LC Paper No. CB(2)2845/98-99
(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 seventh meeting
held on Tuesday, 20 April 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 Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Gary CHENG Kai-nam
Hon Jasper TSANG Yok-sing, JP
Hon Ambrose LAU Hon-chuen, JP
Member Absent :
Hon NG Leung-sing
Hon CHAN Yuen-han
Hon Andrew WONG Wang-fat, JP
Hon Emily LAU Wai-hing, JP
Dr Hon TANG Siu-tong, JP
Hon CHOY So-yuk
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
- 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. Continued 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))
Definition of "advantage"
Exclusion of "entertainment" from the definition of "advantage"
In response to Ms Cyd HO's enquiry, the Administration advised that the definition of advantage in both the existing Corrupt and Illegal Practice Ordinance (CIPO) and the Bill had the same meaning as that provided in the Prevention of Bribery Ordinance. The definition excluded the provision of entertainment. The term "entertainment" (whose Chinese equivalent was in the Prevention of Bribery Ordinance) was defined in section 2 of the Prevention of Bribery Ordinance as "the provision of food or drink, for consumption on the occasion when it is provided, and of any other entertainment connected with, or provided at the same time as, such provisions."
2. The Administration added that there was no specific definition of "entertainment" in both the CIPO and the Bill. Entertainment was taken out from the definition of advantage because it was felt that entertainment should be dealt with in a different way from advantage, with the latter's meaning having a specific relevance to bribery. To give effect to this, entertainment was separately dealt with under clause 12 of the Bill. The corresponding provision of clause 12 was section 7 of the CIPO, which was related to the offence of treating with meal and drink and the like. The approach adopted for both clause 12 of the Bill and section 7 of the CIPO was the same. To ensure consistency in both, the Chinese term for "entertainment" was .
3. Miss Cyd HO enquired about whether a candidate organizing certain functions such as a festive gala night show during the election period, or a certain organization inviting a candidate to attend a similar function as a guest of honour, would be caught by clause 12 of the Bill.
4. The Administration responded that an important element for clause 12 was whether the entertainment provided was for the purpose of inducing the other person or a third person to vote or not to vote at an election for a particular candidate or candidates. Whether or not a conduct would fall under clause 12 would depend on the circumstances of the case. A candidate who organized, or attended a function which had the effect of promoting his candidature would be treated as incurring election expenses and the cost of such activity would be counted towards election expenses.
5. Mr LEE Wing-tat considered that there were grey areas in the law. He said that a candidate who showed up at a particular function organized by his supporters during the election period without making any speeches about the election would not be caught by the provisions in the Bill. However, in practice, the effect of promoting his candidature was there because of his mere appearance on the occasion, which could be a large-scale function attended by a great number of electors of his constituency. Mr LEE asked whether the Administration could issue guidelines to advise district bodies and organizations to refrain from inviting candidates at an election to take part in such activities during the election period.
6. Deputy Secretary for Constitutional Affairs (DS/CA) replied that similar concerns had been raised and discussed at the meetings of the Bills Committee on District Councils Bill. He advised that section 28 of the District Councils Ordinance contained provisions which empowered the Director of Home Affairs to suspend the operation of the Councils temporarily in anticipation of an election. The Home Affairs Department would prepare guidelines for District Officers on how to handle such matters during the election period. In addition, the guidelines drawn up by both the Electoral Affairs Commission (EAC) and the Independent Commission Against Corruption in relation to election matters would also help serve the purpose of achieving clean and honest elections.
|7. Ms Cyd HO asked the Administration to advise whether any candidate had included in an election return costs incurred for holding large-scale banquets in the 1998 Legislative Council election.
"Any other service" under the definition of "advantage"
8. Mrs Selina CHOW pointed out that "advantage" had a very wide meaning which, under paragraph (g) of its definition in clause 2, covered "any other service (other than for the provision of entertainment)". She also noted that the definition of advantage made no reference to the intention to induce a person to do something, such as to vote or not to vote, in relation to an election. Mrs CHOW was concerned that such a wide scope of the definition might give rise to a large number of unjustifiable complaints about bribery or corrupt conduct in connection with an election.
