Prisoners should have the right to vote in elections, the High Court ruled yesterday in a review sought by two inmates.

The sweeping ban now imposed on prisoners contravenes their right to vote, a right constitutionally guaranteed under the Basic Law and the Hong Kong Bill of Rights, said Justice Andrew Cheung Kui-nung in the written judgment.

The disenfranchisement currently applies to all prisoners, regardless of whether they are serving suspended sentences, released on parole, on bail pending appeal or unconvicted people remanded in custody awaiting trial.

Justice Cheung said the right to vote is the most important political right.

Under article 21 of the Bill of Rights, which indicates permanent residents have the right to vote without unreasonable restrictions, the government is entitled to forfeit the prisoners' right to cast ballots to achieve legitimate and reasonable aims.

However, Justice Cheung did not see the government had clearly stated what the legitimate aims are to impose the restrictions.

Therefore, the government must give valid and justifiable reasons complying fully with the constitutional requirements of the Basic Law and Bill of Rights to impose the ban.

As for remanded persons, the prohibition from voting stems from a lack of access to polling stations on election days, a practical rather than legal reason that Justice Cheung said must be corrected.

He said arrangement to enable them, as well as prisoners, to vote could be worked out.

It is up to the Electoral Affairs Commission to make the arrangements.

The legislature should also decide what would constitute reasonable restrictions in Hong Kong, Justice Cheung said.

The judicial review was sought by prisoners Chan Kin-sum and Choi Chuen-sun after the former was disqualified from voter registration while the later's application to change his registered address to Stanley Prison was refused.

Justice Cheung said a prison cell was not Choi's residence.

However, the judge found refusing a prisoner to apply to be a superfluous move given the existing disqualifications.

The Secretary for Justice has two weeks to file evidence in the case.

Chan said the right to vote gives prisoners another way to rehabilitate after their release.

The Society for Community Organization, which is helping Chan and Choi in their appeal, welcomed the judgment.

"The judgment manifests Hong Kong's respect to the voting right exercised by prisoners," its spokesperson said.

It also asked the government to amend legislation to remove the disenfranchisement.

Eric Cheung, associate professor at the University of Hong Kong's Department of Professional Legal Education, agreed with the judgment.

"It conveys a positive message that prisoners should still enjoy basic human rights in spite of their imprisonment," he said, noting that the judgment revealed that the government has neglected this point.

He said that if the government accepts the judgment, it should study how to draw a line to impose voting restrictions, such as on those committing particular offenses.

Meanwhile, the Constitutional and Mainland Affairs Bureau said it would study the judgment and consider a future direction. It added that the Legislative Council electoral result this year is still valid.

(HK Edition 12/09/2008 page1)