Legislative Council

LC Paper No. CB(2)2707/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/17/98

Legislative Council

Bills Committee on Elections (Corrupt and Illegal Conduct) Bill

Minutes of the sixth meeting

held on Thursday, 15 April 1999 at 8:30 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 Gary CHENG Kai-nam
Hon Andrew WONG Wang-fat, JP
Hon Jasper TSANG Yok-sing, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP
Dr Hon TANG Siu-tong, JP

Member Absent :

Hon CHOY So-yuk

Public Officers Attending :

Mr Robin IP
Deputy Secretary for Constitutional Affairs

Mr Bassanio SO
Principal Assistant Secretary for Constitutional Affairs

Mr James O'NEIL
Principal Government Counsel

Ms Phyllis KO
Acting Deputy Principal Government Counsel (Elections)

Mr Michael LAM
Government Counsel

Clerk in Attendance :

Mrs Percy MA
Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Arthur CHEUNG
Assistant Legal Adviser 5

Mr Paul WOO
Senior Assistant Secretary (2)3

I. Continued discussion on the Administration's response to concerns raised at the meeting on 22 March 1999
(LC Paper No. CB(2)1581/98-99(04))

Election advertisement

Members noted the reply given by the Administration that it was impossible to provide an exhaustive meaning to "any other form of publication" under the definition of "election advertisement". The Administration advised that the key factor to determine if something published was an election advertisement was whether it had the effect of promoting or prejudicing the election of a candidate or candidates at an election.

2. Ms Emily LAU said that during the 1998 Legislative Council election, some printed materials distributed had called for electors to vote for both her and another candidate competing with her in the same geographical constituency. She enquired about whether such kind of publication, which was printed without her authorization, should be regarded as election advertisement to promote her and the other candidate at the election, and whether the expenditure incurred for printing those publications should be counted towards election expenses to be reported in an election return.

3. The Administration replied that whether a publication was an election advertisement had to be determined with reference to its content to see if it had the effect of promoting or prejudicing the election of a candidate or candidates. If the publication was an election advertisement, the cost of publishing it would be counted as an election expense. Nevertheless, a person had to be authorised by a candidate before he could incur expenses on the candidate's behalf. In the circumstances described, as Ms LAU had not authorized the publication, she was not subject to the requirements under clause 36(1) of the Bill to report the expenses for printing the publication. The Administration added that a person who incurred such unauthorized expenditure would be caught by the illegal conduct provisions in clause 23 of the Bill.

4. Ms Emily LAU said that the Administration should step up publicity to minimize the recurrence of similar irregularities.

5. Members enquired about the difference between the existing Corrupt and Illegal Practice Ordinance (CIPO) and the Bill as to the meaning of "election advertisement". Principal Government Counsel (PGC) advised that there was no specific definition of election advertisement in the CIPO. Section 19 of CIPO set out the printing requirement in respect of printed material having reference to an election, which in practice could cover "neutral" publication without the intent to promote any candidate at an election. This was not the policy intention. Therefore, the proposed definition in the Bill sought to narrow the scope of election advertisement to electioneering material which had the effect of promoting or prejudicing a candidate or candidates at an election. The proposed definition tied in with the definition of election expenses which also contained the reference to promoting or prejudicing the election of a candidate or group of candidates.

Independent, third-party publications

6. Ms Cyd HO pointed out that it was not uncommon that some independent institutions or concerned citizens groups not connected with a candidate or political party might comment or publish reports on the performance of prospective candidates of an election, such as a report showing their attendance at meetings of the various bodies to which they sought re-election. Such reports or comments, despite they were not intended to favour or discredit a candidate at the election, could amount to positive or adverse publicity on the candidate concerned, hence having the effect of promoting or prejudicing the election of the candidate. She added that in most cases, such reports or commentaries by third-party organizations were published without the authorization of the candidates concerned. She asked whether, in those circumstances, the printed material would fall within the meaning of election advertisement, and whether the third-party individuals or groups who incurred expenses for publishing the material had committed the illegal conduct offence under clauses 23 and 34 of the Bill.

