HKSAR v. So Tsun Fung
Read the full judgment text of HCMA 457/2023 on BabelCite. This High Court CFI judgment was delivered on 3 March 2025.
1. The Appellant was charged with an offence of “Engage in illegal conduct to incite another person not to vote, or to cast invalid vote, by activity in public during election period”, contrary to section 27A(1) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 (“ECICO”)(“the Provision”).
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HCMA 457/2023 [2025] HKCFI 916 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CASE STATED MAGISTRACY APPEAL NO 432 OF 2023 (ON APPEAL FROM WKCC 2641 OF 2022) ________________________
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________________________ J U D G M E N T ________________________ 1.The Appellant was charged with an offence of “Engage in illegal conduct to incite another person not to vote, or to cast invalid vote, by activity in public during election period”, contrary to section 27A(1) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 (“ECICO”)(“the Provision”). 2.The Appellant raised a preliminary issue that the said Provision was unconstitutional. After hearing submission by both parties, the Magistrate ruled that it was constitutional. The Appellant then pleaded guilty to the charge and admitted the facts. The Appellant was convicted and sentenced to 2 months’ imprisonment, suspended for 18 months. Application to state case on point of law 3.Pursuant to section 105 of the Magistrates Ordinance, Cap. 227, the Appellant applied to state case on point of law. 4.The learned Magistrate stated and signed the case dated 22 November 2023. The two questions of law concerned are:
The Appellant's Contentions 5.The Appellant's primary argument is that Section 27A is unconstitutional as it unlawfully infringed the citizens' freedom of expression. It has no connection at all with regulating acts of manipulating or undermining elections. He queried the genuine legislative purpose of Section 27A. He invited this Court to conclude that (i) the stated objective was not the genuine legislative aim; (ii) the genuine legislative aim was not a legal aim, and, it is something that the Government could not disclose. 6.The Appellant submitted that casting blank ballots is by nature a lawful act and is not different from an option of "None of the Above". 7.The Appellant cited X v Austria (1965) Yearbook VIII 168 (ECommHR), in which the European Court of Human Rights held that as long as citizens are allowed to cast invalid votes in an electoral system, they enjoy the freedom of choice in an election. Therefore, the European Convention for the Protection of Human Rights and Fundamental Freedoms was not infringed. 8.The Appellant also stated that there is inherent meaning and value in the casting of blank votes, and the Government should facilitate the expression of such view instead of prohibiting it, especially during the election period. 9.In terms of reasonable necessity, the Appellant also criticized that the Government without any reasonable basis assumed that the electors lack the ability of critical thinking. The Respondent had failed to prove that public encouragement of electors to cast blank votes or invalid votes would affect their exercise of voting rights. The restrictions created by Section 27A are therefore more than reasonably necessary. 10.Concerning the principle of equality before the law the Appellant cited the case of QT v Director of Immigration (2018) 21 HKCFAR 324, whereas it was stated that:
11.The Appellant contended that encouraging others to cast blank vote is not different from persuading others to vote for a particular candidate. However, they were treated differently under Section 27A. The Respondent's Contentions 12.The Respondent submitted that the legislative aim of the ECICO is to ensure an open election conducted with integrity, and to prohibit corrupt conduct and illegal conduct at elections. For the Legislative Council Brief “Improving Electoral System (Consolidated Amendments) Bill 2021”, at the 7th meeting of the Bill Committee, the Secretary for Constitutional and Mainland Affairs pointed out that, inciting electors not to vote, to cast blank votes or invalid votes, are all acts manipulating or damaging the election. Hence, the Respondent stated that voting according to one’s own preference is the elector’s right, however, inciting others to vote in certain form should be prohibited by the law. 13.Further, the Respondent submitted that the provision in question clearly pursues the legitimate aim of preventing damage to the elections, since the incitement may obstruct candidates from obtaining sufficient votes to be duly elected. The restrictions therefore have rational connection with the legitimate aim. As Section 27A only covers acts of incitement targeting the public during the election period. The relevant restrictions do not exceed the requisite degree of reasonable necessity. 14.The restrictions imposed by Section 27A ensure that the electors can exercise their right to vote without being incited. They also ensure resources devoted to elections would not be wasted. They are not over-restrictive in terms of the timing and the scope of the Prohibited Acts. Those who intend not to vote or to cast blank votes can still express their views without violating the provision in question. Magistrate’s Ruling The Freedom of Expression 15.Article 27 of the Basic Law protects the freedom of expression of Hong Kong residents. However, such right is not non-derogable in nature. It can be restricted as prescribed by law. See Articles 16(2) and 16(3) of the Hong Kong Bill of Rights. 16.By Article 39 of the International Covenant on Civil and Political Rights (the “ICCPR”) in Hong Kong, it provides that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. 