Legislative Council

LC Paper No. CB(2)2704/98-99
(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 the 5th meeting
held on Monday, 15 March 1999 at 8:30 am
in the Chamber of the Legislative Council Building

Members Present :

Hon Ronald ARCULLI, JP (Chairman)
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon LEE Kai-ming, JP
Hon NG Leung-sing
Hon Mrs Selina CHOW, JP
Hon CHEUNG Man-kwong
Hon Bernard CHAN
Hon CHAN Kam-lam
Hon LEUNG Yiu-chung
Hon Gary CHENG Kai-nam
Hon SIN Chung-kai
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon Howard YOUNG, JP
Hon LAU Kong-wah
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP
Hon TAM Yiu-chung, JP
Dr Hon TANG Siu-tong, JP

Members Absent  :

Hon Cyd HO Sau-lan
Prof Hon NG Ching-fai
Hon Margaret NG
Hon MA Fung-kwok
Hon Christine LOH
Hon CHAN Wing-chan
Dr Hon LEONG Che-hung, JP
Hon YEUNG Yiu-chung
Hon LAU Wong-fat, GBS, 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
 Principal Government Counsel (Elections)

 Ms Phyllis KO
 Acting Deputy Principal Government Counsel (Elections)

Clerk in Attendance :

Mrs Percy MA
Chief Assistant Secretary (2) 3

Staff in Attendance :

Mr Jimmy MA, JP
Legal Adviser

Mr Stephen LAM
Assistant Legal Adviser 4

Ms Eleanor CHOW
Senior Assistant Secretary (2) 7

I. Matters arising from previous meetings
 (LC Paper No. CB(2) 1459/98-99(02))

 The meeting went through the paper which set out the Administration’s response to the points raised by the Bills Committee on 5 March 1999.

Item (a) - Effective dates of the various provisions of the Bill

2. Members noted that the Administration would compile a list of proposed effective dates of the various provisions of the Bill as soon as possible.Adm

Item (b) - Overseas practices on "postal voting" and "overseas polling arrangement"

3. Members noted the arrangements adopted in Canada and Australia.

4. Mr Howard Young asked how did US citizens living in Hong Kong cast their votes for a general election in USA. Principal Assistant Secretary for Constitutional Affairs (5) (PAS for CA(5)) replied that US citizens living in Hong Kong could drop their votes at the US Consulate which would mail them back to USA.

5. On advance postal polling, Mr LEE Wing-tat asked whether there were any measures adopted in Canada and Australia to ensure that voters would cast their votes according to their wish, without being influenced by any other persons. PAS for CA(5) replied that the Administration was not aware of any special measures adopted in these two counties to prevent vote buying, or to ensure the timeliness and secrecy of the mail.  As far as he was aware, a voter would mark a ballot paper in the presence of a witness in Australia. However, there were no specific requirements governing the witnessing procedure. In fact, Mr LEE’s concern was precisely one of the considerations of the Administration in deciding against the adoption of an advance postal polling system.

6. Mr CHENG Kai-nam said that given the Administration's position, it was not necessary to consider the proposal in detail. Mr NG Leung-sing echoed the view and said that if only an insignificant number of people had resorted to postal polling in these two counties, it might not be worthwhile to pursue the proposal in Hong Kong. Deputy Secretary for Constitutional Affairs (DS for CA) clarified that the Administration only provided information on advance postal polling at members’ request. The Administration had no intention to adopt this option and would only support advance polling for the 2000 LegCo election. PAS for CA(5) supplemented that for the 1996 general election in Australia, there were 46 300 votes cast in overseas including voting by post or ballot at Australian embassies, consulates and trade offices. Principal Assistant Secretary for Constitutional Affairs 4 (PAS for CA(4)) supplemented that voter eligibility of Hong Kong was different from other countries.  In order to be eligible to register as an elector, a person must be a permanent resident of Hong Kong and must ordinarily resided in Hong Kong.  In other words, not all Hong Kong citizens resided overseas were eligible electors.

Polling stations in hospitals

7. Mr LEE Wing-tat proposed the setting up of polling stations in hospitals. He pointed out that over 50% of the patients in hospitals were adults who should not be deprived of the right to vote. He further said that there were a few thousand patients in hospitals and should they be provided with the facility to vote, hundreds of votes could be cast. In this regard, the number of ballots could be higher than those collected in some villages.

