JUNIOR POLICE OFFICERS’ASSOCIATION OF THE HONG KONG POLICE FORCE AND ANOTHER v. ELECTORAL AFFAIRS COMMISSION AND OTHERS

HCAL 3042/2019

[2020] HKCFI 554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3042 OF 2019

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JUDGMENT

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INTRODUCTION

1.  The principal issue which arises for determination in this application for judicial review is whether the current registration and electoral system in Hong Kong, which requires or permits the electoral registers showing the names of the registered electors together with their principal residential addresses (the “Linked Information”) to be made available to the public and/or the candidates in a District Council election (“the Impugned Measures”), contravenes the registered voters’ rights to privacy, family and home, and/or their right to vote.  For reasons which I shall endeavour to explain in this judgment, I am of the view that the Impugned Measures are lawful and constitutionally compliant.

THE STATUTORY SCHEME

2.  The law of Hong Kong relating to the registration of electors and the compilation and publication of the electoral registers of District Council constituencies is contained in a number of inter-linked Ordinances and subsidiary legislation, including:

(1)  the Legislative Council Ordinance (Cap. 542);

(2)  the District Council Ordinance (Cap 547);

(3)  the Electoral Affairs Commission Ordinance (Cap 541);

(4)  the Electoral Affairs Commission (Registration of Electors) (Legislative Council Geographical Constituencies) (District Council Constituencies) Regulation (Cap 541A) (“the Regulation”); and

(5)  the Electoral Affairs Commission (Electoral Procedure) (District Councils) Regulation (Cap 541F) (“the Electoral Procedure Regulation”).

For the purpose of this judgment, the following brief summary should suffice.

(i)   The Electoral Affairs Commission, Chief Electoral Officer and Electoral Registration Officer

3.  The Electoral Affairs Commission (“EAC”) is a body corporate established under s 3 of the Electoral Affairs Commission Ordinance.  It consists of a Chairman (who must be a Judge of the High Court and whose appointment must be made in consultation with the Chief Justice of the Court of Final Appeal) and 2 other members appointed by the Chief Executive.  The functions of the EAC are, inter alia, (i) to be responsible for the conduct and supervision of elections, (ii) to supervise the registration of electors, and (iii) to generally make arrangements, take such steps or do such other things as it considers appropriate for the purpose of ensuring that elections are conducted openly, honestly and fairly[1].

4.  The Regulation and the Electoral Procedure Regulation are subsidiary legislation made by the EAC pursuant to the powers conferred on it under s 7 of the Electoral Affairs Commission Ordinance.

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[2].  The CEO is required to do all acts and things necessary for implementing the decisions of the EAC[3].

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.

(ii)   Registration as elector

7.  A person wishing to vote in a District Council election must first be registered as an elector.  For this purpose, unless his name already appears in the existing final register, he has to make an application to the ERO for registration in a provisional register under s 4 of the Regulation.  The expression “registration” is defined to mean “the entry of the name and principal residential address of a person in a register”[4].  An entry in a register relating to a person must show the name and principal residential address of that person[5].  The deadline for making such application is (i) 2 May for a year which is not a District Council election year (“non-DC election year”), and (ii) 2 July for a year which is a District Council election year (“DC election year”)[6].

8.  In the “Application for New Voter Registration (Geographical Constituency)” (“Form REO-1”), the applicant is required to provide his name as shown on his Hong Kong Identity Card and his principal residential address in Hong Kong.  He is also required to made the following declaration in the Form REO-1:

“My consent and authorisation is hereby given to the Electoral Registration Officer, in assessing my eligibility for registration as an elector, to compare and cross check my personal data given in this application form with my personal data collected by other organisations for any other purposes so as to verify if such data are true and accurate. In case of falsity or misleading situation, the Electoral Registration Officer may take appropriate action against me according to such data. I hereby expressly agree that the relevant government departments (including but not limited to the Immigration Department, Housing Department and Home Affairs Department) or any other public/private organisation(s) (including but not limited to the Hong Kong Housing Society), can release my personal data to the Electoral Registration Officer, so that this department can compare and cross check such data with those on this application form when processing the application and updating the voter registration and election-related records annually.”

9.  The Guidance Notes to the Form REO-1 further states as follows:

“(2) The final register of electors will be published in September in a year in which District Council Ordinary Election is to be held (i.e. District Council Election year), while for a year which is not a District Council Election year, the final register will be published in July …

(7) (a) You will be allocated to the Legislative Council geographical constituency and the District Council constituency to which you belong according to your residential address which should be your only or principal residence in Hong Kong, i.e. a dwelling-place in Hong Kong at which you reside and which constitutes your sole or main home. The residential address will be provided to the candidates of the constituencies concerned for the purpose of sending election advertisement.

(13) In assessing your eligibility for registration as an elector, the Electoral Registration Officer will compare and cross check your personal data given in the application form with your personal data collected by other organisations for any other purposes so as to verify if those data are true and accurate, if they are false or misleading, to base upon those data and take appropriate action against you…

Purpose of Collection

The personal data and other related information provided by you by means of this Form (REO-1) will be used by the Registration and Electoral Office for voter registration and election-related purposes.  The provision of personal data and other related information by means of this Form is voluntary.  However, if you do not provide adequate and accurate data we may not be able to process your application for registration as an elector.  If the Electoral Registration Officer has determined that you are eligible to be registered as an elector, your name and residential address will be compiled in a register and made available for public inspection.”

10.  Under s 5(7) of the Regulation, if the ERO determines that an applicant is eligible to be registered, the ERO must also determine, having regard to the address furnished by the applicant as his principal residential address, the section, and the subsection under it, of the provisional register in which to register the applicant.

(iii)    Compilation and publication of electoral registers

11.  The ERO is required to compile, update and publish a provisional register and a final register of District Council constituencies annually.

(1)  For a non-DC election year:

(a)  the provisional register is to be published not later than 1 June[7]; and

(b)  the final register is to be published not later than 25 July[8].

(2)  For a DC election year:

(a)  the provisional register is to be published not later than 1 August[9]; and

(b)  the final register is to be published not later than 25 September[10].

12.  After the publication of the provisional register in any year, there is a prescribed statutory process for a person to make:

(1)  a claim that he is entitled to be registered as an elector, or (where his name is included in an “omission list”[11]) he is entitled to be registered in the final register, or his name and principal address should to be recorded in a different section or subsection of the register[12]; or

(2)  an objection in relation to any other person on the provisional register whom the objector considers to be ineligible to be registered as an elector or in the section or subsection in which that person’s name and principal residential address are recorded[13].

The claims and objections are considered by the Revising Officer[14].  After all the claims and objections have been settled, the ERO would compile the final register for the year[15], which will remain valid until the publication of the next final register.

13.  A register (provisional or final)[16] is divided into sections so that there is a separate section for each Legislative Council geographical constituency[17]. For the purpose of determining the appropriate constituencies in which the registered electors are entitled to vote at a District Council election, each section of a register is further divided into separate subsections for the District Council constituencies within the Legislative Council geographical constituencies[18].

14.  A person is entitled to vote at a District Council election only if that person is an “elector”[19], which is defined to mean “any person whose name is included in the existing final register”[20]. The expression “existing final register”is defined to mean “a final register of geographical constituencies compiled and published by the Electoral Registration Officer under section 32 of the Legislative Council Ordinance (Cap. 542) which is currently in force”[21].

15.  Further, for any District Council ordinary election (other than the first ordinary election which is no longer material), a person is entitled to vote only in the constituency for which that person is registered as an elector in the existing final register[22]. In other words, a person is entitled to vote only in the constituency within which his principal residential address falls.

(iv)    The Impugned Measures

16.  There are three ways in which a register (final or provisional) is, or may be, made available to the public and/or candidates in a District Council election.

17.  First, under s 20(3) of the Regulation, the ERO must make available for public inspection a copy of the final register at the place or places specified in the notice published[23] pursuant to s 20(1) of the Regulation.  Under s 20(4) of the Regulation, the ERO may make available for public inspection a copy of a specific section or subsection of the final register at a place additional to the place specified in the aforesaid notice if the ERO considers it appropriate to do so.  Under s 20(4A) of the Regulation, for the purposes of s 20(3) and (4), the ERO may further make available for public inspection an additional copy of the final register or an additional copy of a specific section or subsection of the final register in which entries are arranged in a manner that the ERO considers appropriate for public inspection.

18.  Pausing here, it may be noted that in the basic format of the final register, the registered electors are sorted by “name” (ie in accordance with the alphabetical order of their surnames in English or the number of strokes of their surnames in Chinese).  However, s 20(4A) of the Regulation empowers the ERO to prepare and make available the final register (or a specific section or subsection thereof) in a different format, such as sorting the registered electors by “principal residential address”.  According to the Putative Respondents, this additional format of the register would help identify irregularities in the reported residential addresses of the registered electors[24].

19.  There are similar provisions in s 13 of the Regulation concerning how a provisional register (or a specific section or subsection thereof) is, or may be, made available to the public.

20.  Second, under s 21(1) of the Regulation, the ERO may, at any time after the publication of a register, make available an extract from such published register for any purpose related to an election to any person the ERO considers appropriate.  The ERO may, before making available such extract, arrange the entries in the extract in a form the ERO considers appropriate.  Further, in an extract made available under this section, the ERO may include (by way of a note or other means the ERO thinks fit) information as to whether any person whose particulars are included in that extract is entitled to vote at an election[25].