17.The Appellant accepted that the constitutional right concerned is capable of derogation. However, such qualification must be (1) prescribed by law; and (2) reasonably necessary for attaining a specified legitimate aim. The “prescribed by law” requirement 18.Considering the Court of Final Appeal case held in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, the Magistrate ruled that the offence in question possesses the required legal certainty to satisfy the "prescribed by law" criterion in that , it is sufficiently clear for the public to decide on its applicability by referring to its elements; it is confined to the election period; the medium of expression prohibited is particularized as “activity in public”; and it only concerns inciting another person not to vote or deal with a ballot paper in a way that would render it invalid. 19.Therefore it is clear that Section 27A has delineated the elements of the offences with sufficient precision. It has a clear formulated core, provides predictability and is adequately accessible and comprehensible to the average citizens. The proportionality requirement (a) The legitimate aim limb 20.Section 3(a) provides:
21.Section 27A was introduced in response to the Decision of the National People's Congress on Improving the Electoral System of the Hong Kong Special Administrative Region (the “NPC Decision”), and Article 6 of the Annex II to the Basic Law which was amended pursuant to the NPC Decision, which reads, “[t]he HKSAR shall, in accordance with the law, take measures against acts of manipulating or undermining election”. 22.The Magistrate considered that the electoral process makes a fundamental contribution to democratic governance. Citizens can use their votes to motivate changes for more transparent and accountable politics. A fair electoral system thereby increases political participation by enabling the electors to select the candidates best representing them. Compulsory voting is not implemented in Hong Kong. It is the electors' own choice to abstain or cast an invalid vote. Therefore, case laws in other jurisdictions, academic journals and the endorsement of former government officials on the casting of blank ballots are of little relevance. 23.Only a proper electoral system will be able to uphold rights. Encouraging others to vote is conducive to the electoral system and electioneering is legal under the law. However, during the election period, a blank or otherwise spoilt vote campaign or the calling for a boycott of the election contributes nothing to advance, enhance or facilitate the election. Rather, it is an organised effort to affect other members of the public's exercise of their right to vote, or even to impact their final decision of whether to exercise their right to vote. It interferes with the proper functioning of an election. 24.The Magistrate further stated that maintaining a smooth, fair and efficient electoral process is in the interest of the society as a whole, the Prohibited Acts will lead to a misallocation of electoral resources, such as, the costs of administration, when electors are incited to cast invalid votes or remain abstained. It is a kind of electoral manipulation, having the effect of reducing the accountability, effectiveness and competitiveness of the election and electoral returns. It will affect the exercise of voting rights by other members of the public and in appropriate cases, the candidates' right to be elected. 25.On a cumulative assessment, the Prohibited Acts will sabotage the electoral system, there exist alternatives for individual to express their view rather than organizing an invalid vote casting, the legitimate aim is to regulate acts that amount to manipulate or obstruct election, thus the Provision did pursue a legitimate aim. (b) The rational connection limb 26.The Magistrate also stated that the need for the Legislature to intervene before the criminal act is committed is for risk management purpose, the restrictions on the right to freedom of expression are imposed pursuant to and have a rational connection with the legitimate aim. (c) The reasonable necessity limb 27.The Magistrate considered that there is a need to balance the right to freedom of expression on one hand, and the community interest of participating in the electoral process in a proper and effective way on the other. Two standards have been applied before: (1) whether the intruding measure was "no more than necessary" to achieve the legitimate aim in question; (2) whether the encroaching measure was "manifestly without reasonable foundation". 28.By applying the principles applied in Hysan Development Company Limited v Town Planning Board (2016) 19 HKCFAR 372, the Magistrate is of the view that the limitations imposed by Section 27A are narrowly tailored and is confined to acts carried out during the election period, the section does not lay down blanket prohibitions. 29.Further, Section 27A is applicable without discrimination on grounds of political stance. Any members of the public who commit the Prohibited Acts at the specified time will be caught, it also preserves the room for citizens to discuss such content in private and it did not involve political censorship. 30.Lastly, the Magistrate also stated that Section 27A(3) mandates the court to factor in all circumstances of the case when determining whether the activity concerned amounts to incitement as prescribed in the offence creating section. Couple with the availability of the statutory defences of lawful authority and reasonable excuse, the Appellant's concern about the position of the good faith citizens should have been adequately addressed, therefore the restrictions are reasonably necessary. (d) The reasonable balance limb 31.The provision only prohibits acts of incitement during the specified time, discussion in other context is not affected. The freedom of how the citizens exercise their right to vote is also not encroached. 