8. DS for CA responded that there were some 50 public and private hosipitals and over 500 institutions for the aged.  Given the financial and resource implications involved, there were practical difficulties in implementing the proposal.

9. Mr LEE Wing-tat responded that whether a proposal should be pursued would depend on how much importance was attached to it. He disagreed that the proposal was not viable. If the Administration was concerned about the number of polling stations involved, consideration could be given to implementing the proposal in public hospitals as a start. DS for CA reiterated that the Administration did not support the proposal.  If the proposal was to be implemented at all, polling arrangements should be made available to all eligible electors in private hospitals and institutions for the aged, and not only be confined to those in public hospitals. In response to Mr LEE, DS for CA undertook to provide information on the number of public hospitals, the number of patients in each of these hospitals, and the expenditure for setting up polling stations in these hospitals.Adm

Item (c) - Delivery of ballot boxes

10. DS for CA said that the Administration had checked the relevant records but could not find any incident that candidates and their agents were not allowed to participate in the delivery of the ballot boxes in part of the journey upon arrival at the central counting station in the 1995 LegCo election. The then Boundary and Election Commission and the EAC did not receive any complaint relating to the incident.

Item (d) - Section 11 of the Legislative Council Ordinance (LCO)

11. On compliance of section 11 of the LCO with Article 69 of the Basic Law, members noted that the Administration would revert to the Bills Committee at a future meeting.Adm

 Item (e) - Sections 13(4) and 35(1) of the LCO

12. DS for CA said that the Administration's proposal to amend the 14-day period referred to in section 13(4) of the LCO to a period of 21 days aimed at reconciling the requirement with that in section 35(1) of the LCO.  As regards the Bills Committee's proposal to reconcile both periods to 14 days, the EAC was consulted and did not have any comment on the proposal.

13. The Chairman said that the Clerk to the LegCo was consulted and had advised that both proposals would not pose any problem.  DS for CA supplemented that the period allowed in similar provisions in the District Councils Bill was also 21 days.

II. Clause by clause examination of the Bill

Clause 13 (new section 20A) -Heung Yee Kuk FC

14. Mr CHEUNG Man-kwong expressed concern over the composition of the Heung Yee Kuk (HYK) FC. He noted that there were ex-officio, special and co-opted councillors of the Full Council of the HYK and asked how these members were selected/elected. He further asked whether members’ terms of office would affect their eligibility to vote in the FC election.

15. Mr LEE Wing-tat asked a question on behalf of Mr Brian KAN Ping-chee who was a member of the HYK. Mr KAN was concerned about some special people such as the New Territories Justices of the Peace and co-opted councillors who could become rural committee members without having to stand in an election. These persons could also vote to return the chairmen of rural committees. Mr KAN would like to know why people who were not directly elected could become members and chairmen of rural committees, and also members of the HYK.  Dr TANG Siu-tong briefly explained the composition of the HYK to members.

16. Addressing the concerns of Mr CHEUNG, DS for CA said that the composition of the HYK FC proposed in the Bill was the same as that stipulated in the LCO. He undertook to give a detailed reply in writing.Adm

Clause 13 (new section 20B) - Agriculture and Fisheries FC

17. Regarding the composition of the Agricultural and Fisheries FC, Mr LEE Wing-tat asked about the difference between Part 2 of Schedule 1 to LCO and the new section 20B of the Bill. He further asked whether the federations in section 20B(a) were newly added to the list of electorate. In reply, DS for CA explained that the bodies in new section 20B of the Bill were basically the same as the ones listed in Part 2 of Schedule 1 to the LCO, except that the presentation had changed. In Part 2 of Schedule 1 to the LCO, there were 82 organisations under the Agriculture and Fisheries FC. The Bill proposed to group them under two categories, namely federations of the agriculture and fisheries sectors under new section 20B(a) and individual associations listed in Schedule 1 to the Bill.

18. PAS for CA(4) said that the Administration had provided a paper setting out the additions and deletions of the FC electorates at the last meeting. The five co-operative societies added to the list of the Agriculture and Fisheries FC were not new members. They were registered as electors by virtue of their membership in the relevant federations in the 1998 FC election. Since they had withdrawn from the federations concerned, their names were listed in Schedule 1 to the Bill so as to retain their eligibility. She assured members that there was no change in the eligibility criteria for registration of electors for the Agriculture and Fisheries FC.

