Prohibition on Face Covering Regulation

{{Infobox legislation

| short_title = Prohibition on Face Covering Regulation

| legislature =

| image = Regional Emblem of Hong Kong.svg

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| citation = {{Cite Hong Kong regulation|241K}}

| territorial_extent = Hong Kong

| enacted_by = The Chief Executive in Council

| date_enacted = 5 October 2019

| date_assented =

| date_commenced = 5 October 2019

| bill =

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| status = current

}}

The Prohibition on Face Covering Regulation (Cap. 241K) ("PFCR") is a regulation prohibiting the wearing of face coverings in certain circumstances made by Chief Executive in Council under the Emergency Regulations Ordinance due to the 2019–2020 Hong Kong protests.{{Cite Hong Kong regulation|241K|name=Prohibition on Face Covering Regulation}} The Court of First Instance heard applications for judicial review from 24 members of the Legislative Council (LegCo) and Leung Kwok-hung, a former LegCo member, submitted in early October.{{Cite Hong Kong case|id=125452|list=HKCFI|number=2820|year=2019|litigants=Kwok et al.|pinpoint=10}} On 18 November, it ruled that both the prohibition on the wearing of masks and related powers granted to the police to enforce it are inconsistent with the Hong Kong Bill of Rights, whilst leaving the question of relief to a future hearing.{{Cite Hong Kong case|id=125574|list=HKCFI|number=2820|year=2019|litigants=Kwok v. CE|pinpoint=193}}{{Cite news|url=https://www.dw.com/en/hong-kong-court-rules-face-mask-ban-unconstitutional/a-51290217|title=Hong Kong court rules face mask ban unconstitutional|date=18 November 2019|work=DW|url-status=live|archive-url=https://web.archive.org/web/20191119173631/https://www.dw.com/en/hong-kong-court-rules-face-mask-ban-unconstitutional/a-51290217|archive-date=19 November 2019}} On 22 November, the court declared the PFCR invalid and of no effect, but suspended the application of that declaration till 29 November 2019.{{Cite Hong Kong case|id=125452|list=HKCFI|number=2884|litigants=Kwok v. CE|pinpoint=193}} The government appealed the decision on 25 November to the Court of Appeal,{{efn|The Court of Appeal is the second highest court in Hong Kong; appeals may only be made to the Court of Final Appeal. Applications for judicial review were initially made to the Court of First Instance. The Courts of First Instance and Appeal collectively constitute the High Court.}}{{Cite Hong Kong case|id=127372|list=HKCA|year=2020|number=192|litigants=Kwok v. CE|pinpoint=7}} which partially allowed the government's appeal. The prohibition of masks at unauthorised assemblies was ruled to be constitutional, but the power to remove masks and the prohibition on wearing masks at authorised assemblies was ruled unconstitutional.{{Cite news|last1=Lau|first1=Chris|url=https://www.scmp.com/news/hong-kong/law-and-crime/article/3079197/hong-kong-mask-ban-legal-when-aimed-unauthorised|title=Hong Kong mask ban legal when aimed at unauthorised protests, Court of Appeal rules in partially overturning lower court verdict|date=9 April 2020|work=South China Morning Post|url-status=live|last2=Siu|first2=Jasmine|last3=Lum|first3=Alvin|archive-url=https://web.archive.org/web/20200416112204/https://www.scmp.com/news/hong-kong/law-and-crime/article/3079197/hong-kong-mask-ban-legal-when-aimed-unauthorised|archive-date=16 April 2020}} On appeal, the Court of Final Appeal upheld the constitutionality of the PFCR in its entirety, including the prohibition on face coverings at authorised assemblies and processions.[https://news.rthk.hk/rthk/ch/component/k2/1566411-20201221.htm 梁國雄對終院裁決感失望　合法集會禁蒙面非常苛刻]. RTHK. 2020-12-21 However, since the government did not appeal against Article 5, power to require removal in public place of facial covering, this part remains void. {{cite news |title=禁蒙面法仍生效戴罩逛街不违例 |url=https://hk.on.cc/hk/bkn/cnt/news/20230301/bkn-20230301033057401-0301_00822_001_cn.html |work=东网 |date=1 March 2023 |language=zh-hk}}

