Legislative Council

LC Paper No. CB(2)2846/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/17/98

Members Present :

Hon Ronald ARCULLI, JP (Chairman)
Hon Cyd HO Sau-lan
Hon LEE Wing-tat
Hon NG Leung-sing
Hon CHAN Yuen-han
Hon Andrew WONG Wang-fat, JP
Hon Jasper TSANG Yok-sing, JP
Hon Emily LAU Wai-hing, JP
Dr Hon TANG Siu-tong, JP

Member Absent :

Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Gary CHENG Kai-nam
Hon Ambrose LAU Hon-chuen, JP
Hon CHOY So-yuk

Public Officers Attending :

Mr Robin IP

Deputy Secretary for Constitutional Affairs

Mr Bassanio SO

Principal Assistant Secretary for Constitutional Affairs

Mr James O'NEIL

Deputy Solicitor General

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

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I. Discussion on the Administration's response to concerns raised at the meeting on 15 April 1999
(LC Paper No. CB(2)1805/98-99(01))

Election advertisement

"Effect" vs "Intent" element

In view of members' concern about the wide definition of "election advertisement", the Administration proposed to include an element of intention in the definition by substituting "has the effect" with "is for the purpose". The Administration considered that this could reflect more clearly the policy to cover only those publicity materials which were intended to promote or prejudice a candidate or candidates at an election.

2. The Chairman enquired about whether the proposed new definition, by adopting a subjective purpose test, would be narrower in scope than the original one as proposed in the Bill using the effect test. Deputy Solicitor General (DSG) replied that section 19 of the existing Corruption and Illegal Practice Ordinance (CIPO) dealt with publications having reference to an election, whether or not they had the effect of influencing the result of the election. The definition of election advertisement in the Bill narrowed that down to those publications which had the effect of promoting or prejudicing the election of a candidate or candidates. The newly proposed definition as stipulated in paragraph 1 above, by changing the test to a purposive one, further narrowed the scope to cover only those printed materials whose intent (as opposed to effect) was to promote or prejudice the election of a candidate or candidates. Under this new definition, "neutral" publications, despite they might have the effect of promoting or prejudicing the election of a candidate or candidates, would not be treated as election advertisement. The scope of the definition was therefore narrower. However, the definition in its revised form could also catch publications which were intended to promote or prejudice a candidate or candidates and yet failed to achieve that purpose. In this sense, the scope of the revised defintion was wider.

3. Assistant Legal Adviser (ALA) agreed with the explanation given by DSG. He added that under the proposed revised definition using the purpose test, independent media commentaries or critiques issued by third-party individuals and organizations with no intention to favour or discredit one candidate or another would not be counted as election advertisement. To a certain extent, this served to address members' concern expressed at previous meetings about possible restriction on freedom of expression.

4. The Chairman agreed that the meaning of election advertisement was narrower in terms of the practical application of the new definition.

5. In reply to an enquiry by Mr LEE Wing-tat, DSG said that a complaint about a failure to comply with the requirements relating to the publishing of election advertisement would be channelled to the Electoral Affairs Commission (EAC), which would deal with the matter through its Complaints Committee.

6. Mr TSANG Yok-sing pointed out that section 19(1A) of the CIPO specified that "No person shall be prosecuted for an offence against subsection (1) if, within 7 days of the publication, exhibition, distribution or posting up of the offending printed material, he deposits with the returning officer a statutory declaration giving the name and address of the printer together with the date of printing and the number of copies printed." He queried why clause 34 of the Bill did not provide a similar rectification measure. Members also noted that the regulation made by the EAC did not stipulate practical procedures for the application of section 19(1A) of the CIPO.

7. Members asked the Administration to clarify with the EAC on this matter and to consider the suggestion of including an exemption provision similar to section 19(1A) of the CIPO in clause 34 of the Bill.	Adm

Commentaries on candidate(s) published by the press or third-party individuals or organizations

8. Ms Emily LAU noted the Administration's reply given in item 2 of LC Paper No. CB(2)1805/98-99(01) that with the introduction of the purpose test, newspapers carrying out their normal and on-going activities of reporting and commenting on public affairs in a fair and objective manner would not be caught by the definition of election advertisement. She enquired about whether comments made by independent third-party individuals or organizations would be covered by the definition. The Administration responded that such comments would not be caught if there was no intention, through the publication, to promote or prejudice the election of a candidate or candidates. ALA opined that regular comments made by professional news commentators or concerned groups on election matters would be normally regarded as objective reports without the purpose of influencing the outcome of an election. He added that it was difficult to prove a person's intention to do something and the test would ultimately depend on the circumstantial evidence in a particular case.

9. The Chairman considered that to ensure freedom of expression, if the media commentaries or third-party publications were not specifically targeted at a particular candidate or candidates, they should not be treated as election advertisement.

10. Mr TSANG Yok-sing said that during the 1998 Legislative Council elections, some newspapers had published materials which openly called upon electors to support or not to support certain candidates. Therefore, the intention to promote or prejudice certain candidates at the election was clear. He asked whether express provisions should be provided for in the Bill to exclude press or third-party commentaries from the definition of election advertisement.

11. The Administration advised that the proposed definition of election advertisement as amended would apply to media commentaries and third-party publications which deliberately set out to promote or prejudice the election of a particular candidate. The Administration had reservations about excluding them from the definition as this might lead to unfair electioneering activities.

12. Members sought the Administration's clarification of the comment made in paragraph 5 of Appendix to Chapter 8 of the EAC's Proposed Guidelines that "Any newspaper was at full liberty to express its support for or disapproval of a candidate." In reply, Deputy Secretary for Constitutional Affairs (DS/CA) said that Chapter 8 basically dealt with fair and equal treatment of all candidates at an election by the print media, such as equal opportunity to speak in media interviews and equal coverage in the reporting of candidates and their activities etc. The law, however, imposed no specific restrictions on the content of a media coverage or commentary, or of an election advertisement. Clause 34 of the Bill only prescribed the requirements relating to printing details which a person must provide before he published a printed election advertisement.

13. Members considered that there were consequences outside the context of clause 34 for a publication to fall within the definition of election advertisement. The cost of the publication would be counted towards the election expenses of the candidate. In addition, if the person who published the election advertisement did so without the consent or authorization of the candidate concerned, he would be liable to prosecution for incurring unauthorized election expenses. Therefore, there could be serious ramifications if media or third-party commentaries published with the intention of promoting or prejudicing the election of a candidate or candidates were brought within the scope of election advertisement.

14. Members also pointed out that the news media could comment on the candidates based on true facts and in accordance with the fairness and equal treatment principles as laid down in the EAC's Proposed Guidelines, and yet came up with a view to support or not to support a particular candidate or candidates. According to the purpose test for election advertisement, such commentaries would be treated as election advertisement and the consequences arising from the publishing of election advertisement would follow. However, this seemed to contradict the EAC's comment made in paragraph 5 of Appendix to Chapter 8 of its Proposed Guidelines as mentioned earlier. Members requested the Administration to comment on this anomaly, and to consider excluding commentaries on candidates by newspapers or conerned groups from the definition of election advertisement.

Adm

15. Ms Cyd HO also asked the Administration to provide information on the relevant provisions of the electoral laws of UK in which media commentaries were excluded from the definition of election advertisement.	Adm

16. Ms Emily LAU said that there must be sufficient publicity to enable the media, the individuals and organizations which might be caught by the law to be fully aware of the legal provisions. DS/CA noted the view. He said that apart from the guidelines drawn up by the EAC and the Independent Commission Against Corruption, there were measures to enhance public awareness such as promotional visits, briefings for candidates and their agents as well as a telephone hotline to answer public enquiries on election matters etc.