7. Ms Emily LAU cautioned that if clauses 23 and 34 of the Bill were intended to cover such printed publication, they could be seen as imposing a restriction on freedom of expression, thus violating the spirit of Article 27 of the Basic Law.

8. In response, the Administration said that one had to have regard to whether there was the intention, through the publication, to influence the outcome of an election. Whereas cases would have to be looked at individually, the policy intention was that election advertisement should not cover third-party commentaries which did not intentionally favour one candidate or another.

9. On the point raised by Ms Emily LAU, Mr LEE Wing-tat opined that there were bound to be potential conflicts between fair play in election campaigning and freedom of expression. He said that if one was to go for total freedom of expression in matters of election, there should not be any restriction on election expenses. Ultimately, it was a matter of striking a balance between the two.

10. Members considered that the present drafting of the definition, which referred to the effect of promoting or prejudicing a candidate at an election, could not reflect the policy intention of narrowing the scope of election advertisement. On the contrary, by resorting to the effect test, some neutral publications not related to an election campaign might be caught because of their unintentional effect of promoting or prejudicing the election of a candidate or candidates. Members requested the Administration -Adm

  1. to review the wide definition of "election advertisement" which failed to reflect the policy intention to cover only those material whose intent (as opposed to effect) was to promote or prejudice a candidate or candidates at an election; and

  2. to advise whether third-party individuals or organizations publishing commentaries on candidates without the authorization of the candidates concerned would be caught by the definition of "election advertisement", hence in breach of clause 23 of the Bill. In addition, whether restricting third-party publications of that kind would be in breach of the spirit of Article 27 of the Basic Law which guaranteed freedom of expression.

Newspaper commentaries

11. Mr TSANG Yok-sing said that given the proposed definition of election advertisement, which included "any form of publication", media commentaries which had the effect of promoting or prejudicing a candidate or candidates should be treated as election advertisements. However, in Chapter 8 of the Electoral Affairs Commission (EAC)'s Proposed Guidelines in respect of the 1999 District Councils election (paragraph 5 in Appendix to Chapter 8), it was stated that "Any newspaper is at full liberty to express its support for or disapproval of a candidate". Mr TSANG said that this particular guideline seemed to suggest that newspaper commentaries, notwithstanding that they openly appealed to electors to support or not to support a candidate or candidates, would be exempt from the requirements relating to election advertisement and election expenses. Therefore, candidates who had the support of the media would gain an unfair advantage over others. Mr TSANG's views were shared by Mr Andrew WONG Wang-fat.

12. The Administration advised that Chapter 8 of the EAC's Proposed Guidelines and its Appendix dealt with fair and equal treatment of candidates by the print media. The draft Guidelines were presently at the public consultation stage with the period for consultation ending on 11 May 1999. Based on feedback from the public, EAC would amend the draft Guidelines if necessary and make the necessary regulation to provide for the practical procedures for the District Councils election.

13. Members called upon the Administration and the EAC to take on board members' views in finalizing the Guidelines.

Corrupt conduct under clauses 7 and 8 of the Bill

14. In relation to item 5 of LC Paper No. CB(2)1581/98-99(04), members noted the Administration's explanation that for clause 7 to come into play, the offer of advantage must relate to a specific election and the advantage must be offered as an inducement to a person to stand or not to stand in a specific election. A bona fide offer of employment by a political organization to a person where he was to carry out genuine and specified duties and be paid the market rate would not be caught by the clause merely because there was an understanding that at some future date he might stand for some unspecified elective office.

15. With regard to a point raised at a previous meeting of the Bills Committee, the Administration informed members that the Hong Kong University of Science and Technology had decided to revise its policy concerning deduction of salary for its employees who were serving as members of public bodies and earning a remuneration from such a service. The salary deduction policy now applied to both elected members and appointed members of those public bodies. The Administration advised that the deduction of salary in such circumstances was not in breach of clause 8(1)(a) of the Bill.

