LC Paper No. CB(2)2734/98-99
(These minutes have been
seen by the Administration)
Ref : CB2/BC/17/98
Bills Committee on Elections (Corrupt and Illegal Conduct) Bill
Minutes of the second meeting
held on Wednesday, 3 March 1999 at 10:45 am
in Conference Room A of the Legislative Council Building
Members Present :
Hon Ronald ARCULLI, JP (Chairman)
Hon Cyd HO Sau-lan
Hon NG Leung-sing
Hon LEE Wing-tat
Hon Gary CHENG Kai-nam
Hon Andrew WONG Wang-fat, JP
Hon Emily LAU Wai-hing, JP
Dr Hon TANG Siu-tong, JP
Hon CHOY So-yuk
Members Absent :
Hon CHAN Yuen-han
Hon Jasper TSANG Yok-sing, JP
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Public Officers Attending :
Clerk in Attendance :
- Mr Robin IP
- Deputy Secretary for Constitutional Affairs
- Mr Bassanio SO
- Principal Assistant Secretary for Constitutional Affairs
- Mr James O'NEIL
- Deputy Solicitor General (Constitutional)
- Ms Phyllis KO
- Acting Deputy Principal Government Counsel (Elections)
- Mr Michael LAM
- Government Counsel
Staff in Attendance :
- Mrs Percy MA
- Chief Assistant Secretary (2)3
- Mr Arthur CHEUNG
- Assistant Legal Adviser 5
- Mr Paul WOO
- Senior Assistant Secretary (2)3
I. Discussion on the Administration's response to concerns raised at the meeting on 23 February 1999
(LC Paper No. CB(2)1385/98-99(02))
|Members took note of the comparison table at Annex 1 of the Administration's paper (LC Paper No. CB(2)1385/98-99(02)) which highlighted the major differences between the Bill and the existing provisions of the Corrupt and Illegal Practices Ordinance (CIPO). The Administration informed members that to facilitate discussion by the Bills Committee, another table juxtaposing each provision of the Bill with the relevant provisions of CIPO would be prepared for members' reference.
Election of Chairmen, Vice-Chairmen and members of the Executive Committees of Rural Committees
2. Deputy Secretary for Constitutional Affairs (DS/CA) referred members to paragraph 3 of Annex 2 to the Administration's paper and advised that the number of Executive Committee members of a Rural Committee (RC) should be "9 to 33", instead of "9 to 27" as stated in the paper.
3. In response to the Chairman, DS/CA said that the proportion of the number of Executive Committee members to the size of the General Assembly varied among different RCs, depending on individual constitutions of the RCs. In practice, the number of General Assembly members exceeded the number of Executive Committee members, the latter being elected from amongst the former.
The role of village representatives (VR) and VR elections
4. Referring to paragraph 11 of Annex 2 to the Administration's paper, Mr LEE Wing-tat said that it appeared that VRs had a substantive role to play in assisting indigenous villagers to make applications to the Government, such as applications for building small houses and hillside burial. He asked whether most of the statutory declarations made by VRs of the indigenous status of applicants had been accepted as evidence by the Government in approving the applications.
5. DS/CA replied that in processing these applications, the declarations made by VRs served as part of the documentary evidence only. In ascertaining the indigenous status of the villagers, District Officers (DO) or District Land Officers (DLO) would also make reference to relevant information available from other people, such as village elders, ex-VRs and RC Chairmen etc. Furthermore, DOs (or DLOs) would notify all villagers by posting notices in the village areas and invite them to provide relevant information for reference. The decision whether or not to grant approval finally rested with the DOs or DLOs.
6. Mr LEE Wing-tat remained of the view that although VRs did not carry out any statutory functions, they somehow had a de facto authority in relation to such applications, if in particular the declarations made by them in support of the indigenous status of the villager applicants were accepted without query in most cases. He pointed out that the recent incidents of disputes arising from VR elections were reasonable indication that VR elections could be prone to corrupt or illegal practices. Mr LEE reiterated his view that the scope of the Bill should be extended to cover VR elections.
|7. The Administration was requested to provide information on whether the majority of applications relating to the exercise of indigenous rights of villagers were approved purely on the basis of the statutory declarations made by VRs.
