released December 29, 2020

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In this Oct 6, 2019 photo, masked protesters use umbrellas to hold frontline as they clash with police in Hong Kong. (VINCENT THIAN / AP)


Hong Kong's Court of Final Appeal on Monday ruled in favor of the government which invoked the Emergency Regulations Ordinance to bring into force the anti-mask law in early October, 2019.
The court ruled that the Chief Executive in Council had been legitimate in making the law in light of the "public danger" of prolonged violence and unlawfulness at that time and the prohibitions in the law were proportionate and therefore lawful restrictions of protected rights.
In a written judgment, the city's top court stressed Prohibition on Face Covering Regulations had been a proportionate response on the part of the government as there had been "the degeneration of law and order in Hong Kong" by early October 2019.
"Not only are the power to make regulations under the ERO and the regulations so made subject to legislative and judicial control, they are also subject to the Basic Law," reads the judgment. Also, the court made it clear that, "The situation in Hong Kong in 2019 leading to the making of the PFCR was not one in which public assemblies were remaining peaceful."
The interests of Hong Kong as a whole should be taken into account since the rule of law itself was being undermined by the actions of masked protesters who, with their identities concealed, were seemingly free to act with impunity, according to the judgment.
The judges agreed that the situation on the streets of Hong Kong had become dire.
"Members of the public were fearful of going out and there was significant inconvenience caused to the public at large by the blockage of roads and closure of public transport facilities," the reads the judgment.
The wearing of facial coverings had an emboldening effect on protesters and their supporters and individuals were abusing "their anonymity by acting with a sense of impunity and an ability to evade police investigation," the court noted in its judgment.
These showed that the Prohibition on Face Covering Regulations was made to address an ongoing situation of violence and unlawfulness existing over a period of months. And, this led the Chief Executive in Council to conclude there was an occasion of public danger under the ERO, according to the judgment.
On Oct 4, 2019, the government, citing the ERO, prohibited the wearing of masks and other facial coverings at certain public gatherings after the city had been rocked by months-long incessant street violence instigated by black-clad masked radicals.
The CFA held that although the anti-mask law restricted the freedom of assembly, freedom of speech and right to privacy, which were protected rights under the Basic Law and Hong Kong Bill of Rights, these rights were not absolute and were subject to lawful restrictions, taking into consideration interests of public safety, public order and the protection of the rights of others.
The CFA agreed that the prohibitions were proportionate and struck a fair balance between the rights of individuals and the societal benefits of the encroachment into those rights.

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