Junior Police Officer’s Association of Hong Kong Police Force v Electoral Affairs Commission [2020] 2 HKLRD 631

Robert Pang SC (and Paul Shieh SC) leading Natalie So appeared for the successful intervenor in the Court of First Instance in Junior Police Officer’s Association of Hong Kong Police Force v Electoral Affairs Commission [2020] 2 HKLRD 631.

If an eligible person wished to participate in a District Council ordinary election as an elector under the current registration and electoral system in Hong Kong, his name together with his principal residential address (the Linked Information) would become available to the public. The immediate catalyst of this application for judicial review was “doxxing” campaigns targeted against police officers and their families, involving extensive leaking of personal information and cyber-bullying on the Internet and various social and other media, which arose in the aftermath of the now withdrawn Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019. The applicants were the Junior Police Officers’ Association and an individual police officer (Xs). The Hong Kong Journalists Association was granted leave to intervene. Xs’ challenge was based on the rights to privacy, family and home under art.14 of the Hong Kong Bill of Rights (BOR14), and the right to vote under art.26 of the Basic Law (BL26). Xs relied on the “doxxing” campaigns as an example of harm that could result from public availability of the Linked Information. The pertinent issues were the constitutionality of provisions including s.20(3) of the Electoral Affairs Commission (Registration of Electors) (Legislative Council Geographical Constituencies) (District Council Constituencies) Regulation (Cap.541A, Sub.Leg.) (the Regulation ), which created a statutory duty on the Electoral Registration Officer (the ERO) to make available for public inspection a copy of the final register, and s.38(1) of the Electoral Affairs Commission (Electoral Procedure) (District Councils) Regulation (Cap.541F, Sub.Leg.) (the Electoral Procedure Regulation ), which created a statutory duty on the Chief Electoral Officer (the CEO) to supply to each candidate an extract of the part of the final register which related to the constituency for which the candidate was nominated (the Impugned Measures ). The putative respondents, namely the Electoral Affairs Commission, the CEO and the ERO, argued that the Impugned Measures pursued the aims of: (i) assisting in the determination of the electoral status of electors and according the correct constituencies in which they might exercise their right to vote, as well as maintaining the accuracy and completeness of the electoral registers (the Electoral Status Aim ); (ii) ensuring a highly transparent mechanism for the public to inspect, and make claims and objections in respect of, the registers, and to detect vote-rigging and/or other corrupt/illegal electoral conduct, thereby contributing to the preservation of the integrity of the electoral system (the Transparent Election Aim ); and (iii) facilitating electioneering activities by candidates, in particular enabling them to send their election materials or conduct personal visits to particular electors or groups of electors at their places of residence (the Electioneering Aim ).

Held, granting leave to apply for judicial review but dismissing the application on the merits, that:

Right to privacy under BOR14 and right to vote under BL26 engaged

(1) The Impugned Measures engaged the right to privacy under BOR14. This application was a systemic complaint against the current registration and electoral system. If a person wished to exercise his constitutional right to vote in a District Council election, he had effectively no choice but to give the requisite consent to his Linked Information being published, which disclosure would, prima facie, constitute interference with that person’s privacy (Green Corns Ltd v Claverley Group [2005] EMLR 31, Democratic Party v Secretary for Justice [2007] 2 HKLRD 804, Wong Tze Yam v Commissioner of Police [2009] 5 HKLRD 836, Khadija Ismayilova v Azerbaijan [2019] ECHR 11 applied). (See paras.40-41, 43-44.)

(2) The Impugned Measures also encroached upon the right to vote protected by BL26. The Linked Information made available to the public and/or the candidates could be used for “doxxing”. A fundamental right protected by the Basic Law or the Bill of Rights might be engaged by governmental measures or sanctions which created a chilling effect on the exercise of that right. The fact that a person might be deterred from exercising his right because of a fear of likely or possible reprisal by private individual(s) was not decisive if such reprisal was made possible or facilitated by the governmental measures or sanctions in question (Mosley v United Kingdom (2011) 53 EHRR 30, Stunt v Associated Newspapers Ltd [2017] 1 WLR 3985 applied). (See paras.46-47.)

Proportionality test

Step 1: Legitimate aims

(3) Applying the four-step proportionality test, first, the Electoral Status Aim, Transparent Election Aim and Electioneering Aim were all legitimate aims which the putative respondents might properly pursue (Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 applied). (See paras.54-56.)

