Legislative Council

LC Paper No. CB(2)2694/98-99
(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 fourth meeting
held on Monday, 22 March 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 NG Leung-sing
Hon LEE Wing-tat
Hon Mrs Selina CHOW LIANG Shuk-yee, 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 Gary CHENG Kai-nam
Hon CHAN Yuen-han
Hon Andrew WONG Wang-fat, JP
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
Deputy Solicitor General (Constitutional)

Ms Phyllis KO
Acting Deputy Principal Government Counsel (Elections)

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. Meeting with the Administration

Electoral Affairs Commission (EAC)'s Draft Guidelines for the District Councils election in 1999

The Chairman drew members' attention to LC Paper No. CB(2)1517/98-99(02) and advised that the Administration aimed at publishing the Electoral Procedure Regulation for the 1999 District Councils election in the Gazette not later than early June 1999. Working backward, EAC had to publish its Draft Guidelines in mid April so that there could be a one-month period for public consultation, and then EAC could draft the Regulation based on the feedback collected. The Draft Guidelines would reflect the relevant provisions of the Bill and would be submitted to the Panel on Constitutional Affairs for discussion when they were available.

Discussion on the Administration's response to the concerns raised at the meeting on 10 March 1999
(LC Paper No. CB(2)1517/98-99(01))

Village representatives (VR) elections

2. Deputy Secretary for Constitutional Affairs (DS/CA) informed members that the Administration and the Heung Yee Kuk were still considering the suggestion to incorporate certain provisions of the Bill relating to corrupt conduct at elections into the "Model Rules" which governed the election procedures for VR elections. The Administration would revert to the Bills Committee on the progress as soon as possible.

3. Mr LEE Wing-tat said that the recent ruling of the Court of First Instance of the High Court in relation to the Hang Hau Po Toi O Village Representatives Election held in March 1999, which held that non-indigenous villagers had the civil right to vote in the election, had obvious impact on VR elections which had already been held and those that had yet to commence. As a result of the Court's judgment, the status of those elected persons as VRs could be subject to challenge and re-elections might be necessary. He reiterated his stance that the scope of the Bill should be extended to cover VR elections.

4. Ms Emily LAU was concerned that the District Councils election in November 1999 might be affected should there be appeals in the near future which overturned the results of the VR elections already held.

5. In response, Deputy Solicitor General (Constitutional ) (DSG(C)) said that it was premature at this stage to tell what the consequences of the Court's judgement would be. The Government might appeal against the Court's decision. He said that the Administration was reviewing the matter in consultation with the Heung Yee Kuk and the Administration would advise the Bills Committee of the outcome as soon as it was in a position to do so.

6. The Chairman considered that the time required for the two-tier appeal procedure, i.e. an initial appeal to the Court of Appeal and then a further appeal if necessary to the Court of Final Appeal, might affect the District Councils election. DSG(C) replied that it was unlikely that the entire appeal procedure could be completed before the nomination period for the District Councils election started. Nevertheless, he anticipated that the timing for the electoral process for the District Councils election should not be affected. He added that as the position now stood, the Court's judgment only affected one VR election. In the absence of challenges against the outcome of other elections already held, the results of those elections remained valid.

7. The Chairman and Ms Emily LAU pointed out that as the Chairmen of Rural Committees (RC) were ex-officio members of the District Councils and the route to RC chairmanship started with a VR election, successful challenges against the results of VR elections would affect the composition of the District Councils. Members requested the Administration to explain in more detail the implications of the Court's judgment, particularly in relation to the possible impact on the forthcoming District Councils election such as whether it would affect the ex-officio membership of the District Councils; whether the VR elections which had yet to take place would be affected, and if so, how the Administration would deal with such consequences.Adm

8. The Chairman advised that the Court's judgment would be circulated to membrs for information.

(Post meeting note : A copy of the Court's judgment has been issued for members' information vide LC Paper No. CB(2)1546/98-99(01) dated 23 March 1999.)

