Following is a question by the Dr Hon Elizabeth Quat and a written reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (November 2):
Earlier on, an academic launched the "ThunderGo" campaign for the 2016 Legislative Council General Election to facilitate electors who had joined the campaign to participate in strategic voting by coordinating the lists of candidates fielded and disseminating to them on the polling day data gathered from opinion polls (poll data) and recommended lists of candidates, with a view to boosting the number of elected candidates from a particular camp. It was reported that, as a result of the poll data disseminated by ThunderGo, seven candidates respectively announced their "withdrawal of candidature" several days before the election day. Quite a number of members of the public consider that ThunderGo has caused electors not to vote according to their genuine preferences, and hence has done injustice to other candidates, allegedly manipulated election results, and seriously prejudiced the fairness of elections. In this connection, will the Government inform this Council:
(1) whether it has studied if ThunderGo was in breach of legislation and guidelines relating to elections, including the Electoral Affairs Commission Ordinance (Cap. 541), the Election (Corrupt and Illegal Conduct) Ordinance (Cap. 554) and Guidelines on Election-related Activities in respect of the Legislative Council Election; if it has studied and the outcome is in the negative, of the justifications; if the outcome of the study is in the affirmative, whether the authorities will conduct an investigation; if they will, how the investigation will proceed; whether the authorities will review the relevant legislation with a view to curbing the use of opinion poll results to allocate or canvass votes in an unfair manner during polling;
(2) as it is stipulated in Cap. 554 that "election advertisement" (EA) includes any message published for the purpose of promoting or prejudicing the election of a candidate or candidates at the election, whether the authorities have studied (i) if ThunderGo had published EAs, and (ii) if the candidates concerned had to declare the costs incurred by such EAs as election expenses; if they have studied and the outcome is in the affirmative, of the relevant considerations and the method for calculating such election expenses; if the outcome of the study is in the negative, the justifications for that; whether the authorities will review the definition of "EA" and draw up a clearer method for calculating election expenses to ensure that elections are conducted in a fair manner;
(3) as the aforesaid seven candidates announcing withdrawal of candidature had appealed to electors to vote for some other candidates, whether the authorities have assessed (i) if such acts were in breach of the legislation relating to elections, (ii) if such types of appeals are considered as EAs, and in case such appeals are considered as EAs, (iii) which candidates have to declare the costs incurred by such EAs as election expenses; if they have assessed and the outcome is in the negative, of the justifications; and
(4) whether the authorities will review the relevant legislation with a view to stepping up the regulation of opinion polls conducted on electors' preferences, and the dissemination of poll results, on the polling day so that electors' voting intention and election results will not be affected?
(1) to (3) The Elections (Corrupt and Illegal Conduct) Ordinance (ECICO) (Cap. 554) and the Guidelines on Election-related Activities in respect of the Legislative Council Election (the Guidelines) provide clear definitions and guidelines on "election advertisements" and "election expenses". "Election advertisements" refer to any form of publication published for the purpose of promoting or prejudicing the election of a candidate or candidates at the election, while "election expenses" mean expenses incurred before, after or during the election period, by or on behalf of a candidate for the purpose of promoting the election of the candidate or prejudicing the election of other candidates. Whether a particular item of expenditure should be regarded as an election expense is a question of fact to be answered in the circumstances of each case. Each case should be determined by reference to the purpose behind the expenses, taking account of the nature, circumstances and context of the expenditure.
The ECICO and the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap. 541D) set out the regulations related to election advertisements and election expenses. Any person who fails to comply with the regulations commits an offence. Upon receipt of a complaint that someone may have breached the electoral legislation, the Electoral Affairs Commission (EAC) will refer it to the relevant law enforcement agencies for follow-up action. The complaint will be taken up seriously by the law enforcement agencies.
Pursuant to section 42 of the Legislative Council Ordinance (Cap. 542), a candidate may only withdraw his/her nomination before the end of the nomination period. There is no such mechanism for the so-called "withdrawal of candidature" after the end of the nomination period. Therefore, candidates who publicly declared to "withdraw their candidature" are still required to observe the provisions regarding electoral expenses, election advertisements and all the other requirements under the electoral legislation.
(4) According to section 96(7) of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap. 541D), any person or organisation that conducts exit poll in a non-canvassing zone without approval from the EAC commits an offence. The EAC has promulgated guidelines in relation to the exit poll with details set out in Chapter 15 of the Guidelines. Applicant or applying organisation is required to make a statutory declaration undertaking to abide by the conditions on the conduct of exit poll and the Guidelines.
There are different views in the community on the various kinds of election-related opinion survey, and some are of the view that statutory regulation should be strengthened. We welcome views on this matter. If necessary, we may also arrange a detailed discussion of the specific issues at the Legislative Council Panel on Constitutional Affairs to further examine the arrangements under the existing legislation.
Ends/Wednesday, November 2, 2016
Issued at HKT 16:56