Provisions of the PFCR

The regulation contains six sections. Section 1 provides for the citation of the PFCR,{{Cite Hong Kong regulation|241K|1|name=Prohibition on Face Covering Regulation}} and section 2 some definitions.{{Cite Hong Kong regulation|241K|2|name=Prohibition on Face Covering Regulation}}

Section 3 prohibits the use of "any facial covering that is likely to prevent identification" at unlawful and unauthorised assemblies, and public meetings and processions as defined by the Public Order Ordinance (POO).{{Cite Hong Kong regulation|241K|3|name=Prohibition on Face Covering Regulation}} In the POO, the terms “public meeting” and “public procession” have their plain meaning;{{Cite Hong Kong ordinance|245|2|1|name=Public Order Ordinance}} an assembly is unauthorised under the POO where it is a public meeting or procession not granted permission by the Commissioner of Police, or any other public gathering in contravention of a direction made by the Commissioner in that connection or an order to disperse.{{Cite Hong Kong ordinance|245|17A|2|name=Public Order Ordinance}} Persons who contravene this prohibition are liable on conviction to a fine at level four (HK$25,000){{Cite Hong Kong ordinance|221|sch8|name=Criminal Procedure Ordinance|text=Schedule 8}} and imprisonment of one year.{{Cite Hong Kong regulation|241K|3|2|name=Prohibition on Face Covering Regulation}}

Section 4 allows for two defences: first, in the case that a mask was worn with lawful authority, and, second, if worn with a reasonable excuse.{{Cite Hong Kong regulation|241K|4|name=Prohibition on Face Covering Regulation}} Reasonable excuses envisaged include but are not limited to wearing masks for professional reasons, religious reasons, or pre-existing health reasons.{{Cite Hong Kong regulation|241K|4|3|name=Prohibition on Face Covering Regulation}}

Section 5 provides that a police officer may require a person to remove a face covering in order to identify them.{{Cite Hong Kong regulation|241K|5|2|a|name=Prohibition on Face Covering Regulation}} If that person refuses, an offence is committed punishable with a fine at level 3 ($10,000) and imprisonment of 6 months;{{Cite Hong Kong regulation|241K|5|3|name=Prohibition on Face Covering Regulation}} the police officer may forcibly remove it.{{Cite Hong Kong regulation|241K|5|2|b|name=Prohibition on Face Covering Regulation}}

Section 6 requires that any prosecution for any offence created by the PFCR shall not commence more than 12 months after its occurrence.{{Cite Hong Kong regulation|241K|6|name=Prohibition on Face Covering Regulation}}

Judicial review

{{Main|Kwok Wing Hang and others v Chief Executive in Council and another}}

The Court of First Instance (CFI) ruled that the granting of powers to the Chief Executive in Council on an occasion of public danger by the ERO was unconstitutional, and, therefore, that the entirety of the PFCR was unconstitutional because it was in exercise of those powers.{{Cite Hong Kong case|id=125574|list=HKCFI|number=2884|year=2019|litigants=Kwok Wing Hang and others v Chief Executive in Council and another|pinpoint=42}} On separate grounds it also declared all the substantive sections of the PFCR excepting that prohibiting the use of masks at an unlawful assembly inconsistent with the Basic Law and the Bill of Rights, and therefore of no effect.

The Court of Appeal ruled that the ERO was in fact constitutional on occasions of public danger, and therefore that the PFCR was not invalid on those grounds.{{Cite Hong Kong case|id=127376|list=HKCA|number=192|year=2020|litigants=Kwok et al.|pinpoint=353}} It additionally held that section 3(1)(b) of the PFCR, which prohibited masks at certain "unauthorised assemblies", is proportionate, and therefore valid, but upheld the decision of the CFI that the PFCR is invalid insofar as it prohibits masks at authorised assemblies and meetings.{{Cite Hong Kong case|id=127376|list=HKCA|number=192|year=2020|litigants=Kwok et al.|pinpoint=192}}

On 21 December 2020, the Court of Final Appeal ruled that the prohibition on the use of face coverings at public gatherings, regardless of legality, was constitutional.{{Cite web|title=Hong Kong mask ban constitutional for all public meetings and processions, top court rules, backing use of colonial-era law|url=https://www.scmp.com/news/hong-kong/politics/article/3114741/hong-kong-mask-ban-constitutional-all-public-meetings-and|date=21 December 2020|website=South China Morning Post}}

