Junior Police Officers’association of the Hong Kong Police Force and Another v. Electoral Affairs Commission and Others
Read the full judgment text of HCAL 3042/2019 on BabelCite. This High Court CFI judgment was delivered on 8 April 2020.
1. The principal issue which arises for determination in this application for judicial review is whether the current registration and electoral system in Hong Kong, which requires or permits the electoral registers showing the names of the registered electors together with their principal residential addresses (the “ Linked Information ”) to be made available to the public and/or the candidates in a District Council election (“ the Impugned Measures ”), contravenes the registered voters’ rights
Cited by 6 cases · Cites 13 cases
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HCAL 3042/2019 [2020] HKCFI 554 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 Court Dates of Hearing: 16 and 17 December 2019 Date of Judgment: 8 April 2020 ___________________ JUDGMENT ___________________ INTRODUCTION 1.The principal issue which arises for determination in this application for judicial review is whether the current registration and electoral system in Hong Kong, which requires or permits the electoral registers showing the names of the registered electors together with their principal residential addresses (the “Linked Information”) to be made available to the public and/or the candidates in a District Council election (“the Impugned Measures”), contravenes the registered voters’ rights to privacy, family and home, and/or their right to vote. For reasons which I shall endeavour to explain in this judgment, I am of the view that the Impugned Measures are lawful and constitutionally compliant. THE STATUTORY SCHEME 2.The law of Hong Kong relating to the registration of electors and the compilation and publication of the electoral registers of District Council constituencies is contained in a number of inter-linked Ordinances and subsidiary legislation, including:
For the purpose of this judgment, the following brief summary should suffice. (i) The Electoral Affairs Commission, Chief Electoral Officer and Electoral Registration Officer 3.The Electoral Affairs Commission (“EAC”) is a body corporate established under s 3 of the Electoral Affairs Commission Ordinance. It consists of a Chairman (who must be a Judge of the High Court and whose appointment must be made in consultation with the Chief Justice of the Court of Final Appeal) and 2 other members appointed by the Chief Executive. The functions of the EAC are, inter alia, (i) to be responsible for the conduct and supervision of elections, (ii) to supervise the registration of electors, and (iii) to generally make arrangements, take such steps or do such other things as it considers appropriate for the purpose of ensuring that elections are conducted openly, honestly and fairly[1]. 4.The Regulation and the Electoral Procedure Regulation are subsidiary legislation made by the EAC pursuant to the powers conferred on it under s 7 of the Electoral Affairs Commission Ordinance. 5.The Chief Electoral Officer (“CEO”) is appointed by the Chief Executive under s 9(1) of the Electoral Affairs Commission Ordinance. The EAC performs its functions through the CEO, with the exception of certain specific functions which are to be performed through the Director of Home Affairs[2]. The CEO is required to do all acts and things necessary for implementing the decisions of the EAC[3]. 6.The Electoral Registration Officer (“ERO”) is appointed by the Chief Executive under s 75(1) of the Legislative Council Ordinance, with such functions and duties as are conferred or imposed on him by or under that Ordinance, and other legislation including the Regulation and the Electoral Procedure Regulation, the relevant aspects of which will be further described below. (ii) Registration as elector 7.A person wishing to vote in a District Council election must first be registered as an elector. For this purpose, unless his name already appears in the existing final register, he has to make an application to the ERO for registration in a provisional register under s 4 of the Regulation. The expression “registration” is defined to mean “the entry of the name and principal residential address of a person in a register”[4]. An entry in a register relating to a person must show the name and principal residential address of that person[5]. The deadline for making such application is (i) 2 May for a year which is not a District Council election year (“non-DC election year”), and (ii) 2 July for a year which is a District Council election year (“DC election year”)[6]. 8.In the “Application for New Voter Registration (Geographical Constituency)” (“Form REO-1”), the applicant is required to provide his name as shown on his Hong Kong Identity Card and his principal residential address in Hong Kong. He is also required to made the following declaration in the Form REO-1:
9.The Guidance Notes to the Form REO-1 further states as follows:
10.Under s 5(7) of the Regulation, if the ERO determines that an applicant is eligible to be registered, the ERO must also determine, having regard to the address furnished by the applicant as his principal residential address, the section, and the subsection under it, of the provisional register in which to register the applicant. (iii) Compilation and publication of electoral registers 11.The ERO is required to compile, update and publish a provisional register and a final register of District Council constituencies annually.
12.After the publication of the provisional register in any year, there is a prescribed statutory process for a person to make:
13.A register (provisional or final)[16] is divided into sections so that there is a separate section for each Legislative Council geographical constituency[17]. For the purpose of determining the appropriate constituencies in which the registered electors are entitled to vote at a District Council election, each section of a register is further divided into separate subsections for the District Council constituencies within the Legislative Council geographical constituencies[18]. 14.A person is entitled to vote at a District Council election only if that person is an “elector”[19], which is defined to mean “any person whose name is included in the existing final register”[20]. The expression “existing final register”is defined to mean “a final register of geographical constituencies compiled and published by the Electoral Registration Officer under section 32 of the Legislative Council Ordinance (Cap. 542) which is currently in force”[21]. 15.Further, for any District Council ordinary election (other than the first ordinary election which is no longer material), a person is entitled to vote only in the constituency for which that person is registered as an elector in the existing final register[22]. In other words, a person is entitled to vote only in the constituency within which his principal residential address falls. (iv) The Impugned Measures 16.There are three ways in which a register (final or provisional) is, or may be, made available to the public and/or candidates in a District Council election. 17.First, under s 20(3) of the Regulation, the ERO must make available for public inspection a copy of the final register at the place or places specified in the notice published[23] pursuant to s 20(1) of the Regulation. Under s 20(4) of the Regulation, the ERO may make available for public inspection a copy of a specific section or subsection of the final register at a place additional to the place specified in the aforesaid notice if the ERO considers it appropriate to do so. Under s 20(4A) of the Regulation, for the purposes of s 20(3) and (4), the ERO may further make available for public inspection an additional copy of the final register or an additional copy of a specific section or subsection of the final register in which entries are arranged in a manner that the ERO considers appropriate for public inspection. 