8. Members asked whether the Administration would consider extending the monitoring mechanism to VR elections. DS/CA responded that the Administration's view was that the nature of VR elections was different from that of other elections such as the Legislative Council and the District Councils elections. VR elections were internal elections of the rural community conducted by the villagers themselves under established rural customs and traditions. Hence, it might not be appropriate to apply the same statutory requirements of other types of elections to VR elections. He added that in practice, VR elections were conducted in accordance with the "Model Rules" promulgated by the Heung Yee Kuk in August 1994 (Appendix 2 of the Administration's paper) which adopted, among others, the principles of one-man-one-vote, equal voting rights for men and women and fixed terms of four years for the elected representatives. The procedures for VR elections were generally accepted by villagers and the RCs.
9. DS/CA further advised that VR elections were subject to a number of general offences covered by other Ordinances under the purview of the Independent Commission Against Corruption, e.g. the Prevention of Bribery Ordinance. He said that there were adequate safeguards against abuses.
10. In response to the Administration's advice, members requested the Administration to specify the relevant offence provisions in other Ordinances which were applicable to the conduct of VR elections, particularly those dealing with the use of force or duress against another person and soliciting or accepting an advantage.
11. The Chairman enquired about the sources from which the "Model Rules" promulgated by the Heung Yee Kuk derived their authority in relation to VR elections. The Administration replied that the "Model Rules" had no legally binding power. They were administrative guidelines which facilitated the conduct of VR elections, having regard to village customs and the principles of fair election. Under section 3(3) of the Heung Yee Kuk Ordinance, a person elected or otherwise chosen to represent a village had to be approved by the Secretary for Home Affairs (S for HA) for him to become a VR. As a matter of policy, the S for HA would recognize the status as a VR only if the VR election from which the person was elected followed the "Model Rules".
|12. Upon members' request, the Administration undertook to explain the background as to how villagers and RCs came to accept that the "Model Rules" should be followed in conducting VR elections.
The role of DOs
13. Ms Emily LAU enquired about the role of DOs in VR elections.
14. DS/CA said that the legal role of DOs in VR elections was confined to the exercise of the authority to approve the status as a VR after a person was elected. DOs provided administrative support to the conduct of VR elections by assisting with the preparation of the voting register, with posting notices advertising the election and with vote-counting. Any complaints or comments concerning the elections, such as in relation to the compilation of the provisional electoral roll, would be referred by the DOs to the relevant RCs for investigation. In some villages, working groups comprising representatives of the RCs and villagers were set up to deal with such matters. After considering the complaints or comments in question, the DO would revert to the villagers concerned and finalize the electoral roll which reflected the result of investigation and the decision reached by the working group.
15. Members were concerned about the effectiveness of the working groups as mentioned in resolving dispute matters. In this connection, members requested the Administration to advise further on the following -
Use or threaten to use force or duress against candidates or prospective candidates (clauses 8 and 13)
- the appointment and the composition of the working groups;
- the procedures to resolve divergent views, if any, between members of the working group;
- how DOs decided whether or not to refer complaints to the working group;
- the role of DOs in the investigation conducted by the working group; and
- how villagers became aware of the channels for complaints and the proper operation of the mechanism to deal with complaints.
16. Ms Emily LAU noted from the comparison table (Annex 1 to the Administration's paper) that the reference to "use or threaten to use force or duress" in clause 8 of the Bill sought to replace the "intimidation" component in section 8A(1) of the existing CIPO. She enquired about the justifications for the proposed substitution.
17. Deputy Solicitor General (DSG(C)) responded that clause 8 should be read in conjunction with clause 13 where the same reference appeared. The corresponding provisions which had the same effect were section 8A(1) and section 8 of CIPO respectively. However, the wordings used in the two sections of CIPO were different. While section 8A(1) used the term "intimidation", section 8 referred to "force, violence or restraint". DSG(C) advised that although the expressions used in the CIPO provisions were different from that proposed in the Bill, the legislative intent was that they should carry the same effect. For the purpose of clarity, it was felt that consistent wordings should be used in the proposed clauses 8 and 13 of the Bill where the same element applied. Hence, the same reference to "force or duress" was used in both clauses. He added that "duress" and "force" were defined terms under clause 2 of the Bill. The present proposed clauses, being drafted in simple and modern language, should be more readily understood as compared with the existing provisions in CIPO.
18. The Chairman asked whether the reference to "use or threaten to use force or duress" would be subject to a wider or narrower interpretation than the existing references used in CIPO.
19. DSG(C) said that the references to force and duress were well-known and commonly used in legislation in other common law jurisdictions. In drafting clauses 8 and 13, the Administration had referred to legislation in other countries like Australia. He said that the major problem with the provisions in CIPO was that the expressions in sections 8A(1) and 8 were not used in a consistent manner, and that resulted in ambiguity in interpreting the legislation. Furthermore, existing authorities relating to the interpretation of "duress" were not clear as to whether the element of financial loss applied in the criminal context. Therefore, the definition of "duress" in clause 2 of the Bill specifically extended the meaning of the term to include causing financial loss to another person.
