HKSAR v. SO TSUN FUNG (蘇浚鋒)

Press Summary (English)

Press Summary (Chinese)

FACC No 3 of 2025

[2026] HKCFA 25

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 3 OF 2025 (CRIMINAL)

(ON APPEAL FROM HCMA NO 457 OF 2023)

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J U D G M E N T

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Chief Justice Cheung:

Introduction

1.  This appeal challenges the constitutionality of section 27A of the Elections (Corrupt and Illegal Conduct) Ordinance.[1] The section renders it illegal conduct for a person, during the election period, to engage in public activity inciting others either not to vote at an election or to deal with a ballot paper so as to render it invalid, such conduct being criminally punishable under section 22 of the Ordinance.  It is contended that section 27A is an unlawful infringement of the freedom of expression.  It is further argued that the section discriminates against a particular form of political advocacy – namely, advocacy of abstention or invalid voting – thereby infringing the constitutional guarantee of equality before the law.  At its core, the appeal raises the broader constitutional question of whether, and if so to what extent, the Legislature may lawfully restrict public advocacy that seeks to dissuade participation in elections, notwithstanding the fact that abstention and the casting of invalid votes remain lawful electoral choices.

2.  The facts are straight-forward.  During the election period for the 2021 Legislative Council General Election, the defendant (appellant) reposted on his publicly accessible Facebook page a message originally posted by another person. The repost expressly urged electors to take part in what was described as a “Be Water Plan”, by casting blank ballot papers at the election as a means of signalling dissatisfaction with the Government.  The repost remained accessible to the public for approximately one and a half months, covering the election period as defined under the Ordinance.  The defendant was charged in the Magistrates’ Courts with engaging in illegal conduct at an election contrary to section 22, by reason of section 27A.[2] If tried summarily, the offence carries a maximum penalty of a level 5 fine[3] and one year’s imprisonment.[4]  The defendant mounted a constitutional challenge to section 27A as a preliminary issue.  That challenge was rejected by the Deputy Magistrate.[5]  The defendant then pleaded guilty to the charge and was sentenced to two months’ imprisonment, suspended for 18 months.  The defendant’s appeal to the Court of First Instance was dismissed on 3 March 2025,[6] and leave to appeal to this Court was granted by the Appeal Committee on 17 October 2025.[7]

Section 27A

3.  The long title of the Ordinance states that it is enacted to “prohibit corrupt conduct and illegal conduct at elections...”  Section 3 sets out the objects of the Ordinance.  Among those objects is the aim of ensuring that, “as far as practicable, elections to elect the Chief Executive and persons to membership of the Legislative Council, District Councils and certain other public bodies and to be Rural Representatives are conducted fairly, openly and honestly and are free from corrupt conduct and illegal conduct…”[8]

4.  Part 3 of the Ordinance enumerates forms of illegal conduct targeted by the Ordinance. As mentioned, section 22(1)(a) makes provision for the punishment of engaging in illegal conduct where the matter is tried summarily.  For completeness, a defendant who engages in illegal conduct and is tried on indictment is liable, upon conviction, to a fine of $200,000 and to imprisonment for three years.[9]  From section 23 onwards, Part 3 sets out the forms of illegal conduct criminalised by the Ordinance.  Section 27A was added to Part 3[10] in circumstances which I shall describe below.  It reads:

“27A. Illegal conduct to incite another person not to vote, or to cast invalid vote, by activity in public during election period

(1) A person engages in illegal conduct at an election if the person carries out any activity in public that—

(a) incites another person not to vote at the election; or

(b) incites another person voting at the election to deal with a ballot paper issued to the person in any way that would render the ballot paper invalid at the election under any electoral law.

(2) Subsection (1) applies only to an activity in public carried out during the election period of the election concerned.

(3) In determining whether any activity in public incites another person as described in subsection (1), regard may be had to all circumstances of the case, including—

(a) the contents of the activity;

(b) the intended audience of the activity; and

(c) the circumstances in which the activity is carried out.

(4) It is a defence for a person charged with an offence under section 22(1) for having engaged in the illegal conduct under subsection (1) to prove that, at the time of the alleged offence, the person had lawful authority or reasonable excuse for doing the act to which the charge relates.

(5) In this section—

activity in public (公開活動) includes any of the following activities, whether or not the person carrying out the activity is in a public place while carrying out the activity—

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, screening and playing of tapes or other recorded material;

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia;

(c)   the distribution or dissemination of any matter to the public.”

5.  Several observations may immediately be made about the section.  First, it does not criminalise abstention from voting, nor does it criminalise the casting of an invalid vote at an election.  Secondly, it criminalises the incitement of others to do so, but only where that is done publicly during the election period.[11] Lastly, the statutory defences of lawful authority and reasonable excuse are available.

Grounds of constitutional challenge

6.  Section 27A is challenged on the basis that it infringes the rights to freedom of expression and equality.[12] In essence, the defendant[13] submits that abstention from voting and the casting of an invalid vote, which I shall, for ease of reference, describe collectively as “negative voting”, are legitimate electoral choices, no different in principle from other choices such as voting for a particular candidate or party.  It is therefore argued that advocacy of those electoral choices is as legitimate, and as deserving of protection, as advocacy of any other electoral choice.  So long as such advocacy does not amount to incitement to hatred, intolerance or discrimination, or to a call for violence or the commission of other criminal acts, there can, it is said, be no lawful restriction upon it.  Public advocacy of a lawful electoral choice is said to be of particular importance during the election period, which is precisely the time when freedom of expression matters most.  Electors cannot make an informed decision as to the best use of their votes if the public is unable to engage in open and honest debate or discussion concerning the advantages and disadvantages of each lawful electoral choice.  It is therefore contended that section 27A, by prohibiting public advocacy of negative voting during the election period, serves no legitimate aim and, indeed, impedes the holding in Hong Kong of elections that are “genuine, open, honest, and fair”.

