Hong Kong mask law enacted to ‘save as many young people as possible’ from ruining their life with lengthy jail sentences, barristers tell court
- Benjamin Yu, responding to judicial review applications against emergency law, says young protesters have been emboldened when covering their face
- If it deters some, that may be life-changing – instead of being arrested, sent to jail and their whole life affected, they can get on with their life, Yu adds
Barristers defending the Hong Kong government’s mask ban told a court on Friday the regulation was meant to “save as many young people as possible” and change their lives during the increasingly violent anti-government protests rocking the city.
Benjamin Yu SC was responding to two judicial review applications from 24 pan-democrats challenging two laws that had effected a ban on wearing masks since October 5.
But honorary senior counsel Johannes Chan Man-mun, who represented all but one applicant, countered that the government had failed to explain why it was necessary to impose a blanket ban on wearing masks and turn it into a criminal offence.
“We are not against emergency powers per se but what kind of emergency regime we should have,” Chan said.
“At the end of the day, the question before your lordship is would the adverse impact of the regulation outweigh the benefit?”
Justices Anderson Chow Ka-ming and Godfrey Lam Wan-ho will hand down their judgment on a later date.
The high-profile constitutional challenge centred on the colonial-era Emergency Regulations Ordinance and its derivative the Prohibition On Face Covering Regulation, introduced by the government on the grounds of “public danger” in bid to quell the wave of protests sparked by the now-withdrawn extradition bill.
Speaking on the second day of the hearing at the High Court, Yu said the ordinance was invoked at a time of escalating violence, with some protesters emboldened when wearing a mask.
There was also a serious concern over growing numbers of vulnerable young people taking part in the protests, as reflected by the arrest figures.
Given that Hong Kong was experiencing a situation of public danger, Yu argued there was a heightened need for verification of identity and early intervention in the build up to public order events before participants formed into amorphous groups.
Hence the government introduced what he described as an “appropriate and essential” ban that was plainly connected to its objective of “protection and prevention of unlawful conduct which may turn violent”.
“The point of the regulation is to deter and save as many young people as possible – perhaps not just young people but people who may be lured into breaking the law,” Yu said.
“If it deters some … that may be life-changing. Instead of being arrested, sent to jail and their whole life affected, they could proceed with their life.
“Is it too much of a sacrifice for someone who wants to wear a mask?” he said. “The relatively minor infringement on people wearing a mask in these circumstances is justified.”
Addressing the applicants’ concerns that some peaceful participants may not want to show their face during rallies on certain issues – such as gay rights out of fear of revealing sexual orientation – Yu suggested these people could hold up placards to block their faces.
The counsel also argued there was a need to restore peace and preserve the rule of law, a valuable cornerstone of society that was undermined every time when people flagrantly broke the law and got away.
“It is not a question of police wanting more power – of course they want more power – but rather there is a need to return peace and order to our community, which is necessary to enjoy fundamental freedoms,” he said as he explained the Hong Kong Bill of Rights and the city’s mini-constitution, the Basic Law, only protected peaceful assemblies.
Yu further pointed out there was nothing in the Basic Law that prohibited the Legislative Council from authorising Chief Executive Carrie Lam Cheng Yuet-ngor and her cabinet from making regulations in times of emergency and public danger, and that the ordinance had repeatedly showed its usefulness since it was enacted in 1922.
“The government will review its position if the public danger goes away,” Yu said.
“If the administration crosses the mark, the court is there to check it.”