20. Assistant Legal Adviser (ALA) considered that the options were between -
- retaining the wording in the existing provisions; and
- taking the opportunity to update the existing provisions in CIPO with modern language with as little change as possible to their substantive effect.
He also pointed out that "duress" and "force" were quite common as elements of offences in penal provisions.
21. The Chairman said that a major consideration was that any amendment should not have the adverse effect of widening any loophole of the existing legislation, thus making it more difficult for corrupt and illegal conduct to be punished.
|22. Members requested the Administration to clarify the implications, if any, of replacing sections 8A(1) and 8 of CIPO with the proposed clauses 8 and 13 of the Bill respectively, in particular whether the substitution would widen or narrow the original scope of the legislation, and if so, how it would affect enforcement of the offence provisions.
Corporate elector (clause 13(4))
23. Ms Emily LAU referred to clause 13(4) of the Bill, which stipulated that -
"A corporate elector does not contravene this section only because it has instructed its authorized representative to cast its vote, or not to cast its vote, at an election for a particular candidate or particular candidates."
She said that a person could be in control of a consortium of companies where each company fell within the meaning of the definition of "corporate elector" under section 3(1) of the Legislative Council Ordinance. It could be a justifiable concern that such person "at the helm", because of his influential position, might exert an undue influence on the companies by indicating his wish as to how the companies, each being a corporate elector, should cast their votes. She considered that clause 13(4) would fail to measure up to the fair principle of one-person-one-vote if it had the effect of facilitating such conduct.
24. The Administration advised that a corporate elector was defined under section 3(1) of the Legislative Council Ordinance as a body that was an elector for a functional constituency. Corporate electors were often companies or organizations which had their own decision-making bodies, in the form of a Board of Directors or an Executive Committee etc., to deal with matters including, in the present context, how a vote should be cast for a particular candidate or candidates at an election. As a corporate elector was not an individual elector, it had to appoint an authorized representative to carry out its voting instruction on the day of voting. Clause 13(4), by specifically exempting the voting instruction of a corporate elector from the offence provisions in clause 13, enabled a corporate elector to exercise its voting right.
25. DSG(C) supplemented that for an instruction to vote to constitute an offence, the element of use of force or duress under clause 13 had to be proved beyond reasonable doubt.
Corrupt conduct to destroy or deface ballot papers (clause 17)
26. Ms Emily LAU pointed out that in previous elections, it had been found that strange markings had been made on some ballot papers. There had been concerns that such markings could be identifying symbols to indicate that someone had bribed another to vote or not to vote for a particular candidate or candidates at the election. Ms LAU opined that ballot papers marked with strange symbols should be rejected and invalidated.
27. The Chairman also pointed out that in a previous election, it had been spotted that two ballot papers did not have their respective counterfoil numbers removed. The ballot papers were cast and the court ruled that both ballot papers were valid.
28. DSG(C) said that clause 17 aimed at prohibiting a person from destroying or defacing a ballot paper without lawful authority. It was not intended to deal with the situations described by Ms LAU above, where the persons marking the symbols could not be identified. He said that a ballot paper could be invalidated if it was marked in any way by which the elector could be identified. This would be a decision to be taken by the Returning Officer concerned in the particular circumstances of a case. Referring to the cases mentioned by the Chairman, DSG(C) advised that the court had ruled that the ballot papers were valid because in both cases the identity of the electors could not be revealed.
29. Mr Andrew WONG said that some markings on the ballot papers might have been made by the electors inadvertently. In his opinion, the existing arrangement providing for the Returning Officers and where necessary the court to rule on the validity of a marked ballot paper was satisfactory. Having regard to the severity of the conduct described in clause 17, Mr WONG considered that it should not be treated as corrupt conduct.
30. Members requested the Administration to respond to the view that clear criteria should be set in classifying conduct as corrupt conduct under clause 17 of the Bill.
(Post meeting note : The Administration's response to the points raised at the meeting was circulated to members vide LC Paper No. CB(2)1433/98-99(02) dated 9 March 1999.)
II. Date of next meeting
31. The next meeting was scheduled for 10 March 1999 at 10:45 am.
32. The meeting ended at 12:55 pm.
Legislative Council Secretariat
27 July 1999