7.  A variation on the same theme is that, insofar as it is said that section 27A is legitimately aimed at preventing the undermining of elections or the electoral system, there is no rational connection between the provision and that aim.  Negative voting is a legitimate form of participation in elections, and it follows, it is argued, that the public advocacy of such voting cannot properly be regarded as undermining either elections or the electoral system.

8.  It is further contended, for similar reasons, that the prohibition of public advocacy of negative voting constitutes discrimination on the ground of political opinion, and thereby infringes the guarantee of equality before the law, by according preference to other electoral choices over the legitimate electoral choice of negative voting.

(1)     Challenge based on the right to freedom of expression

9.  I shall first address the challenge based on the right to freedom of expression, which is specifically protected by article 27 of the Basic Law and article 16 of the Hong Kong Bill of Rights.[14] Although freedom of expression is not an absolute right, article 16(3) of the Hong Kong Bill of Rights expressly provides that restrictions on its exercise are permissible only where they are necessary “for respect of the rights or reputation of others”, or “for the protection of national security or of public order (ordre public), or of public health or morals”.  In the present case, there is no dispute that section 27A engages the right to freedom of expression.

10.  This Court has consistently held that the lawfulness of restrictions of this nature is to be assessed by conducting the four-step proportionality inquiry,[15] namely: (1) whether the restriction pursues a legitimate aim; (2) whether it is rationally connected to that aim; (3) whether it is necessary to achieve that aim; and (4) whether it strikes a reasonable balance between societal benefits and inroads into individual rights.[16]

Legitimate aim

Some general observations

11.  First, legitimate aim.  Before turning to the more detailed background materials concerning the addition of section 27A to the Ordinance in 2021, it is convenient to make some general observations.

12.  Where an activity is organised, whether private or public, and whether social, cultural or political in nature, it is only to be expected that those organising it will wish it to succeed.  It is therefore entirely legitimate for them to take lawful steps to promote the activity, to encourage attendance and support, and thereby to enhance the likelihood of its success.  Conversely, it is equally unsurprising that they should wish to avoid its failure, and in particular to resist attempts to undermine it by means of boycott or other damaging or negative conduct.  If, therefore, the activity in question is itself lawful and legitimate, and if its promotion by lawful means for the purpose of securing its success is a legitimate objective, it must follow that the taking of lawful steps to prevent its failure is likewise directed to a legitimate objective.  This must extend to steps taken to protect the activity against failure brought about by the negative, disruptive or boycotting conduct of others.  This reasoning applies as much to a birthday party or wedding banquet as it does to a sporting event, a pop concert or, most pertinently for present purposes, an election.

13.  Analysed in that way, it is indeed surprising that it should be argued that section 27A, which seeks in substance to criminalise public incitement to boycott elections, serves no legitimate aim.  Whether the means adopted, namely criminalisation, are too severe or broad is a different question, and one which falls to be considered at the third and fourth steps of the proportionality inquiry.  But that is a separate matter.  To contend that the section serves no legitimate aim is, in the circumstances, a difficult argument to run, and ultimately, unconvincing.

Elections in Hong Kong

14.  Elections are of course not merely social activities.  They are provided for by the Basic Law and by other laws in Hong Kong, and operate as constitutionally mandated mechanisms for filling public offices established under that constitutional and statutory framework for the administration of Hong Kong.  Their proper conduct, legitimacy, representativeness and credibility are therefore matters of constitutional importance.  As already noted, the Ordinance is concerned with elections for the Chief Executive, members of the Legislative Council, District Councils and other public bodies, as well as with the election of Rural Representatives.  The holding of such elections is not optional: it is required by law, and is integral to the lawful constitution of the institutions through which Hong Kong is governed.  It follows that the importance of elections lies not only in the act of voting, but in the constitutional function which elections perform.  They are of the utmost significance to the proper functioning of Hong Kong as a Special Administrative Region, in accordance with the design of the Basic Law and in order to give effect to the “One Country, Two Systems” arrangement.  That is particularly evident in the case of the selection by election of the Chief Executive and the election of members of the Legislative Council.  The constitutional importance of those offices is reflected in the fact that the methods for their selection are addressed expressly in two Annexes to the Basic Law.[17]

15.  If, as must be the case, the holding of these elections is an important matter required by law, it necessarily follows that there is a legitimate public interest in ensuring that they are conducted successfully and attract broad participation.  It is self-evident that the legitimacy and credibility of the electoral outcome depend not only on compliance with the formal legal requirements, but also on the extent to which the process engages the electorate and secures participation that is, so far as practicable, wide‑ranging and representative.

16.  It follows that measures directed to promoting participation in elections, and to discouraging their boycott, are capable of serving a legitimate aim.  Whether the particular measures adopted are lawful, and whether they strike a proportionate balance between that aim and any competing rights or interests, are distinct and separate questions to be addressed in due course.

