Legislative Council

LC Paper No. CB(2)2697/98-99
(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 fifth meeting
held on Monday, 29 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 LEE Wing-tat
Hon NG Leung-sing
Hon CHAN Yuen-han
Hon Gary CHENG Kai-nam
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP
Dr Hon TANG Siu-tong, JP

Members Absent :

Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Andrew WONG Wang-fat, JP
Hon Jasper TSANG Yok-sing, 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)

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. Meeting with the Administration

Discussion on the Administration's response to the concerns raised at the meeting on 22 March 1999
(LC Papers No. CB(2)1581/98-99(01) - (04))

"Advantage" vs "Election donation"

In response to the Chairman, Assistant Legal Adviser (ALA) referred members to his letter dated 22 March 1999 to the Administration (LC Paper No. CB(2)1581/98-99(01)) which sought the Administration's clarification on the following issues -

  1. Section 8A of the Corrupt and Illegal Practices Ordinance (CIPO) applied the concept of "bribery" as defined in section 5 of the same Ordinance.Although the provisions in clause 7 of the Bill and the existing sections 5 and 8A of CIPO were comparable in many ways, a major difference was that for the activities specified in section 5(1)(a) to (d) in CIPO to constitute bribery, they had to be done "without lawful authority or reasonable excuse".However, no such reservation was made with regard to clause 7 of the Bill.

  2. Paragraph (g) of the definition of "advantage" in clause 2 of the Bill stipulated that "advantage" excluded an election donation if particulars of the donation were given in an election return that had been lodged by the candidate concerned.Clause 36 of the Bill specified that an election return setting out a candidate's election expenses and all 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".The effect of these provisions appeared to be that it would not be possible to establish whether something received by a candidate was an "advantage" or an "election donation", and therefore prosecution action could not be brought against the persons concerned, until an election return had been lodged in accordance with the requirements under clause 36.

2. Members noted that the Administration's responses (in LC Paper No. CB(2)1581/98-99(02)) to the above queries were that -

  1. The phrase "without lawful authority or reasonable excuse" was considered unnecessary in the context of clause 7 of the Bill because there could never be a lawful authority or a reasonable excuse for the corrupt conduct of bribing a candidate, which was a deliberate act involving a wilful intention.

  2. It was the Administration's intention that advance declaration on election donations could be made by candidates.The Electoral Affairs Commission (EAC) had specified in its electoral guidelines for the 1998 Legislative Council election that the procedures for submitting "advance return of donations" to enable a candidate to give advance disclosure to the Commission of any donation received before the publication of the election results.The EAC would provide for similar guidelines in respect of the District Councils election to be held in November.

"Lawful authority or reasonable excuse"

3. The Chairman pointed out that section 5(1)(a) of CIPO concerned with bribery in relation to "voting in an election" but it did not refer to voting for a particular candidate or candidates.He asked whether political parties handing out little souvenirs to members of the public during an election campaign simply to encourage voting would be caught by the offence provision, or be considered as acting with a reasonable excuse.

4. Deputy solicitor General (Constitutional) (DSG(C)) responded that it would be a reasonable excuse if the act was done without the intention of promoting the election of a candidate or group of candidates. He advised that the point raised by the Chairman had been addressed under clause 11 of the Bill, which dealt with corrupt conduct to bribe electors to vote for a particular candidate or candidates.He added that the reference to "without reasonable excuse" was used in clause 11 of the Bill.

Advance return on donations

5. ALA pointed out that while clause 36 of the Bill specified the meaning of "election return", it did not provide for an "advance return" in the nature of that described by the Administration.Therefore, it was doubtful whether the "election return" referred to in paragraph (g) of the definition of "advantage" included an advance return.Accordingly, it was doubtful whether an amount declared as an election donation in an advance return could be lawfully regarded as falling outside the meaning of "advantage" as defined in the Bill.

6. In response, Principal Assistant Secretary for Constitutional Affairs advised that the legal basis for an "advance return" was provided in section 29(2A) of CIPO, which stated that -

"...a candidate may send to the Electoral Affairs Commission, at any time before he sends to the returning officer the return and declaration, a return of donations in such form and containing such information as may be specified from time to time by the Electoral Affairs Commission for that purpose, and he may so send any number of such latter returns."

The Administration emphasized that the purpose of the requirement to declare election donations was to enhance transparency in relation to the sources from which a candidate or group of candidates received assistance for the purpose of running in an election.Electors were entitled to know such information.The transparency also afforded protection for the donors to ensure that the donations had been spent in the way that they intended it, namely to meet the cost of the candidates' election expenses. The Administration considered that the present proposals in the Bill provided adequate safeguards against abuse because a candidate who deliberately failed to declare election expenses, including election donations, would be putting his success in the election at risk.Experience in past elections did not indicate a serious problem in the enforcement of and compliance with the legal requirements.

7. Mr LEE Wing-tat was concerned that as the law did not require that a declaration had to be made by a candidate as soon as a donation was received, any person who contravened the offence provisions in clause 7 could not be prosecuted before the statutory deadline specified in clause 36(2) for lodging an election return.Ms Cyd HO and Ms Emily LAU opined that a mandatory requirement for candidates to make a declaration on election donations at an appropriate time should be considered.

