hearing on the unprecedented application.

Mr Justice Anthony Chan Kin-keung on Friday told the High Court an injunction against “Glory to Hong Kong” might not work differently from the Beijing-imposed 2020 national security law to sanction people who published or promoted the song with seditious intent.

The judge added that the proposed order might also fall foul of the legal prohibition on double jeopardy and subject offenders to punishments for a criminal offence and civil contempt.

But if the anti-government tune presented a national security threat that would outweigh any risk of a “chilling effect” a ban might create, he said.

Senior Counsel Benjamin Yu leaves the High Court after Friday’s hearing on proposed restrictions on the 2019 protest anthem “Glory to Hong Kong”. Photo: Brian Wong

“I would have thought that given the importance of national security, [in] balancing against the chilling effect, I suppose, it wouldn’t be a very difficult exercise to rule in favour of national security,” the judge said.

But Chan, also approved by Chief Executive John Lee Ka-chiu to hear national security cases, added: “That is assuming the injunction is effective and serves the [intended] purpose.”

The court is expected to hand down its ruling next Friday after it hears arguments for and against the application in a three-hour session.

Secretary for Justice Paul Lam Ting-kwok filed the legal bid last month to outlaw the promotion of “Glory to Hong Kong” through “broadcasting, performing, printing, publishing, selling, offering for sale, distributing, disseminating, displaying or reproducing in any way”.

Government officials believe the injunction is needed to convince internet search giant Google to remove content which they said had played a major part in a series of blunders where the tune was played instead of the national anthem “March of the Volunteers” at overseas sports events.

Lam earlier asked anyone who wanted to oppose the proposal to take part in the court proceedings.

But an attempt by jailed activist Chow Hang-tung to join the hearing as a party was rejected by the court on the grounds she lacked legal standing in the case.

The court instead engaged an independent lawyer to provide opinions on the merits of the government’s contentions as an amicus curiae – a “friend of the court”.

Senior Counsel Benjamin Yu, who appeared for the justice minister, said the city leader insisted the song would continue to be used and circulated in ways that undermined national security unless it was banned by the court.

Yu said an injunction would make “a material difference” and highlighted that the city’s airport and railway services had benefited from court orders after they were embroiled in the chaos and violence of 2019.

He emphasised the ban was not intended to target “lawful” journalistic activity or penalise anyone who used the song for innocent purposes.

Yu tried to ease judicial concerns about double punishment and highlighted the courts would still play a gatekeeping role and be able to decide whether to allow the justice secretary to start contempt proceedings against individuals.

But Senior Counsel Abraham Chan Lok-shung, who was asked to give independent views at the hearing, said a ban would add the unnecessary risk of a defendant possibly having to face two trials over a single unlawful act.

Chan argued the move was counterproductive and highlighted the surge of interest in the song after the ban bid was filed.

He added a prohibition on the song could not compel Google or other platforms to censor their content because the government only wanted to punish use of the song for illegal purposes rather than impose a blanket ban.

“How would this order … demonstrate the content is in violation of Hong Kong law? It simply doesn’t serve the function that is hoped for,” Chan argued.

He told the court the national security law was a sufficient deterrent and that the proposed injunction would not add anything of substance to public education or compliance with the law.

“If the government considers it necessary to ramp up measures to promote so-called public awareness or consciousness, generally or specifically in terms of the song, why can’t it do that by enhancing and supplementing its efforts in other areas?” Chan said.

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