21.  Third, under s 38(1)(b) of the Electoral Procedure Registration, the CEO must supply to each candidate in any District Council ordinary election (other than the first ordinary election which is no longer material) an extract of the part of the final register which relates to the constituency for which that candidate is nominated as soon as practicable after the relevant nomination form is submitted to the Returning Officer[26].

22.  In short, under the current registration and electoral system in force in Hong Kong, if an eligible person wishes to participate in a District Council ordinary election as an elector, his Linked Information will become available to the public under ss 20 and 21 of the Regulation, and to the candidate(s) for the constituency to which the elector belongs under s 38 of the Electoral Procedure Regulation.

PUBLICATION OF THE FINAL REGISTER IN 2019

23.  For the District Council election year of 2019, the ERO published the final register of District Council constituencies on 25 September 2019 (“the Final Register”), ahead of the District Council ordinary election scheduled to be held on 24 November 2019 (“the DC Election”).  In the statutory notice published on 25 September 2019 pursuant to s 20(1) of the Regulation, it was stated that the Final Register could be inspected during ordinary business hours at the Registration and Electoral Office on 10/F, Harbour Centre, 25 Harbour Road, Wan Chai, Hong Kong.

24.  Further, pursuant to s 20(4) of the Regulation, the ERO made available copies of the relevant sections or subsections of the Final Register for public inspection at the Home Affairs Enquiry Centres of the 18 District Offices.

25.  According to the Putative Respondents, as at 16 October 2019, copies of the entire Final Register had been supplied to 6 major political parties and 26 individuals pursuant to s 21(1) of the Regulation.  In addition, more than 30 public inspections of the Final Register (or a specific section or subsection thereof) had taken place pursuant to s 20(3) and (4) of the Regulation.

APPLICATION FOR JUDICIAL REVIEW

26.  The 1^st Applicant is an association of over 25,000 police officers covering four different ranks, namely, police constables, senior police constables, sergeants and station sergeants, making up approximately 85% of the entire police force in Hong Kong.  The 2^nd Applicant is an individual police officer.

27.  The immediate catalyst which gave rise to the present application for judicial review was what the Court of Appeal described as the appalling, reprehensible and hideous “doxxing” campaigns targeted against police officers and their family members, involving extensive leaking of personal information and cyber-bullying on the Internet and various social and other media, which sprang up in the aftermath of the now withdrawn Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019.  However, the present challenge to the Impugned Measures is not advanced upon any special rights or interests of police officers.  The challenge is based, instead, on the rights to privacy, family and home under Article 14 of the Hong Kong Bill of Rights (“BOR 14”), and the right to vote under Article 26 of the Basic Law (“BL 26”), which are enjoyed equally by police officers and all other registered electors in Hong Kong (totalling approximately 4.13 million in 2019).  It has not been suggested that police officers enjoy any better or higher rights to privacy, family and home, or right to vote, than other registered electors or ordinary members of the public.

28.  The gravamen of the Applicants’ complaint is that the public availability of the Linked Information under the current registration and electoral system gives rise to a severe interference with the registered electors’ rights to privacy, family and home.  The Applicants rely on the recent “doxxing” campaigns against police officers and their family members as an example of the sort of harm that could result from such public availability of the Linked Information.  This having been said, there is no direct evidence that the Linked Information which has been made available to the public/candidates has in fact been so used, or mis-used[27].

29.  The 1^st Applicant made the present application for judicial review on 15 October 2019, followed by an application for interim relief on 16 October 2019.  That application reached the Court of Appeal, and resulted in an interim injunction, pending the substantive disposal of the present application for judicial review, being granted by the Court of Appeal on 22 October 2019 in the following terms:

(1)  the 1^st to 3^rd Putative Respondents be restrained from publishing or making available for public inspection any published register of electors for the DC Election, including the Final Register of the electors prepared by the ERO for the DC Election pursuant to the Regulation, or from making available to members of the public extracts of any register, including the Final Register, such that members of the public are able to associate the electors’ names with their respective principal residential addresses; and

(2)  the 1^st to 3^rd Putative Respondents be restrained from making any communication with, or supplying any information to, members of the public, such that they or any of them are able to associate the electors’ names with their respective principal residential addresses.

30.  On 23 October 2019, a rolled-up hearing of the present application for judicial review was directed, and on 25 November 2019, Hong Kong Journalists Association was granted leave to intervene in this application.

31.  In the Amended Form 86 dated 15 November 2019, the Applicants seek to challenge the following “decisions”:

(1)  Section 20(3) of the Regulation, or the EAC’s application of or practice under s 20(3) of the Regulation to make available for public inspection the entirety of a copy of the Final Register insofar as the names of the registered electors are directly linked to their principal residential addresses (“the 1^st Decision”);

(2)  the decision of the ERO, pursuant to s 20(4) of the Regulation, to make available for public inspection copies of the Final Register, or parts thereof, containing the Linked Information at places additional to the place specified in the notice published under s 20(1) of the Regulation on or after 25 September 2019 (“the 2^nd Decision”);

(3)  the decision of the ERO, pursuant to s 21 of the Regulation, to make available extracts of the published register of electors containing the Linked Information to members of the public after 1 August 2019[28] (“the 3^rd Decision”); and

(4)  the decision of the CEO, pursuant to s 38(1) of the Electoral Procedure Regulation, to supply to each candidate an extract of a part of the Final Register which relates to the constituency for which that candidate is nominated, containing the Linked Information (“the 4^th Decision”).

32.  At §§24-26 of the Amended Form 86, the Applicants summarise their grounds of judicial review, as follows:

“[24] In summary, s.20(3) of the Regulation, s.38(1) of the [Electoral Procedure] Regulation and the Decisions, insofar as they involve the disclosure of the Linked Information to members of the public and the Candidates, are unconstitutional and/or Wednesbury unreasonable as they disproportionately interfere with (1) the right to privacy, family and home under BOR 14 (Ground 1), and (2) right to vote under BL 26 (Ground 2).

[25] The challenge against s.20(3) of the Regulation and s.38(1) of the [Electoral Procedure] Regulation is non-fact specific and systemic insofar as: (1) s.20(3) of the Regulation makes it mandatory for the ERO in every election and regardless of the circumstances to make a copy of the Final Register containing the Linked Information available for public inspection without giving the ERO the power to consider in the circumstances of each case whether the disclosure is warranted; and (2) s.38(1) of the [Electoral Procedure] Regulation makes it mandatory for the CEO to supply to each candidate contents of the Final Register containing the Linked Information without giving the [CEO] the power to consider in the circumstances of each case whether the disclosure is warranted. Accordingly, the 1^st and 4^th Decisions by the EAC and the CEO to make and apply these provisions are also unlawful.

[26] On the facts of the present case, and in particular the unprecedented levels of political and social hostility directed at various quarters of Hong Kong society over the past few months, and specifically the Police and their families, the Applicants further contend that the exercise of discretion by the ERO in the 2^nd and 3^rd Decisions pursuant to ss.20(4) and 21 of the Regulation are additionally unconstitutional and/or Wednesbury unreasonable for want of proper justification.  It is not however argued that ss.20(4) and 21 of the Regulation are themselves necessarily unconstitutional.”

33.  The following preliminary observations may be made regarding the 4 decisions sought to be challenged by the Applicants.  First, under s 20(3) of the Regulation, the ERO is under a statutory duty to make available for public inspection a copy of the final register (which, by virtue of s 3(2) of the Regulation, must show the names and principal addresses of the registered electors) at the place or places specified in the notice published pursuant to s 20(1) of the Regulation.  The Applicants’ reference to “the EAC’s application of or practice under s 20(3) of the Regulation to make available for public inspection the entirety of a copy of the [Final Register] insofar as the names of the registered electors are directly linked to their residential addresses” in the second part of 1^st Decision is, in my view, inapt, because:

(1)  the statutory duty to make disclosure is imposed on the ERO, not the EAC; and

(2)  the disclosure of the entirety of the Final Register showing the Linked Information to the public by the ERO is not a mere matter of “application of or practice under” s 20(3) of the Regulation.  The ERO is under a statutory duty to do so, and has no discretion to do otherwise.

The pertinent issue, in my view, is whether s 20(3) of the Regulation is constitutionally valid.

34.  Second, although the ERO has a discretion under s 20(4) to make available for public inspection a copy of a specific section or subsection of the Final Register, such discretion goes only to the question of whether to do so at a place additional to the place specified in the notice published under s 20(1), but not whether the section or subsection of the Final Register as made available should show the Linked Information.  To the extent that the Applicants’ challenge to the 2^nd Decision is premised on the assumption that the ERO has a discretion under s 20(4) to make available to the public a section or subsection of the Final Register without showing the Linked Information, such challenge proceeds on a false premise.  In any event, even if (contrary to my view) the ERO has a discretion under s 20(4) to make available to the public a section or subsection of the Final Register without showing the Linked Information, since he is under a statutory duty to make available the entire Final Register showing the Linked Information to the public under s 20(3), for the purpose of the present case, the way in which he exercises his discretion under s 20(4) makes no real difference.  In my view, the challenge to the 2^nd Decision stands or falls together with the challenge to the 1^st Decision.

