Legislative Council

LC Paper No. CB(2)2693/98-99
(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 first meeting
held on Tuesday, 23 February 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 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

Member Absent :

Hon NG Leung-sing
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon CHOY So-yuk

Public Officers Attending :

Mr Clement MAK
Acting Secretary for Constitutional Affairs

Mr Robin IP
Deputy Secretary for Constitutional Affairs

Mr Bassanio SO
Principal Assistant Secretary for Constitutional Affairs

Mrs N Dissanayake
Acting Principal Government Counsel (Elections)

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. Election of Chairman

Mr Ronald ARCULLI was elected Chairman of the Bills Committee.

II. Meeting with the Administration

2. At the invitation of the Chairman, Acting Secretary for Constitutional Affairs (S for CA (Ag)) took members through the Legislative Council Brief on the Bill. He said that the object of the Bill was to ensure clean and honest elections by prohibiting corrupt or illegal conducts. The existing Corrupt and Illegal Practice Ordinance (CIPO), which prohibited various corrupt or illegal activities in relation to elections, was first enacted in 1955. To meet the changing demands of the evolving electoral systems, it was necessary to update the various statutory provisions and to modernize the legal langauge used in the Ordinance. In view of the substantial amendments required, the Administration proposed to replace the CIPO with a new legislation.

3. The Bill included most of the existing offence provisions in the CIPO, and took into consideration the experience gained in previous elections, including the 1998 Legislative Council (LegCo) election. Like the CIPO, the proposed new legislation would apply to the elections of the LegCo, District Councils, Heung Yee Kuk and the executive committee of a Rural Committee. The conduct prohibited under the Bill were classified as corrupt or illegal. The former included offences relating to candidates and electors that had a direct effect on election results, while the latter covered offences relating to election expenses and false information that did not affect the election directly.

4. S for CA (Ag) further advised that it was intended that the Bill would apply to the District Council elections to be held in late 1999. To help the public understand the electoral procedures, the Electoral Affairs Commission (EAC) would, as usual, issue electoral guidelines which would cover all practical aspects of the elections. To enable the EAC to publish the finalized guidelines in September 1999 to reflect the various provisions of the Bill, the Administration hoped that the Bill could be passed in July 1999 before the LegCo went into recess.


Application of the Bill

5. Mr LEE Wing-tat and Ms Emily LAU queried why the Bill was not intended to apply to the election of the Chief Executive (CE). Ms Emily LAU opined that in addition to being clean and honest, elections should also be fair and open. She said that she was opposed to any "small-circle" election which was not seen to be fair and open. She agreed with Mr LEE's view that the Bill should also apply to the CE election, and enquired whether the Bill, if passed into law, would be amended at a later stage to cover the CE election.

6. The Chairman said that if the scope of the Bill was to be extended to cover the CE election, some of the provisions of the Bill would need to be re-drafted. For example, the meaning of "elector" would have to be re-defined.

7. Mr Andrew WONG said that as far as the definition of "elector" was concerned, the problem was technical and could be overcome by applying the provisions under paragraphs 2 and 3 of Annex I of the Basic Law on Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region. The composition of the Election Committee specified therein could be used as the basis to define "elector" in respect of the election of the CE. In his opinion, the Bill could practically cover the CE election as well as the election of members to the Election Committee for the election of the CE.

8. In response to the issues raised by members, S for CA (Ag) explained that legislative proposals in respect of the arrangements for and the regulation of the election of the CE would be the subject of a separate bill which would be introduced into the LegCo at a later stage. He said that the Administration would take into account the provisions of this Bill when drafting the legislation governing the CE election.

9. Mr LEE Wing-tat opined that it was a matter of utmost importance that the public and the international community should not be given an impression that the election of the CE of the HKSAR would be subject to a regulatory framework which was less stringent than that for the other elections, and hence was more likely to give rise to corrupt and illegal practices.

Classification of corrupt or illegal conduct

10. In response to Mr LEE Wing-tat's question, the Administration advised that the classification of conduct as either corrupt or illegal under the Bill was broadly in line with the existing CIPO, except that all voting offences were proposed to be re-classified as corrupt conducts ( under Clauses 15, 16 and 17 of the Bill). Corrupt conducts attracted a heavier penalty than illegal conducts (under Clauses 6 and 22).

Rural Committee elections

11. Mr Andrew WONG enquired about the procedures for election of the Chairman, Vice Chairman and members of the executive committee of a Rural Committee (RC) and whether such elections were subject to any legislative control. He also asked whether there were cases where all the members of a RC could become members of the executive committee of the RC.

