Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Junior Police Officers’association Of The Hong Kong Police Force And Another v Electoral Affairs Commission And Others

Judgment Cited authorities 11 Cited in Precedent Map Related
Vincent
Judgment Date08 April 2020
Neutral Citation[2020] HKCFI 554
Judgement NumberHCAL3042/2019
Citation[2020] 2 HKLRD 631
Year2020
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL3042B/2019 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

________________________

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
OF THE HONG KONG POLICE FORCE		 1st Applicant
AA 2nd Applicant

and
ELECTORAL AFFAIRS COMMISSION 1st Putative
Respondent
CHIEF ELECTORAL OFFICER 2nd Putative
Respondent
ELECTORAL REGISTRATION OFFICER 3rd Putative
Respondent

and
HONG KONG JOURNALISTS ASSOCIATION Intervener

________________________

Before: Hon Chow J in Court

Dates of Hearing: 16 and 17 December 2019

Date of Judgment: 8 April 2020

___________________

JUDGMENT

___________________

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....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT