The Court of Appeal has ruled that Hong Kong’s ban on wearing masks at unlawful assemblies is constitutional, overturning lower court decision.

Last October, Chief Executive Carrie Lam invoked the Emergency Regulations Ordinance (ERO) to ban face masks in the hope of tackling city-wide unrest.

Photo: Jimmy Lam, Benjamin Yuen/United Social Press.

The ruling maintained the constitutionality of the Chief Executive’s power to invoke the colonial-era emergency laws to bypass the legislature “when there is a public danger.” However, it stated that both the ban on facial coverings during lawful public gatherings, and the power granted to police officers to remove masks, were still unconstitutional.

Thursday’s ruling comes as the city is gripped by the coronavirus epidemic, with millions of residents scrambling to secure medical masks to protect against covid-19.

The High Court ruled last November that the anti-mask law was unconstitutional as it went “further than necessary” in the restriction of fundamental rights. The government suspended enforcement but nevertheless filed an appeal, with Lam defending the government’s move, despite the worsening pandemic.

Lam said the appeal was unrelated to public health but was to ensure the “constitutional validity” of the Emergency Regulations Ordinance.

Abolish’ the ordinance

Activist Leung Kwok-hung, who brought the judicial review against the government, protested outside the High Court building on Thursday. He said the government should be well aware that their emergency legislation infringed upon the basic rights of Hongkongers. “As Wuhan lifts its lockdown, will you [Lam] use the Emergency Ordinance Regulation to bar inbound travellers from Wuhan? Of course you won’t.”

Leung Kwok-hung. File Photo: inmediahk.net.

He later expressed disappointment over the ruling, and said he may appeal as the archaic emergency laws pre-dated the Basic Law: “It seems to me the Court of Appeal did not consider the law to be outdated, vague, and has granted the Chief Executive too much power to exploit Hongkongers’ basic freedom.”

‘De-escalate violence’

Large-scale pro-democracy protests erupted last June over a now-axed extradition bill. Over several months, they morphed into sometimes violent displays of dissent against police behaviour, amid anger over Beijing’s encroachment. The Prohibition on Face Covering Regulation included a maximum penalty of one year imprisonment and a fine of HK$25,000 for those who violated it.

Photo: Tom Grundy/HKFP.

On October 8, Lam told the press that the purpose of the law was to to de-escalate the situation and to end the violence: “If there is no violence, if there is no protest, we do not need to have all these instruments with us in order to deal with this violence.” However, the city saw some of its worst unrest in the weeks that followed.

The court hearing was postponed from January to this week after non-urgent hearings were delayed due to the virus outbreak.

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Rachel Wong

Rachel Wong previously worked as a documentary producer and academic researcher. She has a BA in Comparative Literature and European Studies from the University of Hong Kong. She has contributed to A City Made by People and The Funambulist, and has an interest in cultural journalism and gender issues.