The Hong Kong Court of Appeal granted an interlocutory injunction Wednesday to restrain any activities associated with the protest song “Glory to Hong Kong”. The Secretary for Justice Paul Lam highlighted that the injunction balanced the interest of national security and freedom of speech by narrowing the scope to activities with seditious intent and providing exemptions for academic and journalistic purposes.
The court reasoned that national security considerations are plainly of the highest importance to be taken into account, lending support in Secretary for Justice v Timothy Wynn Owen KC. In this case the Hong Kong Court of Final Appeal denied the ad hoc admission of overseas counsel in the trial of Jimmy Lai based on national security considerations.
In addition, the court was of the view that the criminal law alone, including the 2020 National Security Law (NSL) and sedition under the Crimes Ordinance, is insufficient to safeguard national security and should not be regarded as the only means of enforcement for safeguarding national security. Accordingly, the court accepted that the civil injunction is necessary to prevent the particular activities endangering national security and achieve the criminal regime’s public interest purpose of safeguarding national security. Previously, the lower court did not accept the utility of the civil injunction because the maximum sentence for violating National Security Law provisions is life imprisonment, much graver than contempt of court.
The court also believed that prosecuting the protest song uploaders was difficult because of their anonymity. Therefore, the injunction is necessary to compel internet service providers to take down all related videos. Lam stated that the government would approach these providers according to the injunction and hoped that the providers would honour their promises.
Furthermore, the court accepted that the certificate, issued by the Chief Executive under NSL 47 – stating that the activities the injunction seeks to restrain involve national security – is binding on the courts.
Even if the Chief Executive did not issue a binding NSL 47 certificate, the court was of the view that judicial deference to the executive’s evaluative assessment of national security is necessary and well-established for constitutional and institutional reasons. Constitutionally, the doctrine of separation of powers allocates the responsibility for assessing and addressing risks to national security to the executive. Besides, the court lacks institutional competence, including the experience, expertise, resources, access to information and intelligence, to make evaluative judgments on national security issues. To further justify deference, the court cited A v Secretary of State for the Home Department, also known as the Belmarsh 9 case, in which the English House of Lords held that deference would be given to the executive’s decision on the assessment of public emergency and the counter-measure devised after the 9/11 terrorist attack in the US.
Notably, there were no defendants in the hearing. Previously, detained activist Chow Hang Tung applied to be declared as a party to the injunction appeal. The application was rejected because Chow did not engage in the activities that the injunction seeks to restrain.
