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7/17/2020 CACV73/2020 JUNIOR POLICE OFFICERS’ ASSOCIATION OF THE HONG KONG POLICE FORCE AND ANOTHER v. ELECTORAL … (1) A Constitutional Challenge, being a systemic challenge to the Impugned Provisions, i.e. Section 20(3) of the Electoral Affairs Commission (Registration of Electors) (Legislative Council Geographical Constituencies) (District Council Constituencies) Regulation (Cap.541A) (“the Regulation”) and Section 38(1) of the Electoral Affairs Commission (Electoral Procedure) (District Councils) Regulation (Cap.541F) (“the Electoral Procedure Regulation”); and (2) A Fact-Specific Challenge to Respondents’ decisions for the 2019 District Council elections making the Linked Information publicly available pursuant to Sections 20(4) and 21 of the Regulation and Section 38(1) of the Electoral Procedure Regulation. 12. The appeal focuses primarily on the Constitutional Challenge though the applicants also appealed against the Judge’s determination on the Fact-Specific Challenge. Mr Chan however accepted that if he succeeds on the Constitutional Challenge, the Fact-Specific Challenge would pale into insignificance. 13. Moreover, before us, Mr Chan did not challenge the following aspects of the system: (1) the requirement for a person registering as elector to provide his residential address to the electoral authorities; and (2) the proportionality of having public inspection of Linked Information in cases where a registered elector does not have real concerns for personal safety arising from general public disclosure of his residential address. With respect, we are of the view that these positions adopted by Mr Chan are well-considered and proper. https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=128057&QS=%2B&TP=JU&ILAN=en 5/39

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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
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Hong Kong Police Force v. Electoral Affairs Commission

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