35.  Third, the same comment applies to the 3^rd Decision.  The ERO has a discretion under s 21(1) to make available an extract of a published register to any person for any purpose related to an election.  However, once he decides to exercise his discretion to make available an extract of the register to a person, he must provide a proper extract of the register showing the Linked Information.

36.  Fourth, under s 38 of the Electoral Procedure Registration, the CEO is under a statutory duty to supply to each candidate an extract of the part of the Final Register which relates to the constituency for which that candidate is nominated.  He has no discretion to do otherwise.  The Applicants’ challenge to the 4^th Decision, based on Wednesbury unreasonableness on the facts[29], is, in my view, misconceived.  The true and proper question is whether s 38(1) of the Electoral Procedure Registration is constitutionally valid.

THE RIGHTS TO PRIVACY, FAMILY AND HOME, AND TO VOTE, ARE ENGAGED

(i)      Article 14 of the Hong Kong Bill of Rights

37.  BOR 14 states as follows:

(1)  No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2)  Everyone has the right to the protection of the law against such interference or attacks.

38.  In Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights - Cases, Materials and Commentary (3^rd ed), at §16.01, it is stated that:

“Privacy has been said to be a notoriously difficult term to define… It has been defined widely as ‘the right to be left alone’ and narrowly as a right to control information about one’s self. A compromise definition could be that a right to privacy comprises ‘freedom from unwarranted and unreasonable intrusions into activities that society recognizes as belonging to the realm of individual autonomy’. The ‘sphere of individual autonomy’ has been described as ‘the field of action [that] does not touch upon the liberty of others’, where one may withdraw from others, to ‘shape one’s life according to one’s own (egocentric) wishes and expectations’”.

At §16.02, the learned authors note that as far as the ICCPR is concerned, the meaning of privacy for the purposes of article 17 (equivalent to BOR 14) has not yet been thoroughly defined in either the General Comment or the case law.

39.  In Democratic Party v Secretary for Justice [2007] 2 HKLRD 804, at §57, Hartmann J (as he then was) also said that “privacy” was not the easiest concept to reduce to a legal definition, and offered the following exposition of the concept of privacy:

“[57] … It speaks, of course, of that part of every person’s life in which, without imposing on the rights and freedoms of others, personal autonomy may be expressed. It is that secluded part of every person’s life in which, without outside interference, he or she may act independently. Privacy, in its intimacy, is normally to be enjoyed in the seclusion of family, home and friends. As a recognition of the independent nature of every individual, it is closely associated with the right to the protection of honour and reputation.

[59]      Privacy in plain terms may be described as every individual’s area of ‘private space’. But, as such, of course, it has its limits.  In respect of the present case, this has two consequences.  First, it does not necessarily encompass every aspect of a person’s life that he might wish to keep private: see X. v. Iceland (1993) 16 EHRR 97, at para.29.  Second, respect for an individual’s privacy will be narrower when it is brought into contact with public life or is in conflict with other protected interests …”

40.  The extent to which a matter comes into contact with public life, or interacts with the activities, rights or freedoms of others in a society, is relevant to both the questions of (i) whether a person is entitled to enjoy privacy in respect of a matter, and (ii) the degree and scope of the protection that may be accorded to that person’s privacy in respect of that matter.  The first question is relevant to the issue of whether the right to privacy is engaged, and the second question is relevant to the issue of whether there is a contravention of the right to privacy, if engaged (which, as will be further discussed below, is to be determined by the proportionality test).

41.  A person’s name and residential address form part of the “privacy” of that person (see Wong Tze Yam v Commissioner of Police [2009] 5 HKLRD 838, at §§20-22 per Jeremy Poon J (as he then was); Green Corns Ltd v Claverley Group [2005] EMLR 31, at §§53 and 56 per Tugendhat J; Khadija Ismayilova v Azerbaijan, Application Nos 65286/13 and 57270/14, at §140 (ECHR)).  Disclosure of a person’s name and residential address to the public would, prima facie, constitute an interference with that person’s privacy.  In my view, the Impugned Measures encroach upon the right to privacy protected by BOR 14.  For the purpose of this judgment, it does not matter whether the rights to “family” and “home” protected by that article are also engaged.

42.  On behalf of the Putative Respondents, Mr Raymond Leung, SC argues that the right to privacy under BOR 14 is not engaged.  His argument, in summary, is as follows:

(1)  In determining whether the right to privacy is engaged, the applicable test is whether the person in question has a “reasonable expectation of privacy” (HKSAR v Chan Kau Tai [2006] 1 HKLRD 400, at §102; HKSAR v Lam Hon Kwok Popy, CACC 528/2004 (21 July 2006), at §§12-13).

(2)  In Hong Kong, unlike some other jurisdictions such as the UK and Australia, voter registration is not mandatory.

(3)  Where a person chooses to register to vote and consents to his name and principal residential address being published in a final register and provided to candidates by signing the Form REO-1, such personal data can no longer be regarded as being within his “private space” or “personal space” (see Democratic Party, supra, at §59).

(4)  Further, if a person chooses to register in order to vote in an election, he thereby brings himself or his personal data (including his name and principal residential address) into contact with public life.  That person does not have a reasonable expectation of privacy in respect of those personal data in such circumstances.

43.  I accept that a person, by completing, signing and returning the Form REO-1, must be taken to have given consent for his personal data (including his name and residential address) to be used for voter registration and election-related purposes, including the disclosure of such personal data to the public and/or candidates.  If this application were brought by an individual registered elector for judicial review of a specific decision by the REO/CEO to disclosure his Linked Information to the public or a candidate, there would be some force in the argument that the elector has no reasonable expectation of privacy in respect of the Linked Information, and thus the relevant disclosure should not be regarded as a breach of his right to privacy under BOR 14.

44.  However, the present application is a systemic complaint against the current registration and electoral system which requires or permits the electoral registers showing the Linked Information to be made available to the public and/or the candidates in a District Council election. If a person wishes to exercise his constitutional right to vote in a District Council election, he has effectively no choice but to give the requisite consent in the Form REO-1.  The form does not permit, for example, an applicant to opt out of giving consent for his personal data to be made available to the public and/or candidates.  In other words, the price for withholding his consent is the forfeiture of his constitutional right to vote.  In such circumstances, I consider that the right to privacy under BOR 14 is engaged, in that, subject to the issue of proportionality, the law has failed to provide protection against interference or attacks with the right.  As for the argument that, by choosing to register in order to vote in an election, an elector thereby brings himself or his personal data into contact with public life, it is, I consider, more appropriate to be dealt with as part of the proportionality analysis.

(ii)   Article 26 of the Basic Law

45.  BL 26 states: “Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law.”

46.  As pointed out by the Court of Appeal at §53 of its decision on interim relief in this case ([2019] HKCA 1197):

“If the Linked Information of registered electors in a final register (or for that matter a provisional register) can be misused for doxxing, it may have the chilling or deterrent effect on some individuals against registering as electors to exercise their right to vote under article 26 of the Basic Law. If doxxing is targeted against specific groups of voters, it may affect the overall integrity of the election.”

47.  While there is, as earlier mentioned, no evidence that the Linked Information which has been made available to the public and/or the candidates has actually been used for the purpose of “doxxing” against any particular person or group of persons, it can be used for such purpose.  A fundamental right protected by the Basic Law or the Hong Kong Bill of Rights may be engaged by governmental measures or sanctions which create a chilling effect on the exercise of that right (see Stunt v Associated Newspapers Ltd [2017] 1 WLR 3985, at §54 per Popplewell J; Mosley v United Kingdom (2011) 53 EHRR 30, at §§129 and 132).  The fact that a person may be deterred from exercising his right because of a fear of likely or possible reprisal by private individual(s) is not decisive if such reprisal is made possible or facilitated by the governmental measures or sanctions in question.  In my view, the Impugned Measures in this case also encroach upon the right to vote protected by BL 26.

PUTATIVE RESPONDENTS’ CASE ON THE AIMS BEING ADVANCED BY THE IMPUGNED MEASURES

48.  It is the Respondents’ case that the Impugned Measures serve or pursue the following aims -

(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”);

(2)  ensuring a highly transparent mechanism for the public to inspect, and make claims and objections in respect of, the registers, and to detect vote-rigging and/or other corrupt/illegal electoral conduct, thereby contributing to the preservation of the integrity of the electoral system (“the Transparent Election Aim”); and

(3)  facilitating electioneering activities by candidates, in particular enabling them to send their election materials or conduct personal visits to particular electors or groups of electors at their places of residence (“the Electioneering Aim”)[30].

49.  In respect of the Transparent Election Aim, the Putative Respondents say that making the registers showing the Linked Information available to the public and candidates would enable them to raise objections to “suspicious entries in a published provisional register to prevent vote-rigging”, “monitor in their collective effort whether there has been any irregular or incorrect registration”[31] in relation to matters such as “the eligibility of a registered voter or the genuineness of his/her residential address”[32], and “find out whether rectification has been made to … identified irregularities”[33]. In the Second Affirmation of Law Shuk Pui Rosanna (Deputy Secretary for Constitutional & Mainland Affairs (1) of the Constitutional & Mainland Affairs Bureau), she states that:

(1)  “It has always been the objective of the EAC and the Government’s policy that public elections must be conducted in an open, fair and honest manner.  The accuracy and completeness of the electoral register is thus of utmost importance to serve such legitimate aim.  Allowing the general public’s right to access the [final register] is an integral part in maintaining the integrity and accuracy of the electoral register hence the probity in the conduct of a public election.”[34]

(2)  Although the ERO has implemented various measures to improve the accuracy and completeness of voter registration records with the objective of ensuring that public elections in Hong Kong are conducted openly, fairly and honestly at all times, “members of the public (including the press, the political parties and their supporters) are allowed to inspect the electoral registers in order to make claims and objections in respect of the registration status of electors.  Such practice has been implemented since the enactment of [the Regulation] in 1997 and has since proven its effectiveness in maintaining the integrity and accuracy of the electoral register as well as demonstrating the compilation process of the register is open and above-board”[35].

(3)  Detection of election malpractices by the public (including political parties and their supporters) and journalists plays an “important and indispensable role” in preserving the integrity of the electoral system[36].

(4)  “[P]ublic vigilance against any suspicious ‘vote-rigging’ behaviour is an important means in maintaining the accuracy, integrity and completeness of voter registration records.  If there were ‘fake mailboxes’ placed in a building, fraudulent residential addresses of the building registered in the electoral registers, and/or abnormally high number of electors with multiple surnames reported to be living in one residential address, members of the public living or having lived in that building should be able to observe and report the situation with first-hand information so as to expose any irregularity and make complaints to the ERO and relevant law enforcement authorities.  This complements the Government’s checking efforts.”[37]

50.  In her Second Affirmation, Rosanna Law gives details of specific cases where, after receiving complaints lodged by political parties and their supporters, the ERO carried out investigations and subsequently took action to remove some electors from the final registers, including:

(1)  a complaint lodged by Yum Kwok-tung on 18 August 2015 involving 160 cases of voter registration and 628 electors in the G21 (Hung Hom) constituency on various grounds (including multiple surnames of electors all claiming to reside in one registered address), eventually leading to 84 electors being removed from the final register;

(2)  a complaint from the Labour Party, Democratic Party, Civic Party and others on 24 August 2015 involving multiple surnames of electors in the K06 (Discovery Park) constituency, eventually leading to 4 electors being removed from the final register;

(3)  a complaint lodged by Jeremy Tam on 25 August 2015 involving 11 cases of voter registration and 52 electors with multiple surnames in the J21 (Laguna City) constituency, eventually leading to 7 electors being removed from the final register; and

(4)  a complaint from the Civic Party on 5 September 2019 involving 85 electors in the R22 (Sui Wo) constituency, which apparently were still being monitored by the ERO as at the date of the affirmation[38].

51.  Rosanna Law explains the actions that would be taken by the ERO after receiving complaints about inaccuracies of voter registration records or suspected cases of “vote rigging”, which include reporting the matters to the Police or the ICAC for investigation and placing the electors concerned in the “omissions list” or “Special Treatment List”[39].  She also provides details of instances where “vote-rigging” or other election malpractices were uncovered by the effort of the press and/or members of the public, including[40]:

(1)  Apple Daily reported on 11 January 2016 that a number of electors in the Tai Pak Tin and Hung Hom constituencies were suspected to have provided false addresses for voter registration and voted in the constituencies to which they did not belong.  After conducting investigation, the ERO found that 32 electors were suspected to have been involved in fraudulent voter registrations and intentional vote-rigging conduct, and those cases were reported to the Police and the ICAC for further action.  In addition, 17 electors were removed from the final register.

(2)  Ming Pao reported on 24 August 2019 that an elector’s registered address at Island Shangri-La Hotel might not be her principal residential address in Hong Kong, as the press also found that the elector concerned had provided another residential address in Wong Tai Sin in an annual return of the elector’s company.  After inquiry by the ERO, the elector reported a different address with valid address proof to change her registered address on the register.

(3)  An objection was lodged by the public in 2015 against 3 electors with the same registered address in the D08 (Wah Kwai) constituency where the ex-owners of the property had failed to apply for a change of registered address.  Eventually, the objection against 1 of the 3 electors was allowed by the Revising Officer.

(4)  An objection was lodged by the public in 2019 against a total of 26 electors in the K15 (Allway) constituency.  The objection in respect of 6 electors was allowed by the Revising Officer, while approval was given for another 11 electors to change their registered addresses.

(5)  An objection was lodged by the public in 2019 involving 6 electors of multiple surnames with the same registered address in Fa Yuen Street, Mong Kok.  Investigation was conducted by the ERO, which eventually led to the removal of 2 electors from the final register.

(6)  A suspected “vote-rigging” case at the E16 (King’s Park) constituency was first reported by Oriental Daily News in October 2011, which was followed by a complaint by a candidate in that constituency who had lost in the 2011 District Council election by 2 votes.  After investigation, the ERO referred various cases to the ICAC for further action. Eventually, 51 persons were prosecuted and 47 convicted of the offence of “corrupt conduct with respect to voting at elections” contrary to s 16 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554).  Eventually, the said candidate’s election petition was allowed by the High Court, and he was successful in a by-election.

52.  The Intervener has also adduced evidence detailing cases where investigations conducted by journalists based on the Linked Information obtained from the electoral registers successfully uncovered cases of vote-rigging or other electoral malpractices, notably (i) the “1 House 7 Surnames and 13 Votes” case in the Mei Foo South Constituency in relation to the 2011 District Council election[41], and (ii) a case where a voter was informed by reporters that his registered address had been changed without his knowledge[42].  The role of the press in investigating electoral misconduct has been openly acknowledged by the EAC.  For example, at §12.17 of the EAC’s Report on the 2011 District Council Election submitted to the Chief Executive on 3 February 2012, the following was stated:

“There were a spate of media reports and a number of complaints concerning inaccurate or false registered addresses in the register of electors. In some of the cases, it was claimed that electors with an unusual number of surnames had used the same residential address for registration. Some electors were reported to have used non-residential units, non-existent addresses or units of demolished buildings as their residential addresses for registration. For rural areas, some registered addresses provided by the electors were found to be incomplete. There were calls in the community for thorough investigations into these cases and a critical review of the existing voter registration system in order to maintain the fairness of the elections and to preserve the integrity of the voter registration system.”

53.  In respect of the Electioneering Aim, Rosanna Law states that: “One of the key attributes to the conduct of an open, fair and honest election is fair and proper electioneering.  Election candidates must be allowed to canvass electors by sending election materials to the registered electors of their choice.  Election candidates may also wish to target their electioneering activities at a particular individual elector or a particular group of electors at his/her/their places of residence.  This is particularly relevant in a District Council Election where each constituency is generally small”[43]. As for the Applicants’ suggestion that such electioneering purpose can be served by sending election materials to particular addresses without specifying the names of the recipients at those addresses, Rosanna Law says that “[t]his does not serve the above electioneering purpose which has been acknowledged as crucial for years, because it will be impossible for the printed or posted election materials to reach the targeted elector or electors at a particular address, especially where more than one elector live at the same address”[44], and “[t]his is easily understood in view of the fact that it is not uncommon in Hong Kong to have multiple tenants residing at a particular address.  The situation is even worse when candidates canvass electors who reside in establishments such as nursing homes or penal institutes where not everyone therein is an elector”[45].  Rosanna Law adds that the course proposed by the Applicants would make it “much more difficult, if not impossible, for candidates to conduct face-to-face canvassing activities”[46].

PROPORTIONALITY

54.  In order to determine whether there is a contravention of a non-absolute fundamental right protected by the Basic Law or the Hong Kong Bill of Rights by a governmental measure, the well-established approach of the court is to apply the 4-step proportionality test as explained by the Court of Final Appeal in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, at §§133-135:

“[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.”

55.  The lawfulness of the Impugned Measures therefore depends on whether it can pass the 4-step proportionality test.

56.  Legitimate aims: it is, in my view, clear that the Electoral Status Aim, the Transparent Election Aim and the Electioneering Aim are all legitimate aims which the Putative Respondents may properly pursue.  This is accepted by Mr Abraham Chan, SC on behalf the Applicant[47].

57.  Rational connection: whether a measure is rationally connected with advancing a legitimate aim is essentially a matter of logic and common sense.  The question is not whether the adopted measure is the best means of advancing the aim, or whether there is some other, less intrusive, means of advancing the aim.  The question is simply whether it can, or is likely to, advance or assist in the pursuit of the aim.

58.  In respect of the Electoral Status Aim, while I can see that the compilation of a register linking the names of the electors with their principal residential addresses would assist the ERO in checking a person’s electoral status and whether he has been allocated to the correct constituency, and help maintain the accuracy and completeness of the register, I am unable to see how making the Linked Information available to the public and/or candidates could advance this aim.

59.  On the other hand, it seems to me to be clear that making the Linked Information available to the public and candidates would advance the Transparent Election Aim and the Electioneering Aim.

