LCQ2: Prohibition on Face Covering Regulation
*********************************************
Question:
In 2019, when Hong Kong was in the midst of the movement of opposition to the proposed legislative amendments and intensifying conflicts, the Government made the Prohibition on Face Covering Regulation (the Regulation) under the Emergency Regulations Ordinance, which came into force on the day following its gazettal. There are views pointing out that now that order in the community has resumed, the Government should consider relaxing the restrictions on the prohibition on face covering. In this connection, will the Government inform this Council:
(1) whether it will add a provision of defence under the Regulation to allow members of the public to, on the premise of expressing their views in a peaceful manner, cover their faces while participating in public meetings or public processions, and conduct public consultation on the relevant proposal;
(2) as it is learnt that a considerable number of members of the public have developed the habit of wearing masks to prevent diseases, and many residents also wish to wear masks to protect their privacy while participating in discussion sessions on district affairs, whether the Police will consider temporarily suspending the enforcement of the Regulation during public meetings or public processions which are not prohibited by the Police; and
(3) as some members of the public have indicated that they are not clear about the circumstances under which wearing of masks is a "reasonable excuse" as provided for in the Regulation and hence the use of facial covering is allowed, whether the Police will provide clear guidelines to members of the public and openly answer their frequently asked questions about compliance with the Regulation, so that members of the public will not breach the law inadvertently?
Reply:
President,
Since the implementation of the Hong Kong National Security Law, the systems and mechanisms for safeguarding national security have been continuously improved, and the situation in Hong Kong has turned from chaos to order. Social order has been restored, and the overall economic and livelihood development has returned to the right track. Nonetheless, we still have to be vigilant. As mentioned by the Deputy Head of the Central Leading Group on Hong Kong and Macao Affairs, Mr Xia Baolong, at a meeting with the Chief Executive in early March, the Hong Kong Special Administrative Region (HKSAR) Government should have crisis awareness and remain vigilant for potential risks at all times as national security risks still exist and there are destructive forces lurking in the community. The HKSAR Government should properly manage the risks, draw up contingency plans for various aspects, and firmly crack down on any activities that jeopardise national security, or undermine the peace and security of Hong Kong by nipping them in the bud and not letting them spread.
In fact, worrying incidents are still happening in the society from time to time. For instance, the Police seized ammunition, 3D printer that printed out arms parts and a large amount of raw materials for manufacturing explosives in a residential unit and a mini-storage facility last September. In February this year, a violent incident occurred at the West Kowloon Law Courts Building, in which a curtain wall of the building was allegedly shot and broken in an attempt to disrupt or damage the due administration of justice. In addition, while processing an application of public meeting and public procession earlier this month, the Police found incidents of incitement of violence on the internet with violent gangs threatened to participate in the event. The organiser eventually decided to cancel the public procession. Recently, the Police also arrested several people suspected of violating the Hong Kong National Security Law, including disseminating messages online to incite "Hong Kong independence", and colluding with foreign countries or foreign forces to endanger national security. All these incidents reflect that Hong Kong's national security risks still remain.
My reply to the Member's question is as follows:
(1) In 2019, Hong Kong experienced unprecedented challenges, social unrest, as well as massive violent and illegal acts, which posed serious threats to the safety of people and property. The legislative intent of the Prohibition on Face Covering Regulation (PFCR) was to curb occasions of public danger and social disturbance at that time, strengthen the deterrence against violent acts committed by masked rioters with their identities concealed, and assist the Police in law enforcement and conducting investigations.
In its judgment on the Emergency Regulations Ordinance (ERO) in December 2020, the Court of Final Appeal (CFA) upheld the proportionality of the restrictions on freedom and rights in prohibiting the use of facial coverings at public order events contained in the PFCR. The CFA made it clear that the freedom of assembly, procession and demonstration, the freedom of speech and expression and the right to privacy are not absolute but may be subject to lawful restrictions.
The CFA stressed in its judgment that the wearing of a facial covering does not lie at the heart of the right to peaceful assembly, as it is still possible to demonstrate peacefully without wearing a facial covering. The CFA agreed that the preventative and deterrent nature of the PFCR is crucial and the need to prevent the deterioration of peaceful gatherings into violence is an integral part of the legitimate aim.
Section 4 of the PFCR clearly provides for a defence of "lawful authority" or "reasonable excuse". Without limiting the scope of the reasonable excuse, the provision further sets out the circumstances under which there is a "reasonable excuse", including the use of facial covering for the physical safety in the course of employment, religious reasons, and pre-existing medical or health reasons.
In the light of the current situation, the HKSAR Government considers it necessary to retain the PFCR for the time being. We will closely monitor the overall social situation and conduct reviews in a timely manner.
(2) The mandatory mask-wearing requirements and the PFCR are two separate matters. The mandatory mask-wearing requirements deals with public health issues, while the PFCR deals with occasions of public danger. PFCR is still in effect and the Police will act based on evidence and strictly in accordance with the law.
As I have just mentioned, wearing of a facial covering does not lie at the heart of the right to peaceful assembly. According to the PFCR, a person who is at a public meeting or a public procession regulated under the Public Order Ordinance or at an unlawful or unauthorised assembly must not, unless with lawful authority or reasonable excuse, use any facial covering to prevent identification.
(3) The legislative intent of the PFCR is very clear. It targets those lawbreakers who try to conceal their identities under a facial covering and commit illegal acts recklessly. Those masked lawbreakers think they can engage in reckless acts that undermine the rule of law and evade justice by concealing their identities. We should combat such activities.
Although the mandatory mask-wearing requirements have now been lifted, we understand that the public may choose to continue to wear masks for a certain period of time. The PFCR only regulates public meetings and public processions under the Public Order Ordinance, as well as unlawful or unauthorised assemblies. It will not affect the wearing of masks by the public in their daily lives.
Even if a person wears a mask at a public meeting or a public procession, whether this is in contravention of the PFCR depends on the actual circumstances of individual cases. The Police will make inquiries during law enforcement to examine whether the excuse put forward by a suspect was reasonable before deciding whether there is any reasonable suspicion to make an arrest. In considering whether to commence prosecution, the Department of Justice will also examine all evidence in a case (including whether the suspect had a reasonable excuse) and consider whether there is a reasonable prospect of conviction before making a prosecutorial decision. If the suspect is charged, the court will also review all evidence to determine whether the excuse was genuine and reasonable.
The HKSAR Government will continue with its publicity efforts for the general public. The website of the Security Bureau currently provides simple and easy-to-understand "Questions and Answers", infographics and multimedia materials on the PFCR for public information.
Ends/Wednesday, March 22, 2023
Issued at HKT 14:45
Issued at HKT 14:45
NNNN