Legislative Council

LC Paper No. CB(2)2871/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/16/98

Legislative Council Bills Committee on
Legislative Council (Amendment) Bill 1999

Minutes of 16th meeting
held on Monday, 24 May 1999 at 2:30 pm
in Conference Room A of the Legislative Council Building Members Present:

Hon Ronald ARCULLI, JP (Chairman)
Hon Cyd HO Sau-lan
Hon LEE Wing-tat
Hon LEE Kai-ming, JP
Hon NG Leung-sing
Prof Hon NG Ching-fai
Hon Margaret NG
Hon Mrs Selina CHOW, JP
Hon MA Fung-kwok
Hon CHEUNG Man-kwong
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon Gary CHENG Kai-nam
Hon SIN Chung-kai
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon LAU Wong-fat, GBS, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP
Hon TAM Yiu-chung, JP

Members Absent :

Dr Hon Raymond HO Chung-tai, JP
Hon Christine LOH
Hon Bernard CHAN
Dr Hon LEONG Che-hung, JP
Hon LEUNG Yiu-chung
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon LAU Kong-wah
Hon Mrs Miriam LAU Kin-yee, JP
Dr Hon TANG Siu-tong, JP
Hon CHOY So-yuk

Public Officers Attending :

Mr Robin IP
Deputy Secretary for Constitutional Affairs

Miss Shirley YUNG
Principal Assistant Secretary for Constitutional Affairs (4)

Mr Bassanio SO
Principal Assistant Secretary for Constitutional Affairs (5)

Mr James O'NEIL
Deputy Solicitor General (Constitutional)

Ms Phyllis KO
Acting Deputy Principal Government Counsel (Elections)

Clerk in Attendance :

Mrs Percy MA
Chief Assistant Secretary (2) 3

Staff in Attendance :

Mr Stephen LAM
Assistant Legal Adviser 4

Mrs Eleanor CHOW
Senior Assistant Secretary (2) 7

I. Clause by clause examination of the Bill

Clause 31 (section 48) - Who is entitled to vote at an election

The Chairman said that if the Administration acceded to members' request to designate only one day for advance polling, the relevant provisions under this clause would be amended.

Clause 32 (section 49) - System of voting and counting of votes in geographical constituencies (GCs)

2. Referring to new section 49(16), the Chairman asked about the circumstances under which the Returning Officer (RO) would apply subsection (a) to declare that the election had failed. Citing the example where a constituency was to return five Members, Principal Assistant Secretary for Constitutional Affairs (5) (PAS for CA(5)) explained that if the five candidates on the same list were successful but had become disqualified or died, and no candidate could be returned for the constituency, section 49(16)(a) would apply and the RO would declare that the election had failed. He further said that if only four out of the five seats were filled, subsection (b) would apply and the RO would declare that the election had failed to the extent that the number of candidates returned at the election for the constituency had been less than the number of Members to be returned for the constituency.

3. In response to Ms Emily LAU, PAS for CA(5) said that where a candidate on a list who had been successful at an election had died or was disqualified, another candidate on the same list, if any, would be returned in place of the deceased or disqualified candidate. Under the circumstances, it was not necessary to conduct a by-election. Such an arrangement was considered fair given that electors had voted for the list. If there was no other candidate on the same list, a by-election would be conducted. Ms LAU asked when a by-election under clause 32(c) would be held. PAS for CA(5) replied that the Electoral Affairs Commission (EAC) would make regulations for by-election arrangements which would be subject to negative vetting by the LegCo. He undertook to give a written response to Ms LAU's question. Adm

Clause 33 (section 50) - System of voting, counting of votes : the Heung Yee Kuk, the Agriculture and Fisheries, the Insurance and the Transport functional constituencies (FCs)

4. DS for CA explained that the four smallest FCs, namely the Heung Yee Kuk, the Agriculture and Fisheries, the Insurance and the Transport FCs adopted the preferential elimination system of voting as opposed to the "first past the post" voting system adopted by other FCs.

