Hong Kong police can still ask people to remove face coverings despite court ruling that mask ban is unconstitutional, force says

Alvin Lum

Frontline police officers in Hong Kong can still tell people to remove masks, even though as a court suspended the government’s face covering ban after ruling it was unconstitutional, according to an internal circular by the force.

The notice, issued by police management on Thursday, also said that anyone who failed to remove a face covering could be charged with obstructing officers in exercising their duty – an offence punishable by up to two years in prison, as opposed to the one-year jail term under the mask ban.

The High Court ruled on Monday that both the ban and the application of a colonial-era emergency law that invoked the measure on the grounds of public danger were unconstitutional. The Department of Justice asked the court to suspend its ruling, which the government was expected to appeal against.

On Friday, the court suspended the ruling for seven days but warned it did not mean the ban had ceased to be invalid, even though enforcement of the judgment would be postponed.

“Owing to the recent judicial review ruling on the Emergency Regulations Ordinance and Prohibition on Face Covering Regulation, all [mask] enforcement actions have been temporarily suspended pending further judicial adjudication,” the circular from police’s crime wing reads.

“In the interim, it is acknowledged that in the course of duty, there could be many occasions when identification is crucial, which furthered by reasonable suspicion, may render it necessary for officers to demand a member of the public remove a face covering for identification purposes.”

The circular cited three existing laws that officers could rely on to request the removal of a mask.

Protesters emerge from the surrounded Polytechnic University and are escorted away by police. Photo: K.Y. Cheng

They include the power to stop and search someone under the Police Force Ordinance, the power to ask anyone to produce proof of identity to help prevent or investigate any offence under the Public Order Ordinance, and to require a person to produce a Hong Kong identity card under the Immigration Ordinance.

Police confirmed that if the situation required, officers may demand a person remove a face covering for identification purposes in accordance with existing statutory provisions.

University of Hong Kong law professor Johannes Chan Man-mun, part of the legal team fighting the mask ban, said existing laws stopped police from arbitrarily requiring a person to remove a face covering, unlike the ban.

Johannes Chan says existing laws stop police from arbitrarily requiring a person to remove a face covering. Photo: Nora Tam

“Officers still need to have a reasonable suspicion based on a person’s actions,” Chan said.

For example, if a masked person walked near Polytechnic University, where protesters are holed up after police surrounded the campus, officers could not ask the person to remove the face covering under existing laws, he said.

Chan added this also showed police’s power to request someone to remove masks was already covered by the law.

“This shows the anti-mask law is not required. It’s just redundant and serves no useful purpose.”

A lawyer specialising in criminal and human rights law, who preferred not to be named, pointed to another problem.

He said the Immigration Ordinance required officers to be in uniform or able to provide identification documents. During the ongoing protests, he said, many police officers failed to wear their unique identification numbers.

Hong Kong leader Carrie Lam Cheng Yuet-ngor announced in early October she would invoke the colonial-era Emergency Regulations Ordinance, which gives her far-reaching powers, to enact the mask ban. The measure was an attempt to quell escalating levels of violence during anti-government protests that have rocked the city for months.

Additional reporting by Chris Lau

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