The Court of Final Appeal’s judgment on the Prohibition on Face Covering Regulation (the Regulation) handed down yesterday is a nail in the coffin of Hong Kong’s freedom of expression and assembly.

The Regulation prohibits persons from wearing a face covering in various types of assemblies, be they unlawful, unauthorized or even lawful. Lawful assemblies are assemblies with a notice properly given to the Commissioner of Police, to which the Commissioner of Police has agreed to issue a Letter of No Objection, and they are peaceful ones. Presumably, if the Commissioner of Police has already given permission for the assembly to take place, then the requisite law and order concerns would already have been taken into account and assessed as non-risky.

However, the Court upheld the Regulation even in the context of lawful assemblies. The rationale behind the Court’s judgment is that given the scale of events that had taken place in respect of the Anti-Extradition Bill movement in 2019, it is necessary to adopt a preventative and deterrent approach. Particularly, the Court stated that many protests which originally started out as peaceful ones had escalated into violent forms, and to say the least, it would be fair to say that the events, peaceful and non-peaceful alike, were related.

This approach of the Court is akin to using a sledgehammer to crack a nut – an utterly disproportionate measure at the expense of freedom of expression and assembly. For one, the Police has a power to declare a protest unauthorized or unlawful at the scene once a serious and imminent risk to public order and safety arises. This includes a power on the part of the Police to order dispersal of the assembly. It is simply not necessary to prohibit persons from wearing face coverings at lawful assemblies, for once the Police declares an assembly to be unauthorized or unlawful, the Regulation will be triggered and the prohibition on face covering would apply automatically.

This is a clear departure from the Court’s established approach of giving a generous interpretation to fundamental rights, and a narrow interpretation to restrictions. The Court has now reversed its starting point – narrowly interpreting rights, generously interpreting restrictive measures. The Court’s justification of the prohibition on face covering in the context of lawful assemblies by mere reason of their possible linkage to unauthorized or unlawful ones clearly fails to take into account the necessary protection that should be given to peaceful assemblies, and amounts to a disproportionate restriction on the rights of peaceful protesters who have not posed any real threat to public order or security.

The underlying foundation for the Court’s decision appears to be the severe disapproval of the use of violent means by protesters in the movement. This is particularly evident from the selective description of events set out in the judgment itself (paragraphs 89-97), where the Court emphasized eight points concerning the “violence and vandalism” of the protests, including the large scale and extent of events disrupting public order in 2019, the increased frequency of outbreaks of violent protests and “the alarming breakdown of law and order and escalating violence”. The Court even went so far as to state that “the unchallenged evidence paints a bleak picture of the degeneration of law and order in Hong Kong and the ever increasing violence and lawlessness, almost on a daily basis, that was becoming common on the streets of Hong Kong in the period [prior to the coming into force of the Regulation]”.

The emphasis on “violence and vandalism” by the Court sets the tone of the judiciary towards the protests arising from the Anti-Extradition Bill movement. The Court is now at pains to restore law and order in Hong Kong, and to suppress “violence and vandalism” on the part of protesters. But what about the disproportionate force deployed by the authorities on protesters? What about the demands of the people for democracy, accountability, justice and freedom? The Court is not asked to judge or address these demands, and indeed is not in the position do so, but as a Court situated in a jurisdiction with entrenched constitutional guarantees for freedom of expression and assembly, it should at the very least display tolerance and understanding of the diverse views legitimately held by Hong Kong people towards the Government and the political situation, and act to protect and give effect to the values of pluralism and tolerance which underpin the constitutional guarantees of fundamental rights.

This judgment is not to be taken lightly. It is possible that future judgments by the Courts of Hong Kong will adopt a similar tone and perspective in respect of protest-related cases – to severely condemn violence and accept the use of disproportionately restrictive measures. “Rather to be safe than sorry” they may say – but without effective safeguards against arbitrary use of powers by the authorities – will Hong Kong people really be safe?

Senia Ng

December 21, 2020

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