Administration's Response to Concerns raised on 21 September 1999
by Members of the Bills Committee
on Elections (Corrupt and Illegal Conduct) Bill

C1: A member has pointed out that a candidate at an election may have taken part in a commercial advertisement which was produced a long time before the election. The Administration is requested to advise whether such advertisement, if broadcast or published, will be treated as election advertisement (EA), and if so, whether it is desirable to introduce exemption provisions in respect of such commercial advertising, e.g. requiring that prior approval to be sought from the appropriate authority before the release of the advertisement. The Administration is also requested to consult the Electoral Affairs Commission as to whether its electoral Guidelines are adequate to deal with this issue.

A1: The purpose for imposing various requirements on EA is to ensure a level playing field for all candidates at an election. In setting these requirements, we need to strike a balance between fairness in an election and other considerations including freedom of speech and normal commercial activities. With our proposal to amend the definition of EA, a commercial advertisement will fall within the scope of an EA if it is published for the purpose of promoting or prejudicing the election of a candidate or candidates. In deciding whether a commercial advertisement is an EA, the court will look at all the relevant circumstances. These may include contents of the advertisement and the manner of and conditions affecting its publication.

Given the diverse nature of commercial advertisements, it will be impracticable to come up with an exemption for any specific type of commercial advertisements. Neither will it be desirable to require prior approval by an appropriate authority before publication as some people may consider it as some sort of censorship by the authority.

The Electoral Affairs Commission has published general guidelines on EA in every election and they have proven to be adequate and effective.

C2: The Administration is requested to advise whether "repeated exposure" of a candidate in electronic media will be caught by the provisions relating to EA, e.g. the Economist magazine had once advertised on TV about one of its cover stories featuring a particular Member; or the opening title of a TV news programme had shots of a particular Member on a daily basis.

A2:Please see A1.

C3: The Administration is requested to advise whether a candidate commits an offence under the Bill or any other legislation if the candidate offers money to another candidate as an inducement for him not to make his best effort to run an election, and if not, whether the situation should be reviewed.

A3: The Bill does not provide any offence provision relating to offering an advantage to a candidate as an inducement not to make his best effort to run an election. It would be most difficult to define what is "best effort". Also, there may be various circumstances under which a candidate, acting in good faith, cannot or does not want to make his best effort in his election campaign. For example where the candidate falls ill, decides to change from part time to full time employment or requires to deal with an unexpected family matter, he may be unwilling or unable to devote his full attention to campaigning. Hence, it will not be appropriate to introduce such an offence provision.

C4: Some members have pointed out that the following situations could be caught by the offence provisions in clause 11(1)(c) and (d), e.g. a candidate paying another person to assist in electioneering activities; or a candidate asking another person to engage in such activities without pay, but with a promise that if elected, an employment will be offered to that person. The Administration is requested to reconsider the present drafting of the provisions and to clarify the meaning of the word "inducement", which also appears in other provisions such as clause 12(3)(b).

A4: Although the word "inducement" does not in its ordinary dictionary meaning have any pejorative or corrupt implications, taken in the context of clause 11, there is a corrupt element of guilty intent. This is indicated by the heading and the classification of the offence as corrupt. Hence, a candidate who hires a person in good faith to assist in electioneering activities will not be caught by this clause. Moreover, this clause does include the "without reasonable excuse" proviso which would in any case cover the scenarios envisaged.

C5: The Administration is requested to review whether clause 12(5) could reflect the policy intent, taking into consideration the price of non-alcoholic drinks, e.g. fresh fruit juice and Ginseng tea that may be served at an election meeting.

A5: The policy intent of clause 12(5) is to allow a candidate to serve inexpensive drinks at an election meeting. Given the various types of drinks that are available, it will be impracticable to stipulate an exhaustive list of drinks which are allowed or not allowed at election meetings. One possible option is to prohibit any kind of drinks at election meetings. Another possible option is to stipulate that only mineral water and distilled water are allowed. However, these may be too restrictive. Moreover, the price of mineral water and distilled water can differ significantly. We would like to hear the Committee's view on this matter.

C6: The Administration is requested to provide information on a court case relating to handing out mooncakes by a candidate in the 1994 District Board election.

A6: In the 1994 DB election, a candidate and her agent in the Ap Lei Chau constituency were charged by ICAC with offering an advantage to a person under section 5 of the Corrupt and Illegal Practices Ordinance (CIPO) for giving mooncakes to the elderly. The candidate was additionally charged with failing to declare all election expenses under section 29(2) of CIPO. They were convicted of the said offences by a magistrate. However, their convictions were quashed on appeal. The judge considered that there was insufficient evidence that the mooncakes were offered by or on behalf of the candidate or her agent.

Constitutional Affairs Bureau
4 October 1999