Inciting other people to cast a blank or invalid vote in Hong Kong’s upcoming elections may become a crime – without the need to prove wilful intent to undermine the poll – lawmakers have been told.

The introduction of the new offence – details of which are in a bill being scrutinised by legislators – came before a meeting of the Legislative Council’s bills committee on Thursday and form part of a dramatic Beijing-imposed overhaul of Hong Kong’s electoral system.

A government banner promoting the electoral overhaul, photographed outside the MacPherson Playground in Mong Kok. Photo: Kelly Ho/HKFP.

Under the new provision, it will become illegal for a Hong Kong citizen to engage in conduct which “incites another person not to vote or to cast invalid vote by activity in public during the election period.” The election period lasts from the day candidates are nominated until polls close.

“Any person engages in illegal conduct in an election if the person carries out any activity in public that incites another person not to vote at the election, or… incites another person voting at the election to deal with the ballot issue in any way that would render that ballot invalid in any way under electoral law, ” the bill read.

Activities carried out in a public place were defined as any form of communication — including speaking, writing, printing, displaying notices, broadcasting, screening or playing of tapes or other material. The offence also covered “gestures, signs, clothing, flags emblems or insignia, or dissemination of any material in public that would incite others to not vote or cast a blank or invalid ballot”.

Hongkongers line up to vote in the 2019 District Council election. Fil photo: GovHK.

Permanent Secretary for Constitutional and Mainland Affairs, Roy Tang, said the forms of communication will also include dissemination of material on the internet. “We believe that they all constitute activities which aim at sending out messages to the public,” he said.

He added that the bill will allow the government to criminalise inciting others not to vote without having to rely on the national security law.

The government’s deputy solicitor general on constitutional affairs, Llewellyn Mui, told lawmakers it was necessary for the prosecution to prove an intent to incite, but not an intent to undermine the elections: “It is absolutely necessary to prove the perpetrator has the intent to incite.”

Electoral staff count votes in the 2012 Legislative Council Election. File photo: GovHK.

“The prosecutor is not required to prove that the defence has another intent to undermine the election … a specific intent is not required,” he said, saying that the provision “may involve a policy consideration”.

The bill introduces a defence for people who “had lawful authority” or “reasonable excuse” to tell others not to vote. The permanent secretary said the provisions were drafted to cover “exceptional circumstances”, such as in cases where a person tells another person whom he genuinely believes is ineligible to vote to refrain from casting a ballot.

Casual conversations

Chairperson of the New People’s Party, Regina Ip, agreed with the provision, saying there was no need to prove wilful intent to undermine the elections: “With offences involving incitement and sedition, I don’t think we need to debate whether or not it is wilful or deliberate. When there is an incitement, it already contains an element of crime.”

Several other lawmakers, however, voiced concern that the provision may be too wide. Pro-establishment lawmakers Priscilla Leung and Paul Tse said the lack of provisions to prove wilful intent to sabotage the elections could criminalise casual conversations between individuals.

Priscilla Leung. Photo: Legco Screenshot.

“We would like to prevent people from rigging, intefering or sabotaging an election. We’re not talking about regulating an elector, about how they could make their choice… the person would really need to have such an intent ,” Leung said.

“You may have several people doing something that will be caught under this term, but they’re not doing so in an organised manner,” she continued.

Tse warned that without the specification of wilful intent to undermine elections, the bill may criminalise people who merely suggest to others to engage in another activity on election day without the underlying intent of undermining the elections. “People who tell others ‘let’s go hiking or go play mahjong instead, why bother to vote’… could be committing an act of incitement,” he said. “But they probably do not mean to undermine the election.”

“We may be arresting a lot of people who should not be arrested,” Tse added.

Paul Tse. Photo: LegCo Screenshot.

The ongoing bills committee is expected to pass the bill implementing Beijing’s overhaul of the city’s electoral system in May. The registration period for new voters in the revamped functional constituencies and election committee ends on July 5, while the registration period for ordinary voters — unaffected by the amendment bill — ended on April 2. Hong Kong’s legislative elections are set for December 19.

On March 30, Beijing passed legislation to ensure “patriots” govern Hong Kong. The move reduced democratic representation in the legislature, tightened control of elections and introduced a pro-Beijing vetting panel to select candidates. The Hong Kong government said the overhaul would ensure the city’s stability and prosperity. But the changes also prompted international condemnation, as it makes it near-impossible for pro-democracy candidates to stand.

Correction 23.4.2021: A previous version of this story stated that voter registration was in June. The registration periods end in April and in July for different groups of voters.

Hong Kong Free Press

Hong Kong Free Press is a new, non-profit, English-language news source seeking to unite critical voices on local and national affairs. Free of charge and completely independent, HKFP arrives amid rising concerns over declining press freedom in Hong Kong and during an important time in the city’s constitutional development.