32.After balancing the interests of all parties, the need for the elections to be conducted in an effective and orderly manner and the overall circumstances, the Magistrate ruled that Section 27A is necessary and appropriate for ensuring the attainment of the objective it pursues and the measure will not create a result that is unduly imbalance and unfair, nor oppressively place an excessive burden on the affected Therefore the offence creating provision is constitutionally justified The Equality Principle 33.The Appellant argued that the Prohibited Acts are by nature not different from persuading the electors to vote for a particular candidate, however, as the provision concerned is applied in non-discriminatory manner among all citizens, the Appellant can derive very limited assistance from the case of QT. 34.As to the argument that there is differential treatment of the two groups of people abovementioned, Sections 27A and 22(1) of the ECICO only penalise persons who incited others to cast spoilt votes or not to vote, i.e. those who frustrate the electoral system, whereas those who encourage others to vote are facilitating the election. The position of those who incite others to cast blank votes or not to vote are quite different. Therefore the Provision has not unconstitutionally infringed the Appellant’s right to equality before the law. Appellant’s Submission The Right to Freedom of Expression and its Restrictions 35.The Appellant firstly referred to Leung Kwok Hung and Others v HKSAR (2005) 8 HKCFAR 229, which highlighted the features of a democratic society and the role played by the fundamental right to freedom of expression, that they are precious and lie at the foundation of a democratic society and are of cardinal importance for the stability and progress of society which allows for the proper ventilation of minority view that may be disagreeable, unpopular, distasteful or even offensive to others. But tolerance is a hallmark of a pluralistic society. 36.The Appellant stated that although the present appeal concerns a restriction of political expressions, the Appellant pointed out that this appeal is concerned solely with whether the Provision has made excessive inroad into the constitutionally guaranteed fundamental rights and freedoms. 37.Before applying the proportionality test, the Appellant also stated that it is important to appreciate the relevance of international materials. As in Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28, the international materials had been considered extensively.
Application of the Proportionality Test to the Provision 38.In Magyar Kétfarkú Kutya Párt v Hungary (App no. 201/17, Grand Chamber, 20 January 2020), the Applicant urged others to participate in the referendum but to cast an invalid ballot, as a gesture to send a message of denouncement that the referendum has abused a democratic institution and lacks legitimacy. He made a mobile application allowing voters to upload and share, anonymously, photographs of their ballots. Following the referendum, the Applicant was fined. He then complained to the ECtHR that his right to freedom of expression had been violated. The Grand Chamber agreed that the call for casting invalid ballots is a political expression. 39.In Teslenko and Others v Russia (App nos. 49588/12 and 3 others, Third Section, 5 April 2022), the Third and Fourth Applicants were prosecuted for creating obstacles to voters’ participation in the voting process by calling on the electorate to abstain from voting in a forthcoming presidential election, the Strasbourg Court considered a boycott to be a form of expressing protesting opinion, whereas calls for abstaining from voting is an instance of political expression and falls within the scope of expression that should be afforded the heightened level of protection under Article 19 of the ICCPR. 40.The Appellant also highlighted that the protection for free circulation of political ideas without fear during the election period is clearly essential for ensuring elections are “genuine, open, honest and fair”. 41.The Appellant therefore submits that the Court should subject the Provision to a particularly severe scrutiny. The Court should be particularly vigilant, and consequently much less leeway or margin of appreciation will be accorded to the executive or the legislature. Legitimate Aim & Rational Connection 42.The Appellant submits that as a starting point, in a “genuine, fair, open, and honest election” in Hong Kong, voters are free to choose to not to vote or to cast an invalid vote, an invalid vote per se would not cause any harm to the integrity of elections. 43.As stated by the European Commission of Human Rights in X v Austria (no. 4982/71), where the Applicant complains that the compulsory voting policy in place has violated his right of conscience, the Commission stressed that voters are still at liberty to cast their votes in whatever manner and in fact given the option of leaving his voting paper blank and may, on presenting himself at the polls, hand in either a blank or a spoiled paper. 44.The Appellant also contended that the adequacy of voting options are important as the rate of invalid votes can in fact humiliate the candidates, forcing them to rethink their position and make them more responsive to the demands of the public/constituents that they represent. Enabling informed choices to be made in fact strengthens the integrity of the “genuine, fair, open, and honest election”. No More Than Necessary 45.The Appellant emphasized that in a democracy based on the rule of law, political ideas which challenge the existing order and whose realisation is advocated by peaceful means must also be afforded a proper opportunity of expression: See Eğitim ve Bilim Emekçileri Sendikası v Turkey (App no. 20641/05, Second Section, 25 September 2012). 