17.  It is of some significance, in this context, that a minority, though by no means an insignificant one, of jurisdictions have adopted systems of compulsory voting.[18]  Leaving aside, for present purposes, the distinct questions of how such arrangements are constitutionally justified within the particular jurisdiction concerned, and whether the use of legal compulsion constitutes a proportionate means of pursuing the relevant objective, those systems nonetheless demonstrate that the promotion of electoral participation by voters is not an alien concept in democratic practice.  The fact that some jurisdictions are prepared to pursue that objective through compulsory means, notwithstanding the consequent restriction of electoral choices which would otherwise be legitimate, reinforces the view that encouraging participation in elections is, in principle, capable of constituting a legitimate aim in the context of rights analysis.

Unique legislative background

18.  Turning specifically to the legislative background to section 27A, as disclosed by the materials placed before the Court, the position becomes clearer still.

19.  Stated briefly, the National People’s Congress,[19] as the highest organ of state power,[20] bears both the constitutional authority and the constitutional responsibility[21] to oversee, and where necessary to improve, the electoral system of the Hong Kong Special Administrative Region.[22]  The electoral system is plainly a core component of Hong Kong’s constitutional order.  Under the Constitution and the Basic Law, the NPC is empowered to take such measures as it considers appropriate to ensure that that system operates in a manner consistent with constitutional requirements.

20.  Following the enactment of the Hong Kong National Security Law in 2020,[23] the NPC again acted at the constitutional level to reform Hong Kong’s electoral system. The objectives of that reform were the safeguarding of national security, the successful implementation of the “One Country, Two Systems” policy, and the upholding of the principle of “patriots administering Hong Kong”.  On 11 March 2021, having considered an accompanying set of Explanations,[24] the NPC adopted a decision[25] initiating amendments to Annexes I and II of the Basic Law.

21.  The Decision and Explanations proceeded on the basis that Hong Kong’s electoral system forms an integral part of its political and constitutional structure.  They emphasised that the system must accord with the “One Country, Two Systems” policy, reflect Hong Kong’s actual situation, and ensure governance by patriots. The reformed system was thus intended to safeguard national sovereignty, security and development interests, while at the same time maintaining Hong Kong’s long‑term prosperity and social stability.

22.  The Explanations identified what were described as serious loopholes and deficiencies in the pre‑existing electoral system, particularly in light of developments since 2019.  It recorded that anti‑China and destabilising forces had made use of electoral and deliberative platforms, including the Legislative Council and District Councils, to engage in activities to obstruct governance, undermine the rule of law, and challenge the authority of the Constitution, the Basic Law and, subsequently, the National Security Law.  Those activities were assessed as posing grave risks to national sovereignty and security, and as seriously destabilising Hong Kong society.  The NPC concluded that such risks could not be adequately addressed by the National Security Law alone, and that further lawful and institutional measures were required.[26]

23.  For that purpose, the NPC articulated a number of guiding principles for reform.  These included the full and accurate implementation of the “One Country, Two Systems” policy; the firm protection of national sovereignty, security and development interests; administration in accordance with the law; adherence to Hong Kong’s actual circumstances; and the enhancement of governance effectiveness.  The Explanations further stressed the need to strike an appropriate balance between the primacy of “One Country” and respect for the differences under “Two Systems”, to maintain the Central authorities’ overall jurisdiction while safeguarding a high degree of autonomy, and to develop an electoral system suited to Hong Kong which protects lawful voting rights while serving the overall interests of society.[27]

24.  The reform was pursued through a two‑stage process.  First, the Decision authorised the Standing Committee of the NPC[28] to amend Annexes I and II of the Basic Law,[29] and required the HKSAR to amend its local legislation and regulate electoral activities accordingly.[30]  Secondly, the NPCSC enacted the amendments to the Annexes on 30 March 2021, changing the methods of the selection by election of the Chief Executive and of the election of members of the Legislative Council.  The amended Annexes expressly require the HKSAR to adopt measures, in accordance with the law, against acts of “manipulating or undermining” elections.[31]

25.  In giving effect to those constitutional requirements, Hong Kong enacted a series of local legislative amendments in May 2021, including the introduction of section 27A into the Ordinance.[32] As explained in the Legislative Council Brief[33] and the Bills Committee materials,[34] the legislative purposes of section 27A were to comply with the Decision and the amended provisions of the Basic Law, to organise and regulate electoral activities effectively, and to prevent conduct which interferes with the free, fair and orderly exercise of voting rights.  Although voting in Hong Kong is not compulsory, the Government took the view that it bears a responsibility to promote civic participation and to counter public conduct capable of exerting undue pressure on voters or distorting electoral outcomes.

26.  It was emphasised during the legislative process that section 27A is directed specifically at public acts committed during an election period which incite others not to vote, or to cast blank or invalid votes, where such conduct is liable to undermine electoral integrity, manipulate polling figures, or sabotage elections.  The provision is circumscribed in its scope.  It applies only to public activities during election periods; it does not affect private expression or individual voting choices; it requires an assessment of all the circumstances of the case; it provides defences of lawful authority or reasonable excuse; and it does not penalise electors for their personal voting decisions.  Its central purpose is to prevent undue or manipulative interference with voters’ free choice, and thereby to safeguard the legitimacy, representativeness and integrity of Hong Kong’s electoral system within its particular constitutional, political and social context.

27.  From those background materials, it is plain that section 27A was enacted specifically as part of the electoral reform of the HKSAR.  It was intended to ensure that the revised electoral system, and the elections conducted pursuant to it, are capable of achieving their purposes and are not undermined.