60.  Mr Chan argues that if the Electioneering Aim is simply that candidates should be able to target their electioneering activities towards particular electors at their homes, that aim is rationally disconnected from the need of non-candidates to access electors’ Linked Information[48].  It will be recalled, however, that there are different statutory provisions relating to the disclosure of the electoral registers to the public and candidates: (i) ss 20 and 21 of the Regulation concern the disclosure of the registers to the public and are relevant to the Transparent Election Aim, while (ii) s 38 of the Electoral Procedure Regulation concerns the disclosure of the final register to the candidates and is relevant to the Electioneering Aim.  Mr Chan’s argument is correct in so far as the Electioneering Aim is concerned, but fails to take into account the fact that the Impugned Measures also serve the Transparent Election Aim.

61.  Mr Chan also argues that because public access to the Linked Information is “unnecessary” to guard against various electoral misconduct concerns, that “diminishes the rational force of enabling such access for those purposes”[49]. This argument, in my view, incorrectly conflates the second and third steps of the proportionality test.

62.  No more than necessary: the first matter which requires consideration is the appropriate standard of review that should be applied in the present case.  Mr Chan advocates the “no more than necessary” standard[50], while Mr Leung contends that that applicable standard should be that of “manifestly without reasonable foundation”[51]. In support of the application of the more stringent standard, Mr Chan relies upon the following matters: (i) the present context involves a drastic limitation of the rights to privacy, family, home and lives[52] of Hong Kong electors and their families, and their right to vote, (ii) the impugned statutory provisions are all matters of subsidiary legislation and the legislature does not itself in primary legislation require any public disclosure of the Linked Information, and (iii) the relevant decision-makers (namely, the EAC, ERO and CEO), while they are experienced in matters of electoral administration, are not better placed than the court in assessing whether a proper balance is struck between the constitutional rights engaged and any countervailing need for public access to the electoral registers showing the Linked Information.  In respect of the last point, Mr Chan relies on §115 of Hysan, where Ribeiro PJ said:

“If assessment of the proportionality of the measure calls for the application of purely legal principles and an assessment which the Court is the expert to make, the primary decision-maker having no special competence or expertise, it is likely that the margin of discretion will have little role to play and that the Court will simply adopt a standard of reasonable necessity.”

63.  That paragraph should be read together with the next paragraph, §116:

“On the other hand, a decision-maker’s views resulting in the promulgation of the impugned measure may be given much weight and thus afforded a wide margin of discretion reflected by use of a ‘manifest’ standard where the decision-maker is likely to be better placed than the Court to assess what is needed in the public interest… The Court might also refrain from intervening because the measure reflects a predictive or judgmental decision which it was the institutional role of the decision-maker to take and as to which no single ‘right answer’ exists.”

64.  On the other hand, Mr Leung argues that since electoral laws involve political or policy considerations, a broad margin of discretion ought to be accorded to the Government or the relevant decision-makers, especially when there has been active political debate or consideration on the issue of what matters should be disclosed in the electoral registers, as shown by:

(1)  the removal of information relating an elector’s identity document number and sex from the registers since 1999[53] in order to enhance protection of the privacy of electors’ personal data[54]; and

(2)  the more recent public consultation concerning various voter registration issues, including “Voter Registration and Checking Arrangements” and “Introducing Requirement of Submitting Address Proofs by Electors”[55].

65.  In support of his argument for a broad margin of discretion to be accorded to the Putative Respondents in this case, Mr Leung relies on the judgment of the Court of Final Appeal in Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (2017) 20 HKCFAR 353, which concerned a challenge to the constitutionality of s 39(2A) of the Legislative Council Ordinance, which provided for the disqualification of a person from being nominated as a candidate at a by-election held within 6 months of his resignation.  At §42 of his judgment, Ma CJ stated as follows:

“Lord Pannick QC argues that political decisions or legislative provisions reflecting political judgments are often precisely those areas where the courts are likely to afford a large margin of appreciation. I agree. Where electoral laws involve political or policy considerations, a wider margin of appreciation ought generally to be accorded. The authorities from the United Kingdom and the European Court of Human Rights are consistent with this approach when politics and political judgments are involved. In particular, where there has been active political debate on an issue or piece of legislation, the Court will again be inclined to give a wider margin of appreciation. The reason for this approach is evident: the courts are generally not equipped (certainly not better equipped than others) to determine political questions, although of course there are limits.”

66.  Mr Leung also relies on Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 735.  In that case, one of the issues raised for determination was whether the seven-day time limit for the lodging of an election petition in s 34 of the Chief Executive Election Ordinance (Cap 569) infringed the right of access to the court under BL 35. Rejecting the argument that the prescribed time limit was disproportionate, Ma CJ stated the following at §45 of his judgment:

“There is also the consideration of the margin of appreciation which can be accorded by the court to the legislature. This aspect has been considered by the courts in a number of cases. In Fok Chun Wa v Hospital Authority, this Court emphasized the point that the concept of margin of appreciation reflected the different constitutional roles of the judiciary on the one hand, and the executive and legislature on the other. In the context of election law, this difference in roles must be borne in mind. I have earlier discussed the role of the judiciary when dealing with the engagement of Article 35 of the Basic Law in the present case. Elections, however, also involve political and policy considerations and it is in these areas where the legislature is involved. The determination that seven days is the appropriate limit for the lodging of election petitions is one that does involve considerations other than legal ones. A due margin of appreciation should be accorded in the present case.”

67.  In Infinger Nick v The Hong Kong Housing Authority [2020] HKCFI 329, at §44, I referred to the judgment of Ribeiro PJ at §§83 and 86 of Hysan where it was said that the yardstick of reasonable necessity was not a strict, bright line, but occupied a “continuous spectrum” which should be viewed as a “sliding scale” in which the cogency of the justification required for interfering with a right would be proportionate to its perceived importance and the extent of the interference, and pointed out that it was not helpful to focus excessively on the label of the standard of review that should be applied.  As further stated by Ribeiro PJ at §141 of Hysan, the difference between the two standards (ie “no more than necessary” and “manifestly without reasonable foundation”) is one of “degree” only.  In both cases the court is required to scrutinise the circumstances of the case and the factual bases claimed for the incursion before reaching a conclusion on whether the encroaching measure can pass the third step of the proportionality test. There is, I believe, no harm in using the labels as convenient shorthand to describe the appropriate standard of review, provided that one bears firmly in mind the continuous nature of the spectrum of reasonable necessity.

68.  Further guidance on the determination of the appropriate standard, or the location of the standard in the spectrum of reasonableness, which should be applied in any given case can be found in the judgment of Ribeiro PJ in Hysan, at §§139 to 140:

“[139] The ‘manifest’ standard has been used in cases where the Court recognizes that the originator of the impugned measure is better placed to assess the appropriate means to advance the legitimate aim espoused. This has occurred in cases involving implementation of the legislature’s or executive’s political, social or economic policies but the principle is not confined to such cases.

[140] The location of the standard in the spectrum of reasonableness depends on many factors relating principally to the significance and degree of interference with the right; the identity of the decision-maker; and the nature and features of the encroaching measure relevant to setting the margin of discretion.”

69.  In order words, a holistic assessment is required.  The appropriate standard of review applicable in the present case should, in my view, be towards the lower end of the continuous spectrum of reasonable necessity.  For the sake of convenience, I shall adopt the description “manifestly without reasonably foundation”.  I accept the submissions of Mr Leung and Mr Paul Shieh, SC (for the Intervener) that a wide margin of discretion ought to be accorded to the Putative Respondents because this case concerns the validity of various aspect of the electoral laws relating to the public disclosure of registered electors’ personal information the contents of which are inevitably much affected by political or policy considerations, and also the allocation and use of limited public resources available to the Putative Respondents for the detection of vote-rigging and other election malpractices.  In addition, I take into account the following matters in coming to the view that the “manifestly without reasonably foundation” standard should be applied.

70.  First, the right to privacy, while undoubtedly an important right in itself, is not traditionally regarded as being amongst the most fundamental ones.  In HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621, at §67, McMahon J (delivering the judgment of the Court of Appeal) stated: “Additionally the right to privacy, while important, is not the most fundamental of the rights guaranteed by Hong Kong’s constitutional legislation”.  In Koo Sze Yiu v Chief Executive of the HKSAR (2006) 9 HKCFAR 441, at §38, Bokhary PJ also stated that “an unconstitutional impact on freedom of the person is even more serious than an unconstitutional impact on freedom and privacy of communication”.

71.  Second, only minimal personal information concerning an elector is contained in a register which is open for inspection by the public/candidates.  As earlier noted, information relating to an elector’s identity document number and sex has been removed from the register since 1999.  The extent of interference with an elector’s privacy relates, in essence, only to his principal residential address.  Although an individual’s residential address is an aspect of his private and family life, the level of privacy that may be attached to the address is not high.  In Corporate Officer of the House of Commons v The Information Commissioner [2008] EWHC 1084 (Admin), the English Divisional Court stated at §41 as follows:

“No one would disagree that the address of each individual’s private residence is personal data, and represents an aspect of private and family life, but a residential address is an aspect of private life which may not be very private at all… Other professions and occupations may require notification of and public access to a residential address. Thus, company directors are required to provide a residential address available to those who search the register of companies. Everyone eligible to vote must have his or her address recorded in the register of electors, full versions of which are available for public scrutiny in local libraries and local government offices. The reality is that an individual who is determined to discover a residential address of an adult law-abiding citizen is likely to be able to do so by one legal means or another, and where the person concerned is the holder of a public office and in the public eye, such inquiry is likely to be easier.”