Step 2: Rational connection

(4) Second, in respect of the rational connection step, making the Linked Information available to the public and/or candidates could not advance the Electoral Status Aim. But it would advance the Transparent Election Aim and the Electioneering Aim. (See paras.58-59.)

Step 3: No more than necessary

(5) Third, a holistic assessment was required to determine the appropriate standard of review. The appropriate standard in the present case should be towards the lower end of the spectrum of reasonable necessity. Bearing firmly in mind the continuous nature of the spectrum, the description “manifestly without reasonably foundation” was adopted for convenience. A wide margin of discretion ought to be accorded to the putative respondents because this case concerned the validity of various aspects of the electoral laws relating to the public disclosure of registered electors’ personal information the contents of which were 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. The Court also took into account, inter alia: (Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 735, Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (2017) 20 HKCFAR 353, Infinger v Hong Kong Housing Authority [2020] 1 HKLRD 1188 applied). (See paras.62-69.)

(a) The right to privacy, while important, was not traditionally regarded as being amongst the most fundamental ones (Koo Sze Yiu v Chief Executive of HKSAR (2006) 9 HKCFAR 441, HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621 considered). (See para.70.)

(b) Only minimal personal information concerning an elector was contained in a register. The extent of interference related in essence only to his principal residential address. The level of privacy attached to that information was not high. Such information was one of the means of communication with the outside world and was often readily provided to third parties in many different aspects of daily life (Corporate Officer of the House of Commons v Information Commissioner [2008] EWHC 1084 (Admin) applied). (See paras.71-72.)

(c) The interference with the right to vote was indirect and limited. The right was not taken away or substantially curtailed. There was no evidence that anyone had in fact been deterred from registering as an elector or exercising his right to vote because of a concern that his Linked Information was available to the public and candidates (R (Robertson) v Secretary of State [2003] EWHC 1760 (Admin) applied). (See para.73.)

(d) There was no evidence that the Linked Information made available through the registers had been used for “doxxing”. On the evidence adduced by Xs in relation to specific instances of “doxxing”, the majority of the information disclosed and spread on the Internet could not have come from the registers. (See para.74.)

(6) The Impugned Measures were not manifestly without reasonable foundation. The conclusion would be the same even if the “no more than necessary” standard applied. The putative respondents were not required to show that there was no less intrusive measure that could be devised to advance the Transparent Election Aim and Electioneering Aim. 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 above were relevant. The following considerations were also taken into account: (Democratic Party v Secretary for Justice [2007] 2 HKLRD 804, Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 applied). (See para.80.)

(a) A person who decided to register as an elector to vote in a District Council election necessarily brought his residential address into contact with public life. Respect for his privacy in respect of his residential address would accordingly be narrower (Brüggemann and Scheuten v Federal Republic of Germany (1981) 3 EHRR 244, Democratic Party v Secretary for Justice [2007] 2 HKLRD 804 applied). (See paras.81-82.)

(b) An elector’s privacy in respect of his principal residential address interacted with the rights or freedoms of other persons, such as the freedom of the press, the freedom of expression, and the rights to vote, stand for election and participate in public life, or at least their legitimate interests the protection of which should be given weight when considering the proportionality of the Impugned Measures (Democratic Party v Secretary for Justice [2007] 2 HKLRD 804, HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 applied). (See para.83.)

(c) There were statutory and administrative safeguards against any unauthorised use or disclosure of information obtained from a register made available to the public or the candidates. The Court should not proceed on the basis that the majority of the public and candidates would not respect the law. (See para.84)

(d) The fact that there was no choice for electors in Hong Kong to opt-out of providing their Linked Information to the public and candidates could not be regarded as a systemic defect of the system in Hong Kong. There was no uniform practice across different jurisdictions. The system in any jurisdiction was moulded by its unique historical background and social and political system. (see para.91.)

Step 4: Reasonable balance

(7) The fourth step required the Court to make, ultimately, a “value judgment” as to whether the Impugned Measures operated on the registered electors “with such oppressive unfairness that it cannot be regarded as a proportionate means of achieving the legitimate aim in question”. This was not the case here (Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 applied). (See para.99.)

(8) The Impugned Measures passed the four-step proportionality test and were constitutionally complaint. (See para.100)

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