High Court rules mask ban law is unconstitutional

The mask ban, which came into effect on October 5, only appeared to stoke the ongoing anti-government protests. File photo: AFP

The High Court on Monday ruled that the mask ban introduced by the government under emergency powers last month is excessive and the new law is unconstitutional.



The ruling that the anti-mask law is incompatible with the Basic Law follows judicial reviews brought by 24 pro-democracy lawmakers and former legislator Leung Kwok-hung over the highly controversial move which appeared only to stoke the already escalating anti-government protests.



The High Court said the mask ban is unconstitutional because the restrictions it imposes on people’s fundamental rights are more than what is necessary.



"We should also make it clear that it is not our judgement that [an] “anti mask” law is generally objectionable or unconstitutional. Its validity must, however, depend on the details of the legislation and the particular societal aims sought to be pursued by the measure being brought in through the legislation," judges Godfrey Lam and Anderson Chow said.



"We consider it to be clear that the measure adopted exceeds what is reasonably necessary to achieve the aim of law enforcement, investigation and prosecution of violent protesters even in the prevailing turbulent circumstances in Hong Kong, and that it fails to strike a reasonable balance between the societal benefits promoted and the inroads made into the protected rights."



Under the new law, wearing a mask at any kind of assembly was made illegal, with offenders risking a one-year prison term and a fine of HK$25,000.



The police were also given the power to order people to take off a mask at any time, in any location, with the penalty for refusing to do this set at six months in prison or a HK$10,000 fine.



In announcing the ban on October 4, Chief Executive Carrie Lam had said the move was necessary because protest-related violence was escalating and "radical protesters" were "spreading terror". She had added that a responsible government could not "shy away from existing legislation" or "leave the situation to get worse and worse".



Pro-democracy legislators had framed their legal battle over the mask ban as a fight between the rule of law and authoritarianism.