Hong Kong court gives go-ahead for government’s appeal bid against rejected ban on protest song often mistaken for national anthem

Government lawyers earlier applied for review, citing perceived failure to give ‘greatest weight and deference’ to city leader’s decision to label song a national security risk
Proposed injunction centres on 2019 protest tune ‘Glory to Hong Kong’, often mistaken for the national anthem at overseas sports events

Hong Kong courts

Brian Wong

Published: 3:14pm, 23 Aug 2023

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A Hong Kong court has given the go-ahead for the government to appeal against a rejected ban on a 2019 protest song often mistaken overseas for the national anthem.

Mr Justice Anthony Chan Kin-keung on Wednesday said the latest government bid was an attempt to again put forward most of the contentions he had previously rejected, but he agreed that some of the arguments deserved further scrutiny before the Court of Appeal.

“Due to the importance of national security, the law on which is of course a new frontier, I am inclined to grant leave where it can be said that the points are matters of law,” the judge said in his written decision.

The move by the Court of First Instance allows the Department of Justice to renew its request for the injunction on protest song “Glory to Hong Kong”.

Justice department appeals against judge’s refusal to ban ‘Glory to Hong Kong’

Government lawyers earlier this month applied to review the ruling by the lower court, citing what they saw as a failure to afford “the greatest weight and deference” to Chief Executive John Lee Ka-chiu, who deemed the unofficial anthem of the 2019 anti-government protests a national security risk.

The proposed injunction aims to bar anyone harbouring criminal intent from “broadcasting, performing, printing, publishing, selling, offering for sale, distributing, disseminating, displaying or reproducing [the song] in any way”.

The unprecedented bid, if granted, would also cover individuals and bodies that assisted, caused, procured, incited, aided, abetted, knowingly authorised, permitted or allowed others to commit the prohibited acts.

The justice department, on behalf of Secretary for Justice Paul Lam Ting-kwok, also maintained the court should generally accede to assessments made by the executive authorities because of a judicial lack of expertise, sensitive intelligence and institutional capacity on threats to the safety of the country.

Critics of the proposed ban have voiced scepticism that US-based internet giant Google would comply and remove the tune from search results if it came into force. Photo: Shutterstock

The appeal bid had the backing of three pro-Beijing political parties, who urged the government to suppress the circulation of the song as soon as possible.

Chan, approved by Lee to oversee national security proceedings, blocked the government bid last month over concerns of the “lack of effect” of the ban.

He also highlighted potential conflicts with criminal law procedures, such as bail requirements and commencement of legal proceedings within specified time periods.

Authorities insisted the ban would compel internet service providers to remove content related to the anti-government tune.

AmCham hails court rejection of bid to ban ‘Glory to Hong Kong’ protest song

But Chan said the intended order might not have such an effect, a remark that echoed doubts from legal experts as to whether foreign tech giants, such as Google, would comply.

In Wednesday’s decision, Chan noted the justice department had still failed to explain why the court should adopt a lower threshold for imposing an injunction in the very probable absence of any opposition.

He said despite “very careful consideration”, he remained unconvinced by the government’s contention that the court was not well placed to determine the usefulness of the ban.

The judge stressed the injunction had no impact on the legality of online information claiming the protest tune to be the national anthem, which is “March of the Volunteers”.

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

“[The injunction] would not render the misrepresentation per se a crime or a breach of the injunction. The enjoined action had to be one carried out with intent to insult the national anthem.”

But Chan accepted that a higher court should determine whether the chief executive’s decision to categorise the song as a risk to national security was a conclusive piece of evidence in the injunction bid.

He also agreed to have the Court of Appeal examine whether he had, as submitted by government lawyers, underestimated the likelihood that internet service operators would comply with demands from authorities and censor the song if a ban was in place.

A hearing date for the appeal has yet to be fixed.

The Court of First Instance is expected to hear arguments next month concerning the legal standing of jailed activist Chow Hang-tung, who has sought to join the proceedings as a defendant to challenge the government bid.

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