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The Court Ban — Judgments & Arguments

Parent: Glory to Hong Kong

The ban on "Glory to Hong Kong" was not a statute but a civil injunction — and it was won only on appeal, after the High Court had refused it. Because the two judgments turn on the same question (can a court use a sweeping civil order to enforce the criminal law protecting national security, and at what cost to free expression?) and reach opposite answers, they are among the most important free-expression documents of the post-2020 period. This page sets out the arguments on both sides and preserves the judgments themselves.

What the government sought

By a summons of 5 June 2023, the Secretary for Justice (Benjamin Yu SC) applied under section 21L(1) of the High Court Ordinance for an interlocutory injunction "in aid of the criminal law" — expressly contra mundum ("against the world"), binding people not yet identified. It was not a complete ban: it targeted four classes of act involving the Song (and 32 specific URLs listed in a Schedule) —

  • done with intent / in circumstances capable of inciting secession (NSL 21) or with seditious intention (Crimes Ordinance s.9);
  • done so as to be likely mistaken for, or suggested to be, Hong Kong's "national anthem," with intent to insult the national anthem (National Anthem Ordinance s.7);
  • and in particular to advocate separating the HKSAR from the PRC —

while exempting lawful academic and news/journalistic activity. On 8 July 2023 the Chief Executive issued a certificate under NSL 47 certifying that the four acts involve national security, which is binding on the courts.

The government's real aim was disclosed in its own case: criminal prosecution alone had not stopped the Song spreading, and it wanted a court order it could hand to internet platform operators. Google had refused the HKSAR's requests (since November 2022) to remove videos — including ones mislabelled "Hong Kong National Anthem" — without "a valid court order demonstrating the relevant contents' violation of Hong Kong law." The injunction was designed to be that order.

Round 1 — the High Court refuses (28 July 2023)

[2023] HKCFI 1950 (HCA 855/2023), Anthony Chan J — application dismissed. The defendants did not appear; Abraham Chan SC and Martin Ho served as amici curiae. The core reasoning:

  • The test is necessity / utility. An injunction in aid of the criminal law must be shown to restrain conduct that the criminal law cannot — it must provide greater deterrence than the existing offences and be enforceable.
  • The criminal regime is already "extensive and robust." The NSL, Crimes Ordinance and National Anthem Ordinance — with NSL enforcement overseen by a dedicated office and police unit — already cover these acts, some carrying up to life imprisonment (NSL). The judge was "not satisfied that the Injunction is of any real utility," and saw "a real risk that the Injunction would conflict with the criminal law regime in terms of enforcement."
  • A matter of principle. It "may seem wrong" for a civil court to grant an order whose breach carries open-ended contempt sanctions "to do what [the legislature] has not done," still less to "pass judgment on what is effectively a serious criminal offence, without the procedural safeguards of the criminal justice system." A newcomer who breached it would face both contempt and criminal prosecution for the same act.
  • Third parties and "chilling effects." Because the order ran against the whole of Hong Kong and would likely never go to trial, the court had to scrutinise it stringently to protect the rights of innocent third parties — "a whole spectrum of Hong Kong people of different sophistication," who might "distance themselves from what may be lawful acts involving the Song for fear of trespassing the Injunction." The injunction was "not an easy document to understand."
  • No blanket deference. The judge declined to simply defer to the executive on the utility question: "The Court cannot abdicate its responsibilities… [it] must scrutinize the material before it." (He accepted the executive is better placed to judge whether the acts endanger national security.)
  • On the Hysan four-step proportionality test he found a legitimate aim, but — "but for" the failures of utility and the conflict with the criminal law — would have granted it. Those qualifications were fatal: it was not "just and convenient" to grant. Dismissed.