5. The Chairman recalled that at this morning's meeting, the Administration had advocated an uniform approach of election proceedings for FC, GC and the Election Committee (EC). However, section 50(8) stipulated that if, before declaring the result of an election for the four smallest FCs in question, the RO came to know that the candidate who had been successful at the election had died or was disqualified, he must not declare that candidate as elected and must publicly declare that the election had failed. In the circumstances, a candidate contesting in any one of the four FCs in question would not be automatically elected even if his only opponent was disqualified or had died, contrary to the arrangement proposed for the other FCs.

6. DS for CA clarified that similar provision for other FCs was made in section 51(8). He noted that members were concerned about the proposal for election proceedings to continue when a RO came to know of the death and disqualification of an FC candidate before the election day. He said that the Administration was reconsidering the proposal. Adm

7. In response to Miss Margaret NG, DS for CA said that when a RO had declared that an election had failed, the EAC would arrange a by-election. In this regard, nomination of candidates and electioneering activities for the relevant constituency had to start all over.

Clause 35 (section 52) - System of voting and counting of votes: EC

8. Mr LEE Wing-tat queried the requirement for an EC member to cast all six votes under his entitlement. He opined that the list system of proportional representation should be adopted for the EC election as in the GC election. Mr CHEUNG Man-kwong echoed the view and pointed out that in the 1998 LegCo election, some EC members were forced to cast all 10 votes when in fact they only wanted to cast a few votes for candidates whom they supported. Mr LEE and Mr CHEUNG criticized that the voting system had deprived EC members of the right to choose. Miss Margaret NG, Prof NG Ching-fai and Dr YEUNG Sum supported the view.

9. DS for CA responded that when the Provisional LegCo examined the Legislative Council Bill, Members introduced a Committee Stage amendment (CSA) requiring that the EC members must cast all 10 votes under their entitlement for their ballots to be valid. Based on the experience of the 1998 LegCo election, the Administration considered that the arrangement had worked well and therefore proposed to adopt the same arrangement in the 2000 LegCo election. He undertook to find out the reasons for the previous Bills Committee to propose such a requirement. Adm

    (Post meeting note : Relevant documents relating to the deliberations of the former Bills Committee were issued to members vide LC Paper No. CB(2)2111/98-99(01).

10. The Chairman recalled that the mandatory requirement was introduced so as to reduce the possibility of the election being dominated by a particular group under the Block Vote system proposed by the Administration. Mrs Selina CHOW supplemented that there was also the fear of tactical voting. Mr NG Leung-sing said that the amendment was introduced by Mrs Elsie TU. Given that the EC members had been serious and cautious in casting their votes to return 10 Members at the 1998 LegCo election, and the election was conducted in a fair manner, he did not see the need to change the existing voting system. Mr Howard YOUNG said that since there was no more EC after the second term LegCo to return LegCo Members, he supported that the existing system be maintained.

11. Mr CHEUNG Man-kwong disagreed that the existing system would prevent tactical voting. He said that the principle of respecting the wish of electors was paramount at an election. At the 1998 EC election, EC members of the Education subsector had difficulty to cast all 10 votes and as a result, their votes had become invalid. Miss Margaret NG said that the EC members of the Legal subsector had faced the same problem. They had been forced to cast all 10 votes at the last EC election. Mr CHEUNG pointed out that the mandatory requirement had the effect of distorting the wish of electors. He urged the Administration to reconsider the arrangement. Dr YEUNG Sum requested the Administration to provide information on the adverse implications, if any, if an EC member was given a choice not to cast all votes under his entitlement. Adm

12. Ms Emily LAU said that she did not support EC election or its voting system. She enquired about the voter turnout rate of the EC election in 1998. PAS for CA (4) replied that 98.75% of the EC members had cast their votes at the last EC election. There were a total of 15 invalid votes. As regards EC subsector elections, the average voter turnout rate was about 20%. Mr CHEUNG Man-kwong said that 10 out of the 15 invalid votes were from the members of the Education subsector who had difficulty in casting all 10 votes. In response to members, the Administration undertook to provide information on the number of votes received by the candidates of the EC election in 1998. Adm