72.  In this regard, it needs to be borne in mind that while what goes on inside a person’s residence is plainly a matter of significant privacy, a person’s residential address is one of the means of communication with the outside world, and is often readily provided to third parties in many different aspects of daily life.

73.  Third, although the right to vote has been said to be “without doubt the most important political right” (see Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166, at §164 per Andrew Cheung J (as he then was)), there is in the present case no evidence that anyone, whether a police officer or his family member or otherwise, has in fact been deterred from registering as an elector or exercising his right to vote because of a concern that his Linked Information is available to the public and candidates.  It is also relevant that although the right to vote is, I consider, interfered with by the Impugned Measures, the interference is indirect and limited.  The right to vote is not taken away or substantially curtailed.  In R (Robinson) v Secretary of State [2003] EWHC 1760 (Admin), it was held that a regulation[56] which permitted the full register of electors to be sold to credit agencies only constituted a limited interference with the right to vote and was justified by the public interest of facilitation of credit and the control of fraud, which it was said “outweighed the very modest interference with the right to vote” (per Maurice Kay J at §15).

74.  Fourth, notwithstanding the heavy weather made by the Applicants out of the recent doxxing campaigns against police officers and their families, there is no evidence (certainly it has not been demonstrated by evidence) that the Linked Information made available to the public and/or candidates through the registers has been used for the purpose of doxxing against anyone.  On the contrary, it is apparent from the evidence adduced by the Applicants in relation to specific instances of “doxxing” against police officers and/or their family members that the majority of the information disclosed and spread on the internet (eg unique identification numbers in the Police Force, job positions, HKID numbers, photographs, telephone/mobile numbers, email addresses, social media accounts, etc) could not have come from the registers.

75.  Fifth, I do not accept Mr Chan’s submission that the present case involves a drastic limitation of the rights to privacy, family and home of electors and their family members, or their right to vote.  Neither do I accept the suggestion that the assessment of the proportionality of the Impugned Measures in this case calls for the application of purely legal principles, or that the assessment of whether public interest would be better served by the Impugned Measures does not call for the exercise of any special competence or expertise on the part of the Putative Respondents.  The fact that the Impugned Measures are contained in secondary (or subsidiary) legislation as opposed to primary legislation is not, in my view significant, bearing in mind that subsidiary legislation is generally subject to the oversight and control of the Legislative Council.

76.  Lastly, I accept Mr Chan’s submission that although under-age children cannot be registered as electors and their personal data will not be directly discoverable by inspection of an electoral register, their interests (including their own privacy interest) could be affected by a breach of the privacy of their parents (see PJS v News Group Newspaper Ltd [2016] UKSC 26, at §72 per Lady Hale), and thus the court ought to take into account the interest of children.  The strength of this argument must, however, be judged in the light of the current state of the evidence mentioned in §74 above.  In any event, this consideration is not, in my view, sufficient to lead to the application of a more stringent standard of review in the present case.

77.  There is one other matter that I should deal with at this juncture.  At §76 of Mr Chan’s Skeleton Submissions, he says that where the “necessity” standard applies, “the Court must be satisfied - the burden falling upon the respondents, that there are no significantly less intrusive and equally effective measures available”.  He relies upon §136 of Hysan for this proposition.  It is, however, important to read that passage properly:

“At the third stage, assessing the permissible extent of the incursion into the protected right, two main standards have been applied. The first is the test of whether the intruding measure is ‘no more than necessary’ to achieve the legitimate aim in question. This must be understood to be a test of reasonable necessity. If the Court is satisfied that a significantly less intrusive and equally effective measure is available, the impugned measure may be disallowed.” [emphasis added]

78.  The test of “reasonable necessity” was further explained at §§83-88 of Ribeiro PJ’s judgment in Hysan:

“[83] As we have seen, in adopting the proportionality principle, the Hong Kong courts have referred to the third stage of the inquiry as posing the question whether the encroaching measure is ‘no more than necessary’ for advancing the legitimate aim espoused. That is a natural way of expressing the test since it reflects the essential purpose of the exercise: the Court’s endeavour to accommodate acceptable limitations of constitutional rights in the pursuit of a legitimate societal interest while preserving to the maximum extent the guarantees laid down in the constitution. However, the words ‘no more than necessary’ do not lay down a strict, bright line test. They lay down a test of reasonable, not strict, necessity.

[84] Thus, in an A1P1 deprivation case, the ECtHR in James v United Kingdom, held that there must be ‘a reasonable relationship of proportionality between the means employed and the aim sought to be realised’. It rejected the applicants’ argument that ‘only if there was no other less drastic remedy for the perceived injustice that the extreme remedy of expropriation could satisfy the requirements of Article 1’, commenting:

‘This amounts to reading a test of strict necessity into the Article, an interpretation which the Court does not find warranted. The availability of alternative solutions does not in itself render the leasehold reform legislation unjustified; it constitutes one factor, along with others, relevant for determining whether the means chosen could be regarded as reasonable and suited to achieving the legitimate aim being pursued, having regard to the need to strike a ‘fair balance’.’

[87] In Hong Kong, in Fok Chun Wa v Hospital Authority, Ma CJ recognized that a strict necessity test would cause problems in practice, citing Blackmun J who pointed out:

‘... a judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation, and thereby enable himself to vote to strike legislation down.’

[88] That the test in Hong Kong is one of reasonable necessity was reiterated in Official Receiver v Zhi Charles, a case involving the freedom to travel, where reference was made to the RJR-Macdonald Inc case and Fok PJ and Stock NPJ stated that a minimal impairment test did not mean ‘that the restriction must be the very least intrusive method of securing the objective which might be imagined or devised’.”

79.  In other words, even if the “no more than necessary” standard applies, it only means that the Impugned Measures, to pass the third step of the proportionality test, should be no more than reasonably necessary.  There is no requirement that the measure should be the least intrusive method, or result in the least interference with the engaged right.

80.  On the facts of this case, I do not find the Impugned Measures to be manifestly without reasonably foundation.  I should add that I would have reached the same conclusion even if a more stringent standard, ie the no more than necessary standard advocated by Mr Chan, should be applicable in the present case.  In this regard, it is important to bear in mind that the question for the court is not whether the best, or optimal measure, has been adopted, or whether there is any alternative, better, measure that could be adopted (see Democratic Party, supra, at §106).  The Putative Respondents is not required to show that there is no less intrusive measure that could be devised to advance the Transparent Election Aim and Electioneering Aim.  As earlier mentioned, Ribeiro PJ stated at §86 of Hysan that the cogency of the justification required for interfering with a right should be proportionate to its perceived importance and the extent of the interference.  Accordingly, the matters discussed in §§70 to 76 above are relevant to the determination of whether the Impugned Measures are justified.  In addition, the following considerations are relevant.

81.  First, as pointed out by Hartmann J in Democratic Party, supra, at §59, respect for an individual’s privacy will be narrower when it is brought into contact with public life or is in conflict with other protected interests.  For this proposition, the learned judge referred to the judgment of the ECtHR in Bruggemann & Scheuten v Federal Republic of Germany (1981) 3 EHRR 244, at §§55 and 56 -

“The right to respect for private life is of such a scope as to secure to the individual a sphere within which he can freely pursue the development and fulfilment of his personality. To this effect, he must also have the possibility of establishing relationships of various kinds, including sexual, with other persons. In principle, therefore, whenever the State sets up rules for the behaviour of the individual within this sphere, it interferes with the respect for private life and such interference must be justified in the light of Article 8(2).

However, there are limits to the personal sphere.  While a large proportion of the law existing in a given State has some immediate or remote effect on the individual’s possibility of developing his personality by doing what he wants to do, not all of these can be considered to constitute an interference with private life in the sense of Article 8 of the Convention.  In fact, as the earlier jurisprudence of the Commission has already shown, the claim to respect for private life is automatically reduced to the extent that the individual himself brings his private life into contact with public life or into close connection with other protected interests.”  [emphasis added]

82.  A person who decides to register as an elector in order to exercise his right to vote in the appropriate constituency (determined by reference to his principal residential address) in a District Council election, which is required to be conducted openly, honestly and fairly[57], necessarily brings his residential address into contact with public life.  Respect for his privacy in respect of his residential address will accordingly be narrower.

83.  Second, it is clear that an elector’s privacy in respect of his principal residential address interacts with the rights or freedoms of other persons, such as the freedom of the press[58] (to seek and collect information and to investigate), the freedom of expression[59] (enjoyed by both the press and the public), and the rights to vote, stand for election and participate in public life[60] (enjoyed by all permanent residents of the HKSAR), or at least their legitimate interests.  Maintenance of the integrity of elections is a pre-requisite for the proper exercise of a person’s rights to vote and to stand for election.  Mr Chan has not seriously argued otherwise[61].  In addition to the judgment of Hartmann J in Democratic Party, supra, the following statement of principle by Ribeiro PJ in HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 relating to the interface between the freedom of expression and rights to private property/privacy is apposite in the present context:

“[58] In my view, where the guaranteed right[62] is engaged, the orthodox approach of ascertaining whether any restriction of access is proportionate and valid remains applicable but with the qualification that elements of particular significance regarding private property must be given special weight in the proportionality analysis.

