Hong Kong’s justice department has filed an appeal against a judge’s refusal to ban the promotion of a protest song from the 2019 anti-government unrest that has frequently been mistaken overseas for China’s national anthem.
A department spokesman on Monday said it had asked the Court of Appeal to review a lower court’s decision to reject the proposed injunction on “Glory to Hong Kong”.
The spokesman said the move was in the interests of national security, noting that the song was used to advocate Hong Kong independence during the 2019 protests.
“The secretary for justice considered it necessary to appeal to put forward views and request the Court of Appeal to consider granting the interim injunction,” he said, without elaborating on the department’s reasons.
The move came just days after three pro-Beijing political parties urged the Department of Justice to consider an appeal.
In dismissing the government’s bid last month, Court of First Instance judge Anthony Chan Kin-keung questioned the effectiveness of a ban and said publication and distribution of the song was punishable under existing laws.
A ban might not compel internet search giant Google and other technology firms to remove the song from their services, he added.
Chan is among the few judges approved by city leader John Lee Ka-chiu to hear national security proceedings.
The department’s spokesman noted Chan had ruled in favour of the government on a number of contentions, including the song’s illegality and a “reasonable ground” to believe it had contributed to blunders where it was mistaken for the national anthem at overseas sports events.
“The court considered there can be little doubt that the song was used and used effectively by people with the intention to incite secession and/or sedition, and was designed to arouse anti-establishment sentiment and belief in the separation of Hong Kong from the People’s Republic of China,” the spokesman said.
He noted the justice secretary might be able to win the appeal if he could convince the court that the intended ban would be useful in suppressing national security threats without conflicting with the enforcement of criminal procedures.
The spokesman added the judgment “pointed out that, had the court been satisfied that the injunction is of real utility and there exists no conflict with the [national security law], the court would accept … the restriction imposed on freedom of expression is no more than necessary to safeguard national security and would not result in an unacceptably harsh burden on the individual, and would have held in favour of granting the interim injunction”.
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He warned residents not to test the legal limits, adding that dissemination or performance of the song might run afoul of the national security law, colonial-era sedition legislation or the National Anthem Ordinance.
Secretary for Justice Paul Lam Ting-kwok filed the unprecedented legal bid last month in the hope of providing greater leverage in demanding that internet service providers remove content related to the protest song.
Secretary for Innovation, Technology and Industry Sun Dong revealed that the government’s bid to ban the song through an injunction was sparked by Google’s unwillingness to remove related content without a court order.
The song urges people to fight for freedom and “Liberate Hong Kong” in a “revolution of our times”. The latter expression was deemed capable of carrying a secessionist meaning in the city’s first national security trial.
Lam was seeking an interim injunction, or temporary ban, on the promotion of “Glory to Hong Kong” until trial or further order, but Chan said any temporary order made was likely to become final given how unlikely it was for anyone with legal standing in the case to contest the application.
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Political analyst Lau Siu-kai, a consultant at semi-official Beijing think tank the Chinese Association of Hong Kong and Macau Studies, said the injunction was much-needed to ban the circulation of the song, as the national security law should be reserved for more serious crimes.
“If some people play this song as a prank, and the government then lashes out with the national security law for the tiniest incident, it will easily cause social panic,” he said.
An injunction, on the other hand, would result in a sweeping ban covering the internet with a lower bar for conviction and lower penalties compared with the national security law.
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Lau warned that hitting multinational technology firms with the national security law could lead to serious repercussions from the West, fuelling negative perceptions of the city.
Lawmaker Priscilla Leung Mei-fun, a barrister by profession, told the Post she supported the appeal as an injunction was the quickest way to stem the tune’s circulation, adding that the High Court’s earlier judgment merely disputed the government’s means to outlaw the song.
“On the song’s offensive nature to national security, the court for sure is headed towards this direction and only had suggestions on law enforcement,” Leung said.
“At the end of the day, an injunction is the fastest and most direct way to ban something that might harm national security and spread secessionist ideals.”
She said the government’s pursuit of an appeal would not exclude it from considering other means to stem the song’s spread.
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Leung suggested the government also amend the national anthem law to cover the misplaying of songs at occasions where the anthem should be used, estimating the process would take three to five months through the Legislative Council.
The three parties that earlier called for the appeal also expressed their support for the department’s move.
Holden Chow Ho-ding, vice-chairman of the Democratic Alliance for the Betterment and Progress of Hong Kong, said: “I hoped the arguments in the [High Court] judgment can be rectified in the appeal.”
Liberal Party chairman Peter Shiu Ka-fai and Hong Kong Federation of Trade Unions chief Kingsley Wong Kwok also backed the move.
