|Speech by the Secretary for Constitutional Affairs
in Moving the Second Reading of the
Elections (Corrupt and Illegal Conduct) Bill
at the Legislative Council Meeting on 3 February 1999
I move that the Elections (Corrupt and Illegal Conduct) Bill (the Bill) be read the second time.
We have a track record of clean and honest elections, and I believe everyone in Hong Kong will be proud of it. One of the important reasons for this achievement is that we have stringent legislation which prohibits corrupt and illegal conducts in elections. Nevertheless, owing to our evolving electoral systems, the Corrupt and Illegal Practices Ordinance (CIPO), which came into effect in 1955, has become obsolete and most of its provisions have to be updated to cope with the current mode of elections and social conditions.
In drafting the new Bill, we have retained all the existing offence provisions in the CIPO. Some of the original provisions have been expressed more explicitly and some new provisions were added based on the experience we gained from the first election of the Legislative Council held last year. Simpler legal language and more systematic and meticulous presentation have also been used so that the new Bill will be clearer and easier to understand.
Main provisions of the Bill
Like the existing CIPO, the new legislation will apply to elections of the Legislative Council, the proposed District Councils, Heung Yee Kuk, and the executive committees of Rural Committees.
Classification of offences
Like CIPO, the conducts prohibited under the Bill are broadly classified into two main categories - corrupt conduct and illegal conduct. Corrupt conduct refers to those conducts which involve intentional acts and which would produce a direct effect on the election, while illegal conduct refers to those conducts which are one step away from the actual electoral procedures and process of nominating and voting for candidates.
Offences under corrupt conduct
Offences under corrupt conduct could be classified into five main categories. The first category concerns offences relating to candidature. Any act to affect a person's candidature by advantage, violence or deception is prohibited.
The second category of corrupt conduct concerns the voting preference of electors. Any act to affect a person's voting preference by advantage, violence or deception or by offering food or entertainment is prohibited.
The third category of corrupt conduct is voting offences. It will be an offence for a person to vote by impersonating another person, to vote at an election knowing that he is not entitled to do so, to vote at an election after having given false information to an electoral officer, or to vote at an election more than once unlawfully. Moreover, conducts such as putting into a ballot box a paper other than a ballot paper, interfering with or destroying a ballot paper and removing a ballot paper from a polling station are also included in this category.
The fourth category of corrupt conduct is related to electoral donations. The Bill stipulates that a candidate must not use electoral donations for a purpose other than meeting his election expenses. If there is any unspent donation or if the donation has exceeded the election expenses limit, the candidate must return the donation to the donor or dispose of it in any other manner in accordance with the donor's instructions.
The fifth category of corrupt conduct concerns the withdrawal of an election petition or appeal. We propose a new provision to prohibit corrupt withdrawal of an election petition or corrupt withdrawal of an appeal questioning the election of a member to the Election Committee lodged with the Revising Officer under the Legislative Council Ordinance.
There are two major categories of illegal conduct. The first category of illegal conduct is related to election expenses. For the geographical constituency elections of Legislative Council, all candidates on the same list must cross-authorise each other and co-authorise every election expense agent of the list. This is because any election expense incurred by a candidate is deemed to promote all the candidates on the same list.
Moreover, it will be an offence for a candidate to incur election expenses that exceed the maximum election expenses limit. If the aggregate amount of election expenses incurred by candidates on the same list exceeds the maximum limit, all candidates on the list will be deemed to have contravened the law. However, it will be a defence for a candidate if he can prove that the expenses were incurred without his consent and he was not negligent in the event.
The second category of illegal conduct is related to false information. It is an offence for a person to publish a false statement that a candidate is no longer a candidate. It is also an offence for a person to make a false claim that he himself or another person is a candidate at an election. This new component is to deal with the situation where a candidate on a list misleads the public that he is still one of the candidates on the list after he has withdrawn his candidature. It will be an offence for a person to publish false information about a candidate or candidates for the purpose of promoting or prejudicing the election of the candidate or candidates.
Under the existing CIPO provision, it is an offence for a person to use the name or device of any person or organisation without the latter's prior written consent to cause others to believe that he has the support of that person or organisation. Apart from preserving this existing provision, the new clause of the Bill further specifies that the relevant provisions cover the logo of a person or organisation, and the pictorial representation of a person.
I believe that you will all agree that election publicity is an important element of electioneering. In the light of past experience, we have included negative campaign in election publicity. An election advertisement is re-defined as a notice published in various forms which has the effect of promoting or prejudicing the election of a candidate or candidates at the election. This new definition does not include neutral advertisement that promotes an election in general, such as newsletters of professional bodies urging their members to vote in the election.
We understand that candidates may inadvertently contravene the relevant legal provisions due to inadvertence, miscalculation or other reasonable cause. The Bill thus provides for a mechanism for a candidate, an election agent or another person to apply for a court order to relieve the applicant of his penalty and disqualification under the Bill. In addition, the court may, for similar reasons, issue an order to extend the period for lodging the election return by the candidate or to rectify the information given in an election return.
Members of this Council are well aware that the first District Council elections will be held in November this year. Thus, we hope that the Bill can be passed as soon as possible so as to provide for a better mechanism for supervising the elections and to help candidates to have a better understanding of the relevant legal provisions.