Hong Kong Deputy High Court Judge Frankie Yiu refused to grant leave for a constitutional challenge against a provision criminalizing the incitement of casting invalid votes. In the judgment issued Tuesday, Judge Yiu ruled that the challenge is not reasonably arguable because the provision is necessary to improve the electoral framework.

The impugned provision is section 27A of the Elections (Corrupt and Illegal Conduct) Ordinance, which criminalizes “illegal conduct to incite another person not to vote, or to cast [an] invalid vote, by activity in public during [the] election period.”

The appellant argued that the prohibition violates the right to free expression protected by the Basic Law and the Hong Kong Bill of Rights. Citing Strasbourg jurisprudence Teslenko and Others v. Russia, the appellant argued that convincing the public to abstain from voting is a form of political expression that is within the scope of the right to free expression. Judge Yiu sided with the government, and reasoned that the prohibition is proportionate given the “serious and violent disturbance from the opposition” and the prohibition is limited to the election period.

The appellant also argued that prohibiting advocacy for casting invalid votes is discriminatory on the grounds of political opinions. Rejecting this argument, Judge Yiu wrote that encouraging invalid ballots is “manipulative and damaging in nature, rendering the election process futile.” Therefore, it is not a form of political view that is comparable to others that promote and support the electoral process.

The court then concluded that the challenge raised no reasonable arguable points of law of general and great importance that warrants a leave to appeal to the Hong Kong Court of Final Appeal.

In 2022, the prosecution case stated that the appellant So Tsun Fung reposted self-exiled activist Ted Hui Chi-fung‘s Facebook post during the election period that advocated for casting a blank ballot. The appellant pleaded guilty to the offense and received two-month imprisonment and a suspended sentence of 18 months.

After the city witnessed its largest anti-extradition bill movement beginning in 2019, the Chinese National People’s Congress authorized its standing committee to amend the electoral system for the city’s Chief Executive and the Legislative Council. Subsequently, the region’s government passed the Improving Electoral System Bill 2021, which also contained the impugned provision.