CHAU TSUN KIU v. SECRETARY FOR JUSTICE

HCAL 112 of 2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 112 OF 2012

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J U D G M E N T

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A. INTRODUCTION

1. This judicial review raises the question of the constitutionality of ss 43(4A), (4B) and (4D) of the Legislative Council Ordinance (Cap 542) (“the LCO”).  For convenience, I will refer to these sections collectively as the “impugned provisions”.

2. In essence, s 43 of the LCO confers on candidates standing for election as members of the LegCo a right to send letters to electors free of postage (“f.o.p.”).

3. Principally, the applicant challenges that the impugned provisions are in breach of Articles 25, 26 of the Basic Law (respectively “BL25” and “BL26”) and Articles 21(b) and 22 of the Bill of Rights (respectively “BOR21(b)” and “BOR22”) for being discriminatory against certain candidates (such as the applicant) on the grounds of their political views and the status of non-association with other political parties.

4. The applicant acted in person when he applied for leave to apply for judicial review.  After leave was granted by Lam JA (as he then was)[1], the applicant has been legally aided and represented by counsel.

5. The background relevant to this application is as follows.

B.  BACKGROUND

B1.  The impugned provisions and legislative history

6. The f.o.p. arrangements for candidates running for LegCo seats have been in place since 1963, albeit they were at one time provided for in the Post Office (Amendments) Regulations.  In 1997, the arrangements were incorporated in s 43 of the LCO when the ordinance was enacted[2].

7. The present section 43 of the LCO provides as follows:

“(1) One letter, addressed to each elector for the geographical constituency or the District Council (second) functional constituency for which a list of candidates is validly nominated, may be sent free of postage by or on behalf of the list of candidates.

(2) One letter, addressed to each person who is an elector for the functional constituency (other than the District Council (second) functional constituency) for which a candidate is validly nominated may be sent free of postage by or on behalf of the candidate.

…

(4) The letter must relate to the election concerned and must comply with all requirements and limitations (if any) prescribed by the regulations and by regulations in force under the Electoral Affairs Commission Ordinance (Cap 541).

(4A) A letter sent under this section by or on behalf of a list of candidates which is validly nominated for a geographical constituency may contain information on—

(a) any number of list of candidates which is also validly nominated for that geographical constituency;

(b) one single list of candidates which is validly nominated for the District Council (second) functional constituency; or

(c) one single list of candidates which is validly nominated for the District Council (second) functional constituency and any number of list of candidates which is also validly nominated for that geographical constituency.

(4B) A letter sent under this section by or on behalf of a list of candidates which is validly nominated for the District Council (second) functional constituency may contain information on any number of list of candidates which is validly nominated for one single geographical constituency.

(4C) A letter sent under this section by or on behalf of a candidate who is validly nominated for the Labour functional constituency may contain information on any other candidate who is also validly nominated for that constituency.

(4D) A letter which contains information on any candidate or list of candidates under subsection (4A), (4B) or (4C) is not to be regarded, for the purposes of subsections (1) and (2), as being sent by or on behalf of that candidate or list of candidates.

…”

8. The reference to the District Council (second) functional constituency (“DC2”) in s 43 and the impugned provisions were only added by way of amendments in 2011.

9. The DC2 was introduced in the 2012 LegCo election, and the legislative regime was changed by the Legislative Council (Amendment) Ordinance (No 2 of 2011).  The amendments introduced included adding the references to the DC2 in ss 43(1) and (2) as quoted above.

10. At the same time, the impugned provisions were added to s 43 by way of amendments under the Electoral Legislation (Miscellaneous Amendments) Ordinance (No 18 of 2011)[3].

11. All the above amendments were passed by the LegCo after thorough and repeated discussions and debates by members.  It is noted that the LegCo members comprised of independents as well as members of different political parties, including People Power (of which the applicant was a member at the relevant time).

12. As a result, since the LegCo election in 2012, under the impugned provisions:

(1)  A candidate of a geographical constituency (“GC”)[4] may include in her f.o.p. letters sent to that GC also information of other candidates in the same GC, or one single list of candidates for the DC2 or both, and

(2)  A candidate for DC2 may also include in her f.o.p. letters information of any number of list of candidates for one single GC.

