A Hong Kong court has dismissed an appeal by a former student leader challenging the city’s election law after he was handed a suspended sentence for inciting blank or invalid votes in the 2021 legislative election.
Former Chinese University of Hong Kong students’ union leader Jacky So appeared in court on December 1. Photo: Peter Lee/HKFP.
The appeal lodged by Jacky So, former president of a students’ union at the Chinese University of Hong Kong (CUHK), was rejected by Deputy High Court Judge Frankie Yiu on Monday.
So challenged the constitutionality of the offence of inciting others to cast invalid or blank ballots under the Elections (Corrupt and Illegal Conduct) Ordinance.
He argued the magistrate who handled his case in 2022 had made a mistake by ruling that the provision did not infringe his right to the freedom of expression and to equality.
The ex-student leader was charged in July 2022 for sharing a social media post by self-exiled former lawmaker Ted Hui, calling on voters to cast invalid or blank ballots in the “patriots-only” Legislative Council elections in 2021.
After the magistrate dismissed his constitutionality challenge, So pleaded guilty to the charge in December 2022 and was handed a suspended two-month jail term.
Chairperson of the Electoral Affairs Commission Justice Barnabas Fung and Secretary for Constitutional and Mainland Affairs Erick Tsang opening the first ballot box in Hong Kong’s first “pariots-only” legislative race on December 19, 2021. Photo: Kyle Lam/HKFP.
According to Yiu’s judgement on Monday, So argued that encouraging others to cast a blank vote is not different from persuading others to vote for a particular candidate. Hong Kong voters should be free to choose not to vote or cast an invalid vote in an election, So’s lawyers said.
The former student leader also suggested that the rate of invalid votes could “humiliate candidates,” forcing them to be more responsive to the demands of the public or their constituents.
Government lawyers responded by saying that inciting voters not to vote, as well as to cast invalid or blank votes, was all acts “manipulating or damaging the election.” They also said that voting according to one’s preference was one’s personal right, but inciting others to vote “in certain form” should be outlawed.
The government’s legal team also cited the 2019 extradition bill protests and its aftermath, saying the social unrest had “exposed the loopholes and deficiencies” of the city’s electoral system. As a result, the election law was amended in 2021 as part of an electoral overhaul, they said.
In his judgement, Yiu said So’s team failed to note that the offence they were challenging was targeting incitement instead of an individual’s personal choice. The provision regulated behaviour during the election period and thus was not a “total ban of expression at all times,” the judge said.
A polling station for Hong Kong’s first “patriots-only” District Council race in Tsuen Wan, on December 10, 2023. Photo: Kelly Ho/HKFP.
The judge wrote that “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.”
He went on to say that there was a “great difference” between asking people to vote and telling them not to vote. The former would promote the election process, while the latter would manipulate or disrupt it, Yiu said.
The judge wrote that “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.”
