Man charged by ICAC sentenced for breaching ECICO by inciting others to cast blank votes at LegCo Election
2022-12-29
A man charged by the ICAC was today (December 29) sentenced to two months’ imprisonment, suspended for 18 months, for reposting on his social media page a post of Hui Chi-fung which incited others to cast blank votes at the 2021 Legislative Council General Election (2021 LegCo Election) during the election period. The defendant pleaded guilty after the court ruled that the relevant provision was constitutional.
So Tsun-fung, 23, project officer, faced one count of engaging 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 (ECICO).
The defendant earlier pleaded not guilty to the charge at the West Kowloon Magistrates’ Courts, and the prosecution and the defence then made submissions on whether Section 27A of the ECICO was constitutionally tenable. The defendant today pleaded guilty to the charge after Deputy Magistrate Miss Kennis Tai Chiu-ki ruled that the provision was constitutional.
In ruling, the deputy magistrate said that inciting others to cast blank votes or not to vote would cause tensions and mismatches of election resources, and affect electors’ voting right and candidates’ right to be elected. The court disagreed with the defence’s notion that the provision was not set out to regulate acts which would manipulate and undermine elections.
The court was of the view that the provision only limited incitement which were made in public during the election period. It did not entirely limit electors’ voting right without constraint, and did not target any specific political group or political view. Having considered all theses, the court ruled that the provision was constitutionally tenable.
The court heard that the 2021 LegCo Election was open for nominations from October 30, 2021. According to the ECICO, the period between that day and the polling day (December 19, 2021) was defined as the “election period” of the election.
On October 30, 2021, which was the first day of the nomination period, the ICAC published a press statement on its official website to remind members of the public that inciting others not to vote or to cast invalid votes by activities in public during the election period would be in breach of Section 27A of the ECICO.
On the same day, the defendant reposted on his social media page a post from Hui’s social media page which incited others to cast blank votes at the abovementioned election. The post was displayed on the defendant’s social media page during the election period.
The ECICO stipulates that “activity in public” includes any form of communication to the public, and the distribution or dissemination of any matter to the public. The ECICO applies to all conduct concerning an election, whether the conduct is engaged in within Hong Kong or elsewhere.
A warrant for the arrest of Hui, who had left Hong Kong, was issued by a Magistrate in late 2021 for allegedly inciting others to cast blank votes at the above election by displaying posts on his social media page.
The ICAC had earlier conducted investigations into online posts which incited others to cast blank votes or not to vote at the 2021 LegCo Election. In accordance with established procedures, the findings of the investigation were forwarded to the Department of Justice for legal advice. Pursuant to the legal advice, nine people were charged with breaching Section 27A of the ECICO. Seven defendants, who pleaded guilty, were each sentenced to two months’ imprisonment, suspended for 18 to 24 months. Two others have not yet entered any plea.
The prosecution was today represented by Deputy Director of Public Prosecutions Vinci Lam, Senior Assistant Director of Public Prosecutions Alice Chan and Senior Public Prosecutor Peggy Leung, assisted by ICAC officer Adrian Yeung.
So Tsun-fung, 23, project officer, faced one count of engaging 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 (ECICO).
The defendant earlier pleaded not guilty to the charge at the West Kowloon Magistrates’ Courts, and the prosecution and the defence then made submissions on whether Section 27A of the ECICO was constitutionally tenable. The defendant today pleaded guilty to the charge after Deputy Magistrate Miss Kennis Tai Chiu-ki ruled that the provision was constitutional.
In ruling, the deputy magistrate said that inciting others to cast blank votes or not to vote would cause tensions and mismatches of election resources, and affect electors’ voting right and candidates’ right to be elected. The court disagreed with the defence’s notion that the provision was not set out to regulate acts which would manipulate and undermine elections.
The court was of the view that the provision only limited incitement which were made in public during the election period. It did not entirely limit electors’ voting right without constraint, and did not target any specific political group or political view. Having considered all theses, the court ruled that the provision was constitutionally tenable.
The court heard that the 2021 LegCo Election was open for nominations from October 30, 2021. According to the ECICO, the period between that day and the polling day (December 19, 2021) was defined as the “election period” of the election.
On October 30, 2021, which was the first day of the nomination period, the ICAC published a press statement on its official website to remind members of the public that inciting others not to vote or to cast invalid votes by activities in public during the election period would be in breach of Section 27A of the ECICO.
On the same day, the defendant reposted on his social media page a post from Hui’s social media page which incited others to cast blank votes at the abovementioned election. The post was displayed on the defendant’s social media page during the election period.
The ECICO stipulates that “activity in public” includes any form of communication to the public, and the distribution or dissemination of any matter to the public. The ECICO applies to all conduct concerning an election, whether the conduct is engaged in within Hong Kong or elsewhere.
A warrant for the arrest of Hui, who had left Hong Kong, was issued by a Magistrate in late 2021 for allegedly inciting others to cast blank votes at the above election by displaying posts on his social media page.
The ICAC had earlier conducted investigations into online posts which incited others to cast blank votes or not to vote at the 2021 LegCo Election. In accordance with established procedures, the findings of the investigation were forwarded to the Department of Justice for legal advice. Pursuant to the legal advice, nine people were charged with breaching Section 27A of the ECICO. Seven defendants, who pleaded guilty, were each sentenced to two months’ imprisonment, suspended for 18 to 24 months. Two others have not yet entered any plea.
The prosecution was today represented by Deputy Director of Public Prosecutions Vinci Lam, Senior Assistant Director of Public Prosecutions Alice Chan and Senior Public Prosecutor Peggy Leung, assisted by ICAC officer Adrian Yeung.