Don’t deny the vote to Hongkongers in mainland China because of overblown concerns about electoral fraud

Hong Kong’s ICAC, which oversees electoral fraud, has ample experience working with counterparts elsewhere to pursue offenders
Allowing the millions of Hongkongers living on the mainland to vote is long overdue, and authorities are capable of ensuring the process is ‘fair, open and honest’

Grenville Cross

Published: 8:30am, 5 Nov 2020

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The Basic Law could not be clearer. It says that Hong Kong permanent residents “shall have the right to vote”. However, having the right to vote is one thing, exercising it is another, as electors living elsewhere in China know all too well.

Last month, the Constitutional and Mainland Affairs Bureau said the government would proactively improve the current electoral arrangements, and implement enhancement measures at an appropriate time. It is expected, therefore, that proposals will soon be unveiled to enable Hong Kong people based on the mainland to vote in the city’s elections. This would certainly be sensible, as there are some 540,000 permanent residents living in Guangdong province alone, with many eligible to vote.

Many of these voters find it impracticable, for work, family or other reasons, to return home to cast their ballots on a given date, particularly when border restrictions are in place. Since the government has been encouraging local people to take up opportunities in the Greater Bay Area, it is unfair for many of them to be effectively disenfranchised.

Although some people have asked if alternative methods are feasible, including electronic voting and postal ballots, it is wise to take one step at a time. As the mainland affairs bureau has emphasised, the integrity of the vote is the government’s priority, with elections being conducted in a “fair, open and honest manner”.

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If implemented, Hong Kong permanent residents living on the mainland would be able to vote at the government’s offices throughout the country. They are in Beijing, Shanghai, Guangzhou, Wuhan and Chengdu, and the polling stations would be located there, with appropriate supervision. To facilitate this, the electoral law would have to be amended, so that the Registration and Electoral Office, which conducts the city’s elections, can also operate on the mainland.

As things stand, the electoral law indicates that eligible voters must “ordinarily reside in Hong Kong”, and there are apparently no plans to change the eligibility of voters. In common law, “ordinary residence” connotes something more than a mere temporary residence in a place.

It refers to a place where a person’s lifestyle is centred, and to which the person returns if his or her presence is not continuous. Most Hong Kong people living and working on the mainland make periodic visits to their home city, with very few having severed their links altogether.

Hong Kong residents overseas ask: why can’t we vote from abroad too?

In many places, it is recognised that citizens living elsewhere should not forfeit their right to vote. In the United Kingdom, for example, someone can register to vote as an overseas elector if he or she is a British citizen, and has been registered to vote in the UK within the previous 15 years.

In Canada, someone who is at least 18, lives overseas and has lived in Canada at some point in their life, can apply for inclusion in the International Register of Electors, and then remain on it indefinitely, regardless of how long they live abroad.

Closer to home, Singapore allows its overseas citizens to vote in its elections, at either its embassies or consulates. However, to qualify as an overseas elector, a citizen must have spent at least 30 days in Singapore in a three-year period.

In 2005, the Supreme Court of Japan ruled that it was unconstitutional for the government to use non-residence as a basis for limiting the voting rights of Japanese citizens who were living overseas. In Malaysia, overseas voting has, since 2013, been open to most registered voters living abroad.

Voters in Singapore queue to cast their ballots at a polling station on July 10. Singapore allows its overseas citizens to vote in its elections, at either its embassies or consulates. Photo: EPA-EFE

Any change, however, is only expected to enable electors on the mainland to vote, not those in other countries, so it will be a very cautious move. Some people, nonetheless, have expressed reservations, such as concerns over fraud.

It has been suggested that the Independent Commission Against Corruption, which polices elections, might not be able to investigate offences occurring elsewhere. Yet, it has done this previously. Moreover, the Elections (Corrupt and Illegal Conduct) Ordinance states that the law “applies to all conduct concerning an election, whether the conduct is engaged in within Hong Kong or elsewhere”.

The ICAC has wide experience of investigating crimes with an extraterritorial dimension, such as bribery of a public servant, which, under the Prevention of Bribery Ordinance, is criminalised even when it occurs outside Hong Kong.

If, therefore, any electoral offences required investigation on the mainland, the ICAC would liaise with its counterparts over collecting evidence, including the interviewing of suspects and witnesses. It knows how to collect evidence elsewhere, by administrative channels when formal channels do not exist.

Electoral workers count the votes for a Legislative Council by-election in Hong Kong on March 12, 2018. Photo: Winson Wong

To take one example, in a famous illicit cigarette smuggling case in the 1990s, the sole witness, Tommy Chui To-yan, was murdered in Singapore. The ICAC nonetheless pursued the killers, using the Offences Against the Person Ordinance, which criminalises conspiracy to murder a person “wherever he may be”.

Its investigation involved the authorities in Hong Kong, Singapore and the mainland, and two suspects, Cheng Wui-yiu and Cheung Wai-ming, were eventually arrested on the mainland. They were then tried in Hong Kong, on evidence obtained from different jurisdictions, and, after conviction, Cheng received life imprisonment and Cheung 27 years’ imprisonment.

As the ICAC knows exactly how to discharge its mandate elsewhere, the alleged problems have been overblown. Quite clearly, the electoral process, controlled by the Registration and Electoral Office and overseen by the ICAC, can be conducted appropriately.

The government, therefore, is justified in facilitating the rights of electors residing on the mainland, thus correcting an anomaly which is not only discriminatory, but also makes a mockery of the right to vote.

Grenville Cross SC is a criminal justice analyst

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