13. In other words, a candidate (of GC or DC2) in sending out her entitled f.o.p. letters to the electors may, if she wants to do so, include in those letters materials of other candidates of the same GC or DC2 as the case may be.  In this respect, it is noteworthy that the electorate of DC2 election came from and covered all the five GCs.

B2.  The relevant provisions in the Basic Law and BOR

14. BL25 and 26 provide relevantly as follows:

“Article 25

All Hong Kong residents shall be equal before the law.

Article 26

  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.”

15. BOR21 and 22 also provide as follows:

“Article 21

Right to participate in public life

Every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned in article 1(1) and without unreasonable restrictions-

(a) to take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) to have access, on general terms of equality, to public service in Hong Kong.

Article 22

Equality before and equal protection of law

  All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

16. Thus, generally under these articles in the Basic Law and the BOR, all permanent residents in Hong Kong shall have equal rights to stand for election.  Further, there shall not be unequal treatment of such right on the grounds of, among others, a person’s political view or status.

B3.  The applicant

17. The applicant stood for election in the Kowloon West GC in 2012.  He was then a member of People Power (a political party).  He ranked 3^rd in the list of candidates led by Mr Wong Yuk Man (of the same party).

18. As a matter of principle, the applicant and the People Power opposed the DC2 election as part of the functional constituency elections.  The applicant also says his political stand is one known as “radical democracy”.  He (together with Mr Wong) eventually resigned from the membership of People Power in May 2013, and has since not been affiliated with any political parties in Hong Kong[5].

19. Mr Wong Yuk Man was successfully elected in the 2012 elections, but not the applicant.  In November 2012, he applied for and was granted leave to apply for judicial review, challenging the constitutionality of the impugned provisions.

C.  THIS JUDICIAL REVIEW

C1.  The applicant’s case

20. The applicant’s grounds of judicial review run as follows.

21. It is the applicant’s case that the impugned provisions favour candidates who have political affiliations or are members of political parties.  It is only these candidates who could effectively and practically benefit from the impugned provisions to have expanded exposure to the electors through cross-references in each of these candidates’ f.o.p. letters.  For convenience only, I will refer these types of candidates collectively as “affiliated candidates”.  In other words, the applicant says the provisions discriminate against candidates who have no political affiliations or who hold say certain particular political views which are not welcome or shared by other candidates of GC or DC2.  I will refer to these types of candidates collectively as “non-affiliated candidates”.

22. The applicant further says the discriminatory effect of the impugned provisions is demonstrated by this: if he wants to benefit from them, he would need to associate or affiliate himself with other candidates running in the same GC or the DC2 (a form of election which he as a matter of principle and political stand denounces).  This is tantamount to compelling him to associate with others or to compromise his political views or stand, which is against his right to freedom of association protected under Article 27 of the Basic Law and Articles 18(1) of the BOR[6], and his right to hold opinions without interference guaranteed under Article 16(1) of the BOR[7].

23. The applicant therefore submits that this amounts to differential treatment between affiliated candidates and non-affiliated candidates on the grounds of their political views or status of non‑association with political parties.  The impugned provisions are thus in breach of BL25 and 26 and BOR21(b) and 22, which prohibit discrimination on these grounds.

C2.  The respondent’s position in summary

24. The respondent says the impugned provisions are not unconstitutional for the following reasons:

(1)  On a proper construction and analysis, the provisions do not result in unequal treatment (either directly or indirectly) between candidates on the grounds of one’s political views or status[8].

(2)  Further, even if it can be shown that the provisions in effect results in unequal treatment as alleged, it is justified under the proportionality test.  They are therefore not unconstitutional.

C3.  Analysis

C3.1  Applicable principles on questions of equality before the law

25. It has been now firmly established by the Court of Final Appeal that[9]:

(1)  The constitutional right to equality is in essence the right not be discriminated against.  The right is guaranteed and protected in Hong Kong under the Basic Law and the BOR, incorporating the ICCPR.

(2)  The law should generally and usually accord identical treatment to comparable situations, in the sense that like cases should be treated alike, and unlike cases should not be treated alike.