19. Mr CHEUNG Man-kwong asked whether both bodies named in new section 20B(a) and their corporate members were entitled to one vote. The Administration clarified that while the corporate members had the right to vote, the umbrella organisations were not. The Bill sought to improve clarity by grouping these bodies which were representative associations of the agriculture and fisheries sectors in new section 20B(a).  As for the bodies listed in Schedule 1 to the Bill, each would have one vote.

20. Mr CHEUNG Man-kwong pointed out that some items in Schedule 1 to the Bill were in the name of .  He asked whether they had any corporate members, and if so, whether these members should be given equal voting right as the corporate members of the bodies named in new section 20B.  On the second question, PAS for CA(4) responded that irrespective of the name of the bodies listed in Schedule 1, they each had only one vote.  She undertook to clarify the first question in writing.Adm

21. In response to Mrs Miriam LAU, PAS for CA(4) explained that all members of the bodies named in new section 20B(a) were bodies registered under the Co-operative Societies Ordinance (Cap.33) or the Societies Ordinance (Cap. 151). The Administration was requested to clarify whether members of these bodies were company members or individual members.Adm

22. In response to Mr Howard YOUNG, PAS for CA(4) said that there were about 170 organisations in the Agriculture and Fisheries FC, of which some 100 were corporate members under the eight bodies named in new section 20B(a). Although there might be some overlapping membership of the bodies named in new section 20B(a) and Schedule 1, each body was only entitled to one vote.

23. Mr Cheng Kai-nam suggested that all the 170 organisations should be listed in Schedule 1, so as to give a clear picture of the size of the electorate of this FC. PAS for CA(4) responded that the Ordinance would be unacceptably lengthy if eligible electors of all the FCs were listed in the Schedules.

24. Mr CHENG Kai-nam pointed out that no body could be added to the list of electorates in Schedule 1 after the Bill was enacted.  However, the number of electors under new section 20B(a) could be increased by way of expanding the membership of these bodies. He asked whether there was any restriction in this respect.

25. In response, PAS for CA(4) said that elector eligibility derived from membership in umbrella organisations was not unique to the Agriculture and Fisheries FC.  Under clause 2(c) of the Bill, any changes to the constitution of a body relating to the criteria and conditions of voting membership of the body would require the written approval of the SCA.  In giving his consent, SCA would consider whether the request was made solely for the purpose of capturing more votes.  As regards the eight federations listed in new section 20B(a)(i)-(viii), they were reputable associations with a long history, the Government trusted that they would admit new members in accordance with their constitution.

26. Noting that voter registration had ended sometime in January 1999, the Chairman asked whether a corporate member who had joined a body in March 1999 would have complied with the 12-month requirement applicable to a corporate elector under section 25(5) of LCO and would therefore be eligible to vote in the 2000 LegCo election. PAS for CA(4) replied that the 2000 LegCo election would be held in September 2000 and the publication of the final register was proposed to be 25 May 2000. The EAC would draw up subsidiary legislation prescribing the detailed arrangements and timetable for the voter registration exercise.  To satisfy the 12-month rule a company which joined the relevant body in March 1999 would only be eligible to be registered as an elector of the relevant FC if the deadline for the next voter registration exercise was set after March 2000.

27. Ms Emily LAU expressed concern over the possibility of vote planting in FCs. She asked whether there were any measures, apart from the 12-month requirement, to prevent vote planting. She further asked whether it was the responsibility of the Government or the body concerned to verify the compliance of the requirement.

28. PAS for CA(4) said that a person or a body applying for registration as an elector for an FC had to declare in the application form that he or it was eligible to be registered as an elector. If a person or a body gave false information in the registration form, he or it committed an offence. The law stipulated that if the constitution of a body was amended to the effect that the membership criteria or voting eligibility of members were changed, then the written consent of the SCA must be sought first. There were sufficient safeguards to prevent vote planting.

29. The Chairman pointed out that even for electors of GC, the Government would not verify their eligibility. The criteria for registration as an elector of an FC was actually stricter than that for a GC elector. In this regard, a person or a company must have a substantial connection with the relevant body before he or it was eligible to become an elector of the relevant FC. In addition, a company had to satisfy the 12-month requirement.

