LC Paper No. CB(2)2844/98-99
(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 third meeting
held on Wednesday, 10 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 LEE Wing-tat
Hon NG Leung-sing
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon CHAN Yuen-han
Hon Jasper TSANG Yok-sing, JP
Hon Ambrose LAU Hon-chuen, JP
Dr Hon TANG Siu-tong, JP
Members Absent :
Hon Gary CHENG Kai-nam
Hon Andrew WONG Wang-fat, JP
Hon Emily LAU Wai-hing, JP
Hon CHOY So-yuk
Public Officers Attending :
Clerk in Attendance :
- Mr Robin IP
- Deputy Secretary for Constitutional Affairs
- Mr Tony CHENG
- 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. Meeting with the Administration
Discussion on the Administration's further response to the concerns raised at the meeting on 23 February 1999
(LC Paper No. CB(2)1433/98-99(01))
Members took note of the table juxtaposing each provision of the Bill with the relevant provisions of the Corrupt and Illegal Practices Ordinance (CIPO) attached at Annex to the Administration's paper (LC Paper No. CB(2)1433/98-99(01)).
Lodging of election return with appropriate authority
2. Deputy Secretary for Constitutional Affairs (DS/CA) informed members that the relevant Government departments had held discussions with a view to addressing members' concern about candidates having to apply for a court order as required under the legislation to extend the period for lodging an election return because the demand notes from the Government in respect of removing election advertisement displayed did not reach the candidates in time for them to include such costs in their election returns ( both the CIPO and the Bill required that an election return had to reach the appropriate authority within 30 days after publication of the election results in the Gazette). As a result of the discussions, the Administration came to the view that in future all the demand notes in respect of removing an election advertisement should be issued within 21 days after the publication of the results so that the candidates concerned could have enough time to include the costs in their election returns.
3. DS/CA said that subject to the views of members, the Administration would request the Electoral Affairs Commission (EAC) to consider including the proposed arrangement in its electoral Guidelines. In accordance with the Electoral Affairs Commission Ordinance, EAC was required to consult the public on its draft Guidelines.
4. Mr LEE Wing-tat enquired about whether the proposed procedures could be reflected in the EAC's regulation on electoral procedures. Mr TSANG Yok-sing asked whether or not the Bill could include a provision to exempt a candidate from the requirement to apply to the court for permission to file a late election return in the event of a late receipt of the Government's demand note.
5. The Administration explained that an election advertisement might be found long after the election was held. Therefore, it would not be appropriate to make it a legal requirement for the departments to issue the demand notes within the 21-day period in every case. The provision of an exemption clause, on the other hand, would give rise to implications relating to the enforcement of other legislation which also contained offence provisions on the display of advertisements, such as the Public Health and Municipal Services Ordinance. The Administration considered that the most appropriate means to deal with the matter would be by way of the EAC's Guidelines, as the Guidelines would be strictly adhered to by all parties involved in elections, including the Government departments.
6. The Chairman had reservation about the proposal to introduce an exemption provision. He enquired about the feasibility of streamlining the procedures by providing the Chief Electoral Officer (CEO) with a residual discretionary power to accept a late return, having duly considered the reasons given by the candidate concerned for the late submission. If the CEO was not satisfied that a justifiable case existed, the candidate would then have to apply to the Court for an order for an extended period for lodging the return.
7. In response to the Chairman's view, the Administration said that a discretionary authority for the CEO to accept late election returns would be in conflict with his designated role as an enforcement agent in election matters to ensure that the legal requirements were complied with. The legislative intention was that the onus in relation to the posting and removal of election advertisements and the duty to make an election return to the appropriate authority within the prescribed period should ultimately lie with the candidates, and the authority to grant relief in certain circumstances should be exercised by the Court.
8. Whilst members agreed to the Administration's proposal, they considered that the Administration should review the effectiveness of the new arrangement in the light of the experience of the District Councils election to be held in November.
Discussion on the Administration's response to the concerns raised at the meeting on 3 March 1999
(LC Paper No. CB(2)1433/98-99(02))
The role of village representatives (VR)
9. Members noted the Administration's reply that the Home Affairs Department had no information on the number of applications made to the Government relating to the rights of indigenous villagers which were approved based on the statutory declarations made by VRs alone. DS/CA reiterated that under current practice, public notices in relation to such applications would be posted in the villages. In processing an application of that sort, the Government considered, apart from the statutory declaration, all other available information such as information provided by village elders or other people in response to the notice. In the past, the Government had received information which refuted the claimed indigenous status of certain applicants.
10. In reply to Mr LEE Wing-tat's question, DS/CA said that there was no defined meaning of the term "village elders". The term ordinarily referred to those people who had lived in a village for a long time and had a good knowledge about village affairs.
General offences covered by other Ordinances applicable to VR elections
11. DS/CA advised that the offences cited under item 4 in the Administration's paper were general offences covered by other Ordinances which might be applicable to a candidate or an elector at a VR election. The provisions in the Prevention of Bribery Ordinance dealing with the offering of and soliciting or accepting an advantage, for example, were applicable to both VRs and civil servants involved in VR elections. Yet, these general provisions were not specifically targeted at conduct at elections. DS/CA reiterated the Administration's stance that it was not necessary to apply the existing CIPO provisions to VR elections, which were internal elections conducted in accordance with the guidelines laid down in the "Model Rules" promulgated by the Heung Yee Kuk.