Round 2 — the Court of Appeal grants it (8 May 2024)

[2024] HKCA 442 (CACV 274/2023), before Poon CJHC, Chu VP and Anthea Pang JA (heard 19 Dec 2023 & 24 Feb 2024) — appeal allowed, the injunction granted. Benjamin Yu SC and Jenkin Suen SC for the Secretary; the same amici. The reversal rested on reframing the question around national security:

  • These are not ordinary crimes. What the injunction enjoins are offences endangering national security (NSL 21, Crimes Ordinance s.10, NAO s.7). That character "critically informs how the court should approach the injunction sought."
  • The court's own NSL duty. NSL 3 and NSL 8 impose a duty on the HKSAR's institutions — the courts included — to safeguard national security and to enforce the law to that end. The Court held that the established common-law principles for injunctions in aid of the criminal law can and should be "suitably developed to give effect to the mandates in the NSL." (It rejected Mr Yu's most sweeping formulation — that utility alone should decide — but still moved the balance decisively toward granting.)
  • Utility re-assessed. Set against the national-security backdrop — the Song's use in 413+ public-order events, its misrepresentation as the "national anthem" 887 times including at international sporting events, and platforms' refusal to act without a court order — the Court found the injunction would add real value, and disagreed with the first judge's conclusions on utility and on conflict with the criminal law.
  • The order was granted contra mundum, keeping the academic / news-activity carve-out, listing the 32 items, and providing for substituted service via government websites and a QR-coded notice.

The two courts, side by side

Few cases make the stakes so plain: on the same facts and the same law, two courts reached opposite conclusions a year apart. What moved between them was not the evidence but how much weight national security was allowed to carry against rights-scrutiny.

The questionHigh Court — refused (2023)
Anthony Chan J		Court of Appeal — granted (2024)
Poon CJHC · Chu VP · Pang JA
Real utility beyond the existing criminal law?No — the NSL/Crimes/Anthem regime is already "extensive and robust"Yes — read against the national-security backdrop
A civil order (contempt) for a serious crime?May be wrong in principle; lacks criminal procedural safeguardsThe common-law principles can be "developed" to give effect to the NSL
Weight of the executive's security assessment?Court judges utility for itself — "cannot abdicate its responsibilities"NSL 3 & 8 duty critically informs the s.21L exercise
Chilling effect on innocent third parties?Real, and decisiveOutweighed; the academic/news carve-out suffices
OutcomeNot "just and convenient" → refusedAppeal allowed → injunction granted

Why it was controversial

The acts the injunction targets were already crimes, so the dispute was never about whether inciting secession is protected expression — it is not. The controversy is about the method, and much of it was spelled out in the first judgment itself:

  • A civil order doing criminal work. The same conduct could now trigger both criminal prosecution and contempt of court — the latter decided on the civil standard, without a jury or the safeguards of a criminal trial. The High Court thought it "may seem wrong" for a civil court to use open-ended contempt sanctions "to do what [the legislature] has not done."
  • Binding "the world" with no adversary. A contra mundum order reaches people who are unnamed, unrepresented, and never heard, including future "newcomers"; the case was unlikely ever to reach trial, making a sweeping, effectively permanent prohibition that was created without anyone there to contest it.
  • The chilling effect the two courts split on. The government argued the order "only bans crimes" and so cannot chill lawful speech; the High Court disagreed, finding ordinary people would avoid lawful uses of the Song "for fear of trespassing the Injunction," which is "not an easy document to understand." That the order needed a carve-out for journalism and academia concedes the risk was real — and the Court of Appeal then granted the very order the first court said would chill expression.
  • Deference to the executive on national security. Because NSL 3 and 8 make safeguarding national security a duty of the courts, and the Chief Executive's NSL 47 certificate binds them on whether the acts endanger it, the room for independent proportionality scrutiny narrows. Free-expression scholars read the reversal as national-security deference shading into domination (Columbia Global Freedom of Expression; PEN America).
  • Censorship routed through private platforms. The order's real function was to be the "valid court order" Google had said it required before removing videos; YouTube then geo-blocked the 32 listed videos in Hong Kong. A local court order thereby reshaped a global platform's feed — a template other governments could follow.

Underlying all of it is a tension internal to the record: an injunction "in aid of the criminal law" is justified only where it is genuinely necessary, yet the Song remains freely available worldwide — so the order's value looks largely expressive (marking the Song as forbidden) rather than effective, which is precisely the "utility" the first court found wanting.