9. The Administration responded that it was necessary to look at a defined term in the context of the clauses in which it was used. The intent element was provided in the various provisions in the Bill, such as clauses 7 and 12 which made it clear that the offer of advantage or entertainment had to be an inducement for the other person to stand or not to stand as a candidate, or to vote or not to vote at an election etc. As far as advantage was concerned, "any other service" included free personal service. The term "any other service" used in the definition of "advantage" in the Bill was the same as that used in the definition of "advantage" in the Prevention of Bribery Ordinance. The CIPO also used the same definition. It was not the intention of the Administration to alter the existing meaning in any way.
10. The Chairman pointed out that Legislative Councillors or members of District Boards provided a diversity of services to members of the public on a daily basis. He asked whether the public service provided by an incumbent candidate day-in day-out and during the lead-up to an election would be caught by paragraph (g) of the definition of "advantage" in clause 2 of the Bill. He said that it could easily be argued that the provision of such service was for the purpose of and had the effect of inducing another person to vote for the candidate in the election.
11. In reply, Deputy Solicitor General (DSG) said that if the service was one which had been regularly provided, it would be a reasonable indication that the service was part of the normal public duty of the incumbent candidate who was not doing it for the purpose of promoting his election. A decision to charge a person under the law depended on the particular context of the provisions governing the offence in question and subject to the circumstances of individual cases. A reference to the definition of particular terms used in the law would not be sufficient for the purpose of prosecution. In the context of the Bill, the ultimate proof was whether a service was provided as an inducement for another person to vote or not to vote for a candidate etc.
12. Mrs Selina CHOW asked whether a time element for a particular conduct would come into play in determining whether the conduct was one to which the Bill applied. The Administration replied that it was not desirable to draw a dividing line with reference to time because to do so would likely to open the floodgate for abuse. Under the Bill, a person could be prosecuted for an offence of having engaged in the corrupt or illegal conduct before, during or after the election period. Whether there would be a prosecution and a conviction of an offence would ultimately depend on evidence and proof.
|13. Mr TSANG Yok-sing considered that the drafting of the definition of "advantage" should be reviewed to avoid ambiguity and catching situations which were not intended to be brought within the scope of the definition. He remarked that for a newly nominated candidate, perhaps the most effective means by which he could secure the support of the electors was to try as best as he could to provide as much good service to the public as possible. The candidate would be in an extremely disadvantageous position if what he so did could be subject to the risk of being caught as offering an advantage. The Chairman asked the Administration to respond to members' concerns that the scope of "any other service (other than the provision of entertainment)" under the definition of "advantage" in clause 2 of the Bill was too wide.
14. Mr CHENG Kai-nam enquired about whether the publishing of performance reports by an incumbent candidate on his public service before the election period would be regarded as an inducement for another person to vote for him at an election.
15. In response, the Administration referred members to clause 34(8) which stipulated that a performance report published by an incumbent candidate during an election period was an election advertisement. Therefore, the cost of the report would be counted towards election expenses. In Chapter 5 of the EAC's Guidelines, it was specified that performance reports distributed before the election period would also be treated as election advertisements if they were for the purpose of promoting the candidature of an incumbent candidate and the relevant expenses would be counted towards election expenses.
16. The Chairman considered that the purpose of clause 34(8) was to be fair to those candidates who were not incumbent members and hence had no way of promoting their candidature by means of performance reports.
Advance election return
17. Members noted the Administration's suggestion as set out in item 3 of LC Paper No. CB(2)1680/98-99(02) to amend the deadline for submitting an election return specified in clause 36(2)(a) from "within 30 days after the date of publication of the result of the election" to "not later than 30 days after ......." to better reflect the policy intention. The EAC could then specify different forms for "advance return" and "post-election return" under subsection 2(b)(v) of the same clause. Members also noted the Administration's reply that no advance return had been submitted by any candidate in previous elections.
18. Regarding the proposal raised at a previous meeting to require mandatory reporting on election donations within a reasonable time after they had been received, the Administration considered that this would create additional workload for the candidates, who would be fully engaged in electioneering activities during the election period.
19. In reply to the Chairman, the Administration advised that overseas countries like U.K., Canada and Japan did not impose restriction on the provision of voluntary service to candidates at an election, although there were upper limits for election expenses in those countries. Australia, on the other hand, had no limit on election expenses. The US had imposed restriction on voluntary service and election expenses. Therefore, no necessary correlation between restriction on voluntary service and limit on election expenses could be deduced from the practices in other countries.
