A Hong Kong law banning incitement to boycott elections or to cast invalid votes is being challenged as unconstitutional on the grounds that it “disproportionately” restricts freedom of expression and creates “inequality” for groups holding a particular political opinion.

Former Chinese University of Hong Kong students’ union leader Jacky So appeared in court on December 1. Photo: Peter Lee/HKFP.

The constitutionality debate was aired in court when former Chinese University of Hong Kong students’ union leader Jacky So appeared in front of Deputy Magistrate Kennis Tai on Thursday.

So is accused of sharing a Facebook post by self-exiled ex-lawmaker Ted Hui, which allegedly incited others to cast blank ballots in the 2021 Legislative Council elections after Beijing revamped the electoral system earlier that year.

The court had earlier heard that So would plea guilty if the court deems the law to be constitutional, and would accept case details set out by the prosecution.

‘Lawful purpose’

Defence lawyer Carter Chim said the prosecution must prove that the legislation in question had a “lawful purpose.”

He noted that the government’s move to ban people from advocating the casting of invalid votes came shortly after Beijing imposed its political revamp.

This sharply reduced the number of directly elected seats in the legislature and made it far more difficult for pro-democracy candidates to stand.

The barrister said the government’s action would “objectively” cause some to think that it was intended to block the public from organising a blank vote movement that would lead to an “embarrassing” situation, in which the number of invalid votes exceeded valid ones.

Candidates in the Election Committee constituency in Hong Kong’s first “patriots-only” Legislative Council election. Photo: Kyle Lam/HKFP.

Chim added that some might also see the legislation as aimed at preventing the opinions of those supporting or objecting to Beijing’s revamp from being reflected in actual numbers.

“To avoid being embarrassed is absolutely not a lawful purpose,” Chim said.

However, the prosecutor – who only gave reporters her surname as Lam – said Chim’s accusations were only “speculations,” and the court should rely on existing evidence such as the text of Beijing’s decision, the documents submitted to the legislature, and officials’ explanation of the law.

In addition, citing the government’s submission to the Legislative Council, Lam said that “in recent years, there have been organisations planning to use the election platform to intervene in the government’s operations, including to prevent elections being carried out normally in an orderly manner.”

In response, Chim said the prosecution did not say what organisations it was talking about and how they had been manipulating elections, or how such alleged manipulation related to the casting of invalid ballots.

Calling for boycott – ‘sabotage?’

Chim said publicly calling for others to cast invalid votes would not “sabotage” an election as suggested by the government and the prosecution. Most elections in Hong Kong, apart from the one for chief executive, did not require a minimum threshold of ballots.

In a case where there was only one candidate and a voter deemed him or her to be unsuitable, calling for blank votes should be a “normal way of expression.”

“If calling for an aborted election is seen as sabotage, when there’s only one candidate, you will not be allowed to oppose him/her,” Chim said.

Lam used a corporate meeting as an example of why urging a vote boycott was equivalent to sabotage.

Posters advertising the 2021 Legislative Council elections at a bus stop in Tsim Sha Tsui. Photo: GovHK.

“If a company manager asked all staffers to attend a meeting, and one employee incited others not to go, or not to express their opinions, or object to everything suggested, or make no choice at all – how come this does not sabotage a conference?” Lam asked.

Adopting Lam’s analogy, the defence lawyer said if a manager only gave staffers two options , to suffer a wage cut of 10 per cent or 20 per cent, “employees or unions… will of course call for a boycott.”

But the barrister said a boycott might be a good thing after all as the firm would be forced to think of a better way to reduce its costs.

“When an election is aborted… authorities will be pressured to nominate better candidates, and it will be positive for the government, the public and society as a whole,” Chim said, adding that “but now [such advocacy] is deemed as manipulating or sabotaging the election.”

“The formality [of an election] should not be placed higher than its actual meaning.”

Equality

Citing the Hong Kong Bill of Rights, Chim said no one in the city should be treated differently because of their “political or other opinion,” but the legislation in question created “inequality” for those who advocate invalid ballots.

Legislative candidate Lau Chan Hok-fung (centre) and pro-Beijing heavyweight Ip Kwok-him (right) in Kennedy Town. Photo: Kelly Ho/HKFP.

The prosecution argued that those who publicly called for others to cast invalid votes were not comparable to supporters of a particular candidate, as the latter would be subjected to relevant electoral laws.

Lam said everyone was treated equally under the law in question since no one was allowed to incite others to cast invalid votes, irrespective of their political stance.

The court adjourned its decision on constitutionality to December 29. So’s bail was extended.

The maximum sentence for the charge is three years’ imprisonment and a HK$200,000 fine.

Support HKFP  |  Code of Ethics  |  Error/typo?  |  Contact Us  |  Newsletter  | Transparency & Annual Report

Support press freedom & help us surpass 1,000 monthly Patrons: 100% independent, governed by an ethics code & not-for-profit, Hong Kong Free Press is #PressingOn with impartial, award-winning, frontline coverage.

Peter Lee

Peter Lee is a reporter for HKFP. He was previously a freelance journalist at Initium, covering political and court news. He holds a Global Communication bachelor degree from CUHK.