When the Hong Kong Court of Appeal recently decided to issue an injunction against the publication of the song “Glory to Hong Kong”, the US government responded with a cacophonous fuss.
The State Department viewed the decision as “the latest blow to the international reputation of a city that previously prided itself on having an independent judiciary protecting the free exchange of information, ideas and goods.”
But the US allegation against the independence of Hong Kong’s judiciary is manifestly wrong and exhibits a worrying ignorance of both the process and reasoning of the law – not to mention the integrity of the critic.
The very fact that the case was an appeal against a first-instance judge’s decision not to grant the Hong Kong government the injunction that it sought demonstrates the fallacy inherent in the State Department’s statement.
From a legal perspective, one may disagree with the Court of Appeal’s decision. But a close examination of the legal reasoning behind it shows the decision was reached on a purely legal analysis of the issues and was not a politically directed decision crafted to give the appearance of a valid judgment.
As it happens, quite aside from the lyrics, Glory to Hong Kong is melodious to the ear. One wonders whether a less sensitive division of the Court of Appeal or, perhaps being more generous, a more musically literate one might have banned the lyrics but not the melody?
National anthems vary enormously in their melodic component, swinging between the inspiring music of France’s “La Marseillaise” to the dirge-like musical anathema of Britain’s “God Save the King.”
But any fair-minded person, whether jurist or layman, would recognize that the melody of Glory to Hong Kong is inspirational, carrying its wordless message.
Hence the Hong Kong government’s argument that both words and music should be subject to the injunction is a perfectly respectable legal submission.
The Court of Appeal was not making a political statement by castigating the song as weaponizing the movement for Hong Kong to secede from the People’s Republic of China.
Three extracts from the lyrics leave no room to dispute the song’s message: “Let blood rage afield” “Now to arms! For freedom we fight” and ”Revolution of our times.”
Though I would not agree with the court’s assertion that the composer of the song intended it to be a weapon, absent direct evidence of such an intent that is only one inference to be drawn. Hence, rather than asserting it as a fact, the court is entitled to conclude that it is one possible inference.
The principle of free speech, which is written into Hong Kong’s Basic Law, is no more nor less restricted than any other jurisdiction when it applies to incitement to take up arms against the incumbent government.
As the old adage – attributed variously to Oliver Wendell Holmes Jr, Abraham Lincoln and John Stuart Mill – expresses it, “your freedom ends where my nose begins.” In other words, the individual’s freedom is constrained by the freedom of others. Consequently, the Court of Appeal’s judgment is founded on sound legal principles.
Having said that, one may, nonetheless, consider the merits of the Hong Kong government’s Secretary for Justice’s decision to seek a civil injunction addressed to the world at large, when there already existed criminal laws that would make it an offense to commit any of the acts that the Court of Appeal’s decision establishes would breach the injunction. This was the conclusion of the judge at First Instance.
Reading the judgment, one might be forgiven for getting the impression that in July 2023 Hong Kong was in a state of political foment, such that publication of the song could have triggered an outbreak of violence at any moment. Such an impression does not tally with my recollection of the political climate then.
Hong Kong was and continues to be alive and flourishing, with most going about their daily business without the least interest in politics. I would even go so far as to say that it is and was business as usual, boringly so.
Surely there was no necessity to pile the civil injunction Pelion upon the criminal Ossa? Hence one is left to conjecture as to the motive for seeking an injunction in July 2023: no valid basis springs readily to mind.
The Court of Appeal judgment states, somewhat ingenuously, that the song is not being banned. This is a legal distinction finer than the edge of the sharpest razor.
What the Court meant was that the injunction only applied to publication of the song with the intention to incite people to secede from the PRC or hate the government.
Given the lyrics, it is rather more than difficult to envisage a circumstance that would permit publication of the song that did not transgress the injunction.
But as Humpty Dumpty said, “When I use a word it means just what I choose it to mean.”
I venture to suggest that a more sober approach would have counseled the Hong Kong government to be much less hypersensitive to the song. It’s best to ignore something that is beneath your dignity.
As the beneficiary of royalties from my father’s compositions, I know just how powerful a marketing tool banning a song can be.
Leslie Sarony’s “Ain’t it Grand to be Bloomin’ Well Dead” was banned by the BBC, as a direct result of which people rushed out and bought over a million copies of the sheet music. It is a publishing phenomenon both in music and literature: ban the book or song and everyone wants a copy.
Had the Secretary for Justice been a little more musically informed before he took what some may consider to have been precipitate action, he might have contemplated the title of the song written by Irving Berlin in 1927, “The song has ended but the melody lingers on.”
I wonder what those HKers who live in exile in the US today, think about how the recent crack downs on student protests in the US universities. Why no voice from them? I do understand why Nathan Law is quiet though, he is busy dealing with his own sexual abuse scandal.