46.The UNHRC also expressed in unambiguous terms in its General Comment No. 34 on Art. 19 of ICCPR dated 11-29 July 2011, which cited in Perinçek v Switzerland (2016) 63 EHRR 6 by the Strasbourg Court, that the restrictions in paragraph 3 of the Article, while may be permissible to protect voters from forms of expression that constitute intimidation or coercion, the impedance cannot prohibit calls for boycotting non-compulsory votes. 47.On face reading, ECICO s 27A only restricts and prohibits a certain form of expression and is confined in the temporal sense to cover only the election period, the Provision is for all practical purposes not a content-neutral prohibition. 48.The Appellant also submits that in the present case, the substance (the information) and the form (the time and manner) of the expression are inextricably interwoven. One may ask: what purpose will the dissemination of such information serve, if not during the election period? What impact will it make, if not carried to the public? 49.In Bowman v the UK (1998) 26 EHRR 1, the UK limited the amount of money for unauthorised persons to spend on publications and other means of communication during the election period to GBP 5. The Court was not satisfied that the Applicant had access to any other effective channels of communication and finds that the limit was a total barrier to the Applicant’s publishing information with a view to influence the voters in favour of an anti-abortion candidate. Similarly, the Provision bars dissemination of information to the public indifferent of the medium, see ECICO s 27A(5). ECICO s 27A(5) has defined “activity in public” so loosely as including any form of communication to the public, The Magistrate therefore erred in finding that the Provision only prohibited a certain form of expression and is for all practical purposes, not a content-neutral prohibition, the Magistrate also erred in finding that the Provision is content-neutral, makes no political inclination and does not target any particular political groups or views. The Magistrate clearly ignored the basic principle that “convincing others of a point of view is often at the heart of the right to freedom of expression in a democracy” as in Teslenko and Others. 50.In Teslenko, which involved finding a violation of the freedom of expression where four applicants were prosecuted for administrative offences for calling on eligible voters not to vote for a specific political party, or to abstain from voting in various parliamentary and presidential elections. The ECtHR first highlighted the fact that the expression contains no calls for violence, intolerance or criminal behaviour, it criticised the domestic court for not considering the Applicants’ freedom of expression. The Strasbourg Court held that the Third and Fourth Applicants are entitled to convince others of a political view, while recognising the Government’s aim to reduce abstention in elections, the Strasbourg Court stressed that the impact and influence the Applicant can exert on others is limited since he was not a person of any authority, it therefore concludes that the conviction is not necessary and disproportionate. 51.The Appellant contended that the Provision creates a criminal offence as opposed to a mere administrative offence, it requires no more than any activity in public that incites another person not to vote or to cast an invalid vote at an election during the election period, thus is easy to prove but provides no exceptions, the commission of crime does not require the incitement of hatred, intolerance, discrimination and is also indifferent to the consequences. The maximum penalty is a fine at level 5 and to imprisonment for 1 year, if tried summarily; or a fine of $200,000 and to imprisonment for 3 years, if tried on indictment, the ECtHR has clearly stated that the imposition of a prison sentence for an offence in the area of political speech will be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances. Reasonable Balance 52.The Appellant submits that the Provision does not strike the reasonable balance, any public interest is remote and minimal. Preventing abstention and the casting of invalid votes does not contribute to democracy. Instead of stifling political speech, allowing maximum room for free speech is in the public interest since it fosters a fair and open election by allowing the public to make an informed decision. The right to freedom of expression confers not only the right to impart information and ideas but also the right to receive them. By contrast, the encroachment of rights is grave and substantial. The freedom to air criticisms against the electoral system is for all practical purposes barred. 53.Therefore, as to question 1, the Magistrate has come to the wrong conclusion that the measure will not create an undue imbalance and unfair result nor oppressively place an excessive burden on the affected individual. The Appellant submits that the Provision cannot survive a constitutional review and is unconstitutional. On Question 2 Differential Treatment on Prohibited Grounds 54.The difference in treatment is obvious: while persons inciting others to not vote or to cast an invalid vote (“Group 1”) are prohibited from doing so, persons inciting others to vote for a particular candidate or to vote generally (“Group 2”) are not. The question of why two groups are treated differently cannot be answered simply by saying the two groups are different and that the advantageous treatment is only reserved for the comparator group. 