Definition of "advantage"

Valuable consideration

9. DSG(C) advised that the definition of "advantage" under the Corrupt and Illegal Practices Ordinance (CIPO) was modelled on the definition under the Prevention of Bribery Ordinance, with suitable modifications so that the definition applied specifically to the conduct of elections. The proposed definition in the Bill largely reflected the existing provisions in CIPO. By introducing the element of "valuable consideration" and defining "valuable consideration" as "money or anything worth money", the present drafting achieved better clarity regarding the meaning of "advantage". In addressing members' concern expressed at the last meeting, DSG(C) said that the way that the existing provisions in CIPO had been administered was that small tokens handed out during an election campaign which only had a nominal value were not regarded as valuable consideration. He added that in understanding how a specific term actually operated in a statute, it was necessary to look at the term in the overall context of the substantive clauses in which the term was used, rather than just referring to the interpretation section providing the definition.

10. In response to the Chairman, Assistant Legal Adviser (ALA) said that the proposed definition of "valuable consideration" in the Bill was in line with the common law interpretation of the term. The definition of "advantage" in the Bill was comparable to the existing definition in CIPO. Regarding the new definition of "advantage" in the Bill, the proposed substitution of the reference to "fee, reward or commission consisting of money or of any valuable security or of other property or interest in property of any description" in paragraph (a) of the existing definition in CIPO with "valuable consideration" could have the effect of simplifying the definition without any substantive change in meaning. He further pointed out that in CIPO, the concept of "valuable consideration" applied in the context of "election donation" rather than in the context of "advantage", and "valuable consideration" was not a defined term in CIPO.

11. The Chairman was concerned that with "advantage" and "valuable consideration" so defined in the Bill, the conduct of political parties assisting their party members or staff members to run as candidates at an election could fall within the scope of clause 7 as a corrupt conduct to bribe candidates. Echoing the Chairman's view, Mr TSANG Yok-sing pointed out that "advantage" by definition included "any office, employment or contract". As such, a political party offering to employ a party member to relieve him from his existing job so as to facilitate him to stand as a candidate at an election would be regarded as offering an advantage as an inducement for the person to stand as a candidate under clause 7(1)(a). The Chairman opined that the law should not discourage political parties from developing employed politicians.

12. In reply, the Administration said that the law allowed candidates at an election to receive election donations, including donations from political parties of which they were members. Paragraph (g) of the definition of "advantage" provided that "advantage" excluded "an election donation if particulars of the donation are given in an election return that has been lodged with the appropriate authority". The EAC Guidelines also specified the procedures for the proper submission of election returns. In the event of legal proceedings, whether or not the candidate had followed the EAC Guidelines would be a relevant factor for the consideration of the Court.

13. Mr LEE Wing-tat said that the Bill provided that election donations were for the purpose of meeting the cost of the candidate's election expenses. The salary of a candidate should not be treated as an election donation from his employer. ALA said that election donation referred to money, goods or services given to or in respect of a person whose candidature had been established. He agreed that the sum which a person normally received as salary might not be election donation.

14. Members requested the Administration to respond to the concern that an offer of employment or any other form of assistance, by an employer or an organization such as a political party, to a person to enable the person to stand as a candidate at an election might be considered as offering an advantage under clause 7 of the Bill.Adm

"Advantage" vs "Election donation"

15. ALA said that "advantage" was defined in clause 2 of the Bill to exclude an election donation if particulars of the donation were given in an election return that had been lodged. Under clause 36, an election return setting out a candidate's election expenses and election donations was to be lodged "within 30 days after the publication of the results of the election, or within such extended period as may be allowed by the Court". ALA asked whether, by virtue of these provisions, it meant that it would be impossible to ascertain an election donation, or an advantage, until after an election return had been lodged in accordance with clause 36.

16. The Administration replied that it was the intention that candidates could make advance declaration on election donations. The EAC would include a provision on "advance return of donations" in its Guidelines to enable a candidate to make advance disclosure to the EAC of any donations received before the publication of election results.
17. Members requested ALA to further clarify with the Administration on his queries.