(3)  However, equality before the law does not invariably require exact equality.  Differences in legal treatment may sometimes be justified under the justification test, which is in nature similar to the now well-known proportionality test.

(4)  When difference in treatment has been shown by an applicant, it is for the Government to satisfy the court that the justification test is met: that is that (a) the unequal treatment is to pursue a legitimate aim, (b) there is rational connection between the legitimate aim and the difference in treatment, and (c) the difference in treatment is a proportionate one, in the sense that it is no more than necessary to accomplish the legitimate aim.

(5)  Given the doctrine of separation of powers, in assessing whether the justification test is so met, the court will generally give an appropriate degree of margin of appreciation to the legislature or the administrative authority in setting the arrangement in question, and will not interfere unless the arrangement is manifestly beyond reasonable foundation.

(6)  The degree of the margin of appreciation to be given however is dependent on the context of the types of right said to be infringed by the arrangement in question.  When the unequal treatment is based on grounds of core matters such as race, sex or say freedom of expression, the court would rarely find it acceptable and will scrutinize with intensity to see whether the differential treatment is justified in accordance with the proportionality test.  Where characteristics or status other than these core societal values are involved, the court would accord greater leeway to the legislature, executive or relevant authorities.

(7)  Finally, if it can be shown that the unequal treatment is so justified, the concerned treatment does not constitute discrimination and thus is not unconstitutional.

26. Given the above approach and in light of the contentions raised by the parties, the following issues arise in this application:

(1)  Whether the impugned provisions result in, directly or indirectly, unequal treatment between the affiliated and non‑affiliated candidates on the grounds of one’s political views or status of party affiliation.

(2)  If yes, whether the unequal treatment can be justified in the eyes of the law and therefore cannot be said to be discriminatory and unconstitutional.

27. I would now examine these issues.

C3.2. Issue 1: Do the impugned provisions result in unequal treatment of the candidates on the grounds of political views or status

28. This issue further gives rise to two sub-questions:

(1)  Is there direct unequal treatment afforded by the impugned provisions on different candidates or groups of candidates, in the sense that the provisions by themselves provide or afford the rights differently or unequally to different candidates or groups of candidates on the grounds of political views or political association.

(2)  If not, is there indirect differential treatment in effect between different candidates or groups of candidates, in the sense that when the rights afforded under these provisions are sought to be practically enjoyed, it could in effect be enjoyed by the affiliated candidates but not the non-affiliated candidates by reason of those grounds.

C3.2.1  Is there direct unequal treatment

29. I accept Mr Lui’s submissions that there is no direct unequal treatment under the impugned provisions.

30. The rights conferred by the impugned provisions on the candidates are the right to (a) send f.o.p. letters to the electors, and (b) to include in those letters information of other candidates.

31. Looking at the wording of the impugned provisions, these rights are conferred across the board and without distinction on all candidates.  No restriction is imposed by reason of these provisions on which candidate is entitled to the rights.

32. I therefore agree that the impugned provisions by themselves do not treat one class of candidates, or any candidate, more or less favourably than another on the ground of status, be it political view or affiliation.  They therefore do not give any direct differential treatment to different candidates or different groups of candidates.

C3.2.2  Is there indirect differential treatment

33. As I understand from the applicant’s submissions, his real complaint is that there is indirect differential treatment in the application of the impugned provisions.

34. The applicant’s complaints of unequal treatment under the impugned provisions are advanced by his counsel Mr Lau as follows.

35. First, he says the arrangements create prima facie unequal and unfair treatments to the applicant (and people in the same position as his present position who form no alliance with other candidates or lists of candidates).  It is contended that the applicant (or other members of his list of candidates) would be deprived of the right or opportunity to make use of subsidized mails of other eligible candidates or lists of candidates and promote his election platform.  This is so because:

(1)  The candidates from the other major political parties, such as the Democratic Party and the Democratic Alliance for the Betterment and Progress of Hong Kong would benefit from ss 43(4B) and 43(4D) in such a way that their GC election candidates could acquire expanded exposure through those subsidized letters sent out by candidates of DC2 by including information of the GC candidates of the same parties.