Undermining elections

28.  In this context, it is important to bear in mind that conduct undermines an election if it weakens its proper operation, integrity, legitimacy, or effectiveness.  Public incitement not to vote, or to cast invalid votes, may diminish electoral participation and could affect the representative character of elections.  The electoral reforms introduced in 2021 were designed to secure a stable, legitimate, and representative electoral system.  The protection of the integrity of that revised system, and the maintenance of public confidence in it, particularly during its initial years, are therefore of central importance.  Conduct which encourages non-participation or the casting of invalid votes frustrates the purposes of the reform and undermines the legitimacy of the system.  Section 27A must accordingly be understood within this constitutional setting, as a measure directed to safeguarding the proper operation and credibility of the reformed electoral framework by prohibiting public advocacy that discourages participation.

29.  Moreover, it cannot be assumed that all forms of public advocacy are fair or objective in the messages they convey.  Campaigns conducted during an election which urge negative voting are capable of causing particular harm where they are one‑sided, misleading, or demagogic.  This risk is materially heightened in the digital age. The low cost and extensive reach of online advocacy increase the potential for damage to public confidence, civic participation, and democratic legitimacy. Social media, messaging applications, and online forums permit such messages to circulate rapidly and at scale, far beyond traditional editorial scrutiny. Algorithmic amplification may entrench those messages within like‑minded groups, in which they can become more extreme and less susceptible to correction.  As Lord Bingham pointed out in a not dissimilar context, where a political party with unlimited resources was capable of dominating the media during an election period, the vice of distorting views by mere repetition must be carefully guarded against:

“The fundamental rationale of the democratic process is that if competing views, opinions and policies are publicly debated and exposed to public scrutiny the good will over time drive out the bad and the true prevail over the false. It must be assumed that, given time, the public will make a sound choice when, in the course of the democratic process, it has the right to choose. But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated. It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.”[35]

30.  The danger is especially acute where the advocacy proceeds by way of emotionally charged or demagogic appeals.  Frustration, alienation, cynicism or distrust, particularly among those who are susceptible to simplified accounts of the complex political or social issues which almost all societies, to a greater or less extent, encounter, present ready opportunities for exploitation.

31.  In the specific context of section 27A, there is, in addition, the further consideration of how such advocacy may be exploited by those who are hostile to the authorities, to the effective implementation of the “One Country, Two Systems” arrangement, or indeed to the State itself, as the Explanations have warned.

32.  It is therefore entirely reasonable and legitimate to conclude that in the absence of effective prohibitions, the integrity of elections could not be assured, thereby defeating the core objectives of the reform.  Although voting is not compulsory in Hong Kong, electoral participation is legitimately regarded by the Government as a civic responsibility actively supported by public resources. Organised campaigns, particularly those which are one‑sided, misleading, or demagogic, and which urge voters either not to vote or deliberately to invalidate their votes, are liable to undermine those legitimate efforts.  Plainly section 27A serves a legitimate aim, as reflected in and required by the amended Annexes I and II of the Basic Law.

Chief Executive elections

33.  The defendant’s reliance on the polling arrangements governing elections for the Chief Executive, as prescribed by the Chief Executive Election Ordinance,[36] does not advance his contention on the lack of a legitimate aim.  Under those arrangements, irrespective of whether the election is contested, the candidate elected must secure more than 750 “support votes”.[37] Where there is only one candidate, a voter may cast either a “support vote” or a “not support vote”;[38] but no such option is available where there is more than one candidate.[39]

34.  The existence of an option to cast a “not support vote” does not diminish the legitimacy of the aim of prohibiting public incitement to negative voting.  First, it has no bearing on the prohibition on incitement to abstain.  Secondly, in the case of a voter who does cast a vote, there is a clear and material distinction between, on the one hand, the casting of a “not support vote” in accordance with the prescribed polling arrangements, and, on the other hand, the deliberate casting of an invalid vote in defiance of those arrangements (the public incitement to which is prohibited).  Furthermore, where no such option is available, an election for the Chief Executive is, in this respect, indistinguishable from other electoral processes.  Lastly, the requirement that a candidate must obtain more than 750 “support votes” only serves to highlight the importance of active electoral participation through the casting of valid votes, which section 27A is designed to protect by outlawing public incitement to negative voting during the election period.

Ordre public

35.  No doubt section 27A imposes a restriction upon freedom of expression by criminalising public incitement to negative voting during the election period. As already noted, any restriction on the right to freedom of expression must be directed to “respect of the rights or reputation of others” or “the protection of national security or of public order (ordre public), or of public health or morals”.[40] In the light of the legislative background to which I have referred, there can be little doubt that the enactment of section 27A fell within the protection of public order (ordre public).[41]  As Mr Justice Ribeiro PJ explained in HKSAR v Fong Kwok Shan Christine:[42]

“Ordre public is a broad and flexible concept which, as Li CJ explained in HKSAR v Ng Kung Siu,[43] and as the majority reiterated in Leung Kwok Hung v HKSAR,[44] can be imprecise and elusive. It is much wider than ‘public order’ in terms of the maintenance of law and order and ‘includes what is necessary for the protection of the general welfare or for the interests of the collectivity as a whole’ being ‘a function of time, place and circumstances.’ Various formulations of the meaning of ordre public were considered by the Court. The concept has been described as ‘a basis for restricting some specified rights and freedoms in the interests of the adequate functioning of the public institutions necessary to the collectivity …’ Another formulation, taken from the Siracusa Principles[45] is that it ‘… may be defined as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded.’ In my view, a restriction on the right to freedom of expression to safeguard the proper functioning of the legislature comes within these formulations of the protection of ordre public.”

