Committee on Members' Interests ( Minutes ) 15 Dec 98

Legislative Council

LC Paper No. CB(3) 1284/98-99(01)

Ref: CB(3)/C/2 (IV)

Committee on Members' Interests

Minutes of the third meeting
held on Tuesday 15 December 1998 at 4:30 pm
in Conference Room B of the Legislative Council Building

Members present :

Hon David CHU Yu-lin (Chairman)
Hon SIN Chung-kai (Deputy Chairman)
Hon HO Sai-chu, JP
Hon Cyd HO Sau-lan
Hon NG Leung-sing
Hon YEUNG Yiu-chung

Members absent :

Hon Bernard CHAN

Clerk in attendance :

Mrs Betty LEUNG: Chief Assistant Secretary (3)1

Staff in attendance :

Mr LAW Kam-sang, JP: Deputy Secretary General
Mr Ray CHAN: Assistant Secretary General 3
Mr LEE Yu-sung: Senior Assistant Legal Adviser
Mr Arthur LEUNG: Senior Assistant Secretary (3)1

The Chairman welcomed members to the third meeting of the Committee.

I. Registration and declaration of financial sponsorship from an anonymous source
(LC Paper No. CB(3)881/98-99(01))

2. At the meeting of the Committee on Rules of Procedure ("CRoP") on 24 November 1998, the question was raised as to whether Members should accept financial sponsorships from anonymous sources. As the subject falls within the purview of the Committee on Members' Interests ("CMI"), the CRoP asked that the matter be referred to CMI for consideration.

3. At the Chairman's instruction, the clerk briefed Members on the practices of other countries in handling registration and declaration of financial sponsorships from anonymous sources, as contained in LC Paper No. CB(3) 881/98-99(01). In the United Kingdom, anonymous donations were not specifically covered by the House of Commons Rules on the Registration of Financial Interests. However, there was a precedent case on this subject and a complaint was lodged to the former Committee on Members' Interests that a Member, who was then Chancellor of the Exchequer, had failed to register an anonymous gift. The Committee ruled that anonymous donations were, in principle, registrable. In Australia, there was no prohibition on and no known cases of Members receiving donations from anonymous sources. In Canada, there was no rule on anonymous donations or on financial sponsorship. In the United States, the source of all gifts received during the preceding calendar year, the aggregate value of which when taken together exceeded US$250, had to be registered.

4. Mr NG Leung-sing pointed out that the present registration system ultimately depended on a Member's own initiative to report on donations. He/She would be in a position to decide whether or not to accept and retain any particular financial sponsorships from anonymous sources, having regard to his own knowledge of the circumstances. However, if he/she decided to accept any such financial sponsorship, he/she would need to report the acceptance of such donations, in accordance with the current rule. Therefore, Mr NG Leung-sing held the view that the current system should continue. In response to Mr YEUNG Yiu-chung's enquiry as to how donations exceeding $500 for election expenses were treated during the election of LegCo Members, Senior Assistant Legal Adviser ("SALA") replied that under the Corrupt and Illegal Practices Ordinance (Cap. 288), during election, donations from anonymous sources exceeding $500 should not be retained and should be disposed of by having it donated to charitable organisations. In response to Mr SIN Chung-kai's enquiry of the amount set for receiving gifts in the Prevention of Bribery Ordinance (Cap. 201), SALA said that the Governor, now the Chief Executive, could give permission for a public servant to accept gift or passage so long as the value or apparent value in total of the gift, and/or passage did not exceed a certain value. (Post meeting note: in accordance to s.6(b) of Acceptance of Advantages (Governor's Permission) Notice 1992 (Cap. 201, sub. leg.), the amount should be $1,000.) Mr SIN Chung-kai noted that in contrast to the case of public officers, there was no mechanism for Members to seek approval for accepting donations. Hence he considered that it would be right for all donations to be registered. In the light that it was already the current rule to require all donations to be registered, the Chairman asked the meeting to consider whether it need be changed so that a Member would be disallowed to accept financial sponsorship from an anonymous source. Members present all agreed that the present arrangement should continue.

