7/17/2020 CACV73/2020 JUNIOR POLICE OFFICERS’ ASSOCIATION OF THE HONG KONG POLICE FORCE AND ANOTHER v. ELECTORAL … “ … The issue is whether the notification requirements … without any right to a review are proportionate to that aim. That issue requires consideration of three questions. (i) What is the extent of the interference with article 8 rights? (ii) How valuable are the notification requirements in achieving the legitimate aims? and (iii) to what extent would that value be eroded if the notification requirements were made subject to review? The issue is a narrow one. The claimants’ case is that the notification requirements cannot be proportionate in the absence of any right to a review. The challenge has been to the absence of any right to a review, not to some of the features of the notification requirements that have the potential to be particularly onerous.” 77. Mr Shieh submitted that the judgment of Lord Phillips did not establish any general proposition of law that similar questions have to be asked in respect of any scheme which has no provision to cater for exceptions. We accept that it cannot be right to treat the approach adopted in that case as a proposition of law. There are of course cases where the court would uphold a scheme without any provision for exceptions. A recent example can be found in Cheung Tak Wing v Director of Administration [2020] 1 HKLRD 906 at [132] to [137]. Much depends on the scheme in question, the legitimate aims which it serves and the extent and significance of incursion of fundamental rights in issue. 78. For the purpose of this appeal, the approach adopted by Lord Phillips is instructive as it sheds light on how the court can strike a fair and proportionate balance. We have already discussed on the extent of interference on the right of privacy in the earlier part of this judgment. The legitimate aims served by the Impugned Provisions, as found by the Judge and accepted by us, are twofolded: the Transparent Election Aim and the Electioneering Aim. 79. At this juncture, it will be more helpful to consider the challenge against Section 20(3) of the Regulation and Section 38(1) of the Electoral Procedure Regulation separately. Both legitimate aims are served by Section 38(1), but Section 20(3) only serves the Transparent Election Aim. https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=128057&QS=%2B&TP=JU&ILAN=en 25/39