Hong Kong’s top court rejects challenge to law banning calls for election boycotts

Hong Kong’s top court has dismissed a legal challenge against a law barring calls to boycott the city’s “patriots-only” elections, ruling that the prohibition is necessary to counter “organised campaigns” seeking to undermine the establishment following the enactment of the national security law.
In a judgment delivered on Wednesday, five Court of Final Appeal judges unanimously found that criminalising incitement to undermine elections was essential to further Beijing’s objective of ensuring governance by “patriots” under the “one country, two systems” policy.
They rejected a challenge by former Chinese University of Hong Kong student union president Jacky So Tsun-fung, who argued that the law constituted an unlawful interference with residents’ rights to freedom of expression and equality.
Chief Justice Andrew Cheung Kui-nung, who wrote the judgment, said the restriction was “modest in scope and carefully circumscribed”, as it only outlawed public advocacy for boycotting elections and casting invalid ballots during designated periods.
Cheung said the interference with personal rights went no further than necessary to achieve the legitimate aims of safeguarding electoral participation, maintaining public confidence in the system and securing the legitimacy of election outcomes.
He added that the prohibition also ensured the success of the electoral reform initiated by the National People’s Congress, Beijing’s top legislative body, following the 2019 anti-government protests and the subsequent enactment of the national security law in June 2020.

The top court was asked to examine Section 27A of the Elections (Corrupt and Illegal Conduct) Ordinance, which came into force in May 2021. The provision criminalises acts of inciting others not to vote in elections or to cast invalid ballots. Offenders face up to three years’ imprisonment and a HK$200,000 (US$25,531) fine.
So received a suspended jail sentence in December 2022 for reposting a social media message urging Hongkongers to cast blank votes in the Legislative Council election the previous year.
He initially challenged the legality of the charge but later pleaded guilty after a deputy magistrate ruled that the provision was constitutional. The Court of First Instance dismissed an appeal arising from that constitutional challenge last year.
The appellant’s lawyers argued that the law stifled criticism of the electoral system and discriminated against those holding opposing political views. They cited rulings by the European Court of Human Rights which found that criminal sanctions for promoting negative voting in Russia and Belarus were unjustified.
But Cheung dismissed those precedents as irrelevant to Hong Kong’s “distinctive” constitutional and historical context.
He said Beijing considered the revised electoral system essential to restoring Hong Kong’s constitutional order and the effective operation of its political institutions, following the failure or serious “malfunctioning” of the Legislative Council and other elected bodies during “the extremely serious civil unrest” in 2019.
The top judge argued that, in the absence of adequate measures, “organised actors hostile to the authorities” might distort electoral outcomes and undermine the representativeness of the revised electoral process.

“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,” he said.
“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 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.”
The ruling was endorsed by fellow judges Roberto Ribeiro, Joseph Fok, Johnson Lam Man-hon and non-permanent Australian judge William Gummow.
At least 15 people have been convicted under Section 27A after pleading guilty. Fourteen received suspended jail sentences, while one was ordered to serve his two-month term immediately.