II. Procedure for handling complaints against a Member about his failure to register or disclose registrable interests
(LC Paper No. CB(3)881/98-99(02))

5. At the Chairman's invitation, Deputy Secretary General ("DSG") briefed the meeting of the practices of four overseas countries, namely, the United Kingdom, Australia, Canada and the United States, as contained in LC Paper No. CB(3) 881/98-99(02). In the United Kingdom, complaints against a Member of the House may be raised by a Member or a member of the public either to the House or to the Commissioner for Standards ("the Commissioner"). In either case, the Commissioner would follow up. If he was satisfied that sufficient evidence had been tendered in support of the complaint, he would ask the Member to respond and then conduct a preliminary investigation. If he decided that there was no prima facie case, he would report briefly to the Committee on Standards and Privileges. Otherwise he would report the facts and the conclusions to the Committee, which might call for an explanation from the Member concerned and hear evidence from any other persons. A report with an appropriate recommendation would then be made to the House, which would debate the case and decide whether the Member concerned should be punished.

6. In Australia, the Committee of Privileges was responsible for inquiring into complaints of alleged breaches of privileges or contempt, or occasionally, on other matters referred to it by the House. The Committee, chaired by a non-cabinet Member, usually comprised a number of lawyers. The Committee would inquire whether a breach of privilege or a contempt of the House had been committed and would recommend further action, as appropriate, through a motion to the House. In response to Mr HO Sai-chu's enquiry, DSG replied that inquiry meetings were closed meetings.

7. In Canada, only overseas visits needed to be registered. Complaints could be lodged by Members by way of motions. They could be referred to the Standing Committee on Elections, Privileges and Procedure which would conduct investigations in closed meetings or followed up by the House of Representative which could conduct investigations in open meetings. Sanctions might include expulsion from the House.

8. In the United States, a complaint to the Committee on Standards of Official Conducts ("the Committee") could be lodged either by a Member of the House, or by an individual accompanied by a certification from a Member that he believed that the information was submitted in good faith and warranted the consideration of the Committee. Upon receiving a complaint, the Committee would form an investigative subcommittee to investigate. If the investigative subcommittee found that there was reason to believe that a violation had occurred, it would submit a statement of Alleged Violation to the Committee, which would then form an adjudicatory subcommittee to hear the case. The membership of the adjudication subcommittee comprised the Chairman, the Ranking Minority Party Member and some other Committee members who had not served on the investigative subcommittee. The adjudicative subcommittee would hear and determine the validity of each count and would then report its findings to the Committee. The Committee would in turn report to the House and would recommend disciplinary action where appropriate.

9. Mr NG Leung-sing enquired about the procedure followed by other countries when it was learnt that a law enforcing body had arrested a Member for alleged crimes. DSG said that in Canada, Parliament may impose sanctions for convicted criminal acts, such as a Member receiving money for actions done in his official capacity. SALA added that Article 79(7) of Basic Law provided for censure for misbehaviour, which could be invoked after the legal proceedings had finished.

10. At the invitation of the Chairman, the clerk explained the procedure (Appendix 1 of CB(3)881/98-99(02)) adopted by the former Committee on Members' Interest in 1992. Mr HO Sau-lan suggested that it should be clarified whether "the Member concerned" in para. II(2) was referring to the complaining Member or the Member being complained. Mr NG Leung-sing said that members of the public might not be familiar with the procedure or the complainant might not be willing to give evidence. He enquired if the word "may" should be replaced by "should" in para. II(1) and III(2). SALA said that there should be procedural fairness and the Member being complained of should have a chance to explain the case.

11. Mr SIN Chung-kai considered that the procedure and time frame for handling complaints should be set out in more detail than those previously laid down. It should anticipate the most antagonistic situation and should guard against abuse by a dominant party. Mr HO Sai-chu added that it should also specify whether the meetings were to be open or closed. Mr SIN Chung-kai said that it was the right time for the CMI to formulate a set of rules and procedures in this regard. Assistant Secretary General 3 said that since such complaint handling mechanism, would give the impression that there was a substantiate case worthy to follow up, if triggered, it would be prudent to formulate handling mechanism in advance. The meeting asked the clerk and SALA to revise the complaint handling procedure for discussion at the next meeting, to be held some time after the Chinese New Year.

III. Date of next meeting

12. Members agreed that the Chairman should decide the date of the next meeting in due course.

13. The meeting ended at 5:30 pm.

Legislative Council Secretariat
February 1999