(2)  In this way, added to the original entitlement of the GC candidates in using the f.o.p. postal service to send their own letters of election platform, it would mean that any candidate (which forms alliance with either another candidate (or lists of candidates) of the same GC or DC2) would enjoy an unequal advantage or benefit over the unaffiliated candidates by having a subsidized expanded exposure to the electors than those candidates without any such alliance.

(3)  Thus, in an extreme situation, if one party or several parties allied as one group and nominate five lists of DC2 candidates, it is possible for those election candidates to enjoy five times more subsidized exposure than an unaffiliated candidate.

36. Second, counsel further says that the above problems became more acute and was underlined in the 2012 LegCo election when it was the avowed stance of both the applicant and all the members of his list of candidates that they did not accept the introduction of the DC2 candidacy at the 2012 LegCo elections.  As such, no candidates running for DC2 would include in their f.o.p. letters information of the applicant (and his list of candidates).  This shows (contended by the applicant) that there was differential treatment on the ground of political views.

37. In substance, what the applicant suggests is that, given that he is a non-affiliated candidate by reason of his political views and stand, in effect and practically, no other DC2 candidates would include his information in their f.o.p. letters.  On the other hand, members of the other political parties would be able to benefit in practice under the f.o.p. arrangements by having their DC2 election candidates to include in their f.o.p. letters information of their related parties’ other GC election candidates. This would result in an unequal subsidized expanded exposure of candidates who are affiliated with those parties than those unaffiliated candidates, such as the applicant.  This is a differential treatment in effect by reason of a candidate’s political views and status.

38. The applicant further submits that this would cause real prejudice on the non-affiliated candidates as those affiliated candidates would enjoy the expanded exposure to electors at no extra financial cost, while the non‑affiliated candidates would have to incur actual further expenses in order to achieve the same exposure in sending more letters.  Moreover, the further expenses would not only result in additional financial burden on the non-affiliated candidates but also cut into the statutory election campaign expenditures limit each candidate is allowed.

39. With respect, I am unable to accept the applicant’s submissions.  I would explain why.

40. To show that there is relevant indirect unequal treatment, the applicant has to show effective causation between the alleged unequal treatment and the complained practice, arrangements or statutory provisions.  See: DH v Czech Republic (2008) 47 EHRR 3 at paragraphs 175, 180, 184-188 and 195.

41. In showing causation for this purpose, it must be demonstrated that there is an effective and sufficient causal link between the result and the complained grounds of discrimination.  The status identified as the alleged basis of discrimination must be shown to be a real and effective cause of the disproportionate treatment and effects.  A mere but-for argument may not suffice.  See: In re Malcom [2005] 1 WLR 1238 at paragraphs 16-19 and 27; Chan Yu Nam v Secretary for Justice (unreported, HCAL 32&35/2009, 10 December 2009) at paragraphs 130‑133 per A Cheung J (as the learned CJHC then was).

42. The following authorities further illustrate this.

43. In Gallagher v Church of Jesus Christ of the Latter-Day Saints [2008] 1WLR 1852 (HL), the issue in that case was whether certain buildings owned by the “Mormon” church should be exempted from rates as “places for public religious worship” under the Local Government Finance Act.  Those concerned buildings, in particular the principal one which was a large temple, were places where the most sacred Mormon ceremonies took place and under the Mormon religious practice, only Mormons with proven good standing were authorised to go in.  Based on that, the rating officer formed the view that those buildings were not “places for public religious worship” and proceeded to rate them.  The rating officer’s decision was subsequently upheld by the Court of Appeal, and the Mormons church appealed to the House of Lords.

44. In the House of Lords, Mr Sumption QC for the Mormons church argued, among others, that if the relevant statutory provision had the effect as concluded by the rating officer to disentitle the church to rely on the exemption, it was discriminatory against the church on the ground of religion and was contrary to Articles 9 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) for equality before the law[10].

45. Lord Hoffmann rejected these arguments on discrimination.  He explained this at paragraphs 11-14 as follows:

“11. Mr Sumption next submitted that a different construction was required by section 3 of the Human Rights Act 1998. The exclusion of all but patrons is a manifestation by the Mormons of their religion. Therefore, to deny them exemption on that ground would be to discriminate against them on grounds of religion, contrary to articles 9 and 14 of the Convention. Section 3 of the Act requires the 1988 Act to be ‘read and given effect’ in a way which is compatible with Convention rights and this requires a construction which exempts the temple from rating.

