The Hong Kong Eastern Magistrates’ Courts imposed a two-month prison sentence, with a suspension of two years, on Monday on a defendant who earlier pleaded guilty to engaging in illegal conduct to incite another person to cast an invalid vote by activity in public, violating section 27A of the Elections (Corrupt and Illegal Conduct) Ordinance.
The defendant admitted that she called for voters to write their names and identification numbers on their ballots, such that their ballots would be invalid, on social media. According to section 78 of the Electoral Affairs Commission (Electoral Procedure) (District Councils) Regulation, ballots are to be regarded as invalid if there is writing or a mark by which the elector can be identified. Passing the sentence, the magistrate contended that the offence was serious as a society could not accept the defendant’s impediment to a fair election.
The defendant also reposted a post from Leo Lee, a former district councillor. In it, Lee claimed that “refusing to vote is the greatest respect to democracy.” Lee is no longer in Hong Kong and is currently under a warrant for the same offence. Previously, another magistrates’ court imposed a suspended two-month imprisonment on a defendant who reposted on social media a political commentator asking his followers not to vote in the District Council Election. A magistrate similarly issued a warrant for the arrest of the political commentator.
Lee was elected to be a District Councillor in the 2019 election. However, the Hong Kong government enacted the Public Offices (Candidacy and Taking Up Offices)(Miscellaneous Amendments) Ordinance 2021. It empowers the Secretary for Home Affairs to determine whether the oaths were validly taken, taking into account their previous actions and speeches given in public and on social media. Among 452 members of the Sixth District Council, only 68 members took oaths, and the validity of 17 oaths was questioned by the then Secretary for Home Affairs. One of them resigned after being questioned, and 16 of them were ruled invalid. Lee was one of the members who refused to take the oath in 2021, claiming that the government not only failed to reflect on themselves but to implement new rules to rewrite the election result. Lee left Hong Kong after he refused to take the oath.
The government claimed that the amendment aimed to implement the Chinese Standing Committee’s interpretation of Article 104 of the Basic Law. The government also reiterated that “upholding Basic Law and bearing allegiance to HKSAR is a fundamental obligation and responsibility of public officers.” The above-mentioned interpretation was issued in 2016, with the legal effect of disqualifying Sixtus Leung and Yau Wai-ching, two elected Legislative Council members who advocated for Hong Kong’s independence.
