Court dismisses government bid to ban protest song ‘Glory to Hong Kong’, questions effectiveness of move
- Ban may not compel internet search giant Google and other technology firms to take down tune, High Court suggests
- Chief Executive John Lee says he has asked Department of Justice to consider follow-up actions as soon as possible
A Hong Kong court has dismissed the justice secretary’s request to ban the promotion of a protest song popular during the 2019 anti-government unrest, questioning the effectiveness of the move.
In blocking the injunction bid, the High Court on Friday said the publication and distribution of “Glory to Hong Kong” was already punishable under existing laws, adding a ban might not compel internet search giant Google and other technology firms to take down the tune.
Chief Executive John Lee Ka-chiu said he had asked the Department of Justice to study the judgment and consider follow-up actions as soon as possible.
“I hope residents understand that we focus on activities endangering national security and those contravening the law to protect the city’s 7 million people,” Lee said. “National security threats can come abruptly. We need to adopt effective measures to prevent, stop and punish such activities.”
A Google spokesman said it had no comment on the issue at the time.
A spokesman for the justice department said it would study the judgment and consider the way forward. “Should there be further information, we will make an announcement,” he added.
Justice minister Paul Lam Ting-kwok lodged the application last month in a bid to bar anyone from promoting the protest tune through “broadcasting, performing, printing, publishing, selling, offering for sale, distributing, disseminating, displaying or reproducing in any way”.
Authorities believed the ban could provide greater leverage in demanding that internet service providers remove content related to the song.
But Mr Justice Anthony Chan Kin-keung said in his 30-page judgment that the government’s expectations were misplaced.
“There may be a misunderstanding here because the injunction would not have such an effect,” said Chan, who was hand-picked by Lee to adjudicate national security proceedings. “It is targeted at the use of the song for unlawful acts.”
It was also difficult to see how the injunction was needed to ensure internet platform operators acted within the law given that they must have access to legal advice, the judge added.
While acknowledging Lee’s view that the song would undermine national security if it were allowed to spread further, Chan rejected the argument that the court should defer to the executive branch on the merits of the intended ban just because it related to the country’s safety.
“It is too sweeping a statement,” he said. “Here, the court is asked to exercise its exceptional powers which affect innocent third parties. The court cannot abdicate its responsibilities.”
Chan pointed to the city’s “extensive and robust” criminal law system in questioning the effectiveness of a civil injunction in deterring offences.
He cast doubt on a ban’s ability to reduce the song’s prevalence in society, adding that people faced far more serious punishment for crimes such as inciting secession, insulting the national anthem and sedition.
Chan also warned the injunction would be at odds with criminal law enforcement and procedures mandated under the national security law.
For instance, people held liable in contempt proceedings were not subject to requirements of bail, while the Beijing-imposed legislation prohibits the temporary release of suspects unless in exceptional circumstances, the court heard.
The injunction might also subject defendants to double punishments by way of prosecution and civil contempt, Chan noted.
But the judge said had it not been for these issues and the injunction’s lack of usefulness, he would have ruled in favour of the government, adding the potential chilling effects of the ban could not outweigh the fundamental importance of safeguarding national security.
Albert Chen Hung-yee, a professor of law at the University of Hong Kong, said there might be room for the government to appeal.
“I think it’s possible that an appeal court may take a different view in the assessment of the ‘utility’ of granting the injunction,” Chen said.
Senior Counsel Ronny Tong Ka-wah said the government would need to respond to the court’s concerns, including a ban conflicting with existing law.
“Or else, it will face huge difficulties in the appeal,” said Tong, a member of the Executive Council, the government’s key decision-making body.
He added that authorities had lodged the application with good intent and the public should not be too harsh on them as litigation always had winners and losers.
Tong stressed that the court’s ruling focused on legal procedures rather than the lawfulness of the song.
“The legal status of the song is to be dealt with in a separate case … The song can still be seen as a tool to contravene the national security law, ” he said.
Ronson Chan Ron-sing, chairman of the Hong Kong Journalists Association, said he was pleased that the judge had recognised that the injunction could deter innocent people from carrying out legitimate activities.
He added that authorities should think twice before seeking to restrict freedom of expression.
Basic Law Committee member Priscilla Leung Mei-fun said the government could consider amending the National Anthem Ordinance to state the legal responsibility of those misplaying the protest song as the national anthem.
She added that the government could also prosecute offenders under the national security law.
“Glory to Hong Kong” was mistakenly played instead of the Chinese national anthem “March of the Volunteers” at several overseas sports events.
After one such blunder during a rugby match in South Korea, city leader Lee ordered a police inquiry into whether any conspiracy to break the national anthem law or other local legislation was involved.
Officials have attributed the errors to top search results on Google for “Hong Kong national anthem”, but the tech giant has refused to manually manipulate its algorithm to ensure only the correct tune appears on the screen.
The anti-government song had gained traction among Hong Kong’s mostly young protesters soon after its creation in September 2019, months into that year’s social unrest triggered by a now-withdrawn extradition bill.
The song contains lyrics which authorities maintain run afoul of national security legislation, such as appeals to people to “Liberate Hong Kong” in a “revolution of our times”. The expression was found to be capable of carrying a secessionist meaning in the city’s first national security trial.
According to the city’s national security police, protesters sung the tune at public occasions at least 413 times between 2019 and 2022, where pro-independence and other seditious chants could also be heard.
People have been prosecuted over the performance of the protest tune in public and for sharing it on social media.
The latest criminal case involved a man, 63, accused of publishing 20 offensive Facebook posts, including two featuring the protest song. He was on Thursday jailed for three months under a colonial-era sedition law.
A man, 27, received the same sentence earlier this month for violating the national anthem law by using “Glory to Hong Kong” in a video that showed a local athlete celebrating his victory at the Tokyo Olympics.