55.The differences in regulating measures might have been different for other unnamed reasons, for example, to require those who promoted the boycotting of votes to submit election returns would be impractical, and the difference in treatment must be justified. The Appellant submits that in the widest sense, it is about political free speech; in the narrowest sense, is about convincing others on how to exercise their right to vote/how to use their vote. In either sense, and in all material aspects, “persons inciting others to not vote/cast invalid votes” and “persons advocating for a particular candidate” are comparable: the former is encouraging others to use their votes positively in a negative manner, while the latter is encouraging others to use their votes positively in a positive manner. 56.Therefore, the calls for casting an invalid ballot, even with a view in undermining the electoral system, is a form of political expression, an election can be an opportunity for the public to express his dissent/disapproval against the contesting candidates and will have the benefit of reducing bogus voting. 57.The difference in treatment thus amounts to prima facie infringement of the right to equality. The government then should bear the responsibility to justify such differential treatment. The Justification Test 58.The Appellant submits that the information promoting a boycott of the election in Hong Kong will not put the equality of registered candidates at stake and does not undermine fairness of the elections. No More Than Necessary 59.The Appellant says that the Respondent has failed to address the justification test altogether nor offer a justification, the differential treatment would constitute unlawful discrimination. Therefore the Provision fails the justification test and is thus in violation of the right to equality. It follows that the appeal must be allowed, and the Appellant’s conviction must be quashed. Respondent’s Reply On Question 1 60.To start with, the Appellant accepted that freedom of expression is not absolute and it may be subject to certain restrictions as are provided by law and are necessary (a) for respect of the rights or reputation of others; or (b) for the protection of national security or of public order (ordre public), or of public health or morals (BOR 16(3)). Further, the Appellant did not dispute that the Provision was “as are provided by law”. 61.The Respondent agrees that the proportionality assessment which involved the four-step process as refined in Hysan Development Co Ltd and others v Town Planning Board (2016) 19 HKCFAR 372 should be adopted in assessing whether the Provision satisfies the “necessity” requirement. 62.However, in arguing the Provision did not satisfy the necessity requirement, the Appellant referred to Sham Tsz Kit v Secretary for Justice (2023) 26 HKCFAR 385 to support his heavy reliance of overseas cases. While the Respondent appreciates the relevance of international jurisprudence, as the Court of Final Appeal also noted in that case, one should be mindful of any material differences which may render aspects of such international jurisprudence inapplicable. Legitimate aim 63.The Appellant relied on Bowman v The United Kingdom in which the ECtHR accepted that a statutory control of public debate was necessary given the risk posed to the right to free election. The ECtHR was of the following view (para. 111):
64.Against this general principle, the Respondent submits the legislative background on the creation of the Provision. In the years culminating to the introduction of the Improving Electoral System (Consolidated Amendments) Bill 2021, Hong Kong faced circumstances that were not conducive to the thorough and accurate implementation of “One Country, Two Systems”. In June 2019, disturbances arose from the opposition to the proposed legislative amendments to the Fugitive Offenders Ordinance. Groups emerged advocating “Hong Kong independence”, organizing resistance against the governance of the Central Authorities, and even colluding with external elements to interfere with Hong Kong’s affairs. These opposition forces and radicals entered the political structure of the Hong Kong Special Administrative Region through elections. They paralyzed the operation of the LegCo and obstructed governance by HKSAR Government in accordance with the law; supported and glorified violence outside the Council; and orchestrated plans to gain dominance in the LegCo in order to achieve “mutual destruction”, all of which seriously jeopardized Hong Kong’s constitutional order and challenged national sovereignty. Those chaos exposed the loopholes and deficiencies of Hong Kong’s electoral system, which if not rectified in time, would go directly against the principle of “patriots administering Hong Kong”, making it difficult to ensure the faithful implementation of “One Country, Two Systems”; and seriously impairing Hong Kong’s prosperity and stability. 65.As a result, the National People’s Congress (“NPC”) made the Decision on Improving the Electoral System of the Hong Kong Special Administrative Region (“the Decision”) on 11 March 2021 and laid down the fundamental principles for amending Annexes I and II to the Basic Law: (i) fully and accurately upholding and implementing the principles of “One Country, Two Systems”, “Hong Kong people administering Hong Kong” and a high degree of autonomy; (ii) firmly safeguarding the constitutional order of the HKSAR as enshrined under the Constitution and the Basic Law; (iii) ensuring “patriots administering Hong Kong”; (iv) effectively enhancing the governance capability of the HKSAR; and (v) upholding HKSAR permanent residents’ right to vote and the right to stand for election in accordance with law. 66.The Decision authorized the Standing Committee of the National People’s Congress (“NPCSC”) to amend Annexes I and II to the Basic Law in accordance with the above fundamental principles. The NPCSC on 30 March 2021 adopted the amended Annexes I and II to the Basic Law. According to Article 7 of the Decision, the HKSAR Government shall, according to the Decision and the amended Annexes I and II to the Basic Law, amend the relevant local legislation and organize and regulate the relevant electoral activities in accordance with law. 67.Against the above background, the Government introduced the Bill which inter alia created the Provision in the ECICO. One of the objectives of ECICO is to ensure that elections are conducted fairly, openly and honestly and are free from corrupt conduct and illegal conduct. 