LC Paper No. CB(2)84/99-00(01)

Administration's Response
to Concerns raised on 4 and 5 October 1999
by Members of the Bills Committee
on Elections (Corrupt and Illegal Conduct) Bill

Clause 29 and 30

C1: A member has pointed out that it is difficult to understand how clause 29(1) operates in parallel with clause 29(2) and queried whether the latter is necessary. The Administration is requested to review the drafting of clause 29.

A1: Clause 29(1) is a positive provision reflecting the existing legal position that a candidate can be held to have personally engaged in corrupt and illegal conduct when the acts were carried out by others with his knowledge and consent. It is a necessary provision as the essence of the legislation is that a candidate is held primarily responsible for his election campaign. Clause 29(2) is a negative provision which provides a defence for the candidate from being held liable for the actions of his agents if he can show that he was not aware or took all reasonable steps to prevent the agent from engaging in the conduct concerned. Both provisions are necessary.

For the positive provision in section 29(1), the standard of proof would be the "beyond reasonable doubt" standard that applies to the prosecution in criminal cases. For the negative provision in section 29(2), which provides a defence to the candidate, the lesser standard of "balance of probability" would apply.

C2: Members express concern about the difficulty for a candidate to satisfy the onus of proof that he has taken "all reasonable steps" to prevent an agent from engaging in corrupt or illegal conduct under clauses 29 and 30. As the conditions stipulated in clause 30(1)(a)-(d) are cumulative, a member asks the Administration to reconsider whether an elected candidate should be disqualified because the Court is not satisfied that he has taken all reasonable steps to ensure that no corrupt or illegal conduct was engaged in at the election, albeit the conduct was of a trivial nature.

A2: To address Members concerns, we will substitute "has taken all reasonable steps" with "has taken reasonable steps" in clause 29 and 30. Also, we propose to add "and did not materially affect the results of the election" after "the conduct was of a trivial nature" in clause 30(1)(b) as a conduct of a trivial nature may have significant consequences.

It should be pointed out that clause 30 relates to the hearing of an election petition where a court makes a finding that the agent of a candidate engaged in corrupt or illegal conduct. It provides that a candidate must not be held liable nor be subjected to any disqualification where the court is satisfied that the four conditions stipulated in clause 30(1)(a) to (d) are met. Given the public's expectation on a candidate's integrity, it is reasonable to adopt a high standard to ensure that a candidate will be subject to disqualification if he knowingly allows his agent to engage in any corrupt or illegal conduct no matter how trivial it may be.

Clause 31

C3: The Administration is requested to clarify -

(a) whether a person can still apply to the Court for an order relieving him from consequences of certain illegal conduct under clause 31(2) after prosecution has been brought against him for the conduct;

(b) in the case of a person who has made an application under clause 31(2) is subsequently prosecuted for the illegal conduct, whether the Court could still hear the application and make an order to relieve him under clause 31(2); and

(c) whether costs incurred in making the application to the Court for an order under this clause by a candidate is to be treated as election expenses, and to consider specifying this clearly in the Bill.

A3:(a) and (b) A person can apply to the Court for relief under section 31 even though a prosecution has been brought against him. The Court could hear the application and grant the relief.

(c)According to the definition of election expenses in the Bill, an expenditure incurred by a candidate will fall within the scope of the definition if it is for the purpose of promoting or procuring the election of the candidate. Since the costs incurred in applying for a court order is not for such a purpose, they will not be counted as election expenses. As such, it is not necessary to specify this point in the Bill.

Clauses 31 and 34

C4: According to the Administration, the offence under clause 34(4) will not give rise to disqualification of an elected candidate. However, under clause 31(3), the offence is taken to be illegal conduct for the purpose of a person's application to the Court for relief. The Administration is requested to review the drafting of these clauses to remove the anomaly.

A4: We will amend clause 31 to address the Committee's concern.

Clause 36

C5: The Administration is requested to advise whether clause 36 also applies to an election to elect members of the Election Committee. If so, the definition of "appropriate authority" in clause 2 should be reviewed as it makes no reference to such an election.

A5: As stipulated in clause 4(c), the Bill will apply to an election to elect members of the Election Committee. We will amend the definition of "appropriate authority" and "returning officer" in Clause 2 to clearly reflect this.

C6: Members have pointed out that there might be situations whether clause 36(2)(b)(i) cannot be complied with such as loss of the invoice or receipt. The Administration is requested to seek the advice of the Electoral Affairs Commission on how it had handled similar cases in past elections, if any.

A6: In the 1998 LegCo election, there were 26 cases in which the candidates failed to include copies of receipts for expenditure in their Returns and Declarations of Election Expenses and Donations. The EAC referred all these cases to ICAC for investigation. Before contemplating prosecution in substantiated cases, ICAC usually drew the relevant candidate's attention to the Court order to except innocent act under section 26 of the Corrupt and Illegal Practices Ordinance. No candidate was prosecuted for failing to include a copy of receipt in his return.

According to existing clause 39, a candidate can apply for a court order to extend the deadline for submitting an election return or correct an error in an election return which has been lodged. We are considering an amendment to this clause to make clear that the Court can relieve a candidate of his liability for failing to include copy of a receipt in his election return due to inadvertence or other reasonable causes.

Clauses 37 to 39

C7: Members point out that once a candidate has failed to lodge an election return as required by clause 36 within the permitted period, he has already committed an offence under clause 37. It is doubtful whether he can still apply to the Court for an extended period under clause 39. The Administration is requested to review whether the drafting of the clauses has achieved the purported objective.

A7: According to clause 39(1), a candidate "who has failed to lodge an election return as required by section 36 within the permitted period" can apply to the Court to extend the deadline for lodging the election return. To constitute a failure to comply with the deadline stipulated in clause 36(2)(a), it will be necessary to show that the candidate has not submitted an election return after expiry of the deadline. Hence, it is clear that a candidate can apply for a court order to extend the deadline after the permitted period under clause 39.

C8: In response to a member's query about the phrase "without having lodged an election return" in clause 38(1), the Administration has clarified that it is in order for a person who has been elected to the LegCo (or any other body to which the Ordinance applies) and who has yet to lodge an election return under clause 36 to participate in the affairs of the Council (or body) as a member so long as the permitted period for lodging the return has not expired. The Administration is requested to review and improve the drafting of clause 38(1) to avoid possible misinterpretation.

A8: To address the Members' concern, we will amend clause 38(2) to remove any possible misinterpretation.

C9: A member has expressed concern that if "some other reasonable cause" under clause 39(d) is only of like nature to subclauses (a) to (c), it will automatically exclude other justifiable causes for seeking relief available under clause 39. The Administration is requested to reconsider the drafting of clause 39.

A9: To address the Members' concerned, we will substitute "some other reasonable cause" with "any other reasonable cause".

Clause 42

C10: The Administration is requested to explain the policy intent to equate attempts to complete offences under clause 42.

A10: The policy intent of clause 42 is to make it clear that a person who is convicted of an attempt to commit any offence under the Bill will be subject to the same disqualifications for a conviction of any substantive offence.

Clause 46
Item 6 - section 67 of Legislative Council Ordinance
Item 7 - section 53 of District Council Ordinance

C11: The Administration is requested to consider replacing "during the trial of an election petition" with "at the end of the trial" to be in line with the other provisions in the sections.

A11: We will amend the relevant clauses to make it clear that the Court is required to submit the report at the end of the trial.

Constitutional Affairs Bureau
11 October 1999