[59] Such considerations flow from the existence of constitutional protections relating to private property and the right to privacy. Thus, BL 6 requires the Government to protect the right of private ownership in accordance with law; and BL105 mandates such protection for the rights of individuals and legal persons to the acquisition and use, etc, of property. Particular protection is conferred on the ‘homes and other premises of Hong Kong residents’, BL 29 stating that they ‘shall be inviolable’ and prohibiting arbitrary or unlawful intrusion. Similarly, BOR 14 prohibits arbitrary or unlawful interference with [a person’s] privacy, family, home or correspondence’.

[60]  Consequently, where a limitation on the right to freedom of expression involves denial of access to private property, justification of the restriction as a measure necessary for the protection of the rights of others has to be given very substantial weight in the proportionality balance.”

In my view, the protection that may be given to an elector’s privacy in respect of his residential address should also take into account the aforesaid conflicting rights, freedoms or interests.  Put in another way, the protection of those rights, freedoms or interests should be given weight when considering the proportionality of the Impugned Measures in this case.

84.  Third, there are statutory and administrative safeguards against any unauthorised use or disclosure of information obtained from a register made available to the public or the candidates.

(1)  Under s 22(3) of the Regulation, any person who -

“(a) reproduces or permits another person to reproduce in any form any particular contained in an entry in a register or an extract from a register;

(b) uses or permits another person to use any information relating to a person obtained for the purpose of compiling a register;

(c) uses or permits another person to use any information relating to a person contained in a register or an extract from a register; or

(d) imparts to any other person any information referred to in paragraph (a), (b) or (c)”,

for a purpose other than a purpose related to an election, commits an offence and is punishable with a fine at level 2 and imprisonment for 6 months.

(2) These prohibitions apply to any person who inspect a register under s 20 of the Regulation, and any candidate to whom an extract of a relevant part of the final register is supplied by the CEO under s 38(1) of the Electoral Procedure Regulation.

(3) Under s 21(3) of the Regulation, a person to whom an extract of a register is made available under s 21(1) must not, in relation to that extract, do any act specified in s 22(3)(a), (c) or (d) for a purpose other than a purpose related to an election. Under s 22(5), any person who contravenes s 21(3) commits an offence and is liable to a fine at level 2 and to imprisonment for 6 months.

(4) Any person who wishes to inspect a register under s 20, or requests for the provision of (or permission to copy) an extract of a register under s 21, of the Regulation is required to fill in a form giving his personal details, including his full name and identity document number, and informed of the aforesaid statutory prohibitions. He is also required to give an undertaking that the information obtained by him from the register will not be used for any purposes unrelated to an election.

(5) Likewise, any candidate to whom an extract of a relevant part of the final register is supplied by the CEO under s 38(1) of the Electoral Procedure Regulation is required to give an undertaking to use the information solely for a purpose related to electioneering activities, and reminded of the offences under ss 21(3) and 22(3) of the Regulation.

(6) Mr Chan argues that it is wholly unrealistic to treat these as adequate safeguards because “doxxers, by definition, do not respect or abide by the law”, relying upon the observation of the Court of Appeal at §29 of its judgment on interim relief. While I can readily see that “doxxing”, whether against police officers and their family members or other persons, is a serious problem in the society, I do not consider that the answer to this problem lies in abolishing or restricting public access to the electoral registers, or indeed other public registers. In any event, the risk of personal information contained in the electoral registers made available to the public being turned into use by doxxers is only one of the matters that the court should take into account in the overall assessment of whether the Impugned Measures are manifestly without reasonably foundation. The assessment of the degree and significance of such risk should take into account the very limited personal information available from the registers, as well as the fact that there is no evidence that such information has actually been used for the purpose of “doxxing”. As stated by Hartmann J in Democratic Party, supra, at §96, “[b]right line rules which are easy to apply and ensure fairness in the great majority of cases may be permissible even if some hardship is demonstrated in individual cases.” As for the majority of the public and candidates, I do not believe that the court should proceed on the basis that they would not respect the law.

85.  Mr Leung relies additionally on the restrictions against taking notes or making copies when a person inspects a paper register at the Electoral and Registration Office in Wanchai, or the Home Affairs Enquiry Centres in the 18 District Offices, under s 20(3) and (4) of the Regulation, as well as the safeguard put in place by the ERO when a person inspects an electronic register using the “intranet system” provided at the inspection venues (in particular, the absence of any “search” or “sort” functions).  Given the manner in which information is displayed in a register, namely rows and rows and pages and pages of names appearing next to the corresponding addresses, the difficulty of anyone seeking to use such information obtained from a mere inspection of the register without any means of copying or recoding for the purpose of doxxing against a large group of persons (whose names may not be known) and/or their family members is obvious.  Mr Chan’s suggestion that a person may simply memorise the information (without any form of copying or note-taking) or make repeated requests to inspect a register seems to me to be practical and workable only in a situation where a few specific individuals are being targeted.  However, as pointed out by Mr Chan, a member of the public may be provided an extract of a register (in CD format)[63], or permitted to copy an extract of a register, under s. 21(1) of the Regulation by the ERO if he is satisfied that the request is for a purpose related to an election.  For this reason, I would only give limited weight to these additional safeguards relied upon by Mr Leung.

86.  I shall now deal with some major points raised by Mr Chan in support of his argument that the Impugned Measures go beyond what is necessary to advance the legitimate aims.

87.  First, Mr Chan contends that there are three core systemic defects of the present system, namely:

(1)  no choice for intending voters to opt-out of providing their Linked Information to third parties beyond the electoral authorities;

(2)  no discretion for the authorities under the primary statutory provisions to withhold the Linked Information regardless of the circumstances and the risks of harm upon disclosure; and

(3)  no differentiation in providing access to the Linked Information as between the disparate categories of the public[64].

88.  In relation to first alleged systemic defect, Mr Chan refers to and relies on the fact that in some overseas jurisdictions (such as the UK, Australia, New Zealand and Canada), an opt-out mechanism is provided which allows an elector to refuse to disclose his personal information to anyone besides the electoral authorities.

89.  The following features of the registration systems in those jurisdictions are of note:

(1)  In Australia, registration and voting are mandatory under federal electoral laws, and in the UK, registration is normally obligatory (subject to some specified exceptions), while in Hong Kong neither registration or voting is mandatory.

(2)  In all the jurisdictions referred to by Mr Chan, the default position is that personal details (including the addresses) of the electors are included in the electoral registers which are available for public inspection.

(3)  In Australia, New Zealand and the UK, an elector will have to provide justification to be granted “silent”, “unpublished” or “anonymous” status, with different threshold requirements being applicable in different jurisdictions.  For example, in Australia, a person who considers that having his address shown on the electoral register would place the personal safety of that person or members of his family at risk may lodge a request to become a “silent elector”.  The request must be supported by particulars of the relevant risk, and verified by a statutory declaration.  In New Zealand, a similar requirement has to be met for any elector wishing to be included in the “unpublished” roll.  In the UK, an anonymous “registration mechanism” is provided for any voter who can show that his safety or that of someone in the same household would be at risk if their names and addresses are disclosed on the register[65]. None of these jurisdictions provides for a blanket exemption for the personal details of a voter or elector to be excluded from the public register.

(4)  In Canada, electors can opt out from the National Register of Electors (without losing their right to vote), and also opt-out of sharing personal information such as their names and addresses with electoral agencies.

90.  On the other hand, Mr Leung has referred the court to other jurisdictions such as France, Norway, Switzerland, Sweden and Singapore where there appears to be no such opt-out option for electors in those jurisdictions.

91.  It is, in my view, clear that there is no uniform practice across different jurisdictions on whether electors may opt-out of providing their personal information (including their addresses) to the public beyond the electoral authorities.  The registration and electoral system in any jurisdiction is moulded by its own unique historical background and social and political system.  The fact that there is no choice for electors in Hong Kong to opt-out of providing their Linked Information to the public and candidates cannot, in my view, be regarded as a systemic defect of the current registration and electoral system in Hong Kong.

92.  In relation to the second and third alleged systemic defects, having regard to legitimate aims (ie the Transparent Election Aim and Electioneering Aim) sought to be advanced by the Impugned Measures, the lack of discretion on the part of the ERO/CEO to withhold the Linked Information, or differentiate between categories of the public to whom the Linked Information may be made available, also cannot, in my view, properly be regarded as systemic defects of the current registration and electoral system in Hong Kong.  I note that Mr Chan has not identified which category or categories of the public should be excluded from being given access to the Linked Information.  While there could be a reasonable debate on whether the ERO/CEO ought to have a discretion to withhold the Linked Information in some circumstances or exclude a member or section of the public from access to the Linked Information, such discretion would inevitably undermine the legitimate aims sought to be advanced to a greater or lesser extent depending on the width of the discretion being conferred on the ERO/CEO and the manner in which the discretion is being exercised in practice.  The question for the court, however, is not about whether the current system can be improved, but whether it amounts to a disproportionate restriction of the rights engaged.