12. Mr LEE Wing-tat said that the difficulty with the "Model Rules" was that they were only a set of guidelines without any legal basis. Hence, the rules could be easily open to abuse. He also pointed out that the authority of District Officers to approve the status as a VR could be subject to challenge. In his opinion, for the purpose of effective monitoring of the conduct of VR elections, the Bill should also apply to VR elections.
|13. The Chairman asked the Administration to discuss with the Heung Yee Kuk the possibility of incorporating certain provisions of the Bill relating to corrupt and illegal conduct at elections into the "Model Rules" as a desirable first step to improve the monitoring mechanism for VR elections.
Discussion on the comparison table at Annex to LC Paper CB(2)1433/98-99(01)
Interpretation (Clause 2)
14. In response to Assistant Legal Adviser (ALA), Deputy Solicitor General (Constitutional) (DSG(C)) said that although a definition of "Legislative Council" was available in the Interpretation and General Clauses Ordinance (Cap. 1), it was felt that a reproduction of that definition in the interpretation section of the proposed new legislation would facilitate readers in readily understanding the new legal provisions.
"Valuable consideration" in the definition of "advantage"
15. DSG(C) advised that "valuable consideration" covered anything which was of an intrinsic worth or value. Whether or not something fell within the meaning of valuable consideration and was regarded as an advantage would have to be judged on the particular circumstances of a case.
16. Members opined that the meaning of valuable consideration was too wide which could cover publicity or souvenir items handed out to the public in an election campaign. In this connection, Mrs Selina CHOW said that during the last LegCo election, her election campaigners had handed out some shopping bags carrying some publicity slogans to the electors as a souvenir. But that subsequently invited complaints because the shopping bags were said to be of considerable value.
|17. Members considered that the meaning of valuable consideration should be better clarified. Some members suggested that it should be specified in the legislation that publicity materials with no resale value in the open market or below a certain value in money terms and given out in small quantities would not be treated as valuable consideration within the meaning of advantage. The Administration was requested to respond to members' suggestion.
18. Mr LEE Wing-tat considered that in dealing with the issue of handing out publicity items in electioneering activities, a balance should be struck between plugging the loophole for corrupt practices and allowing the necessary flexibility for the conduct of such activities in a more lively fashion.
19. Mr LEE Wing-tat said that he would propose an amendment to the definition of "appropriate authority" by adding "or the two municipal councils" after "District Council" in paragraph (a) of the definition.
20. The Chairman referred to the definition of "conduct" and enquired about the meaning of corrupt or illegal conduct by a person affecting another person in an indirect way.
21. In response, DSG(C) said that the indirect element of "conduct" should be looked at in the provisions of clause 7 of the Bill, which governed the corrupt conduct of offering and accepting a bribe involving more than two persons. Clause 7 contained offence provisions which covered, amongst others, "a person" offering an advantage to "another person" as an inducement to the other person to get "a third person" to stand or not to stand as a candidate at an election. It was also a corrupt conduct for "the other person" to solicit or accept an advantage from "a person" as an inducement to get "a third person" to stand or not to stand as a candidate. The indirect element was also spelt out in clause 7(3), which clarified that a person was taken to have offered an advantage even though the offer was made by another person, but only if the other person was acting with the person's authority. That authority might be conferred expressly or by implication.
22. DSG(C) added that equivalent clauses to clause 7(3) were incorporated, where appropriate, under all the relevant clauses that followed clause 7. These clauses were, namely, clauses 8(2), 9(2), 11(4), 12(6), 13(4) and 14(2).
23. The Chairman pointed out that under the current drafting of clause 7, when a person (A) offered an advantage to another person (B) as an inducement for (B) to bribe a third person (C) to stand or not to stand as a candidate at an election, then by virtue of clause 7(3), the term "a person" covered both (A) and (B) and both of them could be charged under clause 7(1)(a). DSG(C) agreed to the Chairman's view. He added that for clause 7(3) to apply, the element of person (B) acting with person (A)'s authority had to be proved.
24. In response to the Chairman, ALA drew members' attention to the possible application of the definition of "conduct", which included conduct affecting another person only indirectly.
25. The Chairman further pointed out that in another scenario where, for example, person (B) acting with the authority of person (A) offered an advantage to the wife of person (C) to induce her to get (C) to stand or not to stand as a candidate, then the wife of (C) became the "another person" under clause 7(1)(d), and both (A) and (B) could be charged under the same section.
26. Miss CHAN Yuen-han and Mr TSANG Yok-sing expressed the view that with the evolving democratic system and the development of party politics, elections became a prime target for political parties. Political parties would seek to increase their influence by inviting new membership. They would nominate candidates to run in elections and provide financial support for the candidates. As such, the existing provisions in clause 7 could easily catch the conduct of political parties. Mr NG Leung-sing was concerned that with clause 7 covering the conduct of a person offering an advantage as an inducement for another person to stand as a candidate and the meaning of advantage including any valuable consideration, the ordinary act of a person, such as a friend of a prospective candidate incidentally treating the latter to a meal and encouraging him to stand as a candidate, could be caught as a corrupt conduct.
27. The Chairman called upon the Administration to note members' views.
(Post meeting note : The Administration's response to the points raised at the meeting was circulated to members vide LC Paper No. CB(2)1517/98-99(01) dated 19 March 1999.)
II. Date of next meeting
28. The next two meetings were scheduled for 22 March 1999 at 8:30 am and 29 March 1999 at 8:30 am respectively.
29. The meeting ended at 12:30 pm.
Legislative Council Secretariat
27 July 1999