30. In response to Ms Emily LAU on who had the obligation to enforce section 25(5), the Principal Government Counsel (Elections) (PGC/E) replied that the enforcement of the existing legislation and the other electoral legislation ran at a number of levels.  The registration process was open and transparent.  There were a number of opportunities for people to check, verify and object to any application for registration.  The first level was on the applicant himself.  He was required to supply information and to certify that information.  If he made a false declaration, there were offence provisions which applied.  The second level of checking lay with the electoral office staff who could request for further information if they were not satisfied with the information provided by an applicant.  The third level lay with members of the public and people who were interested in the electoral process.  A provisional register was published and made available for public inspection.  A person may object to registration of a registered person in the provisional register, or similarly, a person may claim that he or she was eligible to be registered as an elector.  Claims and objections were considered by a Revising Officer, who was a magistrate or a legal officer appointed by the Chief Justice.

31. Ms Emily LAU said that given the small electorate size of FCs, a single vote could make a difference in the outcome of an election. It was imperative that the process of verification of eligible electors should be strengthened to prevent vote planting. She suggested that the Government should consider including in the Bill provisions for the Government and the bodies concerned to verify compliance of the 12-month requirement applicable to a corporate elector under section 25(5) of the LCO. The Administration undertook to give a written response to the suggestion.Adm

Clause 13 (new section 20C) - Insurance FC

32. In response to Mr LEE Wing-tat, Acting Deputy Principal Government Counsel (Elections) explained that the word in Schedule 1 to the LCO was changed to in clause 13 of the Bill in order to be consistent with the Insurance Ordinance (Cap. 41). She confirmed that there was no change in the meaning and that there was no change in the English text.

 Clause 13 (new section 20D) - Transport FC

33. Mrs Miriam LAU said that the principle applied to the Agriculture and Fisheries was very clear, i.e. corporate members of federations as well as individual associations were entitled to vote. However, she could not understand the principle behind the delineation of electorates for the Transport FC which comprised various sectors. She pointed out that if there were federations for a sector, the federations themselves would each have one vote. If there was no federation for a sector, then individual associations/companies would each have a vote. Under the circumstances, both representative federations with a large number of corporate members and non-representative individual associations would be entitled to one vote.  She criticised that the system was unfair.

34. PAS for CA(4) replied that Transport FC was unique in that it comprised different trades.  As some bodies had a large number of corporate members and if each corporate member was to be given one vote, it would upset the balance of representation. She supplemented that the number of electors in the Transport FC would be around 2000, if all corporate members were given one vote.  The haulage sector alone would have around 1000 out of a total of 2000 votes.  There might be criticism that the sector would dominate the entire electoral process.

35. Mrs Miriam LAU said that she had proposed two years ago to give votes to transport companies with business registration certificates. The Administration had then responded that her proposal would give rise to unfairness. She considered that the existing arrangement of the Administration was far from being fair.  Given the inherent difficulties in delineating the electorates for the Transport FC in a fair manner, it was better to broaden the electorate base to allow for more participation of persons and companies involved in transport business.

36. PAS for CA(4) replied that the Administration had considered Mrs LAU’s proposal and concluded that such an arrangement would result in a particular sector dominating the Transport FC. Given that a one-man company could also apply for business registration certificate, there could be thousands of eligible voters who were taxi and mini-bus drivers as a result. On the other hand, franchised bus and tram  companies would only have 5 votes and 2 votes respectively.

37. Mr SIN Chung-kai echoed Mrs LAU’s view on wider representation of the Transport FC. He pointed out that the existing eligibility criteria for electors were not objective. If the criterion was based on the number of commuters, the KCRC and MTRC should be given more votes. Similarly, if the criterion was based on the number of employees, then companies with a large number of employees should have more votes. It appeared that the Government preferred small circle election by restricting the number of electors.

38. PAS for CA(4) replied that in delineating the electorate of FCs, the Government would not just look at the size of an organisation alone. Factors such as the representativeness and importance of an organisation in the FC concerned would also be considered.

39. Ms Emily LAU asked how the Government would assess the representativeness and importance of an organisation and to whom such an organisation was considered to be important and representative.

40. PAS for CA(4) replied that the Transport FC comprised mainly providers of  land and sea transport services. The Government would consider the representativeness and importance of an organisation in providing services for that sector and its role in representing the interest of its sector in the Transport FC. The Government had been adhering to this principle and as a result, all the major and representative bodies were included into the electorate of the Transport FC.

