CACV 274/2023 (On Appeal from HCA 855/2023) – to restrain four classes of acts in relation to a song

On 5 June 2023, the Secretary for Justice applied to the Court of First Instance for an injunction and an interim injunction to restrain four classes of acts in relation to a song commonly known as “願榮光歸香港” or “Glory to Hong Kong” (“Song”).

The terms of the interim injunction sought are as follows:

“1. Until trial of further order of the Court, there be an injunction restraining the Defendants and each of them, whether acting by themselves, their servants or agents, or otherwise howsoever, from doing any of the following acts:-
(a) Broadcasting, performing, printing, publishing, selling, offering for sale, distributing, disseminating, displaying or reproducing in any way including on the internet and/or any media accessible online and/or any internet-based platform or medium, the Song, whether its melody or lyrics or in combination, (i) with the intent of and in circumstances capable of inciting others to commit secession, contrary to Article 21 of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, or (ii) with a seditious intention as defined in section 9 of the Crimes Ordinance (Cap. 200); and in particular to advocate the separation of the Hong Kong Special Administrative Region (“HKSAR”) from the People’s Republic of China;
(b) Broadcasting, performing, printing, publishing, selling, offering for sale, distributing, disseminating, displaying or reproducing in any way including on the internet and/or any media accessible online and/or any internet-based platform or medium, the Song, whether its melody or lyrics or in combination, in such a way: (i) as to be likely to be mistaken as the national anthem insofar as the HKSAR is concerned; or (ii) as to suggest that the HKSAR is an independent state and has a national anthem of her own; with intent to insult the national anthem, contrary to section 7 of the National Anthem Ordinance (Instrument A405); or
(c) Assisting, causing, procuring, inciting, aiding, abetting others to commit or participate in any of the acts as set out in paragraph 1(a) or (b); or
(d) Knowingly authorizing, permitting or allowing others to commit any of the acts or participate in any of the acts as set out in paragraph 1(a) or (b).
2. Without limiting the generality of paragraph 1(a), (b), (c) and (d) above, the injunction as set out therein covers:
(a) the publications set out in the Schedule to the Interim Injunction Order; and
(b) any adaptation of the Song, the melody and/or lyrics of which are substantially the same as the Song.
3. The Defendants and each of them shall take such action forthwith to cause any of the acts as set out in paragraph 1(a), (b), (c) or (d) above to cease.
4. The Interim Injunction Order does not prohibit any lawful act(s) which are done in or outside Hong Kong for the purpose of news activity which means any journalistic activity and includes:
(a) the –
(i) gathering of news;
(ii) preparation or compiling of articles, programmes or other publications concerning news; or
(iii) observations on news or current affairs,
for the purpose of dissemination to the public; or
(b) the dissemination to the public of –
(i) any article or programme or other publication of or concerning news; or
(ii) observations on news or current affairs.”

On 28 July 2023, the Court of First Instance dismissed the Secretary for Justice’s application for the interim injunction.

On 7 August 2023, the Secretary for Justice applied to the Court of First Instance for leave to appeal to the Court of Appeal against the said dismissal.

On 23 August 2023, the Court of First Instance granted the Secretary for Justice leave to appeal to the Court of Appeal against the said dismissal.

On 4 September 2023, the Secretary for Justice served the Notice of Appeal on the Defendants by way of substituted service. The appeal was set down in the List of Interlocutory Appeals on the same day.

On 6 September 2023, the Secretary for Justice applied to the Court of Appeal for leave to rely on additional grounds in the appeal. On 19 September 2023, the Court of Appeal directed that the said application, together with the abovementioned appeal, will be heard together before the Court of Appeal on 19 December 2023 at 10:00 a.m. with one day reserved.

On 19 December 2023, the Court of Appeal granted the Secretary for Justice leave to rely on additional grounds in the appeal. The appeal was part heard and adjourned to 24 February 2024 at 10:00 a.m. with half day reserved.

Copies of the relevant documents are posted below.

HCA 855/2023

CAMP 297/2023

CACV 274/2023

CAMP 303/2023