differential treatment by showing that (1) the differential treatment pursues ‘a
legitimate aim’, in the sense that there is ‘a genuine need for such difference’;
The Constitutional Orders of ‘One Country, Two Systems’
245
(2) ‘the difference in treatment’ is ‘rationally connected to the legitimate aim’;
and (3) ‘the difference in treatment’ is ‘no more than is necessary to accom-
plish the legitimate aim’.
In cases concerning socio-economic policies such as the right to social wel-
fare and the provision of social services, the court has developed a less rigor-
ous version of the proportionality or justification test by modifying the third
limb of the test (‘no more than necessary to accomplish the legitimate aim’,
which may be called the standard of ‘necessity’) to become a standard of ‘rea-
sonableness’ (or ‘manifestly without reasonable foundation’). The modified
test was first enunciated by the CFA in Fok Chun Wa v. Hospital Authority,
a case concerning differential charges for obstetric services in public hospi-
tals based on whether the woman giving birth was resident in Hong Kong.
46
The CFA noted that this case concerned a matter of ‘socio-economic poli-
cies’
47
and ‘allocation of public funds’ under conditions of ‘limited financial
resources’.
48
Furthermore, the differential treatment that was challenged in
this case was based on residence, rather than ‘core values relating to personal
characteristics’
49
and involving ‘the respect and dignity that society accords to
a human being’, such as ‘race, colour, gender, sexual orientation, religion,
politics, or social origin’.
50
In this domain, the court considered it appropriate
that a greater ‘margin of appreciation’
51
or degree of ‘deference’
52
be accorded
to the government. Hence in applying the third limb of the ‘justification test’,
the court would only strike down the differential treatment if it is ‘manifestly
beyond the spectrum of reasonableness’ or ‘manifestly without reasonable
foundation’.
53
Applying this test, the court upheld the differential hospital fees
in this case. Subsequently, this modified version of the proportionality test was
also applied by the CFA in Kong Yunming v. Director of Social Welfare, but
with the outcome of the impugned restriction (also based on residence) of the
right to social welfare being struck down in that case.
54
In Kwok Cheuk Kin v.
Secretary for Constitutional and Mainland and Affairs, the application of the
proportionality test was relaxed by the Court of Final Appeal on the ground
46
(2012) 13 HKCFAR 409.
47
Paragraphs 61, 65 of the judgment.
48
Ibid.
, para. 70.
49
Ibid.
, para. 78.
50
Ibid.
, para. 77.
51
Ibid.
, para. 61.
52
Ibid.
, para. 62.
53
Ibid.
, para. 76.
54
(2013) 16 HKCFAR 950.