36.  Relevantly, ordre public embraces measures which are necessary to safeguard the proper functioning of public institutions and the fundamental principles upon which society is founded.  The protection of Hong Kong’s revised electoral system, and of the elections conducted pursuant to that system, plainly falls within that concept.  So too does the prevention of conduct which tends to undermine electoral legitimacy and credibility, depress or distort voter participation, or call into question the representative mandates produced by the electoral process.  These are matters which go to ordre public.  It follows that the pursuit of such protection constitutes a legitimate aim, which the Legislature is entitled to regard as warranting appropriate regulatory measures.

Overseas materials

37.  The particular constitutional and historical background to the HKSAR should be borne in mind when considering the overseas authorities on which the defendant relies.  They stem from different contexts and are of only marginal relevance to the restriction under section 27A, which has its own distinct context.  In any event, they do not support the defendant’s sweeping argument that restricting public advocacy of an election boycott can never pursue a legitimate aim (or bear any rational connection to such an aim).[46]

38.  In Teslenko v Russia,[47] two individuals were fined under Russian administrative law for allegedly obstructing voter participation and interfering with the electoral process by engaging in public boycotting activities, claiming that the election in question was fraudulent.  Their individual convictions were challenged on the basis that they involved an unlawful interference with freedom of expression protected by article 10 of the European Convention on Human Rights.  At paragraph 115 of its judgment, the Strasbourg court accepted the Russian Government’s submission that measures aimed at reducing electoral abstention, or conversely at maximising turnout, were capable of constituting a legitimate aim:

“Having said this, at this juncture the Court takes into account the Government’s submission that the need to ensure ‘free elections ... under conditions which ensure the free expression of the opinion of the people in the choice of’ the President of the Russian Federation could be considered a legitimate consideration in terms of ensuring voters’ access to truthful information about a forthcoming election, their actual access to the voting process, including the act of voting, as well as in terms of the State’s policy choice to take measures aimed at reducing electoral abstention or, conversely, maximising turnout. In the Court’s view, those considerations fall within the scope of the ‘rights of others’ under Article 10 § 2 of the Convention.”

39.  At paragraph 134, the court regarded it as uncontroversial that the establishment and maintenance of the foundations of an effective and meaningful democracy are “better served by the active participation of voters in electoral processes, specifically the voting process, conducted in compliance with the principles relating to free and fair elections”, rather than by the boycotting of elections.  The Russian Government’s attempt to defend its administrative law nevertheless failed, not for want of a legitimate aim, but because the evidence adduced was insufficient to demonstrate that the measure was necessary.  As the European court explained:

“140. As regards the Government’s reference to the need to reduce abstention in an election, the Government failed to convincingly demonstrate how the mere expression of a point of view concerning the non-participation of the electorate in a forthcoming election could have exerted influence over eligible voters in the absence of any proven elements of coercion or impediment. With due regard to the presumption of innocence, it was incumbent on the national courts to convincingly establish that the applicant’s exercise of his freedom of expression had obstructed voters from participating in the voting process. The applicant was not a registered candidate and was not acting on behalf of a registered candidate when calling on people to abstain from voting. He had no administrative, employment-related, hierarchical or other similar authority over voters and could not provide or withhold any benefits, incentives or the like from voters for their electoral behaviour.

141.     The Russian courts did not adduce sufficient reasons to justify the third applicant’s conviction for an offence under Article 5.69 of the CAO.  The Court concludes that that conviction was not necessary in a democratic society to achieve the legitimate aims referred to by the Government (see paragraph 115 above).  The respondent State overstepped its margin of appreciation in so far as the applicant was prevented from disseminating during an election period content with a view to encouraging the electorate to abstain from voting in a forthcoming national election.”

40.  In Svetik v Belarus,[48] a teacher was fined for publishing a declaration, publicly advocating an electoral boycott in protest against Belarusian electoral law.  The United Nations Human Rights Committee[49] concluded that the imposition of criminal punishment constituted a breach of article 19 of the ICCPR, which corresponds to article 16 of the Hong Kong Bill of Rights.  The majority’s reasoning, expressed in comparatively brief terms, focused on whether the restriction of freedom of expression was “necessary for respect of the rights … of others”, and thus capable of justification under article 19(3).  That inquiry turned on whether a public call to boycott an election amounted to an unlawful interference with the voting rights of others protected by article 25(b) of the ICCPR.  As the Committee answered that issue in the negative, the restriction imposed on freedom of expression did not fall within the scope of the permissible limitations recognised by article 19(3).  In paragraph 7.3, the majority[50] explained:

“The Committee recalls that according to article 25(b), every citizen has the right to vote. In order to protect this right, States parties to the Covenant should prohibit intimidation or coercion of voters by penal laws and those laws should be strictly enforced. The application of such laws constitutes, in principle, a lawful limitation of the freedom of expression, necessary for respect of the rights of others. However, intimidation and coercion must be distinguished from encouraging voters to boycott an election. The Committee notes that voting was not compulsory in the State party concerned and that the declaration signed by the author did not affect the possibility of voters to freely decide whether or not to participate in the particular election. The Committee concludes that in the circumstances of the present case the limitation of the liberty of expression did not legitimately serve one of the reasons enumerated in article 19, paragraph 3, of the Covenant and that the author’s rights under article 19, paragraph 2, of the Covenant have been violated.”

Notably, no consideration appears to have been given, most probably because the point was not advanced in argument, to whether the restriction might fall within any of the other permitted restrictions in article 19(3) of the ICCPR.  In particular, the Committee did not address whether the restriction could be justified by reference to ordre public, nor, if so, whether it would withstand scrutiny under a proportionality analysis on the facts of the case.