12. I put aside the difficulty that the rating list challenged in this appeal was made before the Human Rights Act 1998 came into force. In my opinion the 1988 Act does not discriminate on grounds of religion. The rule that exemption is accorded to places of worship only if they are open to the public is perfectly general. Anyone may comply. Mr Sumption submits that the discrimination is indirect. It is true that anyone may comply, but the reason why the Mormons cannot comply is that their religion prevents them from doing so. It was therefore discrimination not to treat them differently. The European Court of Human Rights has decided that article 14 applies to indirect discrimination resulting from a failure to accord different treatment to cases which ought to be treated differently: see Thlimmenos v Greece (2000) 31 EHRR 411 and DH v Czech Republic (Application No 57325/00) (unreported) given 13 November 2007, paragraph 175.

13. In order to constitute discrimination on grounds of religion, however, the alleged discrimination must fall ‘within the ambit’ of a right protected by article 9, in this case, the right to manifest one’s religion. In the present case, the liability of the temple to a non-domestic rate (reduced by 80% on account of the charitable nature of its use) would not prevent the Mormons from manifesting their religion. But I would not regard that as conclusive. If the legislation imposed rates only upon Mormons, I would regard that as being within the ambit of article 9 even if the Mormons could easily afford to pay them. But the present case is not one in which the Mormons are taxed on account of their religion. It is only that their religion prevents them from providing the public benefit necessary to secure a tax advantage. That seems to me an altogether different matter.

14. For example, I do not think that a Sabbatarian could complain that he was discriminated against because he was unable, on religious grounds, to provide services on the Sabbath and therefore earned less than people of a different religion. A case which in my opinion is very much in point is M v Secretary of State for Work and Pensions [2006] 2 AC 91, in which a woman would have been able to secure a reduction in her liability for the maintenance of her child if she had been living with a male partner. She was unable to qualify because, on account of her sexual orientation, she chose to live with a female partner. The House of Lords decided that the alleged act of discrimination did not fall within the ambit of article 8 (her right to family life and in particular her right to live with a female partner) because loss of the opportunity to gain a financial advantage was too remote from interference with the right in question. The same seems to me true of this case.” (emphasis added)

46. Similarly, Lord Hope said this at paragraph 31:

“31. Mr Sumption sought to meet this obstacle by submitting, with reference to section 3 of the Human Rights Act 1998, that paragraph 11(1)(a) should be read and given effect to in a way that was compatible with article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms read together either with article 9 or with article 1 of the First Protocol. For all the reasons that Lord Hoffmann has given I do not see this case as falling within the ambit of article 9. Those who are qualified to worship in the temple are not prevented from manifesting their religion or their belief by the fact that it is subject to non-domestic rating. The legislation is not directed at Mormons because of what they believe in. It applies generally to all whose religious beliefs and practices prevent them from participating in public religious worship. It is easier to see the case as falling within the ambit of article 1 of the First Protocol, but the second paragraph of that article preserves the right of the State to secure the payment of taxes or other contributions or penalties. In my opinion Parliament’s decision as to the scope of the exemption was within the discretionary area of judgment afforded to it by that paragraph. As there is no sound basis for holding that theHenningtest should be departed from, the church’s argument that the temple is exempt under paragraph 11(1)(a) must fail.” (emphasis added)

47. Therefore, one of the bases the court concluded that there was no discrimination on the ground of religion was that the relevant effective cause for the church’s inability to benefit from rates exemption was the fact that the relevant buildings were not open to the public and thus not providing public benefit, but not the reasons behind why the buildings were not open to the public.  In other words, the fact that the relevant religion practice was the reason for not opening the buildings to the public for worship in that case did not constitute the ground (and thus the effective cause) for the church’s inability to rely on the statutory exemption.  It could not be shown therefore that there was discrimination on the ground of religion.

