Legislative Council

LC Paper No. CB(2)1634/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/11/98

Bills Committee on District Councils Bill

Minutes of Meeting

held on Friday, 22 January 1999 at 4:30 pm

in the Chamber of the Legislative Council Building

Members Present :

Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon James TIEN Pei-chun, JP
Hon David CHU Yu-lin
Hon Cyd HO Sau-lan
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon Lee Kai-ming, JP
Hon Fred LI Wah-ming
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Ronald ARCULLI, JP
Hon MA Fung-kwok
Hon CHEUNG Man-kwong
Hon Ambrose CHEUNG Wing-sum, JP
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon SIN Chung-kai
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon LAU Wong-fat, GBS, JP
Hon Emily LAU Wai-hing, JP
Dr Hon TANG Siu-tong, JP
Hon TAM Yiu-chung, JP

Members Absent :

Hon Eric LI Ka-cheung, JP
Hon Christine LOH
Dr Hon LEONG Che-hung, JP
Hon Andrew CHENG Kar-foo

Member Attending :

Hon Martin LEE Chu-ming, SC, JP

Public Officers Attending :

Mr Robin IP
Deputy Secretary for Constitutional Affairs 2

Mrs Maureen CHAN
Deputy Secretary for Constitutional Affairs 3

Mr Paul WONG
Principal Assistant Secretary for Constitutional Affairs

Mr Augustine CHENG
Deputy Director of Home Affairs

Mr James O' NEIL
Principal Government Counsel (Elections)

Senior Assistant Law Draftsman

Senior Assistant Law Draftsman

Clerk in Attendance :

Mrs Constance LI
Chief Assistant Secretary (2) 2

Staff in Attendance :

Mrs Justina LAM
Assistant Secretary General 2

Miss Flora TAI
Senior Assistant Secretary (2) 2

I. Schedule of further meetings

Mr Fred LI and Mr CHEUNG Man-kwong requested the Chairman to avoid selecting those time slots for which other meetings had already been scheduled. Miss Emily LAU said that she had a Public Accounts Committee meeting to attend in the morning of 25 January 1999 which also required the presence of the Legal Adviser.

2. The Chairman responded that as the Administration had clearly stated its intention to give notice on 26 January 1999 for resumption of the Second Reading debate on the Bill on 10 February 1999, the Bills Committee had no choice but to meet as frequently as possible to expedite scrutiny work.

3. Miss HO Sau-lan asked whether the Administration had considered Mr Ronald ARCULLI's suggestion of deferring the resumption of the Second Reading debate on the Bill to 10 March 1999. Deputy Secretary for Constitutional Affairs 2 (DS(CA)2) referred members to the "Timetable for action leading to the 1999 District Councils Election" (LC Paper No. CB(2)1137/98-99) and explained that the actions detailed therein were being taken step by step. Any delay would affect the preparation work for the District Council (DC) elections as all subsidiary legislation must be approved by the Council before 14 July 1999, the date of the last Council meeting for the current session. He hoped that members would expedite scrutiny of the Bill so that it could be passed before the Chinese New Year. The Electoral Affairs Commission (EAC) could then proceed with its work on the demarcation of constituency boundaries.

4. Miss HO said that the EAC could proceed with its work on the demarcation of constituency boundaries in the meantime as Members had already indicated that they would not seek to amend the constituency boundaries. Mr Fred LI echoed Miss HO's view and reminded the Administration that members had other equally important Council business to attend to.

5. Mr CHEUNG Man-kwong said that the Administration must allow Members adequate time to properly scrutinize the Bill. He added that the Administration could take Members' word that they would not propose any amendment to the constituency boundaries which had been the established practice in past elections. It would raise serious questions of political ethics and conflict of interest if any political party or group attempted to alter the constituency boundaries.

6. Mr Ronald ARCULLI said that in his over 10 years of being a legislator, he had never seen such inflexibility on the part of the Administration. He pointed out that the President must also be allowed adequate time to rule on the Committee Stage amendments (CSAs) proposed by Members. He shared Mr CHEUNG's view that Members would not seek to change the constituency boundaries as it would constitute a conflict of interest.

7. Miss Emily LAU asked whether the Bills Committee could continue to meet if the Administration gave notice on 26 January 1999 to resume the Second Reading debate on the Bill on 10 February 1999. Miss LAU also asked what would happen if the Bills Committee could not complete scrutiny work before the deadline for giving notice for CSAs on 1 February 1999. The Chairman replied that Assistant Secretary General 2 had advised the Bills Committee could continue to meet even though notice for resumption of Second Reading debate had already been given by the Administration.

8. Deputy Secretary for Constitutional Affairs 3 (DS(CA)3) suggested that the Bills Committee should proceed with the scrutiny of the Bill and discuss the way forward at the following meeting, taking account of the progress work made by then.

II. Committee Stage amendments proposed by members

9. The Chairman said that the meeting scheduled for Monday, 25 January 1999 from 4:30 pm to 6:30 pm would be devoted to discussing CSAs proposed by Members.

