Angela Wang & Co.

On 4 October 2019, the Chief Executive in Council invoked section 2 of the Emergency Regulations Ordinance, which gives the Chief Executive wide powers if she considers Hong Kong to be in an occasion of emergency or public danger to effectively impose a midnight ban the wearing of masks at all protests.  The Prohibition on Face Covering Regulation, Cap 241K (the “Regulation”) came into effect on 5 October 2019.  The anti-mask law is not new in many other countries around the world.  The law was used in the United States during the 2011 Occupy protests and in France during the Yellow Vest protests this year.  France has the strictest anti-mask law which bans the covering of faces in almost all situations in public places.

At this stage, the controversy surrounding the Regulation is exemplified by the sharp escalation in violent protests and public vandalism, resulting in applications for injunction and judicial review.  By contrast, the impact of the Regulation in the workplace in relation to duties of employers vis-à-vis employees may be less significant, or even overlooked.  However, for proper risk management, it is necessary for all Hong Kong employers to be aware of the new law, its ambit and application in the workplace.

In this eNews, we first summarize the Regulation as follows :-

What is Prohibited ?

Section 3 of the Regulation prohibits a person from using any facial covering that is likely to prevent identification in certain circumstances.

Section 2 the Regulation defines “facial covering ( 蒙面物品)” to include masks, paint and any other article of any kind that covers all or part of one’s face.

Under What Circumstances ?

Not all facial covering are prohibited and considered an offence.  The Regulation applies specifically to four circumstances where facial covering would be an offence and they are largely adopted from the definitions in the Public Order Ordinance, Cap 245 (the “POO”).

• Unlawful Assembly
  “Unlawful assembly (非法集結)” for the purposes of the Regulation has the same meaning as in section 18 of the POO ie “When three or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace”. According to the POO, an assembly formed lawfully will still be an unlawful assembly if participants subsequently conduct themselves in the aforesaid manner.  Furthermore, actual breach of peace turning the assembly into a ‘riot’ is not necessary for the application of the prohibition.

• Unauthorized Assembly
  “Unauthorized assembly(未經批准集結)” for the purposes of the Regulation has the same meaning as provided in section 17A(2) of the POO.  In brief, this would include a meeting or procession taking place without first obtaining the approval of the Commissioner of Police (unless falling within the exceptions of the POO), and where three or more persons take part in a public meeting, public procession or public gathering, or other meeting / procession and refuse to obey an order of the police given under the POO.

• Public Meeting and (4) Public Procession
  The definitions of “public meeting(公眾集會)” and “public procession ( 公眾遊行 )” in section 2(1) of the POO include any meeting and procession in a public place.  It is worth noting that a “meeting ( 集會 )” is widely defined to include any gathering “for the purpose of the discussion of issues or matters of interest or concern to the general public or a section thereof, or for the purpose of the expression of views on such issues or matters”.  However, there is express exemption for gatherings that are exclusively for “(a) social, recreational, cultural, academic, educational, religious or charitable purposes, or as a conference or seminar bona fide intended for the discussion of topics of a social, recreational, cultural, academic, educational, religious, charitable, professional, business or commercial character; (b) for the purpose of a funeral; (c) for the purposes of any public body; or (d) for the purpose of carrying out any duty or exercising any power imposed or conferred by any Ordinance”.

In view of the above, protestors and demonstrators in Hong Kong will be banned from covering their faces with masks, paint or other objects during all public marches and rallies, whether authorized or unauthorized.

Power to Require Removal of Facial Covering

To enforce the new law, section 5 of the Regulation confers express power to police officers to require removal of facial covering in public places where they reasonably believe there is prevention of identification.  In such instances, the police officer may “(a) stop the person and require the person to remove the facial covering to enable the officer to verify the identity of the person; and (b) if the person fails to comply with a requirement under paragraph (a), remove the facial covering”.

Penalties under the Regulation

It is an offence to contravene the prohibition under section 3(1) of the Regulation.  Offenders are liable on conviction to a fine at level 4 (ie HK$25,000) and imprisonment for 1 year under section 3(2).  It is also an offence to not comply with police officer’s request in a public place under section 5(2)(a) to remove facial covering to allow identification.  Offenders are liable on conviction to a fine at level 3 (ie HK$10,000) and imprisonment for 6 months under section 5(3).

A limitation period exists for the prosecution of the above offences which must start before the end of 12 months beginning on the date on which the offence is committed (section 6).

Defences

The prohibition in section 3 is not an absolute prohibition.  It is a defence for a person charged with an offence under section 3(2) to establish that at the time of the offence, the person had “lawful authority or reasonable excuse for using a facial covering” in that :-

• there is sufficient evidence to raise an issue that the person had such lawful authority or reasonable excuse; and
• the contrary is not proved by the prosecution beyond reasonable doubt.

Section 4(2) further provides that “reasonable excuse” exists where the facial covering was used for (a) physical safety while performing an act connected with one’s profession or employment; (b) religious reasons; or (c) pre-existing medical or health reasons.

What Employers Should Know

Even though the new anti-mask law mainly applies to activities in public places, since the number of participants in an unlawful assembly or unauthorized assembly is three or more persons, for risk management, employers may wish to review the employment documentation to avoid issues in case of any unexpected situations where protests causing tensions are brought into the workplace.  Most contractual documents including employment contracts and handbook may not provide for the increasing business risks in Hong Kong.  The key concerns should be employees’ safety, business asset protection, access to workplace and business continuity.

Section 4(2) of the Regulation makes it clear that it is a reasonable excuse to wear masks for professional, religious and health reasons, which should provide reassurance for employees who have to cover their faces in their line of work especially in public places eg. building construction or transport workers.  However, after-work activities, especially those affecting the reputation of the employer or the ability of the employee to work properly e.g. injury, are of a different consideration.  It is necessary to know if there is clear disciplinary procedure in place in case an employee is charged for an offence under the new law or a complaint is made against an employee for the offence or other unlawful conduct.

If you have any questions about the above eNews or legal queries employment laws or business law generally, experienced lawyers in our Corporate & Commercial and Employment teams will be happy to assist you.