93.  In relation to the Putative Respondents’ justification by reference to the Transparent Election Aim:

(1)  Mr Chan submits that there are other less intrusive ways which can be adopted to address the perceived problems:

(a)  For concerns about a large number of electors being registered at the same address, all that is necessary is a list of principal residential addresses showing the number of electors being registered at each address, without the electors’ names being linked.  Surnames, but not full names, of electors may also be disclosed in response to concerns over the “one house many surnames” cases[66].

(b)  For electors to ascertain whether their own information on the register is accurate, there is no necessity for such information to be also disclosed to the public at large.  The registered electors may visit the Online Voter Information Enquiry System or contact the relevant authorities at any time to check their registration particulars on the Final Register[67].

(2)  Mr Chan also argues that it cannot be right for electoral authorities to mainly or substantially rely on the public to detect incorrect electoral registrations, particularly when the task falls upon them by specific legislative designation[68].

94.  My views are as follows:

(1)  In respect of Mr Chan’s argument referred to in §93(1)(a) above, I accept that listing the residential addresses showing only the number, or surnames, of the electors registered at each address may enable vote-rigging or other election malpractices to be detected in some cases.  However, it seems obvious that even in those cases, investigation would be rendered more difficult if one only knows the number of electors being registered at a given address, or the surnames of the electors (particularly where the surnames in question are common ones).

(2)  In respect of Mr Chan’s argument referred to in §93(1)(b) above, the ability of electors to check the accuracy of their own electoral status is only a part of the existing system to maintain the accuracy of the electoral registers.  Public vigilance also plays an important part of the system to detect and uncover vote-rigging and other election malpractices, and maintain the accuracy, integrity and completeness of the voter registration records and hence the probity in the conduct of public elections.

(3)  In respect of Mr Chan’s argument referred to in §93(2) above, it is not the Putative Respondents’ case that they rely mainly on the public to detect incorrect electoral registrations.  Their case is that it is a joint, or collective, effort on the part of the ERO, the public and the press.  Whether the reliance on the public should be described as “substantial” seems to me to be a matter of semantics only.

95.  In passing, I should mention that Mr Chan has included, as Annex 1 to his Skeleton Submissions, a document titled “Wide public access to linked information unnecessary for transparent elections” which contain some detailed points on why it is said that public access to the Linked Information is not necessary to advance the Transparent Election Aim. These points were not raised in the Amended Form 86, or developed in Mr Chan’s oral argument.  Mr Leung is justified, in my view, to complain that it is unfair to allow the Applicants to raise them for the first time only in Mr Chan’s Skeleton Submissions.  In any event, the issue for determination is not whether the Impugned Measures are strictly necessary to advance the Transparent Election Aim, or whether some other hypothetical registration system could do as well, or whether the previous known cases of vote-rigging or election malpractices could have been discovered by the press or the public without using the Linked Information contained in the electoral registers.  I do not consider that the detailed points raised in Annex 1 adds anything to the broad points made by Mr Chan in §86(1) and (2) of his Skeleton Submissions which have been dealt with in §94 above.

96.  In relation to the Putative Respondents’ justification by reference to the Electioneering Aim, Mr Chan argues that:

(1)  Candidates can conduct target electioneering without the Linked Information (eg by stating on the front of the postal election materials that it is to be opened by a registered elector only, or by using the elector’s voter registration number for the election materials).

(2)  For face-to-face canvassing, there is no reason why site visits cannot be performed where candidates are given access only to a list of the electors’ residential addresses (and/or their surnames) as relevant to their constituency.

(3)  The Electioneering Aim cannot logically justify disclosing the Linked Information to non-candidates.

97.  My views are as follows:

(1)  In respect of Mr Chan’s argument referred to in §96(1) above, I consider it to be clear that sending election materials to an address (with or without quoting the relevant voter registration numbers[69]), as opposed to sending them to named electors, is less direct and effective, particularly where there are multiple tenants in one address (eg people living in sub-divided units or cubicles in a flat), or many electors live in one institute such as a nursing home or penal establishment.

(2)  In respect of Mr Chan’s argument referred to in §96(2) above, without knowing the names of the electors, the difficulty of scheduling face-to-face meetings with them (eg by leaving a note with a contact number in the post box for an elector to call back) is obvious, particularly in the situations mentioned in (1) above.

(3)  In respect of Mr Chan’s argument referred to in §96(3) above, see the discussion at §60 above.

98.  Reasonable balance: Ribeiro PJ pointed out, at §73 of Hysan, that:

“in the great majority of cases, its application would not invalidate a restriction which has satisfied the requirements of the first three stages of the inquiry. One would hope and expect that most laws and governmental decisions at the sub-constitutional level internally reflect a reasonable balance between the public interest pursued by such laws and the rights of individuals or groups negatively affected by those laws. In such cases, where the law passes the first three tests, it would be unlikely to fail the test of proportionality ‘stricto sensu’ (in the narrow, overall sense) at the fourth stage. But one may exceptionally be faced with a law whose content is such that its application produces extremely unbalanced and unfair results, oppressively imposing excessive burdens on the individuals affected.”

99.  As is apparent from the above discussion, I am of the view that the Impugned Measures pass the first three steps of the proportionality test.  Whether the Impugned Measures can pass the fourth step requires the court to make, ultimately, a “value judgment” as to whether they operate on the registered electors “with such oppressive unfairness that it cannot be regarded as a proportionate means of achieving the legitimate aim in question” (see §78 of Hysan).  I am far from being satisfied that this is the case here.

100.  For all of the above reasons, I consider that the Impugned Measures pass the 4-step proportionality test, and are constitutionally compliant.

101.  There are two other matters that I should mention before concluding this judgment.  The first relates to the recent amendments of the Electoral Procedure Regulation so that candidates no longer have to disclose their “principal residential addresses” but may choose to disclose an address that they prefer, such as the office or business address, correspondence address, residential address or post office number, in the notice of valid nominations and other specified notices published by the Returning Officer in the Gazette.  The amendments were made in October 2019, apparently for the purpose of enhancing the protection of the privacy of the candidates. Mr Chan argues that the amendments constitute preferential treatment of candidates vis-à-vis electors, undermine any justification for denying the same protection to ordinary electors, and highlight the lack of necessity and disproportionality of the Impugned Measures.  There is, in my view, no question of preferential treatment here because the candidates and electors are not in a relevantly similar situation.  A person can stand for election in any District Council constituency wherever his principal residential address may be, but an elector can only vote in the constituency in which his principal residential address is situated.  The arguments relating to the Transparent Election Aim and the Electioneering Aim have no relevant application to the candidates’ residential addresses.  Lastly, it should be noted that a candidate must be an “elector”[70], and his Linked Information would be available to the public and other candidates like any ordinary elector.

102.  Second, there is some discussion on the question of whether the court should apply a “double-proportionality” test in this case in view of the conflicting rights and freedoms raised by the Intervener, namely, the freedom of the press under BL 27, the freedom of expression under BOR 16, and the right to vote, stand for election and participate in public life under BOR 21.  These rights and freedoms are, or may be, relevant in two different ways.  First, they affect the degree or extent of protection that may be given to the electors’ privacy in respect of their residential addresses (see §83 above). Second, Mr Shieh argues that these countervailing rights and freedoms, which are entitled to protection in their own right, are engaged by the Applicants’ application to strike down or limit (by a process of remedial interpretation) the Impugned Measures.  It has been suggested[71] that where conflicting, non-absolute, fundamental rights come into play, the court should apply the double-proportionality test established in various English cases[72] in order to take into account and protect all competing rights involved.  Although the possible adoption of a double proportionality approach was mentioned in the skeleton submissions of all parties in this case, it was not seriously pursued by counsel in their oral submissions.  I have some reservation on whether the issue of double proportionality truly arises in this case, because journalists and the public have no inherent, or basic, right of access to the Linked Information.  While the availability of the Linked Information would undoubtedly assist, or facilitate, journalists to investigate and report on suspected cases of vote-rigging or other election malpractices, it does not follow that they are entitled as a matter of law to have access to such information.  The position is different, for example, from Re S [2005] 1 AC 593 where the undoubted freedom of the press to report criminal proceedings came into direct conflict with the right to private and family life of a child whose brother was allegedly murdered by his mother.  The matter may be tested by asking whether journalists or the public would be able to mount a constitutional challenge based on the aforesaid rights and freedoms should the EAC decide to repeal or amend the Regulation and Electoral Procedure Regulation such that the public and candidates will no longer be given access to the electoral registers, or may be given access to the electoral registers only in very limited or restrictive situations.

103.  Whether, and if so how, the double proportionality approach should be adopted and applied in Hong Kong is obviously a topic of great general importance which merits full arguments and consideration.  Since I have been able to determine the present application by means of the traditional, single, proportionality approach, I would defer consideration of this important topic to an appropriate occasion in future where it is necessary to do so.

DISPOSITION

104.  Leave to apply for judicial review is granted, on the basis that the intended application for judicial review is reasonably arguable and has a realistic prospect of success.  The substantive application for judicial review is dismissed upon full consideration of the merits.  The Applicants shall pay the costs of the Putative Respondents, including all reserved costs (if any), to be taxed if not agreed.  There shall be no order as to costs as between the Intervener and the Applicants/Putative Respondents.