10. Mr CHEUNG Man-kwong said that Democratic Party Members would be proposing CSAs to delete all provisions in the Bill which were related to appointed and ex officio members. Mr CHEUNG explained that the Democratic Party objected to having appointed and ex officio members on the following grounds -

  1. it represented a retrogression in democracy;

  2. it enabled members who were appointed by the Chief Executive (CE) to exert influence on the Legislative Council (LegCo) and the selection exercise of the CE given that the Government had proposed that members of DCs would elect among their own numbers representatives to sit on LegCo and to select the CE; and

  3. it ran counter to the spirit and principle of universal and equal suffrage enshrined in Article 25 of the International Convenant on Civil and Political Rights.

11. Mr Andrew WONG said that he would be circulating three lists of amendments to members. The first list was on his proposal that the Chairman of a DC should also be elected. The second list set out additional restrictions on appointing members to DCs, while the third list of amendments concerned the functions of DCs.

III. Clause by clause examination

12. Mr LEE kai-ming asked the Legal Adviser to also raise his comments, if any, on individual clauses and the CSAs proposed by the Administration in the course of the clause by clause examination.

Clauses 29 -31

13. Members did not raise any queries.

Clause 32, New Clauses 34A, 37 and 38A

14. Referring to the CSAs to be moved by the Administration as detailed in Paper No. CB(2)1147/98-99(01), DS(CA)2 explained that the effect of the amendments would be that if the Returning Officer became aware of the death or disqualification of a validly nominated candidate after the close of nomination but before the polling day, the Returning Officer would be empowered to invalidate the latter's nomination and the electoral process could continue without disruption. DS(CA)2 further explained that existing legislative provisions in respect of the LegCo election required the election proceedings to be terminated and start afresh in case of death or disqualification of a validly nominated candidate after the close of nomination, which would cause disruption to the electoral process. Amendments would therefore also be proposed to the LegCo Ordinance. LegCo's Constitutional Affairs Panel was also consulted earlier.

15. Referring to clauses 32(1)(c) and 38(2), Mr TSANG Yok-sing asked whether "" could adequately reflect the meaning of "fail". The Legal Adviser pointed out that the Chinese version of "fail" in the LegCo Ordinance was "". The Chairman suggested that the Legal Adviser further discuss the amendment with the Administration after the meeting as it only involved a choice of words.

Clause 33

16. Mr CHEUNG Man-kwong enquired about the legal basis and need for a DC election candidate to have to make a declaration to uphold the Basic Law and to swear allegiance to the Hong Kong Special Administration Region (HKSAR), given that the DC was only a consultative body. He said that a LegCo Member would lose his office if he was censured by the Council for breach of oath. He further asked under what circumstances would a DC member be regarded to have committed a breach of the declaration and what the consequence would be.

17. DS(CA)2 explained that reference had been made to section 40 of the LegCo Ordinance and that requiring a DC member to make a declaration similar to that made by a LegCo Member was appropriate. Principal Government Counsel (Elections) (PGC(E)) responded that it would be difficult to see a situation where legal proceedings would be taken against someone for a breach of a declaration in a nomination form. Nevertheless, it was an offence to falsely make a statutory declaration.

18. Mr Fred LI said that the functions of LegCo were stated in the Basic Law. He did not see a similar relationship between the DCs and the Basic Law.

19. Mr CHEUNG Wing-sum pointed out that Article 104 of the Basic Law clearly stipulated the categories of persons holding public office who were required, when assuming office, to swear to uphold the Basic Law and to swear allegiance to the HKSAR. They included Members of LegCo and the Executive Council, but not members of district organizations. He said that for the requirement to be enforceable, the relationship between the DCs and the Basic Law must be clearly stated in the Bill. He asked whether members of other consultative bodies were also required to make such a declaration.

20. DS(CA)2 reiterated that the although Article 104 of the Basic Law did not include members of district organizations, the requirement made in clause 33 was appropriate and reasonable. He agreed to consider members' views and provide a written response.Adm

21. Mr CHAN Wing-chan said that since both DC members and LegCo Members were to serve the people of the HKSAR, there was nothing wrong to require DC members to make such a declaration. Mr CHAN Kam-lam shared Mr CHAN Wing-chan's view. He added that the requirement could be removed if it was not considered essential, thus enabling people who did not uphold the Basic Law to take part in the DC election.

Clauses 35 and 36

22. Members did not raise any queries.

Clauses 39 - 44

23. Members did not raise any queries.

Clauses 45 and 46

24. Mr Fred LI asked what a level 2 fine represented and whether the term was easily understood. The Legal Adviser replied that a level 2 fine was a fine between $2,001 and $5,000. He explained that the Criminal Procedure Ordinance was amended several years ago to introduce a Standard Scale for fines not exceeding $100,000. It consisted of six levels, ranging from $2,000 at level 1 to $100,000 at level 6. He added that having the Standard Scale enabled the fines to be amended by a single order, instead of on a fine by fine basis.