(Post meeting note : ALA's letter dated 22 March 1999 to the Administration and the latter's reply dated 25 March 1999 have been circulated for members' information vide LC Papers No. CB(2)1581/98-99(01) and 1581/98-99(02) respectively on 26 March 1999.)

Continued discussion on the Bill


18. Ms Emily LAU referred to the arrangement of the Hong Kong University of Science and Technology to deduct salary from its employees who were elected members of a public body, but not those who were appointed members. She sought the Administration's clarification as to whether the difference in treatment could be regarded as using duress ("duress" was defined in the Bill to include causing financial loss to a person) to induce a person not to stand as a candidate at an election and therefore in breach of clause 8(1)(a) of the Bill.

19. The Administration agreed to seek information from the University and revert to the Bills Committee.Adm

"Election advertisement" and "Election expenses"

20. In response to a question raised by Mr LEE Wing-tat, DSG(C) advised that election expenses, in relation to a candidate or group of candidates, included expenses incurred before the election period for the purpose of promoting the election of the candidate or group, or prejudicing the election of another candidate or group. A person might incur expenses in advance of his being nominated as a candidate or his public declaration of candidature for the purpose of promoting his own election and those expenses should be counted towards election expenses. Election advertisements, on the other hand, had to be in relation to a particular person or group of persons and in contemplation of a particular election, where the candidature of the person or group had already been established. He said that it was unlikely that a publication published a long time before an election could have been in contemplation of that election and in relation to a particular candidate or group of candidates at that election. Hence, in effect, there was a practical cut-off line in respect of election advertisements.

"Electronic transmission" and "Any other form of publication" under the definition of "Election advertisement"

21. The Administration advised that the requirements under clause 34(1) relating to the printing of election advertisements did not apply to notices delivered by electronic transmission. However, the requirement under clause 34(4) was still applicable. The EAC would issue relevant guidelines to facilitate compliance with the legal requirements.

22. Members requested the Administration to clarify the meaning of "any other form of publication" under the definition of "election advertisement".Adm

"Free service" under the definition of "Election donation"

23. The Chairman enquired about the rationale for defining "election donation" as including "any service provided free of charge to or in respect of the candidate or group by a person whose occupation involves the provision of that kind of service". He opined that with the exception of cases like a public relations consultancy firm offering for free a comprehensive package on electioneering strategy to a candidate, which definitely involved a huge production cost, free voluntary services provided by individuals, e.g. a person who was a lawyer by profession giving an opinion on electoral laws, should not be counted as election donation. Mr Ambrose LAU added that he could not see the logic of treating the service offered by two persons differently in terms of election donation, where one of them was a typist volunteering free typing work to a candidate and the other was one who, whilst providing the same free service to the candidate, just happened to know typing.

24. DSG(C) responded that the Bill reflected the existing provisions in CIPO under which "donation" was defined as "any money received" and "money" included, inter alia, "any money's worth". Therefore, "donation" also covered the donation of a service in kind. The purpose was to provide a level playing field for all candidates at an election.

25. Ms Emily LAU agreed that if all kinds of voluntary service were excluded, some candidates might gain an unfair advantage over others, particularly where the service offered involved a high cost for its production. The question was how to ensure that the law could be enforced fairly in individual cases.

26. The Chairman, Mr TSANG Yok-sing and Mrs Selina CHOW were concerned that there were practical difficulties in identifying the types of free voluntary services which might be caught by the definition of "election donation" and therefore should be reported in an election return, as well as in quantifying in money terms the value of such services. The Administration was requested to respond to these concerns and to provide some examples of how "election donation" was defined and used in other jurisdictions.Adm

(Post meeting note : The Administration's responses to the points raised at the meeting have been circulated to members vide LC Papers No. CB(2)1581/98-99(04) and 1680/98-99(01) dated 26 March 1999 and 13 April 1999 respectively.)

II. Date of next meeting

27. The next meeting was scheduled for 29 March 1999 at 8:30 am.

28. The meeting ended at 10:30 am.

Legislative Council Secretariat
27 July 1999