Access to Public Information, Freedom of Association and Assembly / Protests, National Security, Political Expression
Law Offices of Ghazi Suleiman v. Sudan
On Appeal Expands Expression
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The Hong Kong Special Administrative Region Court (Court of First Instance) rejected the request of the Secretary of Justice and Hong Kong authorities to prohibit the use of a song titled “願榮光歸香港” or Glory to Hong Kong, which was associated with pro-independence sentiments and widely used during protests. The Secretary of Justice filed an Interlocutory Injunction-in-Aid of Criminal Law, contending that the song constituted serious criminal offenses undermining national security. The Court, led by Justice Anthony Chan, deliberated on the exceptional jurisdiction of the Court in granting such an injunction, considering its effectiveness, potential conflicts with criminal laws, and its impact on freedom of expression. The Court expressed skepticism about the utility of the injunction, highlighted concerns about conflicts with the National Security Law, and ultimately concluded that, with qualifications, the injunction was not necessary and tipped the balance unfavorably against individual rights of freedom of expression, leading to the dismissal of the application.
In August 2019, during a protest in Hong Kong, a song emerged as a video on YouTube. The song was first described as an ‘Army song’ and the ‘Hong Kong Anthem’ was posted on various discussion forums where the discussions concerned the public order in Hong Kong. The song was widely supported by the protestors and was considered to advocate Hong Kong’s separation from the People’s Republic of China. [para. 12]
By September 2019, the song was released on a primary online music streaming platform, titled ‘Glory of Hong Kong’. Between 2019- 2022, the Song was used by the protestors in approximately 413 public order events, wherein the slogan for Hong Kong’s Independence was raised along with other alleged seditious slogans. Between 2021-2023, the Hong Kong authorities also arrested and prosecuted some people who used the Song during protests following alleged vandalism, unlawful occupation of public roads, and alleged attacks on police officers Till June 1, 2023, there were a total of 9 videos of the Song titled ‘Hong Kong National Anthem’ on YouTube which had attracted 6 million views and over 200,000 likes. [para. 14-15]
On June 5, 2023, the Secretary of Justice filed an Interlocutory Injunction-in-Aid of Criminal Law before the Court of First Instance seeking an injunction and an interim injunction to restrain four classes of acts concerning a song commonly known as ‘願榮光歸香港’ or ‘Glory to Hong Kong’, contending that the song constitutes serious criminal offenses that undermine ‘national security ’ under the Law of the People’s Republic of China on Safeguarding National Security in Hong Kong Special Administrative Region (‘National Security Law’). The Secretary of Justice further alleged that the song also violated Section 1o of the Crimes Ordinance, Cap 200, and Section 7 of the National Anthem Ordinance. The injunction sought a restraining order from broadcasting, performing, printing, publishing, selling, distributing, displaying, or reproducing the song with the intent to incite secession or seditious intention, as defined by national security laws and the Crimes Ordinance in Hong Kong. The prayer was extended to prohibiting assistance, procurement, incitement, or authorization of such acts, including any adaptation of the song with substantially similar melody and/or lyrics. [para. 2, 14, 24]
Justice Anthony Chan delivered the judgment. The primary issue before the Court was to determine whether the exceptional jurisdiction of the Court in granting an interlocutory injunction in aid of criminal law should be exercised, taking into account its far reach [para. 9]. To address the same, the Court framed sub-issues which inter alia include, whether the injunction will be effective or of utility in aid of the criminal law; whether the injunction may conflict with the criminal law for which purpose it is sought to be granted; and whether the injunction is sufficiently certain in its terms and is proportionate due to the potential intrusion to the right to free expression [para 10].
The Court, before adjudicating on the issues, observed that there is no absolute freedom of expression. Just as individuals are not permitted to engage in defamation, the exercise of the right to free expression is constrained within the limits defined by the law.
