立法會 Legislative Council Ref : CB4/BC/5/20 LC Paper No. CB(4)1471/20-21 (These minutes have been seen by the Administration) Bills Committee on Improving Electoral System (Consolidated Amendments) Bill 2021 Minutes of the seventh meeting held on Thursday, 22 April 2021, at 2:30 pm in Conference Room 2 of the Legislative Council Complex Members : Hon Martin LIAO Cheung-kong, GBS, JP (Chairman) present Hon CHEUNG Kwok-kwan, JP (Deputy Chairman) Hon Tommy CHEUNG Yu-yan, GBS, JP Hon CHAN Hak-kan, BBS, JP Dr Hon Priscilla LEUNG Mei-fun, SBS, JP Hon WONG Kwok-kin, SBS, JP Hon Mrs Regina IP LAU Suk-yee, GBS, JP Hon Paul TSE Wai-chun, JP Hon Frankie YICK Chi-ming, SBS, JP Hon MA Fung-kwok, GBS, JP Hon Alice MAK Mei-kuen, BBS, JP Ir Dr Hon LO Wai-kwok, SBS, MH, JP Hon Wilson OR Chong-shing, MH Dr Hon CHENG Chung-tai Member Hon Holden CHOW Ho-ding attending Public Officers : Mr Erick TSANG Kwok-wai, IDSM, JP attending Secretary for Constitutional and Mainland Affairs Mr Roy TANG Yun-kwong, JP Permanent Secretary for Constitutional and Mainland Affairs Ms Cherie YEUNG Lok-sze Principal Assistant Secretary (Constitutional and Mainland Affairs) 2 - 2 - Ms Carmen KONG Ka-man Principal Assistant Secretary (Constitutional and Mainland Affairs) 3 Mr Llewellyn MUI Kei-fat Law Officer (Special Duties) (Acting) Department of Justice Mr Peter SZE Chun-fai Senior Assistant Law Draftsman Department of Justice Miss Emma WONG Senior Assistant Law Draftsman Department of Justice Clerk in : Ms Joanne MAK attendance Chief Council Secretary (4) 7 Staff in : Mr Bonny LOO attendance Senior Assistant Legal Adviser 3 Ms Clara WONG Assistant Legal Adviser 4 Mr Dennis HO Senior Council Secretary (4) 7 Ms Zoe TONG Legislative Assistant (4) 5 Action I. Meeting with the Administration [File Ref.: CMAB C1/30/5/5, LC Paper Nos. CB(3)444/20-21, LS65/20-21, CB(4)814/20-21(01) and (02), CB(4)836/20-21(01), CB(4)827/20-21(01), CB(4)858/20-21(01) and CB(4)859/20-21(01) and (02)] 1. The Bills Committee deliberated (index of proceedings attached at Annex). - 3 - Action Discussion/Clause-by-clause examination Clause 86: Nomination of candidates for the Legislative Council ("LegCo") Election Committee ("EC") constituency ("ECC") 2. With regard to the proposed new section 12A of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap. 541D) on the nomination of candidates for ECC, Ms Alice MAK considered it necessary to require all LegCo candidates to declare in the nomination form information including their nationality, political affiliation with foreign political organizations and any subsidies received from those organizations, whether they were in possession of any passports issued by a foreign country (e.g. British Nationals (Overseas) passports), and whether they had any integrity issues. Ms MAK considered that the above information should be provided in the relevant forms and made public. Mr Paul TSE expressed support for Ms MAK's suggestion. 3. Secretary for Constitutional and Mainland Affairs ("SCMA") explained that the Candidate Eligibility Review Committee ("CERC") was entitled to request a candidate to provide all the aforesaid information in the course of its assessment work. SCMA advised that the present thinking of the Government was that candidates would first be required to provide basic information in the nomination form, and then provide other supplementary information needed by CERC. Admin Permanent Secretary for Constitutional and Mainland Affairs ("PSCMA") added that CERC would be consulted on the types of supplementary information to be required from candidates. (Post-meeting note: Ms Alice MAK further wrote to the Bills Committee on 23 April 2021 [LC Paper No. CB(4)883/20-21(01)] requesting that not only LegCo candidates but also EC candidates should be required to provide the aforementioned information in the relevant nomination form/declarations and such information should be made public. She considered that the Administration should propose amendments to the Bill to that effect. In response, the Administration explained in its paper on proposed amendments to the Improving Electoral System (Consolidated Amendments) Bill 2021 [LC Paper No. CB(4)912/20-21(01)] issued to the Bills Committee on 29 April 2021 that the existing drafting approach of the provisions aimed to provide flexibility for CERC to request any other information from