68.As the Court of Final Appeal held in HKSAR v Cheng Wing Kin (2020) 23 HKCFAR 83, construed section 3 purposively, conduct which ECICO qualifies as “corrupt and illegal” is intended to be conduct which is antithetical to the achievement of “fair, open and honest” elections. 69.As to the Provision specifically, the aims of its creation were explained in the LegCo Brief (para. 70):
70.At the 7th meeting of the Bills Committee on the Bill, the Permanent Secretary for Constitutional and Mainland Affairs stated (para. 14):
Protection of public order (ordre public) 71.The Respondent referred to the Court of Final Appeal held in HKSAR v Ng Kung Siu & Another (1999) 2 HKCFAR 442, the concept of public order (ordre public) is not limited to public order in terms of law and order, the concept must remain a function of “time, place and circumstances”, the Provision was created for the protection of the general welfare or for the interests of the collectivity as a whole at the specific time, place and circumstances. There are clearly legitimate community interests in preventing and mitigating any risks of election manipulation and sabotage, and protecting the collective interests of having open, honest and fair elections. The creation of the Provision is part of the effort to improve and safeguard Hong Kong’s electoral system. Respect of the rights of others 72.The Respondent submits that the “rights of others” pertinent to this case are (a) the right to vote and (b) the right of candidates to conduct electioneering activities on a level playing field. 73.As stated in the LegCo Brief, the Government is of the view that if someone openly incites voters not to vote, or to cast blank or invalid votes during an election period, it may create undue pressure on voters and affect their freedom to choose whether to exercise their right to vote. Given the objective of the Provision, it was put in place to respect or protect others’ right to participate in the voting process, including the act of voting. In other words, the important rights at stake apart from the freedom of expression include the exercise of the right to vote free from undue pressure, which right is one that our legislature had appropriately taken into account when considering the enactment of the Provision. 74.Another right of others to be respected or protected in this case includes the right of candidates to conduct electioneering activities on a level playing field. 75.The right to vote or not to vote is an exercise of one’s own personal choice. The public act of inciting others to abstain from voting or cast an invalid vote is certainly disruptive to such purpose. It would also bring pressure to the Government’s electoral resources and affect other voters’ exercise of their right to vote. Rational connection with advancing the legitimate aim 76.As in the Court of Final Appeal case, Kwok Wing Hang and 23 Others v Chief Executive in Council and Another (2020) 23 HKCFAR 518, whether a measure is rationally connected to an identified aim is largely a matter of logic and common sense. 77.The Respondent submits that, inciting others not to vote or cast an invalid vote only causes disruption to the election; and the Provision is in place to regulate such act to prevent one from disrupting or manipulating the election, and to ensure voters can vote freely without undue interference. The rational connection between the two is obvious. Restriction is no more than necessary 78.As by the Court of Final Appeal in Ng Kung Siu, in determining whether the restriction is no more than necessary, the Court should give due weight to the view of the LegCo that the enactment of a legislation was appropriate for the discharge of the Government’s obligation to apply the national law. Similarly in the present case, due weight should be given to the views to the LegCo for the discharge of the Government’s obligation under the Annexes to the Basic Law. 79.Firstly, the issue of the Provision’s conformity with Basic Law provisions including the right to freedom of expression, as well as the offence elements of the Provision, have been considered and extensively debated in the LegCo. The Provision was the result of extensive debates in the LegCo and was a product of political judgment and assessment, thus some deference should be accorded to our legislature in adopting the option of enacting the Provision. In the Bills Committee’s deliberation for the Bill, the Administration stated:
80.Further, the Respondent submits that the Provision itself does not impose a total ban of expression in relation to the abstention of voting or the casting of blank or invalid votes at all times. It only regulates an activity carried out during the election period, and also regulates “activity in public” which is clearly defined with no ambiguity (s.27(5) of the Provision). It should also be noted that a defence is available for a person charged under the Provision to prove that he had lawful authority or reasonable excuse for doing the activity (s.27(4) of the Provision). 