7/17/2020 CACV73/2020 JUNIOR POLICE OFFICERS’ ASSOCIATION OF THE HONG KONG POLICE FORCE AND ANOTHER v. ELECTORAL … “ [133] Where such encroachment on the right is established, the extent, if any, of the encroaching measure’s validity is determined by a proportionality analysis. [134] In Hong Kong, such a proportionality assessment has been viewed as involving a three-step process of asking (i) whether the intrusive measure pursues a legitimate aim; (ii) if so, whether it is rationally connected with advancing that aim; and (iii) whether the measure is no more than necessary for that purpose. [135] A fourth step should be added. In line with a substantial body of authority, where an encroaching measure has passed the three-step test, the analysis should incorporate a fourth step asking whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual.” 60. As stated above, there is not much dispute on the first two steps in this appeal. It is plain to us, for the reasons given by the Judge, that the disclosure of Linked Information to the public in general under the Impugned Provisions served legitimate aims and is rationally connected with those aims. 61. At [69] of the Judgment, the Judge held that the “manifestly without reasonable foundation” standard should be applied at the third step in the present case. He explained his reasons for so holding at [70] to [76]. 62. It should be noted that the Judge applied that standard without differentiating between the proportionality of the Impugned Provisions in general and the proportionality of the absence of a limited discretion to provide for an option to restrict publication in cases where there is real concern on the part of a registered elector for risk to personal or family safety if information on his residential address is available to the public without restriction. 63. In this appeal, as explained above, the argument of Mr Chan is more focused. Whilst we accept that the standard of “manifestly without reasonable foundation” is appropriate in a general assessment of the Impugned Provisions, we are of the view that a higher standard should be adopted in the examination of the proportionality of absence of discretion. https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=128057&QS=%2B&TP=JU&ILAN=en 20/39