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Secretary For Justice v Persons Conducting Themselves In Any Of The Acts Prohibited Under Paragraph 1(A), (B), (C) Or (D) Of The Indorsement Of Claim

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date28 July 2023
Neutral Citation[2023] HKCFI 1950
Subject MatterCivil Action
Judgement NumberHCA855/2023
HCA855/2023 SECRETARY FOR JUSTICE v. PERSONS CONDUCTING THEMSELVES IN ANY OF THE ACTS PROHIBITED UNDER PARAGRAPH 1(a), (b), (c) OR (d) OF THE INDORSEMENT OF CLAIM

HCA 855/2023

[2023] HKCFI 1950

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 855 OF 2023

____________________

BETWEEN
SECRETARY FOR JUSTICE Plaintiff
and
PERSONS CONDUCTING THEMSELVES IN ANY OF THE ACTS PROHIBITED UNDER PARAGRAPH 1(a), (b), (c) OR (d) OF THE INDORSEMENT OF CLAIM Defendants

____________________

Before: Hon Anthony Chan J in Chambers
Date of Hearing: 21 July 2023
Date of Decision: 28 July 2023

________________

DECISION

________________

1. This is the application of the Secretary for Justice (“SJ”), acting as guardian of public interest, for an interlocutory injunction in aid of criminal law to prohibit 4 categories of acts (“4 Acts”) set out in the Summons filed on 5 June 2023. The 4 Acts relate to the song widely known as “Glory to Hong Kong”[1] (“Song”).

Introduction

2. In light of the public interest in these matters, it should be made quite clear that the order sought by the SJ does not enjoin lawful activities, nor does it constitute a blanket ban of the Song. Three of the 4 Acts constitute serious criminal offences which undermine national security (arguably, so does the 4th Act). I have no doubt that Hong Kong people are generally law abiding and would not even contemplate the commission of a serious criminal offence.

3. It should also be made clear that, although it is understandable that some people of Hong Kong may be concerned that the Injunction would make an inroad to their freedom of expression, in truth it is not intended to do so for the simple reason that the 4 Acts are criminal or unlawful activities. However, part of the task of the Court is to ascertain whether unintended restriction on freedom of expression may result if the Injunction is granted.

4. It should once again be pointed out that there is no absolute freedom of expression. Just as no one is free to defame another, the right to free expression is always confined within legal limits. Commission of a crime goes outside such limits.

The role of the Court

5. Pursuant to Articles 3 and 8 of the Law of the People’s Republic of China on Safeguarding National Security in Hong Kong Special Administrative Region (“NSL 3 and 8”), the Court has the duties to “effectively prevent, suppress and impose punishment for any act or activity endangering national security in accordance with this Law and other relevant laws” (NSL 3) (emphasis added).

6. It may be said that such duties of the Court naturally arise from the importance of national security. National security goes to the stability and prosperity of Hong Kong, the core interests of Hong Kong people. The Court would accord significant weight to matters of national security.

7. On the other hand, the Court must apply the law, which had been augmented by the enactment of NSL. In particular, NSL 4 also imposes a duty on authorities (including the Court) acting to safeguard national security to ensure that human rights “shall be respected and protected”[2].

8. It is never an easy decision to make in balancing the important countervailing interests of society. It is a task which this Court must discharge to the best of its ability bearing in mind the guidance of the Court of Final Appeal in HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33, [29] : “… the legislative intention is for the NSL to operate in tandem with the laws of the HKSAR, seeking ‘convergence, compatibility and complementarity’ with local laws …”.

Issues

9. The central issue before the Court is whether the exceptional jurisdiction of the Court in granting an interlocutory injunction in aid of criminal law should be exercised, taking into account its unusually extensive reaches. To resolve this issue, the Court is required to look into and take into the balance a number of sub-issues.

10. The main sub-issues include whether the Injunction: (1) will be effective or of utility in aid of the criminal law; (2) may conflict with the criminal law for which purpose it is sought to be granted; and (3) is sufficiently certain in its terms and is proportionate due to the potential intrusion to the right to free expression.

Material facts

11. The facts are set out in an affidavit of Superintendent Margaret Wong filed on 5 June 2023 and an affirmation of Chief Inspector Billy Chan dated 13 July 2023. I shall summarize the material as follows.