48. R (Chapti) v Secretary of State for the Home Department [2011] EWHC 3370 (Admin) concerns with a new rule introduced in 2010 under the Immigration Rules.  The new rule required that applicants for “spouses visas” for the purpose of entering UK for settlement to produce a certificate of knowledge of the English language to a prescribed level.  At the same time, there was also a list of countries of origin under the relevant schedule which were exempted from this requirement.  The applicants in that case came from countries other than the exempted countries. They therefore argued that the rule read with the exemption was discriminatory against them on the grounds, of among others, the status of their ethnic origin and was in contravention of the Article 14 of the Convention.

49. The court rejected the arguments and concluded that there was no discrimination on the basis of the status of ethnic origin, as there might well be all sorts of reasons for an applicant not having been able to meet the requisite level of English proficiency, and thus there was no effective causal link between the requirement and ethnic origin.  Beatson J explained this as follows:

“4.  It is contended that the resulting interference with the rights of the claimants, as British citizens or otherwise settled in this country, and in the case of Mr Chapti the spouse of such a person, requires powerful justification, and that there is no such justification in this case.  It is also contended that the provision is discriminatory on grounds particularly of race and nationality, but also ethnic origins, language, gender and disability, and is thus contrary to Article 14 of the Convention read with Articles 8 and 12.  It is also submitted that it is arbitrary, irrational and ultra vires at common law.>

….

116.  It is not in issue that the existence of the category of applicants who are nationals of one of the named countries and are not required to take the pre-entry language test means there is a difference in their treatment and the treatment of those applicants who are nationals of other countries and have to take the test (unless exempted on another ground).

117.  The question is whether it is discrimination based on a criterion that qualifies as a ‘status’ for the purposes of Article 14 and, if so, whether it has an objective and reasonable justification, that is, whether it pursues a legitimate aim and whether there is a reasonable relationship of proportionality between the means employed and that aim or aims:Stec v UK[2006] ECHR 1162, at [51] (Grand Chamber of the ECtHR).  The claimants and the interveners submitted that the pre-entry language requirement unjustifiably discriminates on the basis of four criteria that qualify as a ‘status’ for the purpose of Article 14: nationality, ethnic origins, sex, and disability.

138.  For these reasons, I have concluded that the exemptions based on nationality, like those based on academic qualifications from specified countries, are not direct discrimination based on nationality, because those who are exempt are not in a ‘relevantly similar situation’ to those who are not exempt.

139.  I turn to indirect discrimination. For the reasons in [140], I have not determined whether the new rule constitutes indirect discrimination on the ground of gender.  In relation to the other categories, I have concluded that, while the rule has a disparate impact on some, that disparate impact arises from personal circumstances such as financial means, education or knowledge of English, and does not amount to discrimination contrary to Article 14.

140.  As to gender discrimination, I have referred to the fact that this issue was first introduced in the claimants’ skeleton argument just over a week before the hearing, and to the fact that in the case before me the foreign spouses are all men and the sponsors women, so on the facts the alleged discrimination on the ground of gender (see [125]) does not arise.  Notwithstanding the post-hearing submissions and evidence, I accept Mr Eadie’s submission that I should not determine this issue.  The evidence adduced by the defendant after the hearing was in response to evidence filed by the claimants very shortly before the hearing and not on this issue.  The post-hearing submissions mainly concerned the original grounds and the Supreme Court's decision in Quila’s case.  The claimants had ample time to raise their grounds and, given the complexity of the gender discrimination issue, the defendant did not have sufficient time before the hearing to consider and marshall arguments and evidence in response to this ground.  In the absence of such evidence, it is not possible to form a view as to whether disparate impact on women amounts to discrimination and, if so, whether any difference in treatment is justified and proportionate in the light of the legitimacy of the aim of the new rule, and the margin appropriately to be afforded to the Home Secretary in this area.  It is, however, to be noted that it has not been argued that the post-entry test on settlement has a discriminatory impact on different genders, and it is difficult to see why, if that is so, the application of the test at an earlier stage has such a discriminatory effect.

