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7/17/2020 CACV73/2020 JUNIOR POLICE OFFICERS’ ASSOCIATION OF THE HONG KONG POLICE FORCE AND ANOTHER v. ELECTORAL … 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. The CEO is required to do all acts and things necessary for implementing the decisions of the EAC. 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.” 4. The Hong Kong Journalists Association (“HKJA”) applied for and was granted leave to join as Intervener in the proceedings below. 5. In the Judgment, the Judge granted leave to apply for judicial review on the basis that the Impugned Measures engaged the registered voters’ rights to privacy, family and home (“BOR 14 right”) and their right to vote (“BL 26 right”), but dismissed the substantive application, finding the Impugned Measures to be lawful and proportionate. 6. The relevant statutory scheme and the Impugned Measures were described by the Judge in detail in the Judgment at [7]-[22]. In summary, a person must register as an elector before he can vote in a District Council election or a Legislative Council election. Registration requires the person to give to the ERO his principal residential address. The address is essential for the verification of the eligibility of a person to vote in a particular District Council constituency or a particular Legislative Council geographical constituency. That piece of information must be set out in the register of electors which shall be open to public inspection. Extracts of the published register can also be supplied by the ERO to candidates in elections and other persons on request. The information supplied can only be used for purposes related to an election. 7. The Judge found that public inspection of the register served the following legitimate aims[1]: “ (1) assisting in the determination of the electoral status of electors and according the correct constituencies in which they may exercise their right to vote, as well as maintaining the accuracy and completeness of the electoral registers (“the Electoral Status Aim”); https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=128057&QS=%2B&TP=JU&ILAN=en 3/39

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Hong Kong Police Force v. Electoral Affairs Commission

Judgment

Question Presented: Whether a publicly accessible voter list violates the right to privacy?

Alleged Acts: The current registration scheme requires that the names of registered voters and their addresses be made publicly accessible. The plaintiff filing suit alleging that the legal framework violated the voter’s right to privacy, family, home, and to vote.

Procedural history: The lower court judge determined that public inspection serves legitimate state interests. In particular, public inspection assisted in ensuring that voter exercised their rights in the correct districts, increased transparency, and assisting in effective campaigning through personal visits. The action is brought by the police officers because they state that information infringes on the right to privacy. The action faced a constitutional and fact-specific challenge.

Summary: The court considered that the publication of the voter list did serve the role of increasing transparency during elections. However, the list is absolutely unrestricted and does not have exemption provision if the voter has a concern for his/her safety. The court stated that this also presented a legitimate safety concerns for some voters because they could not present any evidence that they needed to opt out of the system.

Conclusion: The court determined that the current legal framework did not strike the appropriate balance between the state interests and the rights of the voters. The court set another hearing for the parties to prepare appropriate remedies in advance of the upcoming election.

Legal Issue(s)

Voter Registration

Applicable Law(s): Bill of Rights 14; BL26

Region: Asia-Pacific

Country: Hong Kong

Language of Decision

English

Court: Supreme Court

Election Type: Review of law

Date of decision: May 5, 2020

Geolocation

Latitude: 22.47610994250958

Longitude: 114.15724766067022

: Geolocation

Primary Documents

Hong Kong Police Force v. Electoral Affairs Commission.pdf
english
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