The High Court of Hong Kong ruled in HKSAR v So Tsun Fung [2025] HKCFI 916 that advocating for an election boycott in public during the election period constitutes an act that affects, disrupts, or manipulates elections. Consequently, the court upheld the constitutionality of a 2021 law criminalizing the act of “inciting another person not to vote, or to cast an invalid vote, by activity in public during the election period,” finding it does not unconstitutionally infringe on the rights to freedom of expression and equality enshrined in the Hong Kong Basic Law and the Hong Kong Bill of Rights.
Section 27A of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 (“ECICO”)
The law, introduced in 2021, creates a new criminal offence under section 27A of the ECICO, which states:
“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.”
The maximum penalty for this offence is a fine of HK$200,000 and imprisonment for 3 years.
Constitutional Challenge by So Tsun Fung
So Tsun Fung challenged the constitutionality of section 27A on the following grounds: –
(a) Purpose of Elections: As opposed to what the Hong Kong Government suggested, elections are not merely for filling up a vacancies in the executive or the legislature. Instead, elections represent a valuable opportunity to allow the will of the electorate to be expressed and to give effect to it. Only then the elections would have the necessary integrity to ensure that those elected are truly representative of those whom he or she represents.
(b) Alleged Undue Pressure Unfounded: The Hong Kong Government’s assertion that persuading others to cast an invalid vote or not to vote creates undue pressure on voters is unfounded. Hong Kong’s blind vote system ensures voters do not disclose their choices, making it unclear why persuading others to vote for a particular candidate or just to vote generally is acceptable, but persuading them not to vote or to cast an invalid vote is not, especially when the persuasion is based on an entirely lawful view that none of the candidates are good enough to deserve Hong Kong people’s votes.
(c) International Human Rights Jurisprudence: Calls for boycotting of a non-compulsory vote are a lawful exercise of freedom of expression and should be protected, as supported by, for example, the UNHRC General Comment No. 34 at §28.
(d) Right to Equality: Section 27A has also infringed the right to equality by singling out and prohibiting the promotion of a specific political opinion (i.e., not voting or casting an invalid vote), constituting discrimination based on political opinion.
Decision of the High Court of Hong Kong
The High Court of Hong Kong dismissed So Tsun Fung’s constitutional challenge. Crucially, the High Court of Hong Kong ruled that the enactment of section 27A of the ECICO “was a result of the disturbances started around 2019 followed by violence and riots taken place which seriously jeopardizing the stability and prosperity of HKSAR.” It therefore held that, as against these unique backgrounds for the enactment of section 27A of the ECICO, So Tsun Fung’s “reliance on overseas authorities, particularly for those regimes allowing any organizing for voters not to vote shall not render useful or meaningful assistance for analysis.”
Carter Chim, leading Yvonne Leung and Jason Szeto instructed by Kennex Chan of Ho Kan Lawyers represented So Tsun Fung.
Useful Link(s)
HKSAR v So Tsun Fung [2025] HKCFI 916