8. Members requested the Administration to respond to the following queries for the consideration of the Bills Committee -

  1. whether or not "advantage" included an amount already declared as an election donation in an advance return lodged by a candidate;

  2. whether or not an express provision similar to section 29(2A) of CIPO should be included in the Bill;

  3. whether or not the Bill should provide for mandatory reporting on election donations by candidates within a reasonable time after the donations had been received, instead of within 30 days after the publication of the election results; and

(d) whether or not any candidates in the 1998 Legislative Council election had submitted advance returns on donations to the EAC, and if the answer was positive, the number of such returns.Adm

Corrupt conduct committed outside Hong Kong

9. The Chairman noted that the reference to "in Hong Kong or elsewhere" in section 5(1) of CIPO was omitted from clause 7 and other relevant offence clauses in the Bill.Mr LEE Wing-tat enquired about how the Bill could deal with situations such as an elector being detained outside Hong Kong and therefore could not cast his vote on the polling day.

10. The Administration said that clause 5 of the Bill specified that the proposed legislation applied to all conduct concerning an election, whether the conduct was engaged in Hong Kong or elsewhere.Therefore, corrupt conduct committed outside Hong Kong could result in a prosecution. Furthermore, where there were grounds that the interests of a candidate were adversely affected, the candidate could seek redress by way of an election petition to challenge the results of the election.

Implications of the Court judgment on the Hang Hau Po Toi O Village Representatives election on District Councils election

11. The Administration advised that it would report back to the Bills Committee as soon as possible on the impact of the Court's judgment on village representatives (VR) elections which had yet to take place. As the case only concerned a particular VR election and the Court had not questioned the legality of the District Councils Ordinance, the Court's judgment should not have any direct effect on the District Councils (DCs) election in November.

12. The Chairman said that the fundamental concerns at issue were, firstly, the impact, if any, of the Court's judgment on VR elections; and secondly, whether the composition and operation of the DCs would be affected because of the status of the Rural Committees' (RC) Chairmen being challenged as a result of the Court's ruling.In relation to the second issue, given the possibility that the status could be successfully challenged, those persons elected as RC Chairmen could be disqualified from being ex-officio members of the DCs.Referring to section 72 of the District Councils Ordinance, which provided that proceedings of a DC would not be affected by any vacancy or defect in its membership, the Chairman considered that it was only meant to cater for a situation where only a small number of vacancies would arise.He doubted whether the scope of section 72 was wide enough to deal with a scenario where a large number of vacancies arose at the same time, e.g. the status of the ex-officio members of the DCs being successfully challenged as a result of certain VR elections.

13. Echoing the Chairman's view, Mr LEE Wing-tat considered that the Court's judgment could lead to challenges against the election results of RC Chairmen, particularly where an election was fiercely contested in which a candidate won by only a narrow margin.

14. DSG(C) said that in the event of a challenge against the result of an election for a RC Chairman, the Court might declare that another election should be held or the Court might rule that another person should have been elected.Any other decision by the Court would mean that the originally elected person would remain as elected Chairman.In the case of a re-election, a vacancy in a DC would exist for a short period of time.However, this would not impact directly on the continued operation of the DC in view of section 72 of the District Councils Ordinance.

15. The Chairman and Ms Emily LAU remained in doubt as to whether section 72 of the District Councils Ordinance was sufficient to address the issue. Ms LAU called upon the Administration to reconsider the possiblilty of removing the ex-officio seats for the District Councils.

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

16. Members noted the EAC's guidelines for the 1998 Legislative Council election relating to the calculation and reporting of voluntary services provided to candidates at the election.The Administration advised that the EAC would issue similar guidelines for the District Councils election.

17. The Administration reiterated that there should be a level playing field for all candidates at an election.Hence, it was proposed that "election donation" should include voluntary service provided to a candidate by a person whose occupation involved the provision of that kind of service. The present proposal which focused on the "occupation" element represented a balance between counting all voluntary services on the one hand and removing the restrictions altogether on the other.PDSG(C) added that in the example of a lawyer offering an opinion free of charge to a candidate in relation to the election and for the purpose of promoting the election of the candidate, such service should be treated as an election donation and counted towards election expenses, and the fees which the lawyer would normally charge his clients for his legal advice should be used in calculating the value of the donation.

18. Ms CHAN Yuen-han said that she was doubtful as to whether the proposed requirement was enforceable, in view of the fact that electioneering activities were becoming more and more sophisticated and professionalized.She pointed out that candidates and political parties at elections were increasingly reliant on services offered by volunteers, many of whom were professional people.Mr CHENG Kai-nam added that with an upper limit imposed on election expenses, practically every cent spent would have to go down on record and be accounted for by a candidate.Therefore, the requirements relating to election donation must be clear in order not to create difficulties for candidates to follow.He considered that the present proposal in the Bill in respect of "free voluntary service" would give rise to uncertainties as to how election campaigns could be conducted.

19. Ms Emily LAU opined that to achieve fairness in elections, some professional services, although provided for free to a candidate or candidates, should be counted as election donations.She agreed that the law must set out in clear terms the necessary criteria to avoid ambiguity. Ms Cyd HO said that a law to regulate the operation of political parties might help address the problem.

20. Members requested the Administration to take note of the concerns expressed on the subject, and to advise on the following issues in the light of the evolving electoral systems -

(a)whether some free voluntary services provided to political parties, such as advice offered by a party member who was a lawyer or a public relations consultant by profession, would be caught by the proposed definition of "election donation"; and

(b) whether or not a law on political parties would be a solution to the problems identified by members.Adm

(Post meeting note : The Administration's responses to the points raised at the meeting have been circulated to members vide LC Paper No. CB(2)1680/98-99(02) dated 13 April 1999.)

II. Date of next meeting

21. The next two meetings were scheduled for 15 April 1999 at 8:30 am and 20 April 1999 at 10:45 am respectively.

22. The meeting ended at 10:30 am.

Legislative Council Secretariat
27 July 1999