20. Members considered that there would be practical difficulties with the Administration's new proposal to introduce a time element to narrow the scope of free voluntary service which should be treated as election donation, since a lot of people who provided the service might not have "normal" or "fixed" working hours for the purpose of earning income or profit. Mr LEE Wing-tat said that for some members of the Democratic Party who were solicitors by profession and who offered legal advice to the public, whether the service would be subject to charge was tied to the status of the Party member at the time when he provided the service. For example, where the member provided such service at his district ward office in the capacity of an elected Councillor, the service would be free of charge. Mr LEE suggested that this could be a possible approach to deal with the matter of voluntary service.
21. The Administration noted members' views. DSG said that it was difficult to legislate precisely to cover all circumstances because of the diversity of occupations. He added that as the proposed legislation governed conduct punishable by criminal sanctions, the offence provisions would be strictly interpreted such that any benefit of doubt would go to the accused persons. In the end, a conviction necessarily hinged on the question of sufficiency of evidence and proof beyond reasonable doubt.
22. Ms Cyd HO opined that a person who was affiliated to a political party and used his own time to provide free voluntary service for another member standing as a candidate at an election should be exempt from the provisions in paragraph (c) under the definition of election donation. However, expensive professional services provided to a candidate should still be regarded as election donation, such as in a case where a team of professional crew members of a public relations consultancy firm devised a full-fledged publicity campaign for a candidate.
|23. The Chairman and Mr TSANG Yok-sing opined that independent candidates also had their ardent supporters and it would be unfair to discriminate against them in respect of voluntary service. Mr TSANG said that all voluntary services provided free of charge should not be counted as election donation, irrespective of whether the voluntary service involved work normally undertaken by the individual or was related to the occupation of the individual. The Chairman was also in support of removal of restriction on free voluntary service. However, the cost of the goods or materials incidental to the provision of the voluntary service should be counted towards election expenses. He requested the Administration to consider whether restriction on voluntary service should be removed altogether, having regard to practices in overseas countries.
24. Regarding the concern raised by Ms Cyd HO about the provision of voluntary service of a specialized nature, Mr CHENG Kai-nam said that usually there were rates determined by the market for the charging of such service. These market rates could be used as a reliable basis for assessing the fair estimated value of any professional service offered to a candidate. He said that any false-reporting or under-reporting of the cost could be easily brought to light.
25. DS/CA advised that the policy intention was that a service provided to a candidate would be excluded from being counted as election donation and expenses only if it was offered free of charge and done by an individual personally, voluntarily, at his own time and that person's occupation did not involve the provision of that kind of service. He reiterated that the Administration's new proposal to add a time element in respect of voluntary service was intended to strike a balance and to ensure fairness in elections. He said that subject to members' consensus views, the Administration was prepared to further consider the matter.
26. Some members indicated that they would need to seek a party line on whether all voluntary service provided free of charge should be excluded from being counted as election donation and election expenses.
Law on political parties
27. Ms Cyd HO said that under the existing CIPO, a candidate was required to report in an election return any election donation of $500 or more, accompanied by a copy of the receipt issued to the donor. However, in the case of a candidate who was fully supported by a political party of which he was a member, there was no way of knowing the source of any donation made to the political party. She said that a law on political parties would help enhance transparency in this respect.
28. In response to the point made by Ms HO, the Chairman said that political parties received donations from various sources, including fund-raising activities where a large number of the donors could not be identified. In addition, many donations were made by people who did not specify the use to which the money should be put. Therefore, it would be extremely difficult to classify donations received by political parties solely for the purpose of electioneering activities.
29. DS/CA said that the Administration had yet to consider the matter of legislating for the purpose of regulating political parties. The Administration would examine the pros and cons of a law on political parties at a later stage. He said that as the Bill sought to deal with corrupt or illegal conduct at elections, the consideration of a law on political parties appeared to fall outside the ambit of the Bill.
(Post-meeting note : The Administration's response to the points raised at the meeting was circulated to members vide LC Paper Nos. CB(2)1805/98-99(02) and CB(2)1947/98-99(02) dated 27 April and 12 May 1999 respectively.)
II. Date of next meetings
30. The next two meetings were scheduled for 28 April 1999 at 8:30 am and 5 May 1999 at 10:45 am respectively.
31. The meeting ended at 12:40 pm.
Legislative Council Secretariat
3 June 1999