81.On the Appellant’s challenge that no purpose will the dissemination of information serve if not during the election period - “What impact will it make, if not carried to the public? The Respondent will say that is without merit because it is not the right question to consider. Each legislative provision is enacted for different purposes and the context shall not be ignored. The satisfaction of the necessity requirement cannot and should not be considered in vacuum. In the present case, the gravamen of the Provision is precisely to prevent “the impact” i.e. people being incited to disrupt election. The right question to consider therefore is given the objects and purpose, namely “to prevent the impact”, whether the Provision satisfies the necessity requirement. 82.Furthermore, Teslenko was heavily relied on by the Appellant but the Respondent submits that it does not supports the Appellant’s case. The Appellant simply extracted the ECtHR’s rulings and claimed they are applicable in the present case without establishing how any of the political structure, political and legislative concerns and issues etc. that country faced and had to deal with are comparable, not to mention similar or identical, as those faced by the HKSAR at the material time. 83.Considering the ambit of the activity to be regulated and the temporal restriction in the Hong Kong context, the Respondent submits that the restrictions were no more than necessary. Reasonable balance 84.For the striking of a reasonable balance between the societal benefits of the encroachment and the inroads into the constitutionally protected rights of the individual, the Respondent submits that it is only a narrow and clearly defined type of activity regulated under the Provision and the availability of a statutory defence, the maximum penalty prescribed by the penalty provision (section 22(1) of ECICO), namely a fine up to HK$50,000 and imprisonment for 1 year (summary conviction) or a fine of HK$200,000 and imprisonment for 3 years (convicted on indictment), could not be regarded as severe in the spectrum of sentences available. It is plain that a reasonable balance has been struck. 85.The Respondent submits that the answer to Question 1 is “No”, and the Magistrate did not err in ruling that the Provision has not unconstitutionally infringed the Appellant’s right to the freedom of expression. Question 2 86.The Respondent contends that where an issue of equality before the law arises, the question of whether a measure is discriminatory is necessarily bound up with whether the differential treatment which the measure entails can be justified. The court will first determine whether there is a differential treatment on a prohibited ground and then if this can be demonstrated, whether it can be justified. 87.In order to show the existence of a differential treatment on a prohibited ground, the complainant must establish (a) he has been treated differently to a person in a comparable, or analogous, position; and (b) the reason for the differential treatment is based on the prohibited ground. The proportionality test as developed in Hysan Development Co Ltd is equally applicable in deciding whether the differential treatment is justified. 88.Firstly, the Appellant attempted to compare persons who incite others not to vote or cast invalid votes with persons who persuade others to vote for a particular candidate. However, “inciting others to vote for a particular candidate or to vote generally”, is artificial. “Incitement” has its own definition and it is inapplicable in situations when one is “persuaded” to do an act considered to be positive, thus it is not proper to say one is “incited” to perform good deeds. 89.Secondly, proceeding on the Appellant’s categorization, the Respondent says that such categorization missed the crucial fact that the Provision does not distinguish political views. Regardless of the agenda behind, the Provision applies equally to all whose conduct falls within the ambit of the offence. 90.Thirdly, the two groups of people identified by the Appellant are not comparable is that the group of people persuading others to vote for a particular candidate would be regulated by ECICO (e.g. in terms of election expenses) whereas the group of people inciting others not to vote or to cast an invalid vote would escape regulation altogether. 91.While the Appellant attempted to rely on Teslenko, Teslenko did not concern any challenge to the right of equality. It only concerned the right to liberty and the right to freedom of expression under the Convention. The Respondent will say that such quotation certainly did not and could not support the Appellant’s claim that the equality of registered candidates was not at stake in the present context and rights concerned. Justification (proportionality) test 92.Even if the Court accepts the Appellant’s categorization of people as relevant comparators, the Respondent will say that the alleged differential treatment, if any, is justified in any event. 93.Therefore, the Respondent submits that the answer to Question 2 is “No”, the Magistrate did not err in ruling that the Provision has not unconstitutionally infringed the Appellant’s right to equality before the law and the answers to the two questions of law posed should be “No”. Consideration 94.Section 27A of ECICO stipulates as follows:
95.Section 22(1) of the ECICO provides that:
96.The charge laid against the Appellant was as follows:
97.To begin with, the Appellant basically reiterated the contention in lower court and further added with quite some overseas cases in support of the present appeal, however, as for the election regime in HKSAR, one must not lose sight of its very unique historical and legislative background. As what the Respondent had in details stated above, the creation of the Provision was a result of the disturbances started around 2019 followed by violence and riots taken place which seriously jeopardizing the stability and prosperity of HKSAR. The National People’s Congress then made the Decision on Improving the Electoral System of HKSAR and also authorized the Standing Committee to amend the Basic Law to organize and regulate electoral activities in accordance with the law. 98.The Legislature thereby conducted extensive debate and thorough discussion before the enactment of the present Provision, As quoted above for the creation of the Provision as in LegCo Brief:
99.As against these unique backgrounds for the creation of the Provision, the reliance on overseas authorities, particularly for those regime allowing any organizing for voters not to vote shall not render useful or meaningful assistance for analysis. On Question 1 100.For the freedom of expression, it is common ground that the principles applied in Hysan case shall be considered. Legitimate aim 101.The object of the ECIC Ordinance is to ensure that elections are conducted fairly, openly and honestly and are free from corrupt and illegal conduct. Electoral process no doubt marks an essential contribution to democratic society, citizens are free to choose who could better represent and voice their opinion in different subjects. There comes the way why there shall not be any undue pressure on voters to vote. By inciting or organizing people not to vote is clearly not conducive to an effective election process, no to say the waste of public resources. 102.The Appellant primarily argued that casting no vote is just a way to express dissatisfaction of the overall governance and that shall not be forbidden on freedom of expression, however, firstly it fails to note that what is now preventing is not on private choice but on incitement basis, secondly it otherwise did make an impact on individual to exercise their choice free from any disturbances and unnecessary interference. Therefore, the Provision created is clearly pursuing a legitimate aim to ensure a fair and open election. Rational connection 103.As referred by the Respondent in the case of Kwok Wing Hang, it is largely a matter of logic and common sense. The Provision aims to ensure fair and open election, and to ensure voters free from undue interference. By preventing any act to affect, disrupt or manipulating the election, say collectively inciting people not to vote, is obviously advancing the legitimate aim and the connection is beyond questioning. No more than necessary 104.The Provision created is not on catching all basis but just for the election period and of public activity. As Respondent submitted, it is not a total ban of expression at all times and there exists a defence of lawful authority or reasonable excuse. 105.The Appellant however contended that there would serve no purpose if the activity is not taken place in public or during election period, however, that is just exactly as what stated above to prevent from any form of disruption of manipulation on exercise of free and uninterrupted choice of election. 106.The Appellant rests heavily and relied on Teslenko to say firstly convincing other is at the heart of the right to freedom of expression and secondly the expression contains no call for violence or criminal behaviour, and thirdly it created a criminal rather than just administrative offence. 107.Nonetheless, as stated above, the election regime in HKSAR, as against its unique historical and legislative background, Teslenko does not assist the Appellant particularly as a case arising from different political and historical culture and background. 108.Therefore, I am satisfied that restriction imposed is no more than necessary. Reasonable balance 109.Lastly, as aforesaid, the restriction is not a total ban but just confined to election period for public activity, there is no unbalance nor oppressive burden placed on any individual, the society will no doubt be benefitted from a smooth, open and undisrupted election, Considering further on the penalty imposed, a fine up to HK$50,000 and imprisonment for 1 year on summary conviction or a fine of HK$200,000 and imprisonment for 3 years on indictment could also not be regarded as severe. Therefore, a reasonable balance had been made. 110.To conclude, on question 1, the Magistrate did not err in finding that the Provision had not infringed the Appellant’s right to the freedom of expression. On Question 2 Equality principle Differential treatment 111.The Appellant essentially argued that there is no difference for inciting people to vote and inciting people not to or simply casting no vote. But it is just too obvious that the former would be promoting the election process to ensure a democratic representation while the latter is just disrupting or manipulation the process. The nature and effect had great differences and could hardly be used for comparison. Justification 112.The Appellant maintained that the boycott of the election would not put the equality of candidate at stake nor does it undermine the fairness of election. Likewise, it fails to see all candidates would also suffer from an invalid or insufficient vote where otherwise one may be properly elected from an uninterrupted election with sufficient vote to reflect their representation. However, by inciting on casting no vote, not only does it render the election process futile but also affect the smooth transition of representation of public opinion in the respective council. The underlying justification is just more than obvious. 113.Therefore, the Magistrate also did not err in ruling that the Provision has not infringed the Appellant’s right to equality before the law. 114.In conclusion, the answer to two questions posed should be “No” and the Appellant appeals by way of case stated is dismissed accordingly.
Mr. Carter Chim, Ms. Yvonne Leung and Mr. Jason Szeto, instructed by Ho Kan Lawyers, for the Appellant Mr. Ned Lai, Deputy Director of Public Prosecutions and Ms. Claudia Ng, Senior Public Prosecutor of the Department of Justice, for the Respondent | ||||||||||||||||||||
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