41. Ms Emily LAU said that she did not understand the logic put forward by the Administration. She said that whether an organisation was regarded as important should have regard to the importance of the service provided by the organisation to the community. A certain mode of transport was important because many people used it. In this regard, the number of commuters should be one of the factors to be considered when the importance of an organisation was assessed. She criticised the Government for abandoning objective criteria and opting for arbitrary criteria.

42. Mrs Miriam LAU said that all sectors were equally important, given their respective contribution to the economy of Hong Kong. She said that if the size of the electorate of the Transport FC was expanded, at least corporate members of major and representative organisations would have votes.

43. Mr SIN Chung-kai pointed out that it was possible for taxi and minibus drivers to strategically form hundreds of associations and manipulate the result of a Transport FC election. PAS for CA(4) said that for taxi and minibus associations, only those which had at least 100 members would be considered to be included as electors for the Transport FC.  Any request for inclusion as an elector of the Transport FC would be subject to the approval of the Government and the LegCo, as additions to the Schedule could only be made by way of amendment bills and subsidiary legislation. She said that the eligibility criteria for an elector of the Transport FC was very stringent.  There were some 150 associations in the Transport FC and every one of them was added to the Schedule by legislative means.

44. Ms Emily LAU commented that this was a very effective mechanism to prevent vote planting.  She suggested the Administration to consider listing the electorates of all FCs by name in the Schedules so that any subsequent amendments would be subject to LegCo’s approval. PAS for CA(4) responded that the present arrangement about the delineation of electorates for FCs had been adopted since the FC system was introduced. The organisations whose members were eligible electors were well established and representative organisations in their respective sectors. Apart from a few FCs with smaller electorates, it was very unwieldy to list out all eligible electors for all FCs in the Schedules.

45. Ms Emily LAU reiterated that legislation was the most effective means to plug possible loopholes. She requested and the Administration undertook to consider her proposal.Adm

46. Mrs Miriam LAU pointed out that depriving corporate members of the right to vote would have the effect of forcing them to split up and form more associations in order to get more votes. She requested the Administration to seriously reconsider the matter. DS for CA replied that the Government had tried its best to cover all the trades and sectors in the transport business and ensure representative organisations of the respective sectors were included as electors of the Transport FC. There could be various reasons for associations to split to form new associations. If the Government suspected that the formation of any new association was for the purpose of vote planting, it would reject its request for inclusion as an elector of the FC.

Clause 14 (new section 20E) - Education FC

47. Noting that some LegCo members were board members at tertiary institutions, Mr LEE Wing-tat said that it would be unfair if they would be entitled to three votes. Ms Emily LAU asked whether a member of the Election Committee (EC) had three votes or two votes.

48. PAS for CA(4) advised that each person would have a maximum of two votes only, including a vote in the GC election. A person who was eligible to vote in more than one FCs was allowed to vote in one FC only.  A member of the EC who was also registered as an FC elector was not allowed to vote at the FC election.  The Chairman said that the entitlement to two votes excluded any vote cast by an authorised representative on behalf of a corporate elector.

49. Ms Emily LAU said that a fair election system should be “one man, one vote” and not “one man, two votes”. DS for CA replied that the election system for GC was “one man, one vote”. Having regard to the characteristics of the EC and FC elections, electors who were eligible to vote in either the FC or EC elections were entitled to one more vote.  In further response to Ms LAU, he said that the Government launched a series of publicity activities to educate the public on inter alia the general features of the 1998 LegCo election. He assured members that the election system would be evolved according to the provisions in the Basic Law.

50. Mr NG Leung-sing enquired about the number of electors casting two votes in the 1998 LegCo election.  PAS for CA(4) said that of some 234 000 eligible FC electors, some 140 000 were registered electors and about 60% of them (i.e. about 84 000) had cast their votes.

 (Post meeting note - The Administration's response to concerns raised the Bills Committee at this meeting was circulated to members vide LC Paper No. CB(2)1658/98-99(03) on 12 April 1999.)

III. Date of next meetings

51. Members noted that the next two meetings on 26 and 30 March 1999 were scheduled to receiving deputations. Members agreed to schedule two more meetings at 2:30 pm on 14 and 15 April 1999.

52. The meeting ended at 10:36 am.

Legislative Council Secretariat
17 August 1999