41.  The subsequent case of Shchetko v Belarus,[51] which concerned a similar fine imposed upon the complainant for distributing leaflets encouraging voters to boycott the 2000 parliamentary election under the same Belarusian provision, did not advance the matter materially.  It served only to underline the limited nature of the argument put forward by the Belarusian Government in support of the criminal provision.  In paragraph 7.5 of its short opinion, the UNHRC said:

“In the present case, the State party has merely argued that the restrictions of the authors’ rights were provided for under law, without presenting any justification whatsoever for these restrictions. The law in question was amended shortly after the court handed down its judgment in the authors’ case, which tends to underline the lack of reasonable justification for the restrictions set out in the above law. The materials before the Committee do not reveal that the authors’ acts in any way affected the possibility of voters freely to decide whether or not to participate in the general election in question. In the absence of any other pertinent information, the Committee considers that in the circumstances of the case, the fine imposed on the authors was not justified under any of the criteria set out in article 19, paragraph 3. It therefore concludes that the authors’ rights under article 19, paragraph 2, of the Covenant, have been violated.”

42.  Both UNHRC’s General Comment No 25 (on the right to vote and other rights) and General Comment No 34 (on freedom of expression) underline the importance of freedom of expression in the electoral context.  The former emphasises that the free communication of political ideas, extending to criticism, protest and campaigning, is essential to the conduct of genuine and accountable elections.[52]  The latter recognises that, while it is legitimate to protect voters against intimidation or coercion, any restrictions imposed for that purpose must not operate to suppress political debate, including, as the Comments note, “calls for the boycotting of non‑compulsory voting”,[53] citing solely Svetik v Belarus – discussed above – as authority for its proposition.

43.  There is no difficulty with these statements at the level of general principle.  The right to freedom of expression, even in the important context of elections and the right to vote, is not, however, absolute.  It is a qualified right that may be restricted.  Even the European Court of Human Rights, in Teslenko, went no further than holding that a State’s decision to prosecute calls to abstain from voting must be subjected to strict scrutiny.[54]  As already noted, such scrutiny requires consideration, in particular, of whether the aim relied upon is legitimate within the limited range permitted, whether the measure adopted is necessary to achieve that aim, and whether a fair balance has been struck between the societal interests pursued and the burden imposed on the individual.  The outcome will necessarily depend on the circumstances of the individual case, including the nature and strength of the justification advanced for the restriction, the need said to arise for it, and the extent of the interference involved.

44.  A basic flaw in the defendant’s argument on legitimate aim (and rational connection)[55] lies in its failure to distinguish between the continued lawfulness of particular individual electoral choices and the permissibility of regulating public advocacy which promotes those choices.  It is true that, under Hong Kong’s revised electoral law, abstention from voting, as well as the casting of a blank or invalid vote, remains a lawful option open to an elector, unlike in jurisdictions where voting is compulsory.  Yet it does not follow that the Government is required to adopt a position of neutrality as between all lawful options, or the advocacy of those options.[56]  It is one thing for individual voters to choose not to vote, or to cast an invalid vote.  It is quite another for voters to be publicly incited to do so on a mass scale.  It can hardly be disputed that such incitement, if successfully carried out, is liable to undermine the effective conduct of elections, to diminish voter participation, to impair the legitimacy, credibility, or representative mandate of the electoral process, or to frustrate the success of the underlying electoral reform and the purposes which it was intended to serve.  Those are precisely the kinds of harm which the constitutional requirement imposed on the HKSAR to take measures to prevent acts undermining elections[57] is intended to avert.

45.  As was recognised in Teslenko, it is a legitimate policy choice for a State to take measures designed to reduce abstention or, conversely, to maximise turnout.[58] The establishment and maintenance of the foundations of an effective and meaningful democracy are, in that context, “better served by the active participation of voters in electoral processes, specifically the voting process”,[59] rather than by boycotting activities.  Therefore, where such measures involve a restriction upon the exercise of freedom of expression, in the form of the public incitement to negative voting, the real issue is not whether the restriction pursues a legitimate aim or there is a rational connection between the two.  The answer to each of those questions is plainly in the affirmative.  The true question is whether the restriction is necessary and strikes a fair balance.  Those are matters which fall to be considered at the third and fourth steps of the proportionality analysis.

46.  Properly understood, the restriction imposed by section 27A pursues a legitimate aim.  That aim is constitutionally grounded in the amended Annexes I and II, and is directed to the protection of the electoral system and of the constitutional objectives which that system is intended to secure.

Constitutional reviewability

47.  Before turning to the question of rational connection, it is convenient to note a matter which was touched upon by the respondent in its supplemental case[60] and in oral argument.  Strictly speaking, it would have been more logically addressed at an earlier stage in this judgment, before embarking on the proportionality analysis.  It is, however, more convenient to do so at this point, after I have explained the constitutional and legislative background to section 27A.  The point is this.  The amended Annexes I and II to the Basic Law impose a constitutional requirement upon the HKSAR to take measures against acts of manipulating or undermining elections.  Section 27A was enacted pursuant to that requirement.  The question therefore arose whether section 27A is amenable to constitutional review by the courts of the HKSAR, given that its enactment is constitutionally mandated by the amended Annexes.  In the course of the oral hearing, it was pointed out to leading counsel[61] for the respondent that the obligation is to take measures “in accordance with the law”.  That expression must necessarily include the Basic Law, the Hong Kong Bill of Rights, and the other laws in force in Hong Kong.  Leading counsel very fairly accepted that, in those circumstances, section 27A is subject to constitutional review.  At the same time, he maintained, and I agree, that its constitutional origin strongly supports the respondent’s submission that it pursues a legitimate aim.