13. Miss Margaret NG asked whether there was any difference between section 52(2)(b) of the LCO and section 52(2A) of the Bill. DSG responded that there was no substantial difference between the two provisions. The new provision was considered to be clearer. He said that section 52(2)(b) was introduced by a Member moving CSA to the previous Legislative Council Bill. The new provision sought to follow the style of drafting in the rest of the LCO.

Clause 39 (section 68) - What happens if election petition is withdrawn

14. The Chairman asked why clause 39(c) which sought to amend section 68(7) was necessary as the existing section 68(7)(a) had already required a petitioner to pay the costs of the respondent if the election petition was withdrawn or abandoned. DSG responded that the purpose of the amendment was to make it clear that if a petition was taken to have been withdrawn under section 66(3), a petitioner was still liable to pay the costs of the respondent.

Clause 42 (Schedule 1) - Schedules substituted

15. Members noted that the Bills Committee had examined the Schedules when studying clause 20.

Clause 43 (Schedule 2) - Constitution of EC

16. Referring to clause 43(a)(ii) which proposed to delete the Catering subsector from Table 5 of Schedule 2, DS for CA explained that given that the Catering subsector would have an equivalent FC when a new Catering FC was created, it was no longer necessary to prescribe its composition in Table 5. On the other hand, as the Education and the Higher Education subsectors as well as the Hotel and Tourism subsectors did not have an equivalent FC, their composition was therefore prescribed in Table 5.

17. On the Chairman's query on clause 43(c), DS for CA explained that the amendment sought to clarify that an ex-officio member of the EC must be a permanent resident of Hong Kong. In response to Mr LEE Wing-tat, PAS for CA (4) advised that at the 1998 LegCo election, the Director of the New China News Agency (Hong Kong Branch) who was not a permanent resident of Hong Kong was not a member of the EC, although he was a member of the National People's Congress.

18. PAS for CA (4) explained that the constitution of the EC subsectors was set out in Schedule 2. The existing subsector final registers of voters generally formed the basis of the provisional register of the second term EC subsector elections and were updated as and when required. DS for CA supplemented that the voter eligibility for the Catering subsector was provided for in clause 43(r).

19. In response to Mr LEE Wing-tat, Acting Deputy Principal Government Counsel explained that the word "natural person" in clause 43(l)(ii)(i)(B) meant "human being" in order to distinguish it from the word "person" which, according to Cap.1, included "body of persons".

20. Referring to clause 43(m) concerning the Sports, Performing Arts, Culture and Publication subsector, DS for CA explained that the provisions sought to amend the paragraph numbers which described the persons to be eligible voters. The Chairman requested the Legal Service Division to cross check the numbers quoted in the relevant provisions. LSD

21. In response to Mr LEE Wing-tat on clause 43(zc), DS for CA said that taking into account all factors, the Administration proposed 15 April 2000 and 25 May 2000 to be the respective deadlines for compilation of a provisional register and a final register of voters for an EC subsector election.

Clause 44 (Schedule 3) - Savings and transitional provisions

22. DS for CA said that section 1 of Schedule 3 stipulated that the existing final register of the Catering subsector formed the basis of the first provisional register for the Catering FC. Persons and companies of the catering industry who were eligible electors but had not registered at the last election might do so when the next voter registration exercise was conducted in early 2000.

    (Post-meeting note : The Administration's response to concerns raised by the Bills Committee at this meeting was circulated to members vide LC Paper No. CB(2) 2135/98-99(01).)

II. Date of next meeting

23. The next meeting would be held on 25 May 1999 at 8:30 am

24. The meeting ended at 4:20 pm.

Legislative Council Secretariat
23 September 1999