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.
Discussion
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
