JUNIOR POLICE OFFICERS’ASSOCIATION OF THE HONG KONG POLICE FORCE AND ANOTHER v ELECTORAL AFFAIRS COMMISSION AND OTHERS

HCAL 3042/2019

[2019] HKCFI 2887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3042 OF 2019

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Before:  Hon Chow J in Chambers (Open to Public)

Date of Hearing: 25 November 2019

Date of Decision:  25 November 2019

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D E C I S I O N

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1.  This is an application by Hong Kong Journalists Association (“HKJA”) for leave to intervene in these proceedings. At the conclusion of the hearing on 25 November 2019, I informed the parties that I would give brief reasons for my decision on the application, which I now do.

2.  A brief background of the present application for judicial review has been given in the judgment of the Court of Appeal in CACV 489/2019 handed down on 22 October 2019, and shall not be repeated here.

3.  The principal issue to be determined in the substantive application is whether various provisions of the Electoral Affairs Commission (Registration of Electors) (Legislative Council Geographical Constituencies) (District Council Constituencies) Regulation, Cap 541A and the Electoral Affairs Commission (Electoral Procedure) (District Councils) Regulation, Cap 541F, and/or the decision(s) or practice(s) of the Electoral Affairs Commission, the Chief Electoral Officer and the Electoral Registration Officer under or pursuant to those provisions, which permit the public, including candidates in a District Council Election, to freely inspect or given copies of the Final Register (or a part or parts thereof) which contains what has been referred to as the “Linked Information” (ie information linking the name of registered electors directly with their principal residential addresses) constitute a disproportionate interference with the registered electors’ right to privacy under Art 14 of the Hong Kong Bill of Rights and/or right to vote under Art 26 of the Basic Law.

4.  Although the present application for judicial review made by Junior Police Officers’ Association of the Hong Kong Police Force and AA is prompted by the recent practice of “doxxing” targeted against members of the police force and their family members, it should be noted that this application affects not just police officers but all registered voters. Indeed, police officers do not enjoy any better or higher right to privacy or right to vote than ordinary members of the public.  As I understand it, HKJA seeks to intervene to oppose the application for judicial review.

5.  The proper approach to be adopted by the court in considering an application for intervention in public law proceedings was considered by the Appeal Committee of the Court of Final Appeal in QT v Director of Immigration (2018) 21 HKCFAR 150, at paragraphs 13 to 18, which this court applied in MK v Government of the HKSAR [2019] 2 HKLRD 978.  In summary, subject to considerations of specific prejudice to the parties to the proceedings, the primary consideration of the court when deciding whether to permit intervention is whether the proposed intervener is likely to be able to provide additional, material, assistance on either law or fact or the consequences of the court’s judgment which it is unlikely will be provided by the immediate parties to the proceedings.

6.  Mr Paul Shieh, SC argues that these considerations are satisfied in relation HKJA’s application to intervene in these proceedings.  In particular, Mr Shieh argues that:

(1)  Journalists have particular expertise in inspecting the Final Register and relying on it to “monitor the election process by picking up from the Final Register mistakes or even signs of malpractice such as vote rigging”, and he refers to a number of past cases in support of this submission.

(2)  HKJA’s involvement will provide a fuller understanding of the other constitutional rights at play, in particular the freedom of the press and the right to free and fair elections.

(3)  The consequence of preventing public inspection of the Final Register are uniquely felt by journalists, who will be hampered and inhibited in their investigative work.

(4)  Journalists can offer first-hand accounts of how inspection of the Final Register is actually done.  By explaining the process of attending the Registration and Electoral Office to peruse the register, the layout of the information, the limitations and restrictions, etc, the court can gain an insight into whether the Final Register can in fact conveniently and easily facilitate and intensify “doxxing”.

(5)  The Intervention of HKJA will serve to reassure the public that all points of view have been taken into account and contribute to the public’s confidence in the judgment.

7.  In respect of (1), I have some reservation on whether journalists can be said to have particular “expertise” in inspecting the Final Registry.  The task is no doubt laborious or tedious, but it is not clear that any particular expertise is required to read, understand, memorise and/or interpret the information contained in the Final Register.  I accept, nevertheless, that ordinary members of the public, apart from possibly political parties and candidates in an election, may not have any particular incentive to inspect the Final Register, still less to carry out other searches, such as land searches or companies searches, in order to detect possible vote rigging, whereas journalists engaging in investigative journalism would be prepared to spend time and effort to do so.

8.  In respect of (2), I accept that HKJA’s involvement will provide a fuller understanding of the freedom of the press in actual practice, but not necessarily the right to free and fair elections which I believe the court can readily grasp and understand.

9.  I accept Mr Shieh’s submissions in respect of points (3) to (5), although I should mention that, in respect of (4), evidence on how inspection of the Final Register is actually carried out can, of course, be given by the Electoral Registration Officer.

10.  On the other hand, I do not consider that the Applicants or the Putative Respondents will likely suffer any significant or substantial prejudice as a result of HKJA being permitted to intervene in these proceedings.  In particular, in relation to the concern about preserving the confidentiality of the identity of AA, I consider that this concern can be addressed by permitting appropriate redaction of the documents already filed in court prior to their service on HKJA, with liberty to the parties to apply for further directions in the event that they are unable to agree on the scope or extent of the redaction.

11.  Taking everything into account, and bearing in mind the importance that the law attaches to the freedom of the press, I consider that HKJA ought to be allowed to intervene in these proceedings.

12.  Accordingly, I make the following orders and give the following directions:

(1)  HKJA do have leave to intervene in the rolled-up hearing of the application for judicial review;

(2)  HKJA do have leave to file (i) the Affirmation of Wong Wai Chun Alvin dated 16 November 2019, (ii) the Affirmation of Cheng Pui Shan dated 15 November 2019, and (iii) the Affirmation of Yam Mei Ching Shirley dated 15 November 2019, and the exhibits thereto, and rely on the same at the rolled-up hearing;

(3)  the Applicants and the Putative Respondents shall serve copies of all documents filed in this application on HKJA within 2 days, save that the documents to be served on HKJA shall be redacted to remove all information which may directly or indirectly identify AA, with liberty to the parties to apply for further directions where necessary or required;

(4)  the Applicants and the Putative Respondent shall have leave to file and serve evidence in reply to the evidence filed by HKJA on or before 9 December 2019;

(5)  no further evidence may be filed without leave of the court;

(6)  the Applicant shall file and serve skeleton submissions on or before 9 December 2019;

(7)  the Putative Respondents and HKJA shall file and serve their skeleton submissions on or before 12 December 2019;

(8)  consolidated bundles of authorities shall be filed on 13 December 2019;

(9)  an additional day, namely, 17 December 2019, shall be reserved for the rolled-up hearing;

(10)  the Applicants shall make oral submissions in support of the application for up to 4 hours on 16 December 2019;

(11)  HKJA shall have leave to make oral submissions for up to 1.5 hours;

(12)  the Putative Respondents shall make oral submissions for the rest of the 17 December 2019, save that the last 30 minutes shall be reserved for the Applicants to make reply submissions; and

(13)  costs reserved.

13.  Previous directions contained in paragraph 3 of the Court’s Ruling dated 23 October 2019 shall be modified or superseded accordingly.

Mr Tony Ko, instructed by Li & Partners, for the 1^st and 2^nd Applicants

Mr Mark Chan, DPGC (Ag), instructed by Department of Justice, for the 1^st to 3^rd Putative Respondents

Mr Paul Shieh, SC, Mr Robert Pang, SC and Ms Natalie So, instructed by L & L Lawyers, for the Intended Intervener Judge of the Court of First Instance