Court lifts mask ban until appeal decided

Top News | Stella Wong 11 Dec 2019

The Court of Appeal has lifted a ban on face masks for the time being after it refused the government's application to suspend a lower court's ruling that the ban was unconstitutional.

Acting chief judge of the High Court Jeremy Poon Shiu-chor and Court of Appeal vice-president Johnson Lam Man-hon said that by refusing the government's application, they have "in no way determined the result of the appeal one way or the other."

"And our judgment is not and should not be regarded as an encouragement or condonation for any person to cover their face in situations caught by the anti-mask law," they said in a written judgment.

Their decision means that the anti-mask law has become invalid and the police cannot enforce it until judges hand down their ruling after the appeal hearing set for January 9 and 10. In October, the government enacted the ban on face masks by invoking the colonial-era Emergency Regulations Ordinance. Violators may face one year imprisonment and a fine of up to HK$25,000.

A group of 24 pro-democracy lawmakers then filed a judicial review against the anti-mask law. On November 18, the Court of First Instance ruled that the ban was unconstitutional, saying it went further than necessary and was a restriction on fundamental rights.

On the same day, the police announced they were suspending enforcement of the anti-mask law.

The government filed an appeal against the judgment and made an application asking the court to suspend the ruling before the appeal is heard.

On November 22, the Court of First Instance rejected its request to suspend the ruling, but gave a seven-day "interim suspension" for the government to ask the Court of Appeal for a different decision. The suspension was extended until yesterday.

The judges yesterday refused the government's application for a temporary validity order for the relevant parts of the ordinance and the anti-mask law to remain valid until the appeal hearing.

The judges said the government has not satisfied them that, for the short period when appeals and their outcome are pending, it is necessary to continue to use the emergency ordinance to deal with law and order in Hong Kong.

They said although the provisions of the ordinance and the mask ban have been held unconstitutional, there is still uncertainty because of the pending appeals.

"If one is to continue to wear masks in situations caught by the anti-mask law in the meantime, he has to face the inherent risk of having acted contrary to the law should the respondents later succeed on appeal," the judges said.

Civic Party lawmaker Alvin Yeung Ngok-kiu, a barrister, said the ruling means the anti-mask law has lost its legal validity.

"We, the pro-democracy camp, warned the government that the anti-mask law cannot solve the anxiety and unrest in society," he said.

Yeung said the government should respond to the five demands if it would like to target the problems.

HK First lawmaker Claudia Mo Man-ching said the ruling is a "very pleasant surprise."

"We won a little battle with the ruling, but we surely haven't won the war yet. The government is still trying to appeal in January," she said.

The Civil Human Rights Front also welcomed the ruling, saying it has safeguarded freedom of expression and assembly and has confirmed that the mask ban is unjust and violates human rights.

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