7/17/2020 CACV73/2020 JUNIOR POLICE OFFICERS’ ASSOCIATION OF THE HONG KONG POLICE FORCE AND ANOTHER v. ELECTORAL … 96. However, the Court cannot abdicate its function as the ultimate guardian of the law. In this instance, the law obliges this Court to consider if a proportionate balance is struck between the right of privacy (with the right to vote being indirectly engaged for the reasons already canvassed) and the measures adopted in the current electoral system to achieve the Transparent Election Aim. When the Transparent Election Aim is equally achievable without substantial interference with the right of privacy, the Court is duty bound to scrutinize the position. Such scrutiny is made not with a view to achieve the best or perfect system, but to ensure that a fair balance is struck and the law is complied with. If, after conducting the necessary assessment, we come to the view that a fair balance has not been struck, we would so declare not because Hong Kong did not follow a particular system practised overseas, but because of the disproportionate interference with the rights protected by BOR 14 and BL 26. 97. We must also respectfully reject the submission that the predicaments of electors who have justifiable concerns for safety are merely hard cases falling on the wrong side of a bright line. This argument may hold water if there is a limited discretion in place and the threshold is set stringently so that an elector may have difficulty in meeting the same. But in the present case, there is no discretion at all. The situation is akin to the blanket disenfranchisement of prisoners in Chan Kin Sum v Secretary for Justice, supra. 98. Third, it is submitted by Mr Shieh that the Transparent Election Aim would inevitably be undermined if there is a discretion to restrict public inspection of electoral registers, no matter how restrictive the discretion is and how high the threshold is set. With respect, this is a very bold statement and we cannot accept the submission. As illustrated above, there are effective counter measures to maintain the integrity of the elector registers that can be put in place in conjunction with the conferring of discretion on the electoral authorities to withhold the disclosure of the Linked Information in a limited number of cases. https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=128057&QS=%2B&TP=JU&ILAN=en 31/39