16. In response to members, PGC said that the focus of clauses 7 and 8 of the Bill was on corrupt conduct at the time of an election, not at the stage when the election was over. Clause 8 made it an offence for a person to use duress to induce a person to stand or not to stand as a candidate, where duress by definition included causing financial loss by duress so that it could include loss of employment, reduction of salary and loss of other employment benefits etc. However, clause 8 did not prohibit an employer from doing such acts as deducting salary from an employee or even terminating the employment because the employee had failed to carry out his normal duties. What clause 8 would cover would be a situation where, for example, an employer threatening to sack an employee, or not to consider the employee for promotion, merely because the employee was standing as a candidate at an election and was election campaigning during his private time.

17. Mr TSANG Yok-sing and Mr LEE Wing-tat asked the Administration to clarify whether an employer acting in the following behaviour would be caught by clause 8 as using or threatening to use force or duress against a prospective candidate to induce him not to stand as a candidate at an election - Adm

  1. making a comment to an employee that the employee's prospect for promotion would be affected if he stood as a candidate at an election; or

  2. mentioning that if an employee stood as a candidate at an election and got elected, his employment status would be changed, for example, from that of a full-time permanent staff to a temporary or contract staff.

Mr LEE Wing-tat said that he was aware that the practice in (b) above was adopted by some UGC-funded institutions.

18. Members noted that the measures adopted by public-funded organizations concerning their staff taking up remunerated or non remunerated public office varied. They requested the Administration to provide details on the existing practices of UGC-funded institutions and public-funded bodies concerning their staff's engagement in remunerated and non-remunerated public service and to consider standardising the practices under an agreed set of policy guidelines. Adm

Voluntary service and election donation
(LC Paper No. CB(2) 1680/98-99(01))

19. The Administration advised that according to the EAC Guidelines for the 1998 Legislative Council election, volunteer work rendered free of charge to a candidate would be counted as election donation if it was the work normally undertaken by the individual providing the service and during such time for the purpose of earning income or profit. Having considered members' views, the Administration was prepared to propose an amendment to the definition of "election donation" to incorporate this time element in respect of free voluntary service. Some members pointed out that there were practical difficulties in determining the normal working time for people working non-specific hours in certain occupations such as freelance employees.

20. Members noted from Annex to LC Paper No. CB(2)1680/98-99(01) that there was no restriction on voluntary service in most of the overseas countries cited therein. Ms Emily LAU asked the Administration to provide further information on whether those countries had imposed any restriction on election expenses/election donation for members' consideration. Adm

II. Discussion on the Administration's response to concerns raised at the meeting on 29 March 1999
(LC Paper No. CB(2)1680/98-99(02))

Implications of the recent Court judgment on village representative (VR) elections

21. Deputy Secretary for Constitutional Affairs advised that the concern which arose from the Court judgment was that it might impact on the ex-officio membership of the District Councils as the Chairmen of the 27 Rural Committees were ex-officio members of the District Councils. He said that even if these ex-officio members' status was challenged as a result of the Court judgment, section 72 of the District Councils Ordinance would be sufficient to safeguard the proceedings of a District Council in respect of any vacancies arising.

22. Members were of the view that the function of section 72 was to ensure the continued operation of a District Council in the event of a situation giving rise to one or two vacancies in the Council. The Chairman was concerned that as the situation now stood, the Court judgment could result in successful challenges against the legitimacy of the outcome of the VR elections and consequently against the status of the Rural Committees Chairmen as ex-officio members of the District Councils, thus leading to a large number of vacancies in the Councils. He doubted whether section 72 of the District Councils Ordinance was a sufficient instrument to deal with such extraordinary situation.

23. The Administration advised that a working group had been formed to review the matter of VR elections in the light of the Court judgment. The working group would complete its task in six months' time. Subject to the outcome of deliberations on the Bill and the recommendations of the working group, the Bill could be amended where necessary.

(Post-meeting note : The Administration's response to points raised at this meeting was circulated to members vide LC Paper Nos. CB(2)1805/98-99(01) and CB(2)1947/98-99(02) on 27 April and 12 May 1999 respectively.)

III. Date of next meeting

24. The next meeting was scheduled for 20 April 1999 at 10:45 am.

25. The meeting ended at 10:40 am.

Legislative Council Secretariat
3 June 1999