Reactions

= Initial reaction =

In response to the government's implementation of the law, a speech by Edward Leung in a televised debate during the 2016 Legco election was widely shared on the internet: “a few years ago, Ukraine passed an anti-mask law. Do you know what happened in Ukraine? A revolution started in Ukraine. You want to do it? Do it, we will fight till the end.”{{cite news|last1=Cheng|first1=Kris|url=https://www.hongkongfp.com/2019/10/05/crowdfunding-campaign-jailed-activist-edward-leungs-appeal-surpasses-hk350000-goal-within-15-minutes/|title=Crowdfunding campaign for jailed activist Edward Leung's appeal surpasses HK$350,000 goal within 15 minutes|date=5 October 2019|work=Hong Kong Free Press HKFP|accessdate=22 November 2019|archive-url=https://web.archive.org/web/20191208072116/https://www.hongkongfp.com/2019/10/05/crowdfunding-campaign-jailed-activist-edward-leungs-appeal-surpasses-hk350000-goal-within-15-minutes/|archive-date=8 December 2019|url-status=live}}

= Court of First Instance ruling =

The central government immediately criticised the Court of First Instance's ruling, causing concern for the independence of Hong Kong’s judiciary.{{Cite news|last=Lau|first=Chris|url=https://www.scmp.com/news/hong-kong/politics/article/3038471/high-courts-mask-ban-decision-beijings-angry-reaction|title=Explainer: Why Beijing's angry reaction to the Hong Kong High Court's mask ban decision prompts fears it will overturn ruling|date=20 November 2019|work=South China Morning Post|url-status=live|archive-url=https://web.archive.org/web/20200417020720/https://www.scmp.com/news/hong-kong/politics/article/3038471/high-courts-mask-ban-decision-beijings-angry-reaction|archive-date=17 April 2020}}

In response, the government said that it would stop enforcing the ban for the time being.[https://www.hongkongfp.com/2019/11/18/breaking-hong-kongs-high-court-rules-anti-mask-law-unconstitutional/ Hong Kong’s High Court rules anti-mask law unconstitutional] {{Webarchive|url=https://web.archive.org/web/20191119143634/https://www.hongkongfp.com/2019/11/18/breaking-hong-kongs-high-court-rules-anti-mask-law-unconstitutional/ |date=2019-11-19 }}, HKFP, 18 Nov 2019[https://news.rthk.hk/rthk/en/component/k2/1492996-20191118.htm People free to wear masks again: govt] {{Webarchive|url=https://web.archive.org/web/20200420022837/https://news.rthk.hk/rthk/en/component/k2/1492996-20191118.htm |date=2020-04-20 }}, RTHK, 18 Nov 2019[https://www.scmp.com/comment/opinion/article/3038295/ban-masks-must-follow-legal-process Ban on masks must follow legal process] {{Webarchive|url=https://web.archive.org/web/20200415073619/https://www.scmp.com/comment/opinion/article/3038295/ban-masks-must-follow-legal-process |date=2020-04-15 }}, SCMP, 18 Nov 2019 A spokesman from the Chinese legislative affairs commission, however, stated that "Whether the laws of the Hong Kong Special Administrative Region comply with the Basic Law of Hong Kong can only be judged and decided by the standing committee of the National People’s Congress".{{cite news|url=https://www.theguardian.com/world/2019/nov/19/hong-kong-courts-cant-rule-on-face-masks-says-china-constitution-basic-law|title=Hong Kong courts have no power to rule on face mask ban, says China|date=19 November 2019|work=The Guardian|access-date=22 November 2019|archive-url=https://web.archive.org/web/20191119015155/https://www.theguardian.com/world/2019/nov/19/hong-kong-courts-cant-rule-on-face-masks-says-china-constitution-basic-law|archive-date=19 November 2019|url-status=live}}

= Court of Appeal ruling =

A commentary in the state-run China Daily said that the Court of Appeal's partial allowing of the government's appeal "strengthens the rule of law", though criticised it for allowing those at permitted assemblies to wear masks.{{Cite web|url=https://www.chinadailyhk.com/article/127518|title=Judgment on mask ban strengthens rule of law|last=Kwok|first=Tony|date=15 April 2020|website=China Daily|url-status=live|archive-url=https://web.archive.org/web/20200421142219/https://www.chinadailyhk.com/article/127518|archive-date=21 April 2020}}