Rational connection

48.  I now turn to the second step of the proportionality analysis, rational connection.  For the reasons explained above, it is not reasonably arguable otherwise that there is an evident rational connection between section 27A and the legitimate aim of preventing the undermining of the revised electoral system, and of the elections conducted under it.

Necessity

Standard of review

49.  Thirdly, the necessity of the measure adopted.  Freedom of expression is one of the most important fundamental rights.  Restrictions are permissible only when they are “necessary” for the prescribed reasons.[62] Participation in elections, whether as a voter or a candidate, is likewise a matter of high importance, and is specifically protected by article 26 of the Basic Law.[63]  Debate and discussion during an election period concerning whether to vote, for whom to vote, and whether the election is being conducted openly, fairly and honestly are plainly matters of importance.  They are closely associated with the right to vote and the right to stand for election in accordance with the law, as protected by article 26.  The restriction under consideration involves a criminal prohibition on the public advocacy of a particular view during the election period.  Conviction may result in the imposition of serious sentences, especially in proceedings on indictment.  Plainly, the assessment of the necessity of section 27A properly attracts the more stringent standard of review, that is, whether the provision goes no further than necessary, notwithstanding its constitutional setting and historical legislative context.[64]

50.  That said, due weight must still be accorded to the view of the Legislature.  In HKSAR v Ng Kung Siu,[65] the constitutionality of offences relating to the desecration of the national flag and the regional flag under the National Flag and National Emblem Ordinance[66] and the Regional Flag and Regional Emblem Ordinance[67] was challenged on the ground that they infringed the right to freedom of expression.  In considering the weight to be accorded to the Legislature’s view when determining whether the offences went no further than was reasonably necessary to protect ordre public, Chief Justice Li emphasised that the two enactments had their origin in constitutional requirements under the Basic Law:

“ On 1 July 1997, the Standing Committee added the PRC Law on the National Flag to Annex III so that the Hong Kong Special Administrative Region has to apply it by legislation or promulgation in the Region. And the HKSAR’s legislature discharged that obligation by enacting the National Flag Ordinance. At the same time, the HKSAR’s legislature considered it appropriate to enact the Regional Flag Ordinance.

In considering the question of necessity, the Court should give due weight to the view of the HKSAR’s legislature that the enactment of the National Flag Ordinance in these terms including s.7 is appropriate for the discharge of the Region’s obligation to apply the national law arising from its addition to Annex III by the Standing Committee. Similarly, the Court should accord due weight to the view of the HKSAR’s legislature that it is appropriate to enact the Regional Flag Ordinance.”[68]

No more than is necessary

51.  Returning to the present case, the unique context in which section 27A was enacted, and its significance in understanding the need to prevent the undermining of the revised electoral system and of the elections conducted under it, have been emphasised.  It is worth repeating that section 27A forms an integral part of a very substantial package of reform of Hong Kong’s electoral system initiated at the NPC level, undertaken in parallel with the strengthening of national security safeguards in the HKSAR following the extremely serious civil unrest in 2019[69] and the failure, or serious malfunctioning, of elected bodies – most notably the Legislative Council – in the period preceding the reform.[70]  The revised electoral system is regarded by the NPC as essential to the restoration of proper constitutional order and the effective functioning of the political institutions established under the Basic Law for the governance of Hong Kong within the framework of the “One Country, Two Systems” arrangement.  Indeed the amended Annexes expressly require the HKSAR to adopt measures, in accordance with the law, against acts of “manipulating or undermining” elections.

52.  Furthermore, as pointed out in the background materials, there was serious concern that, in the absence of adequate measures on such conduct, organised actors hostile to the authorities, to the proper functioning of the “One Country, Two Systems” order, or to the State itself, might distort electoral outcomes and thereby undermine the representativeness of the electoral process and the revised electoral system itself.  In the light of the serious civil unrest experienced in 2019, characterised by a prolonged and large‑scale breakdown of law and order, it was reasonable to regard the reinforcement of those measures by criminal sanctions as necessary in order to address that concern.

53.  As already noted in paragraph 37, viewed in the light of this distinctive constitutional and historical background, the authorities relied upon by the defendant discussed above are of limited, if any, relevance at this third step of the proportionality analysis.

54.  Rather, viewed against that unique backdrop, the criminal restriction imposed by section 27A on the right to freedom of expression appears modest in scope and carefully circumscribed.  The provision is confined to public incitement, and does not extend to private discussion or individual decision‑making.  Its temporal scope is also narrow: liability arises only where the relevant conduct occurs during the election period itself, which is limited in duration.  Outside that period, which necessarily comprises the greater part of each year, and the entirety of any year in which no election is held, section 27A does not prevent individuals from expressing opposition to the revised electoral system, or advocating the boycotting of elections conducted under it, whether by way of protest against the Government or for any other lawful purpose.  Even during the election period, the provision does not prohibit advocacy of negative voting which is not carried out publicly.

