Hong Kong mask ban lifted as court upholds earlier ruling that found it incompatible with Basic Law

South China Morning Post

The government’s request to suspend a ruling that found the ban unconstitutional was denied

South China Morning Post |

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The mask ban has been lifted as a Hong Kong court refused the government's request to suspend an earlier ruling that found it unconstitutional.

The ban on face masks has been lifted after a Hong Kong court refused the government’s appeal to suspend an earlier ruling that found it unconstitutional.

Acting chief judge of the High Court Jeremy Poon Shiu-chor and Court of Appeal vice-president Johnson Lam Man-hon said on Tuesday that although the government appeal was “reasonably arguable”, the authorities had failed to show there was a need to further suspend the lower court’s declaration of unconstitutionality. They therefore refused the application.

But the judges also warned their decision “is not and should not be regarded as an encouragement or condonation for any person to cover their face” in situations previously caught by the ban.

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“We have in no way determined the appeals one way or the other,” Poon wrote. “If one is to continue to wear masks ... in the meantime, he has to face the inherent risk of having acted contrary to the law should the [government] later succeed on appeal.”

The Court of First Instance on November 18 ruled in favour of 25 pan-democrats who applied for a judicial review challenging the constitutionality of the ban on masks that was introduced by the government to quell the anti-government movement roiling the city.

The two judges concluded that the Emergency Regulations Ordinance incompatible with the Basic Law, the city’s mini-constitution, when invoked in times of public danger, as seen in the present case. They also found the Prohibition on Face Covering invalid since it was derived from the ordinance.

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But such declarations were suspended days later as the court understood that the government was expected to appeal.

A notice of appeal was lodged on the following working day, with the government arguing that the court should have allowed the executive branch a broader discretion over emergency laws, in its bid to reinstate the ban.

The two appellate court judges, Poon and Lam, then granted an “interim interim temporary suspension order” and asked for further submissions before handing down their decision on Tuesday.

The Court of Appeal has set aside two days, from January 9, for the appeal to be heard.