HKSAR v. SO TSUN FUNG

HCMA 457/2023

[2025] HKCFI 2466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CASE STATED

MAGISTRACY APPEAL NO 457 OF 2023

(ON APPEAL FROM WKCC 2641 OF 2022)

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J U D G M E N T

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1.  The Applicant 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”) (“Provision”).

2.  The Applicant raised a preliminary issue that the Provision was unconstitutional. The Magistrate, however, ruled that the Provision was constitutional. The Applicant then pleaded guilty to the charge and admitted the facts. He was convicted and sentenced to 2 months’ imprisonment, suspended for 18 months. The Applicant appealed by way of case stated on the point of law. I have heard the appeal and dismissed it on the 3 March 2025, the details of which can be referred in the judgment handed down (“Judgment”).

3.  The Applicant now applies by a notice of motion under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, for a certificate that points of law of great and general importance were involved in the Judgment. The points of law are as follows,

Question 1:

Whether the offence created under section 27A of the ECICO has unconstitutionally infringed the right to the freedom of expression under Articles 27 and 39 of the Basic Law and Article 16(2) of the Hong Kong Bill of Rights (“BOR”);

Question 2:

Whether the offence created under section 27A of the ECICO has unconstitutionally infringed the right to equality before the law under Article 25 of the Basic Law in Articles 1(1) and 22 of the BOR.

The Applicant’s Submissions

4.  The Applicant submitted that the applicable test for the present application is as follows,

i)  whether the application raises a point of law of great and general importance; and

ii)  whether the point of law is reasonably arguable, Lee Kin Pong v HKSAR [1998] 1 HKLRD 182.

5.  On the great and general importance, the Applicant stated that the impugned Provision posed an unprecedented restriction prohibiting any person from publicly engaging in acts intended to incite others either not to vote or to deal with their ballots in the ways that would render them invalid, yet it had a profound constitutional concern engaging the fundamental right to freedom of expression.

6.  Further, the Applicant also submitted that the legislative justification undermines the electoral integrity regarding the fundamental right to free speech. These pivotal legal and human rights issues have yet to be exempted or adjudicated by the Court of Final Appeal (“CFA”), and such unconstitutional infringement would recur in each and every election period in the future. Therefore, the questions are of great and general proper importance.

On Question 1

7.  On reasonably arguable on question 1, the Applicant submitted as follows.

8.  Firstly, the Court misdirected itself in dismissing the relevant foreign jurisprudence and ignoring the case in Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28. The rejection of international legal principle is inconsistent with the established jurisprudence of the CFA. The Court also neglected the fact that the case relied upon by the Applicant, Teslenko and Others v Russia (App nos. 49588/12 and 3 others, Third Section, 5 April 2022), resembled the present facts very much and the Court failed to regard the relevant overseas authorities which would frustrate the very purpose of implementing the International Covenant on Civil and Political Rights (“ICCPR”) in Hong Kong.

9.  Secondly, the Court failed to recognise that the protection of right to free speech should be enhanced when political expressions are involved.

10.  Thirdly, the Court also wrongfully in considering the impugned Provision to be rationally connected to an identified aim. The Court erred in accepting an assumption that “inciting or organising people not to vote is clearly not conducive to an effective election process”. The Court entirely disregarded the international jurisprudence which hold that the laws prohibiting the advocacy of election boycotts constitute an unjustifiable restriction on freedom of expression.

11.  Fourthly, the Court failed to recognise that the impugned Provision is for all practical purposes, not a content neutral prohibition. The Court wrongfully concluded that the Provision is proportional, simply because it applied only during the election period and only to public activities but failed to grapple with the overboard scope of the law and the fact that it criminalised legitimate political speech, regardless of context, intent or consequence.

12.  Also, the Court wrongfully disregarded the reasoning of Teslenko case concerning (1) convincing others is at the heart of the right to freedom of expression; (2) the expression contains no call for violence or criminal behaviour; and (3) it created a criminal rather than just administrative offence.

13.  Fifthly, the Court also failed to consider any public interest of the Provision is remote and minimal. If the percentage of abstention or invalid ballots is high, candidates standing for the election and the Government must confront the political consequences.