141.  I turn to nationality and ethnic origins.  There are persons of all nationalities and ethnic origins who speak English to the required level.  The difficulties of those who do not and have difficulty meeting the requirement are the result not of their nationality or ethnic origin, but their existing level of English.  The logic of the claimants’ position is that any language requirement would be contrary to Article 14.  That is manifestly not so.  It is telling in this context (cf [89]) that it has not been argued that the post-entry language test unlawfully discriminates contrary to Article 14 because of such disparate impact.  The other strands in the submissions on behalf of the claimants and by the interveners do not establish that the disparate effect is because of nationality or ethnic origin.  The claimants themselves rely on the high performance of those from India and Nigeria in the settlement KOL test.  In the light of the historic status of the English language in those and other former British colonies, educated people from those countries are likely to find it easier to comply with the requirement than people in many other countries with no such historical links to the language.  The disparate impacts relied on, based on poverty, lack of educational opportunities, and rurality and remoteness are also not impacts on the ground of nationality.”

50. Applying the above analyses on effective cause, I now turn to look at the present case.

51. In the present case, for say candidate A to benefit from the impugned provisions, it is for the other candidates (of the same GC or DC2) to include A’s information in their f.o.p. letters.  If the other candidates decide for whatever reasons not to include A’s information in their f.o.p. letters, A cannot benefit from the impugned provisions.

52. There may be many reasons why the other candidates decide not to include candidate A’s information in their f.o.p. letters.  True it may be that some candidates may decide not to include A’s information in their f.o.p. letters because of A’s political views or A being not a member of these other candidates’ parties.  But it is also true that there may well be other reasons behind some candidates’ decisions not to do so, such as that simply they do want to include anyone else’s information in their letters, or they do not know A well enough.

53. Therefore, the mere fact that even if A can show that in some specified occasions, there were those DC2 candidates who decided not to include his information in their f.o.p. letters because of his political views or status of non-association[11], this does not necessarily follow that the subject f.o.p. arrangements result in practice disproportionate unequal treatment by reason of political views or status.  As explained above, similar results of non-inclusion in the f.o.p. letters would also occur for reasons other than status or political views in other occasions.

54. Thus, the relevant and effective cause for A’s inability to benefit from the impugned provisions is the other candidates’ decision not to include A’s information in their letters, but not the reasons behind those decisions.

55. For these reasons, I am also not satisfied that there is indirect unequal treatment under the f.o.p. arrangements between different candidates on the grounds of political views or status.

C3.2.3  Conclusion under issue 1

56. In the premises, the applicant cannot show that the impugned provisions are either indirectly or effectively discriminatory in its treatment between different candidates or groups of candidates on the grounds of political views or status.  The provisions are therefore not in breach of BL25 and 26 and BOR21(b) and 22.

57. This judicial review must fail on this ground alone.

C3.3  Issue 2: Is the unequal treatment justified

58. Had I found that the provisions result in unequal treatment between candidates on those grounds specified under BOR, it would then be for the Government to justify it subject to the proportionality test.

59. In the present case, the Government says the unequal treatment is justified as it is rationally connected to the pursuit of the legitimate aims in enhancing the flexibility of a pre-existing f.o.p. mailing facility for all candidates by giving them the option to share quota with other candidates[12].

60. It is also said that the measures used under the impugned provisions are proportionate because:

(1)  They enhance flexibility without creating new rights as the combined f.o.p. mailing quota (in dimensions and weight) for candidates remain the same.

(2)  The parameters adopted in the subject provisions based on common electorate can avoid any confusion caused to the electors.

(3)  Candidates are not prevented from specifying in their f.o.p. letters that they have the support of other persons, including other candidates, anyway.

(4)  Other than f.o.p. letters, there are other economical and effective means available to candidates to promote their candidature in the LegCo elections.

61. Mr Lui also submits that the court in assessing whether the proportionality test is satisfied in the present case, it should have special regard to:

(1)  Measures relating to an electoral system should be taken as a whole[13]. It is not appropriate to pick one element of the electoral system, look at it in a vacuum and criticise it for being unfair (or unlawful) despite the fact that the electoral arrangement, taken as a whole, is fair to candidates;

(2)  In this regard, due deference should be accorded by the court to the legislature, especially when legislators are (past and future) users and stakeholders under the arrangement.  The concept of margin of appreciation reflects the different constitutional roles of the judiciary on the one hand, and of the executive and legislature on the other (see Fok Chun Wa at paragraph 64).  Pursuant to Article 68, and Annex II paragraph 2 of Part 1, of Basic Law, it is for the legislature to devise the details of electoral law in respect of LegCo elections.  This difference in role must be borne in mind when scrutinising election law; elections involve both political and policy considerations and it is in such areas where a margin of appreciation should be accorded to the will of the legislature[14].