12. In response, Deputy Secretary for Constitutional Affairs (DS for CA) said that the General Assembly of each RC consisted, inter alia, all village representatives (VR) of the rural community. The Chairman, Vice Chairman and members of the executive committee of a RC were elected among the General Assembly members. He undertook to provide a more detailed reply to Mr WONG's questions in writing.Adm

VR elections

13. Mr LEE Wing-tat said that he understood that VRs performed certain functions within their rural community, such as assisting villagers in making applications to the Government for building small houses and hillside burials. In discharging these functions, VRs could make declarations relating to the indigenous status of villagers. Mr LEE considered that as VRs had a substantive role to play in these areas, the Bill should also cover elections of VRs.

14. DS for CA replied that VRs had no statutory duties. They were responsible for managing village affairs and acted as the channel for communication between the Government and the villagers. In the matters referred to by Mr LEE, the testimonies made by VRs served as reference material only. The final decision on whether or not approval should be granted rested with the District Officers (DO) concerned, who might also seek assistance from other people having good knowledge about the indigenous status of the villagers, such as the village elders, ex-VRs and the RC Chairmen etc.

15. Mr Andrew WONG pointed out that the recent court ruling on the Hang Hau Po Toi O Village Representative Election might have repercussions on the VR elections. He enquired about the procedures for elections of VRs and the respective roles of the VRs, the RCs and the DOs in relation to the VR elections.

16. DS for CA said that VR elections were internal elections within the rural community. There were no legislative provisions or mandatory rules governing the conduct of VR elections. At present, VR elections were conducted in accordance with established rural traditions and with the "Model Rules" promulgated by the Heung Yee Kuk in August 1994 under the principles of one-person-one-vote, equal voting rights for men and women and fixed terms of four years for the elected representatives etc. The legal role of DOs in VR elections was confined to the exercise of the authority to approve a person as VR. However, in the actual conduct of the elections, DOs provided administrative support by rendering assistance in the preparation of the voter register, posting notices, advertising the elections and counting the votes cast. The RCs and VRs also performed a co-ordinating role in the election exercise such as in the compilation of electoral rolls. S for CA (Ag) undertook to provide a more detailed explanation in writing for further discussion at the next meeting.Adm

"Advangage", "Force" and "Duress"

17. In reply to Mr CHENG Kai-nam's question, the Administration advised that the definitions of the above terms in the Bill aimed at providing a clearer explanation by specifying that advantage and the use of force or duress included, but not merely confined to, the causing of financial loss.

Voting arrangement

18. Ms Emily LAU queried why "voting arrangement" was not considered as a corrupt conduct. Under Clause 11(6) of the Bill, a voting arrangement meant "an arrangement under which persons agree to vote for, or get others to vote for, a candidate or candidates in return for other persons agreeing to vote for, or get others to vote for, another candidate or other candidates". Ms LAU said that it appeared that such an agreement between persons would amount to offering and accepting an advantage for the person's own benefit or for the benefit of another person.

19. In response, S of CA (Ag) said that the provisions on voting arrangement in Clause 11 were to take into account the present electoral developments in Hong Kong under which political parties might seek mutual support from each other in the elections. A hypothetical example was where an arrangement was made between two political parties such that political party (A) agreed to appeal to its electors to vote for a particular candidate or candidates of political party (B) running in a particular constituency, in return for reciprocal support from political party (B). He qualified that if a voting arrangement involved the offering or soliciting of pecuniary or other advantage, then it would still be caught as a corrupt conduct.

20. Mr Andrew WONG considered that the provisions in respect of voting arrangement were reasonable. He said that it was a feature of modern development in politics that under certain circumstances political parties sharing certain common beliefs could form coalition parties to strengthen mutual support. He recalled that Lord Wilson, the then Governor of Hong Kong, had once expressed the view that vote-canvassing was not an ill-motivated act in elections.

Electoral advertising

21. In response to members, the Administration advised that for an election advertisement (EA) published by political party (A) which had the effect of promoting the election of a candidate of political party (B), the expenses incurred for publishing the EA should also be counted as election expenses of the candidate of political party (B). Any election expenses incurred for promoting the election of more than one candidate should be apportioned among the candidates concerned and be declared in the respective election returns. The Administration added that the EAC would set out in detail in its guidelines the requirements as to the proper declaration of election expenses. According to the experience of the LegCo election in 1998, particulars about election expenses of candidates had been subject to wide media coverage.

22. Ms Emily LAU enquired about how the purpose of requiring a person to show the printing details could be achieved in relation to an EA placed in a newspaper. The Administration responded that as most of the required printing details would be available in the newspaper itself, EA in newspapers would be exempted from the requirements to declare printing details. In this connection, the Chairman said that the chances of illegal conduct in relation to false reporting of printing information would be lower in the case of newspaper EA than in the case of EA published in other forms such as leaflets and posters.

