Published: 00:23, May 14, 2024
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Protest song case highlights the need for a procedural review of city’s judiciary
By Tony Kwok

After a High Court (HC) judge rejected the Hong Kong Special Administrative Region government’s application for an injunction to bar the Hong Kong protest song, Glory to Hong Kong, in July 2023, I wrote an article for China Daily criticizing the judge’s decision and welcoming the secretary for justice’s prompt decision to seek an appeal.

I pointed out that the HC judge had failed to appreciate that the protest song poses a genuine and pressing national security problem for Hong Kong. The song was widely circulated during the city’s social unrest in 2019 and continues to be used to incite secessionist activities. It has also been wrongly played at several international sports events — unintentionally or with malice — instead of China’s national anthem, causing considerable embarrassment. The protest song has been widely circulated on social media platforms. At least nine videos of the song were available on YouTube with over six million views and more than 200,000 “likes”. Additionally, 19 other channels were publishing different versions of the song, and each video can be “shared”, thus allowing further unrestricted dissemination. Police investigations found 9,118 comments capable of inciting secession. When the HKSAR government applied for an injunction, many social media platforms like Spotify and KKBox immediately took down the song. However, when the HC judge rejected the government’s application, the song returned to music-streaming platforms as a “2023 edition”. Such is the practical effect of the judge’s judgment up to this date.

Therefore, it is most gratifying to see that the Court of Appeal (CA) overturned the HC judge’s decision on Wednesday and granted an interim injunction prohibiting the playing of Glory to Hong Kong. The CA judgment stressed that the criminal problems were so serious that the court must intervene immediately to prevent a continuation of the prevailing unlawful state of affairs.

The CA has rightly rebutted the two reasons the HC judge relied upon for rejecting the injunction application.

For the first reason, the CA judge considered it of no real utility and being in conflict with criminal law. The appeal court echoed my earlier view that prosecutions alone were clearly not adequate to tackle acute criminal problems, and there was a compelling need to grant an injunction to aid criminal law in safeguarding national security.

The HC judge claimed that the injunction would likely have a chilling effect on the second reason, “leading innocent people to refrain from making lawful use of the protest song”. I pointed out that in Hong Kong, every resident is aware of the true nature of this song. How can the song be played lawfully without secessionist intent? Where are these “perfectly innocent people” and what are their “lawful means of using the protest song”? I pointed out that European countries imposed a complete ban on Nazi songs after World War II. No European has ever suggested that this has a chilling effect on freedom of expression.

To this, the appeal court had rightly set down the limitation of the injunction only to include those acts such as broadcasting, performing, printing, publishing, selling, offering for sale, distributing, disseminating, displaying, or reproducing the song in any way but does not prohibit any lawful acts in connection with the song, such as academic activity and news activity.

The solution is simple: all national security-related cases in the High Court, whether criminal or civil, should be presided over by a three-judge panel to prevent a single judge from setting dangerous precedents with an injudicious ruling

Most importantly, the CA judgment can now provide the legal means to require social media platforms to remove illegal content based on the court ruling by issuing an internet blocking order, similar to the practice endorsed in the UK courts. As the judgment said, “The evidence before us shows how, in light of the way the criminal acts in connection with the song are conducted on the internet by various unidentifiable persons, it is impracticable to bring proceedings against each of the wrongdoers. A much more effective way to safeguard national security in such circumstances is to ask the Internet Platform Operators (IPOs) to stop facilitating the acts carried out on their platforms. Although the IPOs have not taken part in these proceedings, they have indicated that they are ready to accede to the Government’s request if there is a court order. The injunction is, therefore, necessary. It should be noted that the evidence before us does not indicate that the IPOs have concerns over or difficulties in complying with the injunction.”

The significance of this case is that all judges should be aware that the HKSAR judiciary, under the National Security Law for Hong Kong (NSL), has a duty to “effectively prevent, suppress, and punish” those who endanger national security. It appeared that the HC judge had failed to fulfill this duty. If the judge believes that the injunction was too broadly expressed, he could have offered a constructive proposal to fine-tune the scope and conditions of the injunction, specifying the appropriate terms of the order that would facilitate easy implementation and enforcement instead of simply rejecting the application.

Finally, this case once again highlights the need for a comprehensive procedural review of the judiciary in at least two aspects. First, there is the slow movement of the judiciary machinery. The injunction application was rejected in July 2023, and the secretary for justice promptly sought an appeal. It has taken 10 months for the case to be resolved. In the meantime, the damage continues, as warned by the appeal court: “Any further damage to national security would likely be irreparable.” An urgent channel for appeal should be established.

Second, for such a high-profile case involving national security, it is more appropriate to have a three-judge panel deal with it rather than a single judge, as with any High Court criminal trial on national security cases. The result might have been different if this case had appeared before another judge. One can recall the government successfully applying for an injunction on the doxxing of police officers and their families before a different HC judge.

A recent case further amplified the undesirability of a single judge hearing controversial national security-related cases. A government teacher was found to have made offensive and inciting comments on Facebook, fostering hatred toward the Hong Kong Police Force with vicious and vengeful remarks about officers and their families during the 2019 anti-government protests. If the NSL had been in force, the teacher could have been prosecuted for national security offenses. Instead, she was subject to a disciplinary charge of misconduct. After a full hearing, the disciplinary board found her guilty of misconduct, stating that she had “fallen short of the standards of a teacher” and “brought the public service into disrepute” with the messages posted on her Facebook account between June and September 2019. She was dismissed with the loss of pension rights. She appealed to the HC, and the judge overturned the board’s decision and allowed her full pension rights, arguing that the punishment was too harsh. I wonder if the judge would maintain his view if one of his sons was a student of this teacher and went out to attack the police and their relatives after being influenced by the teacher’s remarks on Facebook.

In all the years since the era of British rule, civil servants have been aware that if they commit a crime or serious misconduct, they would be dismissed with their retirement benefits forfeited. That has served as a deterrent to ensure civil servants behave appropriately. This case has now set a bad precedent. Even if a civil servant is found guilty of serious misconduct, he or she would only be subject to dismissal with full pension benefits. For a civil servant with 27 years’ service, dismissal with full retirement benefits appears to be a blessing of earlier retirement rather than a punishment. The Civil Service Bureau will likely seek an appeal in this case.

The solution is simple: all national security-related cases in the High Court, whether criminal or civil, should be presided over by a three-judge panel to prevent a single judge from setting dangerous precedents with an injudicious ruling.

The author is an honorary fellow of HKU Space and HK Metropolitan University, a council member of the Chinese Association of Hong Kong and Macao Studies, and former deputy commissioner of the Independent Commission Against Corruption.

The views do not necessarily reflect those of China Daily.