HCAL 3042/2019
[2019] HKCFI 2628
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3042 OF 2019
________________________
IN THE MATTER OF an Application for Leave to apply for Judicial Review under O. 53, r.3 of the Rules of the High Court, Cap 4A
and
IN THE MATTER OF a decision of the Chief Electoral Officer
and
IN THE MATTER OF a decision of the Electoral Registration Officer
and
IN THE MATTER OF Section 20(3) of the Electoral Affairs Commission (Registration of Electors) (Legislative Council Geographical Constituencies) (District Council Constituencies) Regulation, Cap 541A
________________________
BETWEEN
JUNIOR POLICE OFFICERS’ASSOCIATION
1st Applicant
OF THE HONG KONG POLICE FORCE
AA
2nd Applicant
and
ELECTORAL AFFAIRS COMMISSION
1st Putative Respondent
CHIEF ELECTORAL OFFICER
2nd Putative Respondent
ELECTORAL REGISTRATION OFFICER
3rd Putative Respondent
________________
Before:
Hon Chow J in Chambers (Open to Public)
Date of Hearing:
23 October 2019
Date of Ruling:
23 October 2019
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R U L I N G
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1. The Applicants originally requested for a rolled-up hearing of this matter on or before 1 November 2019, but after some further consideration now do not now press for a hearing before the forthcoming District Council election on 25 November 2019. I take into account a number of matters in deciding the appropriate date for the rolled-up hearing of this application for judicial review:
(1) It is in the general interest of the public that this case, which affects the right to privacy of every registered elector, should be resolved as soon as possible.
(2) Mr Leung, SC has indicated that the Putative Respondents wish to put in evidence in reply to the matters raised in the latest affirmation filed on behalf of the Applicants, including the relevant practice in other jurisdictions and also evidence on why it is important that the Final Register should be open to public inspection. Although Mr Chan, SC has said that he would be prepared to withdraw reliance on the practice in other jurisdictions, I believe that such evidence would be still be relevant in the court’s decision on the issue of proportionality of the interference with the electors’ right to privacy.
(3) Mr Chan accepts that the police officers would not suffer any serious prejudice if the Government is given the opportunity to put in evidence and the hearing should take place in say mid-November or December this year, having regard to the interim injunction granted by the Court of Appeal.
2. I leave aside from my consideration the possibility that there may be other interested parties who may wish to join in these proceedings because so far, no one has, I am told, indicated any interest to do so. I also leave aside any consideration that the fairness of the forthcoming District Council Election may be compromised by a delay in the resolution of this application for judicial review because: (i) I have not been able to form any view, not even a provisional one, on the issue of justification on the assumption that there is, prima facie , some interference with the electors’ right to privacy, (ii) even if the hearing should take place say early next week, the court will probably need some time to reach a decision, by which time the election would be well under way, and there could potentially be arguments that the election is unfair whatever the outcome of this case, and (iii) anyhow, this court’s judgment may well be the subject of an appeal which means the law may not be settled for some time yet.
3. As earlier mentioned, the Applicants do not now press for the rolled-up hearing to take place before the District Council election on 24 November 2019. Having regard to counsel’s diaries and the court’s own diary, the earliest date that this matter can be heard will be on the 16th of December 2019. Accordingly, the following directions are given:
(1) There shall be a rolled-up hearing of the application for leave to apply for judicial review and the substantive application for judicial review on 16 December 2019 (Monday) at 10:30 am, with 1 day reserved.
(2) The Putative Respondents shall have leave to file further evidence within 14 days from the date hereof.
(3) The Applicants shall have leave to file one final round of evidence in reply (if any) within 10 days thereafter.
(4) No further evidence may be filed without leave of the court.
(5) The Applicants shall file and serve skeleton submissions on or before 4 December 2019.
(6) The Putative Respondents shall file and serve skeleton submissions on or before 9 December 2019.
(7) The parties shall lodge with the court consolidated bundles of authorities on 11 December 2019.
(8) Costs of today be in the cause.
(Anderson Chow)
Judge of the Court of First Instance
High Court
Mr Abraham Chan, SC and Mr Tony Ko, instructed by Li & Partners for the 1st and 2nd Applicants
Mr Raymond Leung, SC and Ms Grace Chow, instructed by Department of Justice for the 1st to 3rd Putative Respondents