The Court of Appeal on Tuesday refused to suspend a lower court's ruling that the city's mask ban law is unconstitutional while the government challenges the decision.
Justices Jeremy Poon and Johnson Lam said that by rejecting the government's application, they were in no way determining the result of the appeal, one way or the other.
The judges dismissed the government's claim that by declaring the law invalid, the High Court had sent the wrong message to the public, encouraging them to wear masks at protests and emboldening them to commit acts of violence.
They said their decision on Tuesday should not be seen as condoning the use of face masks in situations that had been covered by the controversial law.
While at first glance, it seems people are free to cover their faces once again, the judges said "if one is to continue to wear masks in situations caught by the PFCR [Prohibition on Face Covering Regulation] in the meantime, he has to face the inherent risk of having acted contrary to the law should the respondents later succeed on appeal".
An appeal hearing on the mask law is expected to take place on January 9/10.
The SAR government invoked emergency laws on October 4 and announced a ban on face masks at all protests, including authorised ones. Violators were to face a prison term of up to one year and a fine of up to HK$25,000. Offenders also ran the risk of being charged up to a year after the date of the alleged offence.
The highly controversial government decision was opposed by commentators and opposition parties who noted that invoking the colonial-era Emergency Regulations Ordinance gave the Chief Executive sweeping powers.
On November 18, the High Court had ruled that the mask ban was excessive and the new law was unconstitutional because the restrictions it imposed on people’s fundamental rights were more than what was necessary.
The court on November 22 then rejected a government request to suspend its ruling, but gave a seven-day "interim suspension" to allow the administration time to ask the Court of Appeal for a different decision.
This interim suspension was later extended until December 10, although experts had warned that any arrest made up until that date would be unlawful and the police would be liable for civil damages.
Masks have become a hallmark of protesters in Hong Kong, with many wary of rumours that police are making use of facial recognition technology. As the police use of tear gas became widespread, surgical face masks gave way to more heavy duty gear like full gas masks and goggles.
Face masks first became a common sight during the 2003 Sars crisis, when prevention of the respiratory disease became a priority. Government guidelines since then have advised people to wear face masks if they feel ill.