Weighed against free-expression rights

Hong Kong's free-expression guarantees are not merely domestic. Article 27 of the Basic Law protects freedom of speech, of the press and of publication, and Article 39 keeps the International Covenant on Civil and Political Rights (ICCPR) in force as applied to Hong Kong, implemented through the Hong Kong Bill of Rights Ordinance (BOR Article 16 mirrors ICCPR Article 19). Under ICCPR 19(3), a restriction on expression is permissible only if it passes a three-part test: it must be (1) provided by law — precise enough to foresee what is forbidden; (2) in pursuit of a legitimate aim (national security is one); and (3) genuinely necessary and proportionate — the least restrictive means of achieving that aim. Measured against that standard, the injunction attracts several serious objections:

  • Legal certainty (the "provided by law" limb). The prohibition turns on the actor's intent ("with seditious intention," "capable of inciting") and on others' perceptions ("likely to be mistaken as the national anthem"), and extends to "any adaptation… substantially the same." A person cannot foresee with precision where lawful use ends and contempt begins — the very defect the High Court flagged when it called the order "not an easy document to understand," amid a wave of inaccurate reports that "the song is banned." International human-rights law treats such vague speech restrictions as failing the legality requirement, because they chill protected expression.
  • Overbreadth and prior restraint. A contra mundum ban on an entire cultural work — melody, lyrics and adaptations — reaches far beyond the unlawful acts it names, sweeping in artistic, educational, commemorative, scholarly, archival and private uses that are protected expression. International standards treat blanket prior restraints on a category of expression as presumptively suspect and demand the narrowest possible tailoring; the carve-out the court had to add for journalism and academia is itself an admission that protected speech was caught.
  • Necessity. ICCPR 19(3) requires a real need and the least restrictive means, not a symbolic one. The first court found the injunction added nothing the criminal law did not already do — which is the definition of not necessary. A measure that merely duplicates existing offences imposes an extra burden on expression without the countervailing necessity the Covenant requires.
  • National security must narrow, not widen, the restriction. The UN Human Rights Committee's General Comment No. 34 on Article 19 holds that national security may never be invoked to suppress legitimate expression, and that a state must demonstrate a direct and immediate connection between the expression and a concrete threat, by proportionate means; the 1995 Johannesburg Principles on national security and free expression say the same. The Court of Appeal's reasoning runs the other way — treating the courts' NSL duty as a reason to relax the scrutiny that is supposed to constrain the aim, which is the structure these standards warn against.
  • The audience's right, and censorship by proxy. Article 19(2) protects the right to seek and receive information and ideas, not only to speak. Engineering a court order so that Google and YouTube would geo-block content turns private intermediaries into instruments of state censorship and restricts the public's access as much as any speaker's — a structural danger identified in UN Special Rapporteur reporting on freedom of expression online and in the Manila Principles on Intermediary Liability.
  • Peaceful political and artistic expression. Much use of the Song is peaceful political or artistic expression — the speech Article 19 protects most strongly, even when it criticises the authorities or voices views the state rejects. International law permits restricting only incitement to imminent violence or concrete unlawful acts, and narrowly; a blanket ban that reaches peaceful performance, mourning and art overshoots that line.

To its critics, then, the injunction is close to a textbook failure of the three-part test: uncertain in scope, broader than necessary, duplicative of the criminal law already in force, and justified by a national-security logic that the governing human-rights standards say should tighten restrictions on speech, not loosen the scrutiny of them. The Hong Kong courts applied the local four-step proportionality test in Hysan Development Co Ltd v Town Planning Board and divided on the result; measured against the ICCPR standard the Basic Law incorporates, the first judgment's refusal is the one that most critics regard as the better fit with the right. (See also Columbia Global Freedom of Expression and PEN America.)

Why it matters

"Glory to Hong Kong" became the first song banned in Hong Kong since the 1997 handover, and the case is now studied as a turning point in how the city's courts weigh the National Security Law against protected rights (above). In practice the injunction did what the government wanted: Google geo-blocked the 32 listed videos in Hong Kong, and the distributor EmuBands again pulled the Song from Spotify, Apple Music and other platforms. Yet the melody is still everywhere — sung in the diaspora, mislabelled at sporting events, adapted and re-uploaded — a reminder that a court order can mark a song as contraband without erasing it.

Preserved documents

The archive keeps its own copies of both judgments (official Judiciary text), in case the public sources change:

JudgmentOur copyOfficial
CFI — injunction refused ([2023] HKCFI 1950, 28 Jul 2023)PDFHKLII · Judiciary (Word)
CA — injunction granted ([2024] HKCA 442, 8 May 2024)PDFHKLII · Judiciary (Word)

Sources

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