C. Proportionality as applied in constitutional challenges

C. Proportionality as applied in constitutional challenges

As mentioned in the previous section, usually proportionality is engaged in analysis in respect of restriction of rights.  Hence, when a constitutional challenge involves a restriction of constitutionally guaranteed rights or freedoms, and where such rights or freedoms are not “absolute”, meaning that they can be restricted, the Court will use proportionality test to examine the restrictions of such rights. 

Since the Court of Final Appeal decision of Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, the Courts have adopted a four-step analysis:

(a) the restriction or limitation must pursue a legitimate aim;

(b) the restriction or limitation must also be rationally connected to that legitimate aim;

(c) the restriction or limitation must also be no more than was necessary to accomplish that legitimate aim; and

(d) Where an encroaching measure had passed the three-step test, the analysis should incorporate a fourth step, asking whether a reasonable balance had 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 resulted in an unacceptably harsh burden on the individual.

It is worthwhile to note that where fundamental rights are engaged, the court would normally, at step (c), consider whether the measure is no more than necessary for achieving the legitimate aim.  However, where the measure involves socio-economic policy, the court will be less inclined to interfere and more ready to accord a wider margin of discretion to the authority concerned. The court will not usually put itself in the place of the executive or legislature to decide what is the best option unless the measures or decisions are “manifestly without reasonable justification.”: See e.g. Fok Chun Wa v Hospital Authority [2012] 15 HKCFAR 409.