18.Pausing here, it may be noted that in the basic format of the final register, the registered electors are sorted by “name” (ie in accordance with the alphabetical order of their surnames in English or the number of strokes of their surnames in Chinese). However, s 20(4A) of the Regulation empowers the ERO to prepare and make available the final register (or a specific section or subsection thereof) in a different format, such as sorting the registered electors by “principal residential address”. According to the Putative Respondents, this additional format of the register would help identify irregularities in the reported residential addresses of the registered electors[24]. 19.There are similar provisions in s 13 of the Regulation concerning how a provisional register (or a specific section or subsection thereof) is, or may be, made available to the public. 20.Second, under s 21(1) of the Regulation, the ERO may, at any time after the publication of a register, make available an extract from such published register for any purpose related to an election to any person the ERO considers appropriate. The ERO may, before making available such extract, arrange the entries in the extract in a form the ERO considers appropriate. Further, in an extract made available under this section, the ERO may include (by way of a note or other means the ERO thinks fit) information as to whether any person whose particulars are included in that extract is entitled to vote at an election[25]. 21.Third, under s 38(1)(b) of the Electoral Procedure Registration, the CEO must supply to each candidate in any District Council ordinary election (other than the first ordinary election which is no longer material) an extract of the part of the final register which relates to the constituency for which that candidate is nominated as soon as practicable after the relevant nomination form is submitted to the Returning Officer[26]. 22.In short, under the current registration and electoral system in force in Hong Kong, if an eligible person wishes to participate in a District Council ordinary election as an elector, his Linked Information will become available to the public under ss 20 and 21 of the Regulation, and to the candidate(s) for the constituency to which the elector belongs under s 38 of the Electoral Procedure Regulation. PUBLICATION OF THE FINAL REGISTER IN 2019 23.For the District Council election year of 2019, the ERO published the final register of District Council constituencies on 25 September 2019 (“the Final Register”), ahead of the District Council ordinary election scheduled to be held on 24 November 2019 (“the DC Election”). In the statutory notice published on 25 September 2019 pursuant to s 20(1) of the Regulation, it was stated that the Final Register could be inspected during ordinary business hours at the Registration and Electoral Office on 10/F, Harbour Centre, 25 Harbour Road, Wan Chai, Hong Kong. 24.Further, pursuant to s 20(4) of the Regulation, the ERO made available copies of the relevant sections or subsections of the Final Register for public inspection at the Home Affairs Enquiry Centres of the 18 District Offices. 25.According to the Putative Respondents, as at 16 October 2019, copies of the entire Final Register had been supplied to 6 major political parties and 26 individuals pursuant to s 21(1) of the Regulation. In addition, more than 30 public inspections of the Final Register (or a specific section or subsection thereof) had taken place pursuant to s 20(3) and (4) of the Regulation. APPLICATION FOR JUDICIAL REVIEW 26.The 1st Applicant is an association of over 25,000 police officers covering four different ranks, namely, police constables, senior police constables, sergeants and station sergeants, making up approximately 85% of the entire police force in Hong Kong. The 2nd Applicant is an individual police officer. 27.The immediate catalyst which gave rise to the present application for judicial review was what the Court of Appeal described as the appalling, reprehensible and hideous “doxxing” campaigns targeted against police officers and their family members, involving extensive leaking of personal information and cyber-bullying on the Internet and various social and other media, which sprang up in the aftermath of the now withdrawn Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019. However, the present challenge to the Impugned Measures is not advanced upon any special rights or interests of police officers. The challenge is based, instead, on the rights to privacy, family and home under Article 14 of the Hong Kong Bill of Rights (“BOR 14”), and the right to vote under Article 26 of the Basic Law (“BL 26”), which are enjoyed equally by police officers and all other registered electors in Hong Kong (totalling approximately 4.13 million in 2019). It has not been suggested that police officers enjoy any better or higher rights to privacy, family and home, or right to vote, than other registered electors or ordinary members of the public. 28.The gravamen of the Applicants’ complaint is that the public availability of the Linked Information under the current registration and electoral system gives rise to a severe interference with the registered electors’ rights to privacy, family and home. The Applicants rely on the recent “doxxing” campaigns against police officers and their family members as an example of the sort of harm that could result from such public availability of the Linked Information. This having been said, there is no direct evidence that the Linked Information which has been made available to the public/candidates has in fact been so used, or mis-used[27]. 29.The 1st Applicant made the present application for judicial review on 15 October 2019, followed by an application for interim relief on 16 October 2019. That application reached the Court of Appeal, and resulted in an interim injunction, pending the substantive disposal of the present application for judicial review, being granted by the Court of Appeal on 22 October 2019 in the following terms:
30.On 23 October 2019, a rolled-up hearing of the present application for judicial review was directed, and on 25 November 2019, Hong Kong Journalists Association was granted leave to intervene in this application. 31.In the Amended Form 86 dated 15 November 2019, the Applicants seek to challenge the following “decisions”:
32.At §§24-26 of the Amended Form 86, the Applicants summarise their grounds of judicial review, as follows:
33.The following preliminary observations may be made regarding the 4 decisions sought to be challenged by the Applicants. First, under s 20(3) of the Regulation, the ERO is under a statutory duty to make available for public inspection a copy of the final register (which, by virtue of s 3(2) of the Regulation, must show the names and principal addresses of the registered electors) at the place or places specified in the notice published pursuant to s 20(1) of the Regulation. The Applicants’ reference to “the EAC’s application of or practice under s 20(3) of the Regulation to make available for public inspection the entirety of a copy of the [Final Register] insofar as the names of the registered electors are directly linked to their residential addresses” in the second part of 1st Decision is, in my view, inapt, because:
The pertinent issue, in my view, is whether s 20(3) of the Regulation is constitutionally valid. 34.Second, although the ERO has a discretion under s 20(4) to make available for public inspection a copy of a specific section or subsection of the Final Register, such discretion goes only to the question of whether to do so at a place additional to the place specified in the notice published under s 20(1), but not whether the section or subsection of the Final Register as made available should show the Linked Information. To the extent that the Applicants’ challenge to the 2nd Decision is premised on the assumption that the ERO has a discretion under s 20(4) to make available to the public a section or subsection of the Final Register without showing the Linked Information, such challenge proceeds on a false premise. In any event, even if (contrary to my view) the ERO has a discretion under s 20(4) to make available to the public a section or subsection of the Final Register without showing the Linked Information, since he is under a statutory duty to make available the entire Final Register showing the Linked Information to the public under s 20(3), for the purpose of the present case, the way in which he exercises his discretion under s 20(4) makes no real difference. In my view, the challenge to the 2nd Decision stands or falls together with the challenge to the 1st Decision. 35.Third, the same comment applies to the 3rd Decision. The ERO has a discretion under s 21(1) to make available an extract of a published register to any person for any purpose related to an election. However, once he decides to exercise his discretion to make available an extract of the register to a person, he must provide a proper extract of the register showing the Linked Information. 36.Fourth, under s 38 of the Electoral Procedure Registration, the CEO is under a statutory duty to supply to each candidate an extract of the part of the Final Register which relates to the constituency for which that candidate is nominated. He has no discretion to do otherwise. The Applicants’ challenge to the 4th Decision, based on Wednesbury unreasonableness on the facts[29], is, in my view, misconceived. The true and proper question is whether s 38(1) of the Electoral Procedure Registration is constitutionally valid. THE RIGHTS TO PRIVACY, FAMILY AND HOME, AND TO VOTE, ARE ENGAGED (i) Article 14 of the Hong Kong Bill of Rights 37.BOR 14 states as follows:
38.In Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights - Cases, Materials and Commentary (3rd ed), at §16.01, it is stated that:
At §16.02, the learned authors note that as far as the ICCPR is concerned, the meaning of privacy for the purposes of article 17 (equivalent to BOR 14) has not yet been thoroughly defined in either the General Comment or the case law. 39.In Democratic Party v Secretary for Justice [2007] 2 HKLRD 804, at §57, Hartmann J (as he then was) also said that “privacy” was not the easiest concept to reduce to a legal definition, and offered the following exposition of the concept of privacy:
40.The extent to which a matter comes into contact with public life, or interacts with the activities, rights or freedoms of others in a society, is relevant to both the questions of (i) whether a person is entitled to enjoy privacy in respect of a matter, and (ii) the degree and scope of the protection that may be accorded to that person’s privacy in respect of that matter. The first question is relevant to the issue of whether the right to privacy is engaged, and the second question is relevant to the issue of whether there is a contravention of the right to privacy, if engaged (which, as will be further discussed below, is to be determined by the proportionality test). 41.A person’s name and residential address form part of the “privacy” of that person (see Wong Tze Yam v Commissioner of Police [2009] 5 HKLRD 838, at §§20-22 per Jeremy Poon J (as he then was); Green Corns Ltd v Claverley Group [2005] EMLR 31, at §§53 and 56 per Tugendhat J; Khadija Ismayilova v Azerbaijan, Application Nos 65286/13 and 57270/14, at §140 (ECHR)). Disclosure of a person’s name and residential address to the public would, prima facie, constitute an interference with that person’s privacy. In my view, the Impugned Measures encroach upon the right to privacy protected by BOR 14. For the purpose of this judgment, it does not matter whether the rights to “family” and “home” protected by that article are also engaged. 42.On behalf of the Putative Respondents, Mr Raymond Leung, SC argues that the right to privacy under BOR 14 is not engaged. His argument, in summary, is as follows:
43.I accept that a person, by completing, signing and returning the Form REO-1, must be taken to have given consent for his personal data (including his name and residential address) to be used for voter registration and election-related purposes, including the disclosure of such personal data to the public and/or candidates. If this application were brought by an individual registered elector for judicial review of a specific decision by the REO/CEO to disclosure his Linked Information to the public or a candidate, there would be some force in the argument that the elector has no reasonable expectation of privacy in respect of the Linked Information, and thus the relevant disclosure should not be regarded as a breach of his right to privacy under BOR 14. 44.However, the present application is a systemic complaint against the current registration and electoral system which requires or permits the electoral registers showing the Linked Information to be made available to the public and/or the candidates in a District Council election. If a person wishes to exercise his constitutional right to vote in a District Council election, he has effectively no choice but to give the requisite consent in the Form REO-1. The form does not permit, for example, an applicant to opt out of giving consent for his personal data to be made available to the public and/or candidates. In other words, the price for withholding his consent is the forfeiture of his constitutional right to vote. In such circumstances, I consider that the right to privacy under BOR 14 is engaged, in that, subject to the issue of proportionality, the law has failed to provide protection against interference or attacks with the right. As for the argument that, by choosing to register in order to vote in an election, an elector thereby brings himself or his personal data into contact with public life, it is, I consider, more appropriate to be dealt with as part of the proportionality analysis. (ii) Article 26 of the Basic Law 45.BL 26 states: “Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law.” 46.As pointed out by the Court of Appeal at §53 of its decision on interim relief in this case ([2019] HKCA 1197):
47.While there is, as earlier mentioned, no evidence that the Linked Information which has been made available to the public and/or the candidates has actually been used for the purpose of “doxxing” against any particular person or group of persons, it can be used for such purpose. A fundamental right protected by the Basic Law or the Hong Kong Bill of Rights may be engaged by governmental measures or sanctions which create a chilling effect on the exercise of that right (see Stunt v Associated Newspapers Ltd [2017] 1 WLR 3985, at §54 per Popplewell J; Mosley v United Kingdom (2011) 53 EHRR 30, at §§129 and 132). The fact that a person may be deterred from exercising his right because of a fear of likely or possible reprisal by private individual(s) is not decisive if such reprisal is made possible or facilitated by the governmental measures or sanctions in question. In my view, the Impugned Measures in this case also encroach upon the right to vote protected by BL 26. PUTATIVE RESPONDENTS’ CASE ON THE AIMS BEING ADVANCED BY THE IMPUGNED MEASURES 48.It is the Respondents’ case that the Impugned Measures serve or pursue the following aims -
49.In respect of the Transparent Election Aim, the Putative Respondents say that making the registers showing the Linked Information available to the public and candidates would enable them to raise objections to “suspicious entries in a published provisional register to prevent vote-rigging”, “monitor in their collective effort whether there has been any irregular or incorrect registration”[31] in relation to matters such as “the eligibility of a registered voter or the genuineness of his/her residential address”[32], and “find out whether rectification has been made to … identified irregularities”[33]. In the Second Affirmation of Law Shuk Pui Rosanna (Deputy Secretary for Constitutional & Mainland Affairs (1) of the Constitutional & Mainland Affairs Bureau), she states that:
50.In her Second Affirmation, Rosanna Law gives details of specific cases where, after receiving complaints lodged by political parties and their supporters, the ERO carried out investigations and subsequently took action to remove some electors from the final registers, including:
51.Rosanna Law explains the actions that would be taken by the ERO after receiving complaints about inaccuracies of voter registration records or suspected cases of “vote rigging”, which include reporting the matters to the Police or the ICAC for investigation and placing the electors concerned in the “omissions list” or “Special Treatment List”[39]. She also provides details of instances where “vote-rigging” or other election malpractices were uncovered by the effort of the press and/or members of the public, including[40]:
52.The Intervener has also adduced evidence detailing cases where investigations conducted by journalists based on the Linked Information obtained from the electoral registers successfully uncovered cases of vote-rigging or other electoral malpractices, notably (i) the “1 House 7 Surnames and 13 Votes” case in the Mei Foo South Constituency in relation to the 2011 District Council election[41], and (ii) a case where a voter was informed by reporters that his registered address had been changed without his knowledge[42]. The role of the press in investigating electoral misconduct has been openly acknowledged by the EAC. For example, at §12.17 of the EAC’s Report on the 2011 District Council Election submitted to the Chief Executive on 3 February 2012, the following was stated:
53.In respect of the Electioneering Aim, Rosanna Law states that: “One of the key attributes to the conduct of an open, fair and honest election is fair and proper electioneering. Election candidates must be allowed to canvass electors by sending election materials to the registered electors of their choice. Election candidates may also wish to target their electioneering activities at a particular individual elector or a particular group of electors at his/her/their places of residence. This is particularly relevant in a District Council Election where each constituency is generally small”[43]. As for the Applicants’ suggestion that such electioneering purpose can be served by sending election materials to particular addresses without specifying the names of the recipients at those addresses, Rosanna Law says that “[t]his does not serve the above electioneering purpose which has been acknowledged as crucial for years, because it will be impossible for the printed or posted election materials to reach the targeted elector or electors at a particular address, especially where more than one elector live at the same address”[44], and “[t]his is easily understood in view of the fact that it is not uncommon in Hong Kong to have multiple tenants residing at a particular address. The situation is even worse when candidates canvass electors who reside in establishments such as nursing homes or penal institutes where not everyone therein is an elector”[45]. Rosanna Law adds that the course proposed by the Applicants would make it “much more difficult, if not impossible, for candidates to conduct face-to-face canvassing activities”[46]. PROPORTIONALITY 54.In order to determine whether there is a contravention of a non-absolute fundamental right protected by the Basic Law or the Hong Kong Bill of Rights by a governmental measure, the well-established approach of the court is to apply the 4-step proportionality test as explained by the Court of Final Appeal in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, at §§133-135:
55.The lawfulness of the Impugned Measures therefore depends on whether it can pass the 4-step proportionality test. 56.Legitimate aims: it is, in my view, clear that the Electoral Status Aim, the Transparent Election Aim and the Electioneering Aim are all legitimate aims which the Putative Respondents may properly pursue. This is accepted by Mr Abraham Chan, SC on behalf the Applicant[47]. 57.Rational connection: whether a measure is rationally connected with advancing a legitimate aim is essentially a matter of logic and common sense. The question is not whether the adopted measure is the best means of advancing the aim, or whether there is some other, less intrusive, means of advancing the aim. The question is simply whether it can, or is likely to, advance or assist in the pursuit of the aim. 58.In respect of the Electoral Status Aim, while I can see that the compilation of a register linking the names of the electors with their principal residential addresses would assist the ERO in checking a person’s electoral status and whether he has been allocated to the correct constituency, and help maintain the accuracy and completeness of the register, I am unable to see how making the Linked Information available to the public and/or candidates could advance this aim. 59.On the other hand, it seems to me to be clear that making the Linked Information available to the public and candidates would advance the Transparent Election Aim and the Electioneering Aim. 60.Mr Chan argues that if the Electioneering Aim is simply that candidates should be able to target their electioneering activities towards particular electors at their homes, that aim is rationally disconnected from the need of non-candidates to access electors’ Linked Information[48]. It will be recalled, however, that there are different statutory provisions relating to the disclosure of the electoral registers to the public and candidates: (i) ss 20 and 21 of the Regulation concern the disclosure of the registers to the public and are relevant to the Transparent Election Aim, while (ii) s 38 of the Electoral Procedure Regulation concerns the disclosure of the final register to the candidates and is relevant to the Electioneering Aim. Mr Chan’s argument is correct in so far as the Electioneering Aim is concerned, but fails to take into account the fact that the Impugned Measures also serve the Transparent Election Aim. 61.Mr Chan also argues that because public access to the Linked Information is “unnecessary” to guard against various electoral misconduct concerns, that “diminishes the rational force of enabling such access for those purposes”[49]. This argument, in my view, incorrectly conflates the second and third steps of the proportionality test. 62.No more than necessary: the first matter which requires consideration is the appropriate standard of review that should be applied in the present case. Mr Chan advocates the “no more than necessary” standard[50], while Mr Leung contends that that applicable standard should be that of “manifestly without reasonable foundation”[51]. In support of the application of the more stringent standard, Mr Chan relies upon the following matters: (i) the present context involves a drastic limitation of the rights to privacy, family, home and lives[52] of Hong Kong electors and their families, and their right to vote, (ii) the impugned statutory provisions are all matters of subsidiary legislation and the legislature does not itself in primary legislation require any public disclosure of the Linked Information, and (iii) the relevant decision-makers (namely, the EAC, ERO and CEO), while they are experienced in matters of electoral administration, are not better placed than the court in assessing whether a proper balance is struck between the constitutional rights engaged and any countervailing need for public access to the electoral registers showing the Linked Information. In respect of the last point, Mr Chan relies on §115 of Hysan, where Ribeiro PJ said:
63.That paragraph should be read together with the next paragraph, §116:
64.On the other hand, Mr Leung argues that since electoral laws involve political or policy considerations, a broad margin of discretion ought to be accorded to the Government or the relevant decision-makers, especially when there has been active political debate or consideration on the issue of what matters should be disclosed in the electoral registers, as shown by:
65.In support of his argument for a broad margin of discretion to be accorded to the Putative Respondents in this case, Mr Leung relies on the judgment of the Court of Final Appeal in Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (2017) 20 HKCFAR 353, which concerned a challenge to the constitutionality of s 39(2A) of the Legislative Council Ordinance, which provided for the disqualification of a person from being nominated as a candidate at a by-election held within 6 months of his resignation. At §42 of his judgment, Ma CJ stated as follows:
66.Mr Leung also relies on Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 735. In that case, one of the issues raised for determination was whether the seven-day time limit for the lodging of an election petition in s 34 of the Chief Executive Election Ordinance (Cap 569) infringed the right of access to the court under BL 35. Rejecting the argument that the prescribed time limit was disproportionate, Ma CJ stated the following at §45 of his judgment:
67.In Infinger Nick v The Hong Kong Housing Authority [2020] HKCFI 329, at §44, I referred to the judgment of Ribeiro PJ at §§83 and 86 of Hysan where it was said that the yardstick of reasonable necessity was not a strict, bright line, but occupied a “continuous spectrum” which should be viewed as a “sliding scale” in which the cogency of the justification required for interfering with a right would be proportionate to its perceived importance and the extent of the interference, and pointed out that it was not helpful to focus excessively on the label of the standard of review that should be applied. As further stated by Ribeiro PJ at §141 of Hysan, the difference between the two standards (ie “no more than necessary” and “manifestly without reasonable foundation”) is one of “degree” only. In both cases the court is required to scrutinise the circumstances of the case and the factual bases claimed for the incursion before reaching a conclusion on whether the encroaching measure can pass the third step of the proportionality test. There is, I believe, no harm in using the labels as convenient shorthand to describe the appropriate standard of review, provided that one bears firmly in mind the continuous nature of the spectrum of reasonable necessity. 68.Further guidance on the determination of the appropriate standard, or the location of the standard in the spectrum of reasonableness, which should be applied in any given case can be found in the judgment of Ribeiro PJ in Hysan, at §§139 to 140:
69.In order words, a holistic assessment is required. The appropriate standard of review applicable in the present case should, in my view, be towards the lower end of the continuous spectrum of reasonable necessity. For the sake of convenience, I shall adopt the description “manifestly without reasonably foundation”. I accept the submissions of Mr Leung and Mr Paul Shieh, SC (for the Intervener) that a wide margin of discretion ought to be accorded to the Putative Respondents because this case concerns the validity of various aspect of the electoral laws relating to the public disclosure of registered electors’ personal information the contents of which are inevitably much affected by political or policy considerations, and also the allocation and use of limited public resources available to the Putative Respondents for the detection of vote-rigging and other election malpractices. In addition, I take into account the following matters in coming to the view that the “manifestly without reasonably foundation” standard should be applied. 70.First, the right to privacy, while undoubtedly an important right in itself, is not traditionally regarded as being amongst the most fundamental ones. In HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621, at §67, McMahon J (delivering the judgment of the Court of Appeal) stated: “Additionally the right to privacy, while important, is not the most fundamental of the rights guaranteed by Hong Kong’s constitutional legislation”. In Koo Sze Yiu v Chief Executive of the HKSAR (2006) 9 HKCFAR 441, at §38, Bokhary PJ also stated that “an unconstitutional impact on freedom of the person is even more serious than an unconstitutional impact on freedom and privacy of communication”. 71.Second, only minimal personal information concerning an elector is contained in a register which is open for inspection by the public/candidates. As earlier noted, information relating to an elector’s identity document number and sex has been removed from the register since 1999. The extent of interference with an elector’s privacy relates, in essence, only to his principal residential address. Although an individual’s residential address is an aspect of his private and family life, the level of privacy that may be attached to the address is not high. In Corporate Officer of the House of Commons v The Information Commissioner [2008] EWHC 1084 (Admin), the English Divisional Court stated at §41 as follows:
72.In this regard, it needs to be borne in mind that while what goes on inside a person’s residence is plainly a matter of significant privacy, a person’s residential address is one of the means of communication with the outside world, and is often readily provided to third parties in many different aspects of daily life. 73.Third, although the right to vote has been said to be “without doubt the most important political right” (see Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166, at §164 per Andrew Cheung J (as he then was)), there is in the present case no evidence that anyone, whether a police officer or his family member or otherwise, has in fact been deterred from registering as an elector or exercising his right to vote because of a concern that his Linked Information is available to the public and candidates. It is also relevant that although the right to vote is, I consider, interfered with by the Impugned Measures, the interference is indirect and limited. The right to vote is not taken away or substantially curtailed. In R (Robinson) v Secretary of State [2003] EWHC 1760 (Admin), it was held that a regulation[56] which permitted the full register of electors to be sold to credit agencies only constituted a limited interference with the right to vote and was justified by the public interest of facilitation of credit and the control of fraud, which it was said “outweighed the very modest interference with the right to vote” (per Maurice Kay J at §15). 74.Fourth, notwithstanding the heavy weather made by the Applicants out of the recent doxxing campaigns against police officers and their families, there is no evidence (certainly it has not been demonstrated by evidence) that the Linked Information made available to the public and/or candidates through the registers has been used for the purpose of doxxing against anyone. On the contrary, it is apparent from the evidence adduced by the Applicants in relation to specific instances of “doxxing” against police officers and/or their family members that the majority of the information disclosed and spread on the internet (eg unique identification numbers in the Police Force, job positions, HKID numbers, photographs, telephone/mobile numbers, email addresses, social media accounts, etc) could not have come from the registers. 75.Fifth, I do not accept Mr Chan’s submission that the present case involves a drastic limitation of the rights to privacy, family and home of electors and their family members, or their right to vote. Neither do I accept the suggestion that the assessment of the proportionality of the Impugned Measures in this case calls for the application of purely legal principles, or that the assessment of whether public interest would be better served by the Impugned Measures does not call for the exercise of any special competence or expertise on the part of the Putative Respondents. The fact that the Impugned Measures are contained in secondary (or subsidiary) legislation as opposed to primary legislation is not, in my view significant, bearing in mind that subsidiary legislation is generally subject to the oversight and control of the Legislative Council. 76.Lastly, I accept Mr Chan’s submission that although under-age children cannot be registered as electors and their personal data will not be directly discoverable by inspection of an electoral register, their interests (including their own privacy interest) could be affected by a breach of the privacy of their parents (see PJS v News Group Newspaper Ltd [2016] UKSC 26, at §72 per Lady Hale), and thus the court ought to take into account the interest of children. The strength of this argument must, however, be judged in the light of the current state of the evidence mentioned in §74 above. In any event, this consideration is not, in my view, sufficient to lead to the application of a more stringent standard of review in the present case. 77.There is one other matter that I should deal with at this juncture. At §76 of Mr Chan’s Skeleton Submissions, he says that where the “necessity” standard applies, “the Court must be satisfied - the burden falling upon the respondents, that there are no significantly less intrusive and equally effective measures available”. He relies upon §136 of Hysan for this proposition. It is, however, important to read that passage properly:
78.The test of “reasonable necessity” was further explained at §§83-88 of Ribeiro PJ’s judgment in Hysan:
79.In other words, even if the “no more than necessary” standard applies, it only means that the Impugned Measures, to pass the third step of the proportionality test, should be no more than reasonably necessary. There is no requirement that the measure should be the least intrusive method, or result in the least interference with the engaged right. 80.On the facts of this case, I do not find the Impugned Measures to be manifestly without reasonably foundation. I should add that I would have reached the same conclusion even if a more stringent standard, ie the no more than necessary standard advocated by Mr Chan, should be applicable in the present case. In this regard, it is important to bear in mind that the question for the court is not whether the best, or optimal measure, has been adopted, or whether there is any alternative, better, measure that could be adopted (see Democratic Party, supra, at §106). The Putative Respondents is not required to show that there is no less intrusive measure that could be devised to advance the Transparent Election Aim and Electioneering Aim. As earlier mentioned, Ribeiro PJ stated at §86 of Hysan that the cogency of the justification required for interfering with a right should be proportionate to its perceived importance and the extent of the interference. Accordingly, the matters discussed in §§70 to 76 above are relevant to the determination of whether the Impugned Measures are justified. In addition, the following considerations are relevant. 81.First, as pointed out by Hartmann J in Democratic Party, supra, at §59, respect for an individual’s privacy will be narrower when it is brought into contact with public life or is in conflict with other protected interests. For this proposition, the learned judge referred to the judgment of the ECtHR in Bruggemann & Scheuten v Federal Republic of Germany (1981) 3 EHRR 244, at §§55 and 56 -
82.A person who decides to register as an elector in order to exercise his right to vote in the appropriate constituency (determined by reference to his principal residential address) in a District Council election, which is required to be conducted openly, honestly and fairly[57], necessarily brings his residential address into contact with public life. Respect for his privacy in respect of his residential address will accordingly be narrower. 83.Second, it is clear that an elector’s privacy in respect of his principal residential address interacts with the rights or freedoms of other persons, such as the freedom of the press[58] (to seek and collect information and to investigate), the freedom of expression[59] (enjoyed by both the press and the public), and the rights to vote, stand for election and participate in public life[60] (enjoyed by all permanent residents of the HKSAR), or at least their legitimate interests. Maintenance of the integrity of elections is a pre-requisite for the proper exercise of a person’s rights to vote and to stand for election. Mr Chan has not seriously argued otherwise[61]. In addition to the judgment of Hartmann J in Democratic Party, supra, the following statement of principle by Ribeiro PJ in HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 relating to the interface between the freedom of expression and rights to private property/privacy is apposite in the present context:
In my view, the protection that may be given to an elector’s privacy in respect of his residential address should also take into account the aforesaid conflicting rights, freedoms or interests. Put in another way, the protection of those rights, freedoms or interests should be given weight when considering the proportionality of the Impugned Measures in this case. 84.Third, there are statutory and administrative safeguards against any unauthorised use or disclosure of information obtained from a register made available to the public or the candidates.
85.Mr Leung relies additionally on the restrictions against taking notes or making copies when a person inspects a paper register at the Electoral and Registration Office in Wanchai, or the Home Affairs Enquiry Centres in the 18 District Offices, under s 20(3) and (4) of the Regulation, as well as the safeguard put in place by the ERO when a person inspects an electronic register using the “intranet system” provided at the inspection venues (in particular, the absence of any “search” or “sort” functions). Given the manner in which information is displayed in a register, namely rows and rows and pages and pages of names appearing next to the corresponding addresses, the difficulty of anyone seeking to use such information obtained from a mere inspection of the register without any means of copying or recoding for the purpose of doxxing against a large group of persons (whose names may not be known) and/or their family members is obvious. Mr Chan’s suggestion that a person may simply memorise the information (without any form of copying or note-taking) or make repeated requests to inspect a register seems to me to be practical and workable only in a situation where a few specific individuals are being targeted. However, as pointed out by Mr Chan, a member of the public may be provided an extract of a register (in CD format)[63], or permitted to copy an extract of a register, under s. 21(1) of the Regulation by the ERO if he is satisfied that the request is for a purpose related to an election. For this reason, I would only give limited weight to these additional safeguards relied upon by Mr Leung. 86.I shall now deal with some major points raised by Mr Chan in support of his argument that the Impugned Measures go beyond what is necessary to advance the legitimate aims. 87.First, Mr Chan contends that there are three core systemic defects of the present system, namely:
88.In relation to first alleged systemic defect, Mr Chan refers to and relies on the fact that in some overseas jurisdictions (such as the UK, Australia, New Zealand and Canada), an opt-out mechanism is provided which allows an elector to refuse to disclose his personal information to anyone besides the electoral authorities. 89.The following features of the registration systems in those jurisdictions are of note:
90.On the other hand, Mr Leung has referred the court to other jurisdictions such as France, Norway, Switzerland, Sweden and Singapore where there appears to be no such opt-out option for electors in those jurisdictions. 91.It is, in my view, clear that there is no uniform practice across different jurisdictions on whether electors may opt-out of providing their personal information (including their addresses) to the public beyond the electoral authorities. The registration and electoral system in any jurisdiction is moulded by its own unique historical background and social and political system. The fact that there is no choice for electors in Hong Kong to opt-out of providing their Linked Information to the public and candidates cannot, in my view, be regarded as a systemic defect of the current registration and electoral system in Hong Kong. 92.In relation to the second and third alleged systemic defects, having regard to legitimate aims (ie the Transparent Election Aim and Electioneering Aim) sought to be advanced by the Impugned Measures, the lack of discretion on the part of the ERO/CEO to withhold the Linked Information, or differentiate between categories of the public to whom the Linked Information may be made available, also cannot, in my view, properly be regarded as systemic defects of the current registration and electoral system in Hong Kong. I note that Mr Chan has not identified which category or categories of the public should be excluded from being given access to the Linked Information. While there could be a reasonable debate on whether the ERO/CEO ought to have a discretion to withhold the Linked Information in some circumstances or exclude a member or section of the public from access to the Linked Information, such discretion would inevitably undermine the legitimate aims sought to be advanced to a greater or lesser extent depending on the width of the discretion being conferred on the ERO/CEO and the manner in which the discretion is being exercised in practice. The question for the court, however, is not about whether the current system can be improved, but whether it amounts to a disproportionate restriction of the rights engaged. 93.In relation to the Putative Respondents’ justification by reference to the Transparent Election Aim:
94.My views are as follows:
95.In passing, I should mention that Mr Chan has included, as Annex 1 to his Skeleton Submissions, a document titled “Wide public access to linked information unnecessary for transparent elections” which contain some detailed points on why it is said that public access to the Linked Information is not necessary to advance the Transparent Election Aim. These points were not raised in the Amended Form 86, or developed in Mr Chan’s oral argument. Mr Leung is justified, in my view, to complain that it is unfair to allow the Applicants to raise them for the first time only in Mr Chan’s Skeleton Submissions. In any event, the issue for determination is not whether the Impugned Measures are strictly necessary to advance the Transparent Election Aim, or whether some other hypothetical registration system could do as well, or whether the previous known cases of vote-rigging or election malpractices could have been discovered by the press or the public without using the Linked Information contained in the electoral registers. I do not consider that the detailed points raised in Annex 1 adds anything to the broad points made by Mr Chan in §86(1) and (2) of his Skeleton Submissions which have been dealt with in §94 above. 96.In relation to the Putative Respondents’ justification by reference to the Electioneering Aim, Mr Chan argues that:
97.My views are as follows:
98.Reasonable balance: Ribeiro PJ pointed out, at §73 of Hysan, that:
99.As is apparent from the above discussion, I am of the view that the Impugned Measures pass the first three steps of the proportionality test. Whether the Impugned Measures can pass the fourth step requires the court to make, ultimately, a “value judgment” as to whether they operate on the registered electors “with such oppressive unfairness that it cannot be regarded as a proportionate means of achieving the legitimate aim in question” (see §78 of Hysan). I am far from being satisfied that this is the case here. 100.For all of the above reasons, I consider that the Impugned Measures pass the 4-step proportionality test, and are constitutionally compliant. 101.There are two other matters that I should mention before concluding this judgment. The first relates to the recent amendments of the Electoral Procedure Regulation so that candidates no longer have to disclose their “principal residential addresses” but may choose to disclose an address that they prefer, such as the office or business address, correspondence address, residential address or post office number, in the notice of valid nominations and other specified notices published by the Returning Officer in the Gazette. The amendments were made in October 2019, apparently for the purpose of enhancing the protection of the privacy of the candidates. Mr Chan argues that the amendments constitute preferential treatment of candidates vis-à-vis electors, undermine any justification for denying the same protection to ordinary electors, and highlight the lack of necessity and disproportionality of the Impugned Measures. There is, in my view, no question of preferential treatment here because the candidates and electors are not in a relevantly similar situation. A person can stand for election in any District Council constituency wherever his principal residential address may be, but an elector can only vote in the constituency in which his principal residential address is situated. The arguments relating to the Transparent Election Aim and the Electioneering Aim have no relevant application to the candidates’ residential addresses. Lastly, it should be noted that a candidate must be an “elector”[70], and his Linked Information would be available to the public and other candidates like any ordinary elector. 102.Second, there is some discussion on the question of whether the court should apply a “double-proportionality” test in this case in view of the conflicting rights and freedoms raised by the Intervener, namely, the freedom of the press under BL 27, the freedom of expression under BOR 16, and the right to vote, stand for election and participate in public life under BOR 21. These rights and freedoms are, or may be, relevant in two different ways. First, they affect the degree or extent of protection that may be given to the electors’ privacy in respect of their residential addresses (see §83 above). Second, Mr Shieh argues that these countervailing rights and freedoms, which are entitled to protection in their own right, are engaged by the Applicants’ application to strike down or limit (by a process of remedial interpretation) the Impugned Measures. It has been suggested[71] that where conflicting, non-absolute, fundamental rights come into play, the court should apply the double-proportionality test established in various English cases[72] in order to take into account and protect all competing rights involved. Although the possible adoption of a double proportionality approach was mentioned in the skeleton submissions of all parties in this case, it was not seriously pursued by counsel in their oral submissions. I have some reservation on whether the issue of double proportionality truly arises in this case, because journalists and the public have no inherent, or basic, right of access to the Linked Information. While the availability of the Linked Information would undoubtedly assist, or facilitate, journalists to investigate and report on suspected cases of vote-rigging or other election malpractices, it does not follow that they are entitled as a matter of law to have access to such information. The position is different, for example, from Re S [2005] 1 AC 593 where the undoubted freedom of the press to report criminal proceedings came into direct conflict with the right to private and family life of a child whose brother was allegedly murdered by his mother. The matter may be tested by asking whether journalists or the public would be able to mount a constitutional challenge based on the aforesaid rights and freedoms should the EAC decide to repeal or amend the Regulation and Electoral Procedure Regulation such that the public and candidates will no longer be given access to the electoral registers, or may be given access to the electoral registers only in very limited or restrictive situations. 103.Whether, and if so how, the double proportionality approach should be adopted and applied in Hong Kong is obviously a topic of great general importance which merits full arguments and consideration. Since I have been able to determine the present application by means of the traditional, single, proportionality approach, I would defer consideration of this important topic to an appropriate occasion in future where it is necessary to do so. DISPOSITION 104.Leave to apply for judicial review is granted, on the basis that the intended application for judicial review is reasonably arguable and has a realistic prospect of success. The substantive application for judicial review is dismissed upon full consideration of the merits. The Applicants shall pay the costs of the Putative Respondents, including all reserved costs (if any), to be taxed if not agreed. There shall be no order as to costs as between the Intervener and the Applicants/Putative Respondents.
Mr Abraham Chan, SC, Mr Tony Ko and Mr John Leung, instructed by Li & Partners, for the 1st and 2nd Applicants Mr Raymond Leung, SC and Ms Grace Chow (who did not appear at the hearing), instructed by Department of Justice, for the 1st to 3rd Putative Respondents Mr Paul Shieh, SC, Mr Robert Pang, SC and Ms Natalie So, instructed by L & L Lawyers, for the Intervener [1] See s 4(b), (d)(i) and (h) of the Electoral Affairs Commission Ordinance. [2] See ss 9(1) and 9A of the Electoral Affairs Commission Ordinance. [3] See s 9(2) of the Electoral Affairs Commission Ordinance. [4] See s 2(1) of the Regulation. [5] See s 3(2) of the Regulation. [6] See s 4(1) of the Regulation. [7] See s 32(1)(a)(i) of the Legislative Council Ordinance. [8] See s 32(1)(b)(i) of the Legislative Council Ordinance. [9] See s 32(1A)(a)(i) of the Legislative Council Ordinance. [10] See s 32(1A)(b)(i) of the Legislative Council Ordinance. [11] Prepared by the ERO under s 9 of the Regulation. [12] See s15(1), (2) and (3) of the Regulation. [13] See s 14 of the Regulation. [14] See s 16 of the Regulation. [15] See s 18 of the Regulation. [16] See s 2 of the Regulation for the definition of “register”. [17] See s 3(1) of the Regulation. [18] See s 3(1A) of the Regulation. [19] See s 29(1) of the District Council Ordinance. [20] See s 2 of the District Council Ordinance. [21] See s 2 of the District Council Ordinance. [22] See s 29(3) of the District Council Ordinance. [23] The final register is required to be published in the Gazette and at least one Chinese language daily newspaper and one English language daily newspaper in circulation in Hong Kong not later than 25 September in a DC Election Year or 25 July in a non-DC election year. [24] See §21 of the First Affirmation of Law Shuk Pui Rosanna. [25] See s 21(4)(b) of the Regulation. [26] See s 38(2) of the Electoral Procedure Regulation. [27] See §§25-26 of the Judgment of the Court of Appeal on interim relief. [28] The reference to the date of 1 August 2019 would suggest that the Applicants’ complaint relates to, or includes the decision of the ERO to make available extracts of the “provisional register” to the public. This is confirmed in footnote 14 to Mr Chan’s Skeleton Submissions. [29] See §114 of Mr Chan’s Skeleton Submissions dated 9 December 2019. [30] See §24 of the Second Affirmation of Law Shuk Pui Rosanna. [31] See §20 of the First Affirmation of Law Shuk Pui Rosanna. [32] See §24(b) of the Second Affirmation of Law Shuk Pui Rosanna. [33] See §20 of the First Affirmation of Law Shuk Pui Rosanna. [34] See §27 of the Second Affirmation of Law Shuk Pui Rosanna. [35] See §§28-29 of the Second Affirmation of Law Shuk Pui Rosanna. [36] See §30 of the Second Affirmation of Law Shuk Pui Rosanna. [37] See §38 of the Second Affirmation of Law Shuk Pui Rosanna. [38] See §30 of the Second Affirmation of Law Shuk Pui Rosanna. [39] See §§32-35 of the Second Affirmation of Law Shuk Pui Rosanna. [40] See §37 of the Second Affirmation of Law Shuk Pui Rosanna. [41] See the Affirmation of Wong Wai Chun Alvin, §§6-14. [42] See the Affirmation of Cheng Pui Shan, §§15-16. [43] See §22 of the First Affirmation of Law Shuk Pui Rosanna. [44] See §23 of the First Affirmation of Law Shuk Pui Rosanna. [45] See §24(c) of the Second Affirmation of Law Shuk Pui Rosanna. [46] See §23 of the First Affirmation of Law Shuk Pui Rosanna. [47] See §60 of Mr Chan’s Skeleton Submissions. [48] See §62 of Mr Chan’s Skeleton Submissions. [49] See §64 of Mr Chan’s Skeleton Submissions. [50] See §75 of Mr Chan’s Skeleton Submissions. [51] See §34 of Mr Leung’s Skeleton Submissions. [52] Although the protection of the “lives” of Hong Kong electors and their families is mentioned in §75(2) of Mr Chan’s Skeleton Submissions, it is not, I understand, suggested that the right to life under BOR 2 is engaged in the present case. [53] See LN 284 of 1999 amending s 3(2) of the Regulation, which previously provided that an entry in a register relating to a person must show the following personal particulars - (a) the name of the person, (b) the number of the identity document of the person, (c) the sex of the person, and (d) the principal residential address of the person. [54] See §8(a) of the Legislative Council Brief for “Electoral Affairs Commission (Registration of Electors) (Geographical Constituencies) (Legislative Council) (Amendment) Regulation 1999” dated November 1999. [55] See the Consultation Paper on Enhancement of Voter Registration System issued by the Constitutional and Mainland Affairs Bureau dated January 2016. [56] Ie Regulation 114 of the Representation of the People (England and Wales) Regulations 2001. [57] See s 4(1)(h) of the Electoral Affairs Commission Ordinance. [58] See BL 27. [59] See BL 27 and BOR 16. [60] See BL 26 and BOR 21. [61] See §104 of Mr Chan’s Skeleton Submissions. [62] Ie freedom of expression. [63] Subject to an undertaking to use the information contained in the extract for election-related purposes only and to return the CD to the ERO for destruction within 2 weeks after a specified election. [64] See §9 of Mr Chan’s Skeleton Submissions. [65] In the UK, there are two types of register, namely, the “full register” (which is open to public inspection and available for purchase or otherwise to certain persons and bodies subject to restrictions), and the “edited register” (which excludes the names and addresses of those electors who have requested to be excluded from the edited register and which is generally available for purchase): see R (Robinson) v Secretary of State [2003] EWHC 1760 (Admin), at §1. [66] See §86(1) of Mr Chan’s Skeleton Submissions. [67] See §86(2) of Mr Chan’s Skeleton Submissions. [68] See §88 of Mr Chan’s Skeleton Submissions. [69] Assuming that candidates are somehow given access to the voter registration numbers of the electors. [70] See s 20(1)(b) of the District Council Ordinance. [71] See Cheung PJ’s extra-judicial lecture titled “Conflict of fundamental rights and the double proportionality test” in the Common Law Lecture Series 2019 delivered at the University of Hong Kong on 17 September 2019. [72] See Campbell v MGN Ltd [2004] 2 AC 457, at §105 per Lord Hope of Craighead and at §141 per Baroness Hale of Richmond; Re S [2005] 1 AC 593, at §17 per Lord Steyn; and Re W [2005] EWHC 1564 (Fam), at §33 per Sir Mark Potter. | |||||||||||||||||||||||||||||||||||||||||||||||
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