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

Definition of "Election advertisement" under clause 2

C1: Members request the Administration to explain the need for introducing a definition on "election advertisement" in the Bill and whether this has been prompted by complaints in the past, and if so, to provide the number and details of the complaints.

Members in general do not feel that the Administration's proposal to amend the definition of "election advertisement" by including a purpose test would address their concerns adequately. A member considers that no change in this respect should be made to the CIPO if the definition proposed is unclear. Another member questions whether the "purpose test" is applicable to other forms of publication such as those published by Kai Fong associations and trade unions, and whether newspapers should be altogether excluded from the definition of "election advertisement".

A1: As explained by the Administration at previous meetings, there is no specific definition of "election advertisement" (EA) in the Corrupt and Illegal Practices Ordinance (CIPO). Consequently, section 19 of CIPO will cover all publications having reference to an election, including any general publicity material urging the electors to vote at an election. As this is not our policy intent, we therefore seek to provide a clear definition of EA in the Bill.

In response to concerns raised by Members at previous meetings, we have proposed to amend the definition of EA in the Bill by including a purpose test. Under our proposal, if the views expressed in a publication are not for the purpose of promoting or prejudicing the election of a candidate or candidates, the publication will not fall into the definition of EA. For a publication which falls into the definition of EA, clause 34 only seeks to impose requirements relating to printing details and deposit, but not relating to content of the publication. We consider that the inclusion of such a purpose test can strike a balance between fair elections and freedom of speech.

"Valuable consideration"

C2: A member enquires whether the EAC has provided any guidelines or examples to clarify the meaning of "valuable consideration" in paragraph (a) of the definition of "advantage".

A2: Since the term is not used in the CIPO, it was not mentioned in previous Guidelines issued by the EAC. Following enactment of the Bill, the EAC will reflect its provisions in the Guidelines for the 2000 LegCo election.

Definition of "candidate" under clause 2

C3: A member asks whether the reference to "a group of candidates" in the definition of "candidate" is necessary as such persons should have already been covered under paragraph (a) of the definition.

A3: The term "a group of candidates" is itself a defined term. It is included to specifically cover the list system in elections for geographical constituencies in a LegCo election. The purpose for doing so is to make clear the status of a person whose name appears as a nominee on a list of candidates or who declares his intention to stand as a candidate on such a list.

Corrupt conduct to bribe electors

C4: A member enquires whether handing out balloons to children would be caught by clause 11(1)(c), and whether such conduct is permissible under the EAC's Guidelines.

A4: According to clause 11(1)(c), a person engages in corrupt conduct if the person, without reasonable excuse, offers an advantage to another person as an inducement to get, or try to get, a third person to vote at the election for a particular candidate or particular candidates. Given the nominal value of a balloon, it is most unlikely that a balloon would be considered by a court to be an inducement to the child's parents or other relatives to vote for a particular candidate or particular candidates.

There is no specific reference to the handing out of balloons in the EAC's Guidelines. However, according to paragraph 4.2 of EAC's Proposed Guidelines for the 1999 District Councils Election, an election advertisement "includes any address, notice, bill, placard, poster, board, banner, flag, standard, colour, sign, message, sound, image or picture and any article, thing or material for the purpose of promoting or advertising or prejudicing the election of any candidate in an election. Thus, a T-shirt or balloon bearing a name or picture of a candidate or having reference to a candidate is a form of election advertisement". Thus, a candidate using such balloons has to comply with all the requirements for election expenses and election advertisements. Even if the balloons do not bear any reference to a candidate, they should still be counted as election expenses if they are distributed for the purpose of promoting the election of a candidate.

Constitutional Affairs Bureau
30 August 1999