In The Hong Kong Journalists Association v. Commissioner for Transport [2026] HKCFI 917, the High Court dismissed a judicial review by the Hong Kong Journalists Association (“HKJA”) against the Commissioner for Transport’s 2024 policy regulating access to the Register of Vehicles.
At its core lies the interplay between two constitutional guarantees: freedom of expression and of the press and the right to privacy and protection of personal data.
In the words of Coleman J, “on one side is the right to freedom of expression, encompassing freedom of the press. On the other, is the right to privacy. Freedom of expression is intrinsically important and valued for its own sake. But it is also instrumentally important, serving a number of broad objectives, including that the free flow of information and ideas informs public and political debate. It can act as a brake on the abuse of power by public officials, and it facilitates the exposure of errors in governance or in the administration of justice. It can also help to expose criminal activity. But the right to privacy or to the protection of personal information also reflects important civilised values”.
Through the five grounds of review, the Applicant raised an array of challenges, both systemically and individually. All five grounds were dismissed by the Court.
The 2024 Transport Department Policy: Two-Branched System of Application
The statutory framework is found in the Road Traffic Ordinance and its subsidiary legislation.
Following the Court of Final Appeal’s decision in HKSAR v Choy Yuk Ling [2023] 26 HKCFAR 185, the Commissioner introduced a revised access regime structured around two distinct routes: the “Automatic Route” and the “Public Interest Route.”
Under the Automatic Route, certain defined categories of applicants may obtain disclosure upon self‑declaration of eligibility. The specified purposes do not expressly include journalistic activities, nor do journalistic activities fit within any of the specified purposes and the interpretation of those purposes as given.
On the other hand, where the application sought by the applicant does not meet the conditions specified in the Policy, but the applicant nevertheless feels there is a need to ascertain the registered particulars of a vehicle due to other circumstances that involve the ownership or uses of the vehicle and significant public interest, the applicant may make an application under exceptional circumstances through a written submission to the Commissioner.
The Grounds of Challenge
The HKJA advanced multiple grounds of review, including the following:-
(1) The Policy is ultra vires in that it fails to give effect to the statutory purpose of s.6(1)(e) of the RTO and Regulation 4 (which in turn taints the overall design of the Policy), and frustrates the broad statutory purposes confirmed by the CFA in Choy Yuk Ling.
(2) The Policy constitutes a disproportionate and unjustified restriction on the common law and constitutionally protected freedom of expression, freedom of the press and/or the right to seek, receive and impart information under BL27 and BOR16.
(3) The Policy is Wednesbury unreasonable.
(4) The Policy unlawfully fetters the Commissioner’s discretion, is irrational or unreasonable, and/or violates the constitutionally protected rights under BL27 and/or BOR16.
(5) The Failure/Refusal and the Rejections are unlawful, irrational and/or inconsistent with BL27 and BOR16.
As the Court explained, the first four grounds constitute “systemic challenges to the Policy on the basis that it is irrational, disproportionate (thus unconstitutional) and hence unlawful for the Commissioner to impose the restrictions described in the Policy as to be applied to applications “in other circumstances … and significant public interest”” whilst ground 5 “appears to be a fact-specific challenge against the Commissioner’s delay in making her decisions on the applications submitted by various journalists as unlawful, irrational and unconstitutional”.
Ground 1 (Powers of Commissioner)
The Court first considered and came to the view that the Policy is not ultra vires the relevant Ordinance and regulations, such that the Commissioner has not acted beyond the powers prescribed to her in developing a policy that scrutinises certain applications for particulars of vehicles more closely.
Ground 2 (Constitutional Analysis: Double Proportionality)
One major plank of the Court’s reasoning was what it described as a “double proportionality” framework.
Citing the insightful remarks of Cheung CJ (then Cheung PJ) in an extra-judicial speech back in 2019, amongst other authorities, the Court analyses the two sets of rights engaged, which affected tow different groups of “individuals”, namely:-
(1) The right to freedom of expression and freedom of press, enjoyed by all individuals (but perhaps more specifically journalists in this case) which are restricted or interfered with by the operation of the Policy’s Public Interest Route; and
(2) The right to privacy, enjoyed by the vehicle owners whose particulars are held in the Register, which is also interfered with by the operation of the Policy through the disclosure of private information to third parties.
Hence, it was held that “these rights are fundamental rights of which there is a pressing social need to protect. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or “trumps” the other. Applying the proportionality test to each of the competing rights in turn would ensure a principled and structured approach to conducting the balancing exercise, and in weighing the competing rights”.
Ultimately, bearing in mind that “the balancing exercise to be carried out in a double proportionality test is essentially a weighing of the two fundamental rights against each other”, the Court was “not convinced that the Applicant has suffered an unacceptably harsh burden because of the restrictions imposed by the Policy”, stressing again that “the Policy does not result in a blanket refusal of all journalistic applications”.
Hence, the Court concluded that the restrictions imposed on journalistic applications are rationally connected and no more than necessary for the achievement of the legitimate aim of protecting the right to privacy of vehicle owners and society at large, and they do not result in an unacceptably harsh burden on the Applicant or its members or other parties seeking disclosure of particulars for journalistic purposes.
Ground 3 (Wednesbury reasonableness)
Similarly to Ground 2, the Court held that the Policy is not Wednesbury unreasonable because the Policy does not aim to specifically exclude journalistic applications. It was held that the non-automatic route was available to those who wish to apply for the disclosure of particulars for journalistic purposes. Whilst there are some limitations such that it is not as expedient as the Automatic Route, but this is accepted to be in place for good reason, not least because the Commissioner exercises a duty to protect the right to privacy of vehicle owners.
Ground 4 (No Unlawful Fetter of Discretion)
The Court reiterated its supervisory role on review only, and concluded that the Commissioner has not exercised her discretion in a manner that does not accord with her duty to promote the statutory purpose for which the discretion is given.
Ground 5 (Fact-Specific Challenges)
The Court rejected the fact-specific challenges against the existing cases before the Commissioner. The Court accepted that the Commissioner is wholly entitled to find the relevant circumstances ultimately did not justify the encroachment upon the right to privacy of vehicle owners because, for example, “there are alternative means for the applicant to obtain information as to the identity of the Vehicle owner”.
The Court also accepted that the Commissioner’s decisions were reached in accordance with the guidance and discretion afforded to her by the Policy, in that several relevant factors were taken into account in arriving at her decisions.
Whilst commenting that the application process time is expected to speed up now that the new system has been in place for some time, the Court accepts that there is no objectionable delay in the existing cases before the Court.
Read the judgment here: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=178089&currpage=T
Jenkin Suen SC and Michael Lok (led by Benjamin Yu SC) together with Leona Cheung of the Department of Justice acted for the Commissioner for Transport.