14.  In addition, the Court failed to consider the encroachment of rights is grave and substantial. It is not necessary for protection against coercion and intimidating conduct, and it does not bring any societal benefit by criminalising the advocacy of a lawful political view. The Provision does create an undue balance or places an excessive burden on the individual.

On Question 2

15.  The key issue on question 2 is whether there exists differential treatment between individuals who incite others not to vote or to cast an invalid vote (“Group 1”) and those who incite others to adopt any other political opinions (“Group 2”).

16.  Firstly, there is no rational basis to claim that inciting others not to vote or cast an invalid vote does not contribute to democratic representation. There is no evidential or rational basis at all to suggest that any candidate would suffer from people deciding not to vote or to cast an invalid ballot. There is also no perceivable practical obstruction to the smooth transition of any council election whatsoever. And there is no explanation as to why inciting others to abstain from voting would render the action process futile.

17.  All in all, the Applicant submitted that the public representation must include the voices of those who choose not to vote. Therefore, the Applicant asked for a certificate that points of law of great and general importance are involved in the Judgment.

Respondent’s Reply

18.  The Applicant’s contention that it was a rare instance that where legislation explicitly criminalised advocacy for conduct particularly the abstaining from voting or casting of invalid votes. However, the Respondent stated that the important context is the unique historical and legislative backdrop in the years preceding the enactment of the Provision. It was against such unique background that the legislature enacted pursuant to specific constitutional mandate.

19.  The legislature regarded the prohibited conduct as one of the acts that can sabotage an election as it is capable of creating undue pressure which may affect voters’ free choice on how to exercise the right to vote, including whether to exercise their right to vote and is disruptive to the dual election process.

20.  As the legislative aim is to protect voters’ right to freely choose and exercise their right to vote without undue interference, it is only logical and rational that a voter’s personal act of not voting or of casting a blank or invalid vote is not made illegal. The Provision is intended to ensure that elections are conducted fairly, openly and honestly, and free from the corrupt and illegal conduct. The Provision is indeed a long overdue improvement of the electoral framework.

On Question 1

21.  On whether the points are reasonably arguable, the Respondent submitted that the judge did not dismiss the relevance of international or foreign jurisdiction on human rights provision as a matter of law and in Sham Tsz Kit v Secretary for Justice [2023] 26 HKCFAR 385, the CFA also has consistently been mindful of any “material differences” which may render aspects of such international jurisprudence inapplicable and the non-binding effect of such international jurisprudence.

22.  The Provision was as a result of the serious and violent disturbance arising from the opposition to the proposed legislative amendments to the Fugitive Offenders Ordinance which paralysed the operation of the Legislative Council and obstruct governance of Hong Kong Special Administrative Region (“HKSAR”) Government resulting that the National People’s Congress (“NPC”) made the decision on improving the electoral system of HKSAR (“Decision”).

23.  The Decision authorised the Standing committee of the NPC to amend Annex I and II of the Basic Law and according to Article 7 of the Decision, the HKSAR Government shall amend the relevant local legislation and organise and regulate the relevant electoral activities in accordance with law. Therefore, the Respondent submitted that it was entirely appropriate and indeed duty bound for the Court to consider such unique historical and legislative background leading to the creation of the Provision.

24.  Further, concerning the case of Teslenko, it bears no similarities at all with the unique historical and legislative background leading to the creation of the Provision in HKSAR. And concerning the political expressions, the Court had already indicated that it had considered the factors on rational connection, the Court is correct to say that inciting or organising others not to vote is clearly not conducive to an effective election process. It was not an assumption, it is the legitimate assessment of the legislature drawing from the unique historical and legislative background of the HKSAR and it is satisfiable as a matter of logic and common sense.

25.  For the point of “no more than necessary”, the Court had also accepted the fact that Provision was not a total ban of expression at all times and there exists a defence of lawful authority or reasonable excuse. The Respondent reiterated the incomparable or material difference in historical and legislative background therein, therefore reliance on Teslenko is not helpful. And the Court should give due weight to the view of the Legislative Council that the enactment of the legislation was appropriate for the discharge of the government’s obligation to apply the national law.

26.  On the striking of a reasonable balance, it is appropriate the Court to recognise the assessment and choices made by the legislature regarding rights of individual and the needs of the society. The loopholes and deficiencies of the 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 that the faithful implementation of “One Country, Two Systems”, and would seriously impair Hong Kong’s prosperity and stability. Besides, the Provision also offers a statutory defence and the maximum penalty could not be regarded as severe.

On Question 2

27.  The Applicant claimed that the key issue is whether there exists differential treatment between Group 1 and Group 2 as stated above is wholly misconceived. The Respondent will say that such claim proceeds on a wrongful basis that categorisation distinguish political views. The Provision does not distinguish any political agenda behind the incitement. As is obvious from the charge and the brief facts, what political view, agenda or message was intended to be expressed or conveyed by the Applicant’s open incitement is unclear.

28.  The Applicant had failed to establish how the abovementioned non-political basis could fit in the alleged categorisation based on political opinion. So the Court was plainly right to consider that encouraging people to vote would promote the election process to ensure a democratic representation while inciting people not to or casting no vote would disrupt or manipulate the process.

29.  On the rational basis, the Court had specifically noted the Applicant’s submissions in the appeal proper that voters’ freedom to choose how to exercise their right to vote is one of the important foundations for “genuine, fair, open and honest election”, but there should not be undue pressure on voters’ freedom to choose how to exercise the right to vote. On the other way round, there is no rational basis to claim that the Applicant’s conduct does contribute to democratic representation.

30.  The Applicant’s bare claim that such conduct does not obstruct the electoral process and the ability to do so as fundamental component of electoral choice is not realistic. The Respondent said that the Applicant’s conduct was disruptive, manipulative and sabotage elections. This would therefore obviously render the election process futile.

31.  Therefore, the Respondent said that the proposed question of law are not reasonably arguable points of law of great and general importance and that the application shall be dismissed accordingly.

Consideration

32.  On question 1, the Applicant reiterated the stance as in the appeal and placed much reliance on overseas authorities, particularly the case of Teslenko, which resembled the present case and stated that the Court failed to recognise the protection of the right to free speech which should be enhanced when political expression are involved.

33.  However, as what the Respondent and my Judgment had clearly stated one must not ignore the very unique historical and legislative background leading up to the creation of the Provision which aims to ensure open election conducted with integrity and to prohibit any illegal conduct including all acts manipulating and/or damaging the election.

34.  The Applicant simply ignored all this background and failed to review and touch upon all the relevant historical and legislative background on its analysis and applications as in paragraph 101 to 110 in my Judgment.

35.  The principle in Hysan Development Company Limited v Town Planning Board [2016] 19 HKCFAR 372 had been considered where the Provision created is clearly pursuing a legitimate aim to ensure a fair and open election. It is rationally connected in advancing the legislative aim no more than necessary and that a reasonable balance had been struck that it is not a total ban but just confided to the election period for public activities.

36.  Further, the Applicant also seems to have equated the total ban on individual choice and ways of voting as to the present ban only on inciting others not to vote where undue pressure would clearly be exerted on individual. Therefore, question 1 is simply not reasonably arguable.

37.  On question 2, on differential treatment and justification, the alleged differential treatment between individuals who incite other not to vote and those who incite others to vote is simply premised on a wrongful categorisation, particularly the former would be manipulative and damaging in nature, rendering the election process futile while the latter is to promote and support electoral process. Particularly one must also bear in mind the very historical background of the creation of the provision which was by ways of thorough debate and discussion of the Legislative Council following the serious disturbance and social events jeopardising the constitutional and political orders of the HKSAR and resulting from the Decision of NPC on improving the electoral system of HKSAR.

38.  Thus, a normal and smooth electoral system is paramount to the prosperity and stability of Hong Kong. No doubt given all the background circumstances, the justifications of the provision is just too obvious to tell. Therefore, question 2 is also not reasonably arguable.

39.  As both proposed question of laws are not reasonably arguable points of law of great and general importance, the application shall be dismissed accordingly.