On the scope of the injunction, the Court noted that it is intended to be contra mundum (against the world) considering that the Defendants were named as ‘Persons conducting themselves in any of the [4 Acts]’ and their address was referred to as ‘unknown location within Hong Kon.’ Thus, the Court noted that if the injunction is granted, it would apply to everyone in Hong Kong. [para. 34-35] The Court acknowledged its authority to grant an injunction contra mundum under Section 21L of the High Court Ordinance, Cap 4. However, it emphasized the exceptional nature of such an injunction, as the Court typically operates in personam, and final injunctions usually bind only the parties involved in the proceedings. The Court noted that granting an injunction contra mundum, even if applied to the entire population of Hong Kong, is an extraordinary measure that should be exercised with caution. It highlighted the fundamental principle of justice that individuals must receive proper notice of legal proceedings to ensure their right to be heard. [para. 36-37]
The Court acknowledged the Chief Executive’s binding certification, according to National Security Law, that the four Acts posed national security threats. Despite the certification, the Court rightly asserted its authority to decide on the injunction, considering the extensive and robust criminal law regime under National Security Law, the Crimes Ordinance, and the National Anthem Ordinance. Emphasizing Hong Kong’s return to normalcy since the National Security Law enactment, the Court questioned the necessity of invoking civil jurisdiction to aid criminal law. It referred to Kerr LJ’s discussion in Portsmouth City Council v Brian James Richards,(1989) emphasizing the test of necessity or utility: whether the injunction would have offered greater deterrence than existing criminal law and the ease of enforcement. The Court rejected the notion that it should defer entirely to executives on national security matters, asserting its role in assessing the utility of the injunction for the prevention and suppression of offenses. [para. 45-51]
The Court, recognizing the exceptional power it wielded affecting innocent third parties, underscored its responsibility to scrutinize evidence before deciding. The Court evaluated the Secretary of Justice’s six contentions on the utility of the injunction, expressing skepticism about its effectiveness in reducing the prevalence of the Song and agreeing with the emphasis on education over legal measures for misconceptions. It concluded that much of the Secretary of Justice’s argument rested on effective enforcement and found little evidence supporting how the injunction would assist. [para. 55-60] The Court emphasized that contempt proceedings would have been based on the commission of criminal offenses, making the injunction redundant. It addressed concerns about aiding and abetting in para 1(d) and stressed the need for the Secretary of Justice to prove offenses for enforcement. The Court distinguished the present circumstances from cases involving bye-law breaches in 2019, highlighting the different penalties and dissimilar situations. [MRT Corp Ltd v Unknown Persons (2019); and Airport Authority v Persons Unlawfully and Wilfully Obstructing or Interfering with the Proper Use of the Hong Kong International Airport (2019)] [para. 61-62]
Regarding the misunderstanding in para 56(6), the Court clarified that the injunction targeted the Song’s use for unlawful acts, not its content violation. The Court questioned the necessity of the injunction concerning Internet Platform Operators, asserting that they should be aware of their legal duties and have access to legal advice, casting doubt on the injunction’s contribution to criminal law deterrence. The Court briefly mentioned the technical point on the ease of proving a breach under para 1(d) but asserted that this fine distinction wouldn’t impact the application’s outcome. [para. 63-64]
The Court acknowledged the submission of Mr. Chan (amici curiae) on potential conflicts and inconsistencies between the requirements of the proposed injunction and the substantive and procedural aspects of the National Security Law regime. Emphasizing the need for the Court to assess the compatibility and workability of the civil enforcement process, the Court outlined key features of the National Security Law regime, including the requirement for the Secretary of Justice’s written consent to commence a prosecution for NSL offenses, the presumption against bail, specific investigatory powers conferred to the Police National Security Department, the Secretary of Justice’s authority to issue a certificate directing trial procedures, and circumstances where the Office for Safeguarding National Security may directly exercise jurisdiction over a case. [para. 66-67]
