“ That balance is embodied in the basic premise that assemblies must be held peacefully without disrupting or threatening to disrupt public order, or without involving any violence or threat to use violence. ”

“ On any occasion which the Chief Executive in Council may consider to be an occasion of emergency or public danger he may make any regulations whatsoever which he may consider desirable in the public interest. ”

“ As is well known, delegation of powers almost parallel with those given by the Emergency Regulations Ordinance has been resorted to frequently in England under the various Emergency Powers Acts. If the legislature of Hong Kong is supreme (subject to its constitution) in its own area there can be no reason why it should not act similarly — it is not and cannot be suggested that the law is not one for the ‘peace, order, and good government’ of the Colony. ”

“ As regards the proposal on the Police’s power to remove facial covering in a public place, it is only reasonable that a police officer should be empowered to require a person to remove the person’s facial covering in order to verify the person’s identity, as a police officer is authorized under various laws to demand proof of identity. ”

“ At §139 of the judgment of the European Court of Human Rights, it was stated that the blanket ban imposed could not be said to be necessary, in a democratic society, for public safety within the meaning of Arts 8 and 9 of the Convention when “the objective alluded to by the Government could be attained by a mere obligation to show their face and to identify themselves where a risk for the safety of persons and property has been established, or where particular circumstances entail a suspicion of identity fraud”. ”

“ It seems that it is when the person joins a group which uses wearing masks as group identification that triggers the deindividuation effect. Research has shown that the larger the group size, the stronger the deindividuation feeing becomes (see Postmes & Spears (1998) ) . The person will identify more with the group values, situation norms and behaviour, and will begin to set his own values and self-regulations aside. He is not relinquishing his own values and self-regulation permanently because they can return to him after the group action. Mask functions as a facilitator of anonymity. ”

“ It was therefore a law that directly authorised executive measures which had the effect of directly restricting the freedom and privacy of communication protected by Art 30 of the Basic Law and Art 14 of the Bill of Rights, and was found to be unconstitutional for falling foul of the principle of legal certainty. In our view, the case provides no support for suggesting that an empowering statute for making subsidiary legislation without itself purporting to limit any rights can be struck down under the “prescribed by law” requirement. ”

“ The power can be exercised irrespective of whether there is any public meeting or procession taking place in the vicinity, and regardless of whether there is any risk of outbreak of violence or other criminal acts, at the place where the person is found, or in the neighbourhood, or indeed anywhere else in Hong Kong. The power may, on its face, be used by a police officer for random stoppage of anyone found wearing a facial covering in any public place. ”

“ As we understand it, the Government’s case on rational connection is that, at this time of public danger when the use of face covering is prevalent among vandals and violent protesters, for the purposes of law enforcement, investigation and prosecution, police officers have a heightened need to see a person’s face in order to verify his or her identity not only during assemblies or processions but also in public places. ”

“ At paragraph 17 of the affidavit, Dr Tsui set out his conclusion as follows:
People make rational decisions or intention about wearing a mask or not or a particular mask. It maybe for physical protection, psychological protection of their identities, or to display their identification with a particular group. An individual wearing a mask may provide him or her a stronger sense of safety or group identification, but that alone does not lead to a loss of self‐awareness or loss of self-regulation as proposed by Silke (2003) . ”

“ The first thing that strikes one is that the ERO is not a statute that legislates on a subject matter in principle leaving another body to devise the detailed legal norms that elaborate or put flesh on the broad matters laid down in the primary legislation. The long title of the ERO specifies that its object is to confer on the CEIC power to make regulations on occasions of emergency or public danger. ”

“ Insofar as authorised and unauthorised but peaceful assemblies or processions are concerned, there is no reason why wearing a mask would turn them into something other than lawful or peaceful that calls for restoration of peace and order.
(3) The suggestion that because a lawful and peaceful assembly or demonstration can develop into an unlawful one by the acts of some violent protesters, all law‐abiding citizens should not wear masks in the first place is based on the logical fallacy or false equivalence that because all violent protesters wear masks, all masked protesters are violent. ”