23. Miss CHAN Yuen-han pointed out that in certain situations, candidates might have difficulties to provide the returning officer with details of an EA before it was published. For example, an EA in the form of a simple notice distributed by a candidate's supporters during campaign home visits might have been printed without the candidate's knowledge. DS for CA advised that the Bill provided that a person could not incur any election expenses on behalf of a candidate unless he had been so authorised by the candidate. Also, a person could not publish a printed EA unless two copies of the advertisement had been lodged with the appropriate returning officer.

24. Ms HO Sau-lan said that it might not be easy for a candidate to be aware of advertisements which had the effect of negative campaigning until such EA was actually published. DS for CA said that by definition, EA included advertisements in various forms which had the effect of prejudicing the election of a candidate or candidates at the election. Publication of any EA without prior deposit as required under the law was an offence. He said that the purpose was to ensure protection for all candidates alike.

25. Ms HO Sau-lan said that members of the public who were not directly involved in an election campaign might wish to express a view or an opinion which had the effect of promoting or prejudicing the election of a candidate or candidates. She opined that a right balance should be struck between protecting the candidates at an election and the freedom of expression.

Election return

26. Mr LEE Wing-tat pointed out that some candidates at the 1998 LegCo election had encountered practical difficulties in complying with the requirement to lodge an election return with the Chief Electoral Officer within 30 days after the date of publication of the election result in the Gazette. The reason was that some EA displayed had been removed from where they were orginally mounted to other locations unknown to the candidates. Subsequently, the EA displayed were spotted and had to be taken away by the relevant Government departments, which then issued the demand notes to the candidates concerned for settlement of the necessary expenses. Very often, when the demand notes reached the candidates, there was not enough time for them to include the costs in their election returns within the specified period, and accordingly they had to apply to the Court for an order extending the period for lodging the election return. Mr LEE considered that as the failure to lodge the election return on time under such circumstances was not due to the candidates' bad faith, there should be more flexibility in dealing with the matter.

27. Members generally shared the view that the Administration should render every possible assistance to enable candidates at the election to fulfil their obligation as required under the legislation. Mr LEE Wing-tat suggested that two options could be considered. Firstly, the period for lodging the election return could be extended. Secondly, the demand notes in respect of removing the EA displayed should be issued to the candidates, say, within 21 days after publication of the election results to allow sufficient time for the candidates to submit the return. Ms Emily LAU and Mr Andrew WONG favoured the second option. Ms LAU further suggested that such arrangements should be specified in the legislation.

28. Mr TSANG Yok-sing enquired about whether a candidate could be exempted from the requirement to apply to the Court for an extension of the period for submitting the election return in the circumstances described earlier by members. DS for CA replied that it was a duty on the part of a candidate to lodge an election return on time. To provide an exemption provision or extension of the period for making an election return might lead to undesirable speculations about candidates circumventing the system. He considered that the second option proposed by Mr LEE Wing-tat was an appropriate solution to the issue. He undertook to consult the relevant Government departments on the implementation of this proposal.Adm

Disqualification criteria for candidature

29. Mr LEE Wing-tat noted that, as highlighted in paragraph 32 of the Legislative Council Brief on the Bill, under sections 9, 24 and 25 of the CIPO, a candidate would be disqualified from being elected as a member of the relevant body for five years if, during the trial of an election petition, it was proved that a corrupt or an illegal practice had been committed by or with the knowledge or consent of the candidate. He enquired about the rationale for excluding these existing provisions of the CIPO from the Bill. The Administration explained that it might not be fair to apply such an automatic disqualification criterion for candidature, as the standard of proof for an election petition was less stringent than that for a criminal prosecution. Therefore, it was recommended that a candidate would be disqualified only after he was criminally prosecuted and convicted of a corrupt or an illegal conduct. To implement this, new provisions were proposed to be included in the Legislative Council Ordinance and the District Councils Bill (under Items 6 and 7 of the Schedule to the Bill) requiring the court hearing an election petition to provide the Director of Public Prosecutions with a report if it appeared that any person might have engaged in a corrupt or an illegal conduct.

30. The Chairman and Mr LEE Wing-tat said that the proposed provisions could result in a strange scenario, i.e. a candidate was not disqualified because of the absence of an indictment, despite the fact that the court hearing the election petition had found him engaging in a corrupt or an illegal conduct. They opined that the proposed changes should be further examined.BC

The way forward

31. To facilitate scrutiny of the Bill at future meetings, members requested the Administration to provide a comparison table highlighting the differences between the Bill and the existing CIPO provisions, with justifications for the proposed amendment.

(Post-meeting note : The Administration's response to the concerns raised by the Bills Committee at this meeting was circulated to members vide LC Paper No. CB(2)1385/98-99(02) and CB(2)1433/98-99(01) on 2 and 9 March 1999 respectively.)

32. The meeting ended at 12:50 pm.

Legislative Council Secretariat
28 April 1999