25. Referring to clauses 45(1) and 46 (2), Miss HO Sau-lan enquired about the logic for setting the same level of fine when the former only concerned negligence of duty while the latter was a deliberate act. PGC(E) replied that the two types of offences were of similar seriousness. He pointed out that a clause 45(1) offence also covered an electoral officer refusing to carry out specific duties, hence putting the election at risk. Miss HO requested and PGC(E) agreed to provide a table listing out all the offences and penalties provided for in the Bill for members' easy reference.

26. Mr LI expressed concern that an elector should not be required to disclose for whom he had voted under any circumstances and asked what constituted "lawful authority" in clause 46(2). He added that it would not be possible to verify the information disclosed by the elector, given that voting was by secret ballot. PGC(E) explained that only a court of law could order the disclosure of such information by an elector, say, in connection with an election petition trial or criminal proceedings related to alleged corrupt practices in an election.


27. In reply to the Legal Adviser's question on whether "lawful authority" also included officers investigating the alleged corrupt practices, PGC(E) explained that lawful authority referred to a court of law only. The Legal Adviser suggested that it should perhaps be so stated in the Bill. DS(CA)2 agreed to consider and provide a written response.Adm

28. Miss Emily LAU asked if clause 46(2) was based on an existing provision and if so, when the power was last used. PGC(E) pointed out that a similar provision was made in section 60(2) of the LegCo Ordinance and commented that he was not aware that such a power had ever been invoked.Adm

Incumbent Provisional District Board members standing as candidates

29. Miss LAU said that she had earlier expressed concern that candidates who were incumbent Provisional District Board (PDB) members would enjoy an unfair advantage. She opined that the Administration should take effective measures to prevent such candidates from using their status as a PDB member to gain election benefits over other candidates. She asked whether any provision had been made in the Bill to deal with this problem.

30. Referring to her response made in an earlier meeting, DS(CA)3 said that the Administration would make provisions for suspending the operation of DCs as a CSA, should the Bills Committee have consensus. The amendment would provide that the DCs would suspend operation, i.e. the DCs would not hold meetings or transact formal business, upon commencement of nomination of candidates. However, the suspension would not affect the term of office of members and they could continue to draw their remuneration until the end of their office terms.

31. DS(CA)3 added that the Administration would consider issuing guidelines to departments to advise against inviting incumbent PDB members or other candidates to officiate at government functions or assisting them in organizing activities during the election period. In addition, the EAC would be invited to consider issuing guidelines to prevent incumbent members from using their status to gain election advantage.

32. Mr CHEUNG Man-kwong asked whether the Administration would take similar measures to prevent a DC candidate who was a legislator from making use of his LegCo Member status in electioneering activities. DS(CA)2 undertook to provide a written response. Miss HO Sau-lan suggested that the Administration should also look into the situation where the candidate was a member of the Executive Council.Adm

33. The Chairman suggested that the matter be further discussed at the meeting scheduled for 4:30 pm on Monday, 25 January 1999.

Clause 47

34. Referring members to Table B in Paper No. CB(2)1027/98-99(02), DS(CA)2 explained that a similar provision was made in section 61 of the LegCo Ordinance.

Clauses 48 -51

35. PGC(E) said that a similar provision was made in section 62 of the LegCo Ordinance, as set out also in Table B.

36. The Legal Adviser pointed out that although there was no substantial difference between clause 48 and section 62, members might wish to consider the policy aspect of whether it was appropriate to also require 10 or more electors to lodge an election petition in respect of a DC election.

37. Mr CHEUNG Man-kwong said that the number of electors of a District Council constituency was far smaller than that of a LegCo constituency. He enquired about the rationale for setting the same requirement of 10 or more electors in clause 48(1). He expressed concern that an unsuccessful candidate might have difficult in finding 10 electors who were willing to lodge a petition. Miss HO Sau-lan echoed Mr CHEUNG's concern.

38. DS(CA)2 responded that 10 or more electors was an appropriate figure as a smaller number of say, two or three, might result in frivolous petitions being lodged. He further pointed out that under clause 48(b), an unsuccessful candidate could lodge the petition himself.

39. Mr CHEUNG said that he had once made a complaint regarding miscounting of votes. However, as he had won in the election, the former Boundary and Election Commission refused to take up his complaint and asked him to seek a judicial review instead. PGC(E) responded that an election petition was for challenging an election and not for dealing with procedural queries where no challenge was proposed. DS(CA)2 added that complaints against staff of polling stations should be made to the EAC which was required to deal with all complaints. Moreover, complaints statistics had also to be reflected in its report to the CE upon the conclusion of an election. He undertook to provide a written response.

40. The Legal Adviser also asked DS(CA)2 to provide a written response on how the by-election procedure provided in clause 32 would be triggered off after the court had determined that a member had not been duly elected.Adm

Clause 52-54

41. PGC(E) said that clauses 52 and 54 were similar to sections 66 and 68 of the LegCo Ordinance except that under clause 54, a liability was placed on the petitioner to pay the costs of the respondents if the petition was taken to have been withdrawn. PGC(E) explained that under clause 52(2), the court could direct a petitioner to give security of not exceeding $20,000 and that a petition would be taken to have been withdrawn if the security was not paid. PGC(E) added that the LegCo Ordinance would be amended accordingly.

Legislative Council Secretariat
31 March 1999