The Court expressed uncertainty about how enforcement actions in the civil domain against alleged injunction breaches would align with these National Security Law requirements and mandated procedures. It highlighted potential conflicts, such as the contradiction with National Security Law 41, which mandates National Security Law offenses to be tried on indictment, and the possibility of inconsistency when the Court was asked to determine acts in breach of National Security Law 20 in its civil jurisdiction, duplicating legal and factual determinations in criminal proceedings. The Court noted another inconsistency concerning prescribed periods for prosecution under specific offenses and the absence of such limitations in contempt proceedings, suggesting a potential override of legislative periods by the proposed injunction. The Court questioned the validity of the Secretary of Justice’s submission that enforcement means can be chosen to protect national security, emphasizing the need to address conflicts if the injunction was enforced with contempt proceedings. [para. 68-69]
The Court noted a potential issue with the Secretary of Justice’s submission on double jeopardy, highlighting the discretionary nature of the Court’s power to stay proceedings compared to the legal rule protecting against double jeopardy. Emphasizing its acceptance of duties under National Security Law, the Court questioned the utility of deploying the power to grant an interlocutory injunction in preventing or suppressing activities endangering national security. After careful consideration, the Court expressed dissatisfaction with the real utility of the injunction and identified a genuine risk of conflict with the existing criminal law regime regarding enforcement. Given these conclusions, the court intended to address the remaining main topic more succinctly. [para. 70-76]
The Court acknowledged National Security Law’s legal duty to safeguard human rights while considering the engagement of the right to freedom of expression under National Security Law. The Court disagreed with the suggestion that freedom of conscience under Article 32 of the Basic Law was involved, emphasizing that the injunction targeted criminal acts, not conscience. The Court noted, “Freedom of expression is not absolute in nature but is nonetheless a highly important right that cannot be lawfully restricted without the requirements of legal certainty and proportionality being met.” [para. 77]
The Court recognized the freedom of expression’s importance and stressed the need for legal certainty and proportionality, referencing the four-step proportionality test from Hysan Development Co Ltd v Town Planning Board, (2015). The Court noted concerns about public understanding of the injunction, given its complexity and inaccurate reports. Regarding the four-step proportionality test, the Court acknowledged a legitimate aim but raised concerns about utility and conflicts with criminal laws. [para. 78-83] Despite recognizing the fundamental importance of national security, the court concluded that, with qualifications, the injunction was not necessary and balanced unfavorably against individual rights. Consequently, the Court dismissed the injunction application. [para. 84-85]
Following the decision, Ms. Chow Chow Hang Tung, a human rights lawyer and activist, filed a Writ of Summon before the Court of First Instance seeking a declaration that she has been a party to the proceedings despite not being named as a Defendants under Section 2 of the High Court Ordinance. On October 31, 2023, Justice Anthony Chan dismissed Ms. Chow Hang Tung’s Writ of Summons and held that Ms. Chow’s reliance on Section 2 of the High Court Ordinance was untenable, as she consistently maintained that she was not a Defendant, and her attempt to categorize herself as an “opposing party” under the Service Order was deemed unfounded. The Court rejected the argument that the wide substituted service order made her a party, emphasizing that the specific rules on parties and joinders should prevail over the general definitions in Section 2. The Court also noted that Ms. Chow’s attempt to benefit from the service on June 23, 2023, lacked substance and dismissed the summons with costs, though not on an indemnity basis.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling aims to appear to prioritize and uphold the importance of freedom of expression while carefully considering the implications of the proposed injunction. The Court acknowledges the engagement of the right to freedom of expression and emphasizes the need for legal certainty and proportionality, referring to a four-step proportionality test. Despite recognizing the legitimate aim of safeguarding national security, the Court expresses concerns about the utility and potential conflicts of the proposed injunction with existing criminal laws. By highlighting the importance of proper notice and expressing skepticism about the injunction’s effectiveness, the Court appears to lean towards protecting individual rights and maintaining a balance between national security concerns and freedom of expression. Therefore, the Court’s ruling seems to be more aligned with the protection of freedom of expression rather than contradicting it.
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