55.  It is said that the election period is the time when the freedom to express views about the election, and about participation in it, is at its most relevant and most critical.[71] This consideration, however, cuts both ways.  The election period is also the time at which unrestrained public incitement to negative voting is most capable of undermining the legitimate aim, and at which the case for its restriction is correspondingly at its strongest.  In considering whether section 27A goes no further than is necessary, it cannot therefore be maintained that the Legislature erred in identifying the election period as the period during which the prohibition should apply.  Any complaint concerning the effect of that prohibition upon freedom of expression falls more appropriately to be examined at the fourth step of the proportionality inquiry.

56.  Section 27A(3) requires the court to consider all circumstances of the case in determining whether any activity in public “incites” another person as prohibited, including the content of the activity, the intended audience and the circumstances in which the activity is carried out.  As mentioned, the established defences of lawful authority and reasonable excuse also remain available.  Whilst various hypothetical reasons were advanced in argument as to why individuals might wish publicly to advocate negative voting during the election period, no serious contention was made that the ambit of the offence is overbroad.  Rather, the essence of the defendant’s case is that the section lacks a legitimate aim and is directed, in substance, at a particular form of political viewpoint – thus the additional challenge founded on equality.

57.  The maximum penalties that may be imposed upon conviction are not insubstantial; however, having regard to the importance of the objectives that the section seeks to achieve, they cannot be said to be disproportionate.  The sentencing court is, of course, expected and indeed obliged to take into account all relevant sentencing considerations, including mitigating factors, before imposing sentence.

58.  Considered as a whole, section 27A represents a measured and proportionate interference with freedom of expression.  Its reach is carefully confined, and it goes no further than is necessary to achieve the legitimate aim of safeguarding electoral participation, maintaining public confidence in the electoral system, and securing the legitimacy of election outcomes, all in furtherance of the electoral reform initiated by the NPC.

59.  For completeness, it should be noted that there is no suggestion that the introduction of compulsory voting in Hong Kong would constitute a less intrusive alternative to section 27A as a means of achieving its legitimate aim.

Reasonable balance  

60.  Fourthly, reasonable balance.  In the majority of cases, where a measure satisfies the first three steps of the proportionality analysis, the fourth step, namely that of striking a reasonable balance, seldom gives rise to any real difficulty.  The present case is no exception.  The burden imposed upon individuals, in being required to refrain from publicly advocating negative voting during the election period, is real and significant but not overly onerous.  But that restriction is confined to the election period and to acts of public incitement.  At other times and on other occasions, the right to freedom of expression remains unaffected.  By contrast, the restriction represented by section 27A is not only constitutionally mandated, but also serves as an important safeguard for the substantial electoral reform initiated by the NPC. It is unnecessary to rehearse the constitutional importance of the electoral reform.  The section plainly strikes a fair balance between the constitutional objective which it is intended to advance and the burden imposed on individuals by the restriction of freedom of expression in the public sphere during the election period.

Conclusion

61.  In conclusion, the challenge to section 27A on the ground of freedom of expression fails.

(2)     Equality before the law

62.  I now turn to the challenge based on equality before the law.  The right to equality is protected not only under the common law but, more importantly, by article 25 of the Basic Law and articles 1 and 22 of the Hong Kong Bill of Rights.  In substance, the defendant’s case founded on equality or non-discrimination is that section 27A accords preferential treatment to advocacy in favour of other lawful electoral choices as opposed to advocacy of a particular electoral choice, namely negative voting, and that this amounts to discrimination on the ground of political opinion.

63.  The ultimate question in every case of alleged discrimination is whether the difference in treatment can be justified.[72] As this Court has explained, sometimes the justification is readily apparent, although it must nonetheless be established:[73]

“And as Lord Nicholls also pointed out, sometimes the answer may appear obvious: ‘There may be such an obvious relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous.’[74] Those are cases where the justification is readily apparent, but nonetheless required.”

By definition, a necessary premise of any complaint of unjustified differential treatment is that it involves a comparison between situations that are alike in relevant respects.  Where this is plainly not the case, that fact alone provides a necessary and sufficient justification for the difference in treatment.  In all other cases, however, the test of justification applied is, in substance, the same as the four-step proportionality inquiry typically employed in constitutional challenges.[75]

64.  In the present case, the challenge based on discrimination must be rejected, regardless of how the matter is analysed.

65.  Advocacy of negative voting amounts, in substance, to a call to boycott the election in question or the revised electoral system itself.  By contrast, advocacy urging voters to support a particular candidate or party, or to vote in a particular manner, is advocacy of participation in the electoral process.  The former seeks to, or has the effect of, undermining the election or the revised underlying electoral framework.  The latter operates within, and in effect supports, that framework.  The two forms of advocacy are therefore not comparable in any relevant respect, and the differential treatment is accordingly justified. On this analysis, the complaint founded on discrimination must be rejected.

66.  Scrutinising the differential treatment by reference to the requirements of legitimate aim, rational connection, necessity and reasonable balance yields the same result. As noted, this is essentially equivalent to the proportionality test.  On the facts, the considerations that justify the restriction on the right to freedom of expression under the proportionality inquiry, as discussed in detail above, likewise justify any relevantly comparable differential treatment between the two forms of advocacy.

Outcome

67.  For these reasons, I would dismiss the appeal.

Mr Justice Ribeiro PJ:

68.  I agree with the judgment of Chief Justice Cheung.

Mr Justice Fok PJ:

69.  I agree with the judgment of Chief Justice Cheung.

Mr Justice Lam PJ:

70.  I agree with the judgment of Chief Justice Cheung.

Mr Justice Gummow NPJ:

71.  I agree with the judgment of Chief Justice Cheung.

Chief Justice Cheung:

72.  Accordingly, the Court unanimously dismisses the appeal.