17. The Chairman suggested that representatives of the mass media should be invited to attend a future meeting of the Bills Committee to present their views on the provisions in the Bill relating to election advertisement and on the points made in Chapter 8 of the EAC's Proposed Guidelines.	BC

Use of force or duress against candidates or prospective candidates

18. In response to the Chairman, DSG said that clause 8 of the Bill was aimed at corrupt conduct at an election and in relation to an election, i.e. using or threatening to use force or duress to induce another person to stand or not to stand as a candidate at an election. Duress was defined as including causing financial loss to a person by duress. Financial loss could be interpreted to cover loss of employment, reduction of salary or loss of other employment benefits. Clause 8 could catch an employer who sacked or threatened to sack an employee, or reduce his salary or other benefits simply because the employee was standing as a candidate or electioneering during his private time. However, it was not the policy and the legislative intention for the clause to control or interfere in a normal employer-employee relationship. Therefore, clause 8 would not catch an employer who explained to an employee who was a prospective candidate the consequences of failing to carry out duties, such as a salary reduction in respect of a period of absence from work. Clause 7 of the Bill, on the other hand, dealt with corrupt conduct to bribe candidates or prospective candidates. Similarly, clause 7 did not restrict the reckoning of a private contractual relationship between an employer and his employee, such as a policy of granting paid or unpaid time-off independent of the context of an election.

Voluntary service and election donation and expenses

Donation

19. In response to members, DSG said that "donation", in relation an election, was defined in section 27 of the CIPO as "...........any money received, whether before, during or after that election, by a candidate..........."; and "money" included, inter alia, any money's worth. By this definition, donation could be interpreted to include free service for which payment would normally be made. Under section 29 of the CIPO, donations were required to be declared in a return of election expenses.

20. The Administration advised that the policy intention in respect of the inclusion of free service as election donation was to ensure fair conduct of elections. The newly proposed definition of election donation as discussed at a previous meeting to include a time element to narrow the scope of free voluntary service to be treated as election donation was intended to make the policy intention clearer. The EAC's guidelines on this subject also reflected the spirit and intention of policy.

21. Members considered that the definition under section 27 of the CIPO had a wide meaning which was difficult to understand. Members requested the Administration to clarify whether voluntary service rendered by people outside their working hours, or by people who took their own leave from work was considered to be of money's worth and therefore should be counted as election donation.	Adm

Should voluntary service be counted as election donation and towards election expenses

22. Members noted that all the countries quoted in Annex to LC Paper No. CB(2)1805/98-99(01), except US, placed no restriction on voluntary service provided to candidates at election. Yet, US imposed no limit on election expenses for individual candidates.

23. Members were generally in support of removing the restriction on service provided by individuals to candidates free of charge, voluntarily and at their own time, irrespective of whether the voluntary service consisted of work normally undertaken by the individuals or was related to their occupation. Such service should not be regarded as election donation and should not be counted towards election expenses. However, service provided by individuals as employees, for reward or compensation from any person or under pressure from a person of authority such as an employer, should be counted as election donation. Provisions of goods or materials incidental to a voluntary service should also be counted.

24. Ms Cyd HO reiterated the view that the value of expensive professional services, such as the offer of a full-fledged publicity campaign by a team of public relations professionals for a particular candidate or candidates, should still be counted as election donation and towards election expenses. Ms Emily LAU agreed that a balance should be struck between voluntary support to candidates and fairness in elections.

25. The Chairman, Mr Andrew WONG, Mr LEE Wing-tat and Ms CHAN Yuen-han considered that there were practical difficulties in determining the exact scope of voluntary service that should be accounted for or not accounted for as election expenses. As voluntary services were diversified in nature and sometimes provided by a group of persons to a group of candidates, it would be extremely cumbersome and complicated to convert the service to money terms and then to apportion the money value of the service among the candidates concerned. Ms CHAN said that in certain situations such as in the midst of a large-scale electioneering campaign, a candidate might not be fully aware of the details of voluntary service provided by other people. She opined that the law should take into account the evolving electoral systems and avoid placing too much restrictions on electioneering activities which would hamper the promotion of democratic elections.

26. DS/CA responded that subject to a consensus view of the Bills Committee, the Administration was prepared to further consider the matter.

(Post meeting note : The Administration's response to the points raised at the meeting was circulated to members vide LC Paper Nos. CB(2)1838/98-99(01), CB(2)1947/98-99(02) and CB(2)2053/98-99(01) dated 4 May, 12 May and 20 May 1999 respectively.)

II. Date of next meeting

27. The next meeting was scheduled for 5 May 1999 at 10:45 am.

28. The meeting ended at 10:35 am.

Legislative Council Secretariat
28 May 1999