Saturday, October 5, 2019

Peter Chau Comments on Hong Kong's New Anti-Mask Regulation

The Chief Executive in Council made the Prohibition on Face Covering Regulation (hereafter referred to as “the Regulation”) under the Emergency Regulations Ordinance (Cap. 241) yesterday. The regulation came into force at midnight, 5 October 2019. 
     It is regrettable that violence has been escalating on the streets. Whatever their legitimate grievances, the violence used by some protesters cannot be justified. However, this short note is not about whether the acts of the protesters are justified. It is concerned solely with the narrow question of whether the Regulation is a good response. I set out my reservations below. 

The offences 
The Regulation, amongst other things, creates two offences. 
     The first offence is created under section 3(2) of the Regulation. To simplify a little bit, a person commits this offence if that person uses any facial covering that is likely to prevent identification while the person is at (a) an unlawful assembly; (b) an unauthorized assembly; (c) a public meeting that is not prohibited by the Commissioner of Police; or (d) a public procession that is not prohibited by the Commissioner of Police. There is a defence of lawful authority or reasonable excuse under section 4. The maximum penalty is a fine at level 4 (HK$25,000 at the time of writing) and imprisonment for 1 year. 
    The second offence is created under section 5(3) of the Regulation. Under section 5(2), a police officer can require a person to remove his facial covering to enable the officer to verify the identity of the person, if that person is in a public place and is using a facial covering that the officer reasonably believes is likely to prevent identification. If that person fails to comply with the requirement, he commits the offence under section 5(3). The maximum penalty is a fine at level 3 ($10,000 at the time of writing) and imprisonment for 6 months. 
     This note will focus on the offence under section 3(2). 

The substantive merits of the section 3(2) offence 
One glaring point about the section 3(2) offence is that it does not only forbid the usage of facial covering in assemblies that are illegal (situations (a) and (b) above). It also forbids usage in meetings and processions that are lawful (situations (c) and (d) above). It is worthwhile to observe that so called anti-mask offences around the world do not always take this form. For example, under sections 65(2) and 66(2) of the Canadian Criminal Code, it is an offence for a person to, without lawful excuse, wear a mask or other disguise to conceal his identity when participating in an unlawful assembly or a riot. However, it is not an offence under the Canadian Criminal Code to conceal one’s identity when participating in a lawful assembly (unless he has an intent to commit an indictable offence – see section 351(2)). A natural question we may ask about the section 3(2) offence is why should it be drafted with such a wide scope? Why should we not adopt the Canadian model and ban facial coverings only in illegal assemblies? 
     In light of the regrettable polarization of the Hong Kong community and the increasing politicization of the business world, one can have a legitimate fear for retaliation (against oneself or one's family members) when one expresses one’s political preferences in public. The section 3(2) offence would, therefore, have a serious chilling effect on our right to expression: it is a very significant cost that must be squarely recognized. Of course, it may be argued that it is a worthwhile price to pay because a narrower offence, like one based on the Canadian model, would be much less effective in deterring violence. But not much evidence has been provided for this by the government. 

Other issues: manner of creating the offences and political reaction 
Two other issues are worth mentioning. First, the manner of creating the offences is obviously less than ideal. Given that anti-mask offences can take many different forms with different degree of abrogation of our rights, the issue of whether (and if so which) anti-mask offences should be created involves a delicate balancing exercise. One may question the wisdom of making the offences hastily without proper consultation. 
     Second, regardless of the substantive merits of the Regulation, I am not sure if it is wise, given the controversial nature of anti-mask law and the extremely hostile attitude the protesters have towards it, to add fuel to the fire at present, if the most pressing need is to restore peace and order. Members of the public and the police who are targets of violence deserve our sympathy; precisely because of this, it is of utmost importance that the government does not choose a means that can be counter-productive: as it is sometimes said, the road to hell is paved with good intentions. Written by Peter Chau.

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