62. The freedom to hold one’s own political views and to have political affiliation or non‑association are core societal values treasured in Hong Kong as a democratic city.  In the premises, as I have summarized above at paragraph 25(5) and (6), the court will scrutinize with intensity to see whether any differential treatment based on these grounds is justified in accordance with the proportionality test.  In doing so, the court will likely only accord a limited degree of margin of appreciation to the legislature and the executive.  If I had found that there was unequal treatment under the impugned provisions by reason of these grounds, this is the approach I would have adopted to determine whether the treatment could satisfy the justification test.

63. However, given my above conclusion that there is no differential treatment on these prohibited grounds, it is neither necessary nor appropriate for me to deal with this issue in vacuum and to reach a conclusion on this question for the present purposes.  I do not propose to do so in this judgment.

D.  CONCLUSION

64. For the above reasons, the applicant has failed to show that the impugned provisions are unconstitutional as they are in breach of BL25 and 26 and BOR21(b) and 22.  I will dismiss this judicial review application.

65. There are no reasons why costs should not follow the event.  I will further make an order nisi that costs of this application be to the respondent, to be taxed if not agreed.  The applicant’s own costs should also be taxed in accordance with legal aid regulations.  This order shall become absolute 14 days from today unless any of the parties applies to vary it by summons.

66. I would also like to thank counsel for the assistance in this matter.

[1] On 1 November 2012.

[2] See paragraphs 5-7 of the 1^st affidavit of Teng Yu Yan dated 18 March 2013.

[3] Under s 34 thereof.

[4] There were five GCs for the 2012 elections.

[5] See the applicant’s affidavit dated 18 September 2013 at paragraphs 4-11.

[6] The applicant submits, and Mr Lui for the respondent accepts, that freedom of association includes freedom of non-association.

[7] Mr Roland Lau, counsel for the applicant, confirmed at the hearing that he was not seeking to challenge the constitutionality of the impugned provisions on an independent ground that they also breach or infringe BL27 and BOR16(1) and 18(1).  He was only relying on these other provisions to underlie and supplement the submissions that the provisions were unconstitutional because they were in breach of BL25 and 26 and BOR21(c) and 22.

[8] Mr Lui accepts that party association or non-association is a status of a candidate for the purpose of BOR22.

[9] See Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 at paragraphs 1‑2, and 19-22 per Li CJ, quoted in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, paragraphs 55 and 56 per Ma CJ.  See also Fok Chun Wa, paragraphs 75-81 and Kong Yunming v Director of Social Welfare [2014] 1 HKC (CFA) 518 at paragraph 40 per Ribeiro PJ.

[10] Article 14 of the Convention provides that “The enjoyment of rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”  For the present purposes, this is treated as similar to our BOR22.

[11] The applicant has stated in his affidavits effectively that the fact that his information was not included in any of the DC2 candidates’ f.o.p. letters was because of his political views on DC2 and his (then) being a member of People Power.  I note Mr Lui’s submissions that this is simply the applicant’s own assertions and should not be accepted as sufficient evidence to prove the alleged reasons.  For the present analysis, I am prepared to assume (without deciding) that it is shown in the applicant’s case that these were the reasons for some of the DC2 candidates’ decisions not to include him in their f.o.p. letters. But that is not sufficient, as explained above in the judgment, to show that there is therefore discrimination under the f.o.p. arrangements on the ground of political view or status.

[12] See the 1^st affidavit of Teng Yu Yan at paragraphs 27-29 and 2^nd affidavit of Teng Yu Yan at paragraph 6.

[13] See Leung Chun Ying v Ho Chun Yan, Albert & Ors (2013) 16 HKCFAR 735 at paragraph 42.

[14] See Leung Chun Ying v Ho Chun Yan, Albert, supra, at paragraph 45.