12. In August 2019, amidst the violent protests in Hong Kong, which were mobilized via internet platforms, the Song first emerged in the form of a video publicly accessible on YouTube. The link to that video was in turn posted on an online discussion forum which was one of the platforms where strategies for public order events were discussed. The Song was described as an “army song”[3] and an “anthem”. The post received much support and comments advocating the separation of Hong Kong from the PRC were aroused.

13. Shortly thereafter, variations of the Song emerged on YouTube which attracted a large number of views and comments, some of which advocated the separation of Hong Kong from the PRC.

14. In September 2019, the Song was released on major online music platforms. By 1 June 2023, there were no less than 9 videos of the Song on YouTube. They had attracted 6 million views and over 200,000 “likes”. A search on YouTube of the Song revealed that there were 19 other channels publishing different variations of the Song. Each of the videos on the channels is capable of being “shared”. It is of course not possible to know how many of the viewers harboured ill intention or how many were mere curious “net surfers”.

15. There can be little doubt that the Song was used and used effectively by people with intention to incite secession and/or sedition. The Song was sung by protesters in at least 413 public order events between 2019 and 2022 during some of which “Hong Kong independence” or other seditious slogans were chanted. On some occasions, violence, vandalism, unlawful occupation of public roads, putting up barricades to obstruct traffic and attacks of police officers took place whilst the Song was sung.

16. Equally, there can be little doubt that the Song was designed to arouse anti-establishment sentiment and belief in the separation of Hong Kong from the PRC. This is evident from the comments attracted by the Song, the description of it as an anthem of Hong Kong, the use of the Song in public order events, as well as some of its lyrics. In particular, the reference in the lyrics to “liberate Hong Kong, revolution of our time”[4] had been held by the Court to be capable of inciting secession[5].

17. Various versions of the Song available on YouTube are entitled “Hong Kong National Anthem”[6]. There is reasonable ground to believe that the existence of these videos had contributed to the playing of the Song erroneously as the national anthem in international sports events. Such incidents were highly embarrassing and no doubt hurtful to many people of Hong Kong.

18. The evidence is that the Song remains freely available on the internet and prevalent. Ironically, the publicity over this application has apparently generated additional interest in the Song.

19. There has been a small number of arrests and successful prosecutions in relation to unlawful use of the Song :

(1) On 26 July 2021, a man was suspected of replacing the audio part of a section of a video recording the Olympic award ceremony of Cheung Ka-long where the national anthem was played with an audio of the Song and posted the doctored video on YouTube. He was arrested and charged with, inter alia, insulting the national anthem, contrary to s.7 of the National Anthem Ordinance (Instrument A405). He was convicted of the charge after trial on 5 July 2023. He was subsequently sentenced to 3 months of imprisonment;

(2) On 21 November 2022, a man was arrested for publishing a number of seditious articles online, including re-posting a video about the Song being played as the national anthem for Hong Kong during a Rugby event in South Korea, with an expression of appreciation to South Korea for “recognizing the national anthem of Hong Kong”. He was subsequently charged with “doing an act or acts with seditious intent”, contrary to ss.9 and 10 of the Crimes Ordinance, Cap 200. He pleaded guilty to the charge and was sentenced to 8 months’ imprisonment;

(3) On 28 March 2023, a woman was arrested for publishing a number of seditious articles online including re-posting (a) 2 videos about the Song being played as the national anthem of Hong Kong during the said Rugby event in South Korea, with an expression of appreciation to South Korea for “recognizing the national anthem of Hong Kong”; and (b) a video about the playing of the Song as the national anthem of Hong Kong during the Asian Classic Powerlifting Championship. She was charged with similar offence as the second case above. She pleaded guilty to the charge and was sentenced to 4 months’ imprisonment.

20. One of the reasons, if not the prime reason, for the small number of cases brought before the Court, is the difficulty and time required for investigation, eg, many of the people who disseminate the Song used pseudo-names.

Injunction sought

21. Against the above backdrop, the SJ seeks an interlocutory injunction in the following terms:

“1. Until trial or further order of the Court, there be an injunction restraining the Defendants and each of them, whether acting by themselves, their servants or...

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