“ In the event that the Standing Committee of the National People’s Congress decides to declare a state of war or, by reason of turmoil within the Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the Region, decides that the Region is in a state of emergency, the Central People’s Government may issue an order applying the relevant national laws in the Region. ”

“ It is the power and function of the LegCo as the designated legislature of the Hong Kong SAR to legislate. Other bodies cannot consistently with the constitutional framework be given general legislative power but only the power to make subordinate legislation. It may be a matter of degree whether a power granted is in truth general legislative authority rather than the acceptable power to make subordinate legislation. ”

“ In other words, the defence is one of lawful authority or reasonable excuse. An evidential burden is placed on an accused to raise the defence but it is the prosecution’s legal burden to disprove the defence. ”

“ Police officers need to be able to identify the protesters engaged in unlawful or criminal activities to make arrests and restore public order amid chaos, but the concealment of identity by face covering is a major impediment to law enforcement. As police officers are unable to quickly and effectively identify the protesters, those who manage to escape from the scene may change their clothes soon afterwards and remove their facial coverings in order to avoid arrest. ”

“ For the purpose of showing rational connection, it is not necessary for the Government to prove that face covering would necessarily have the emboldenment effect contended for. It suffices for the Government to show that it could have such effect. ”

“ As has been recognised in many jurisdictions and is, we believe, common ground, some participants in demonstrations may wish to wear facial covering for legitimate reasons, such as to avoid retribution. The restriction imposed by the PFCR is therefore not to be trivialised as a minor inhibition on mask-wearing during demonstrations but, depending on the context, can have a significant impact on the freedom of expression in peaceful public meetings and processions. ”

“ Every document purporting to be an instrument made or issued by the Chief Executive or other authority or person in pursuance of this Ordinance or of any regulation made hereunder and to be signed by or on behalf of the Chief Executive or such other authority or person, shall be received in evidence, and shall, until the contrary is proved, be deemed to be an instrument made or issued by the Chief Executive or that authority or person. ”

“ In our view, this is a distorted way of reading the LegCo Brief. The Government’s purposes or aims of the measures adopted by the PFCR are spelt out in paragraph 3 of the LegCo Brief, under the heading “Justifications”, as follows:
Due to the widespread and imminent public danger posed by the violent and illegal acts of masked protesters, there is an urgent need to consider introducing legislation to prohibit face covering to enable the Police to investigate into such acts and to serve as a deterrent against such behaviour. ”

“ However, a strict standard of justification should be applied when the freedom of political expression is infringed upon or when the State plays the role of unique adversary of the individual, principally in criminal matters. ”

“ On the question of Dr Tsui’s expertise, the applicants in HCAL 2945 argue that Dr Tsui is in no position to offer anything more than comment, and point to the fact that Dr Tsui has not performed any research on the psychological profile specific to Hong Kong and the extent of any emboldening effect in Hong Kong with masks and protesters. In our view, it is not necessary for an expert to have personally carried out some study or research on an issue before he can give expert evidence on it. ”

“ Rigidity is not a virtue in constitutional interpretation, and one recalls the adage that a constitution that will not bend will break. We have not been addressed on the possibility that states of emergency necessitating urgent action can occur from which an implication can arise out of necessity that the LegCo can in wide terms authorise the Executive authorities to take necessary action: see eg The Executive Council of the Western Cape Legislature, supra, §§62, 140 ”

“ The suggestion that the wearing of a mask would encourage or embolden protesters to engage in unlawful activities that they would otherwise not be willing to without a mask is not supported by evidence. ”

“ Protesters are able to avoid identification by wearing masks. Those protesters who are bent on resorting to violence rely in substantial part on the support of other protesters. Even though the hardcore radical and violent protesters may continue to flout the law, those protesters who are not prepared to break the law may comply with the PFCR and this would generally result in lessening the support for the more radical and violent protesters. ”