LC Paper No. CB(2)2836/98-99(01)

Administration's Response to Concerns raised on 8 September 1999
by Members of the Bills Committee
on Elections (Corrupt and Illegal Conduct) Bill

C1: A member has pointed out that in UK, an advertisement placed by a political party for the purpose of promoting the party and without naming specific candidates during the election period would not be regarded as an election advertisement (EA). The Administration is requested to advise whether a similar advertisement would be regarded as an EA under the Bill, and to provide a comparison of the relevant provisions of the Bill and the UK legislation.

A1: According to section 75 of the Representation of the People Act 1983 in the United Kingdom, "no expenses shall, with a view to promoting or procuring the election of a candidate at an election, be incurred by any person other than the candidate, his election agent and persons authorised in writing by the election agent on account of issuing advertisements, circulars or publications". There is no specific statutory provision directed at expenses incurred by a political party in general election campaigning.

With our proposal to amend the definition of election advertisement ("EA"), if a political party publishes an advertisement for the purpose of promoting or prejudicing the election of a candidate or candidates, it will be counted as an EA. In deciding whether an advertisement is an EA, and thus the expenses thereon will be counted as election expenses, 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.

C2: Under clause 34(2), an EA published in a registered local newspaper is exempted from the printing details requirement specified under clause 34(1). The Administration considers it undesirable to extend the exemption to an EA placed in a foreign newspaper circulated in Hong Kong. The Administration is requested to advise on the statutory requirements imposed by overseas jurisdictions on an EA placed in a registered local newspaper vis-a-vis a foreign newspaper circulated in their countries and the actions taken in case of non-compliance.

A2: We are gathering the required information and will provide it to the Bills Committee when available.

C3: The Administration is requested to advise whether frequent reporting or coverage of a particular incumbent holding an elected office by electronic media (radio or television) would be caught by the definition of EA, and to provide information on existing guidelines and statutory requirements governing election broadcasting through electronic media.

A3:As we have explained at earlier meetings, with our proposal to amend the definition of election advertisement, media carrying out their normal and ongoing activities of reporting and commenting on public affairs in a fair and objective manner would not be caught.

Under the Television (Advertising) Regulations, the relevant licensing conditions and the code of practice, no advertisement of a political nature shall be broadcast on the television. Similar provision exists in the Radio Code of Practice on Advertising Standards to prohibit political advertising on radio except with the prior approval of the Broadcasting Authority. Any breach of the regulations, licensing conditions or the codes may result in sanctions by the Broadcasting Authority which include advice, warning, financial penalty and suspension or revocation of licence.

In its Guidelines for the 1998 Legislative Council election and the 1999 District Councils election, the Electoral Affairs Commission appealed to the media to adhere to the fair and equal treatment principle for all candidates in their programmes. If the Commission comes to know of any unfair or unequal treatment of candidates by a broadcaster, it may make a reprimand or censure in a public statement which may include the names of the candidates favourably and unfavourably treated and the broadcaster concerned. The Commission may also refer the matter to the Broadcasting Authority for appropriate action to be taken.

C4: A member questions whether clause 7 applies to corrupt conduct engaged by a person after an election. The Administration is requested to reconsider the drafting of this and other similar provisions, e.g. to replace "at an election" with "in relation to an election" or "before, during or after the election period".

A4: As stipulated in clause 6(2), a person may be convicted of an offence of having engaged in corrupt conduct at an election if the person is found to have engaged in the conduct before, during or after the election period. This qualifying clause applies to all corrupt conduct prescribed in the Bill. Hence, clause 7, which relates to a corrupt conduct to bribe candidates or prospective candidates, will apply to corrupt conduct engaged by a person before, during and after an election. Similarly, clause 22(2) serves as the qualifying clause for all illegal conduct prescribed in the Bill.

Constitutional Affairs Bureau
17 September 1999