candidates, nominees, etc. when considering the validity of nominations of candidates, nominees, etc., including but not limited to the information mentioned above, and recommended to maintain the existing drafting approach of the provision in order to provide the greatest flexibility for CERC.) - 4 - Action 4. In reply to the Chairman's enquiry on whether an independent secretariat would be provided to CERC, PSCMA said that the Administration was still conducting an internal study on the matter and it had yet to come to a view. 5. The Chairman further enquired about how the Returning Officers ("ROs") would be involved in the workflow of CERC. PSCMA said that after a candidate had submitted a nomination form to the RO, if CERC considered that there was no need to request any other information from the candidate, RO would notify the candidate that the nomination was valid. However, if CERC considered it necessary to request additional information from the candidate, it would seek the additional information directly from the candidate, and make its ruling on the validity of the nomination based on its exchanges with the candidate and the information previously provided by the candidate. PSCMA stressed that ROs would not participate in the process of CERC's seeking additional information from candidates. Financial assistance payable to candidates 6. Members noted that in geographical constituency elections, if a candidate died or was disqualified from being nominated as a candidate, the proceedings for the election would be terminated and no financial assistance would be payable to any candidate for election expenses incurred in respect of that election. However, if a candidate died or was disqualified from being nominated as a candidate after the close of poll but before the declaration of result of the election, then all candidates, with the exception of the disqualified candidate, would still be entitled to financial assistance. Members enquired about the rationale for the arrangements. Principal Assistant Secretary (Constitutional and Mainland Affairs) 2 ("PAS(CMA)2") explained that as the number of votes obtained by the candidates would have a bearing on their entitlement to financial assistance and the amount payable in the election for a contested constituency, financial assistance would only be payable after the number of votes obtained by the candidate could be ascertained after the vote count. PAS(CMA)2 added that the termination of proceedings (and the consequential non-payment of financial assistance) would affect all candidates in the election, not just the candidate who died or was disqualified. Clause 366: Proposed new section 27A of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554) Proposed section 27A(1) and (2) 7. Dr Priscilla LEUNG considered that the purpose of the proposed new section 27A of Cap. 554 ("section 27A") was to prohibit manipulating or undermining an election through inciting another person not to vote, or to cast an invalid vote. As - 5 - Action such, it should not affect the choice of individual voters on whether to vote or not, or prevent a person from appealing to electors not to vote for a particular candidate. Dr LEUNG expressed concerns that, as it was currently drafted, section 27A might be ambiguous so that innocent people might be charged with an offence under that section. To quote as example, she said that a person might casually talk to his friends on an MTR train (i.e. in public) about not going to vote in an election as he did not like any of the candidates. While the person might have no intention to manipulate or undermine the election at all, he might be charged with an offence under section 22(1) for having engaged in the illegal conduct under section 27A(1) since his act contained the elements of the illegal conduct. 8. In reply, PSCMA advised that in drafting section 27A, the Administration had considered an issue similar to that raised by Dr Priscilla LEUNG and had consulted the Department of Justice. The Administration was of the view that the elements of "willfully" or "with intent" had been part of "incitement" and hence there was no need to explicitly set out the element of intentionality. Law Officer (Special Duties) (Acting) of the Department of Justice ("LO(SD)/DoJ") supplemented that in prosecuting a person charged with an offence for having engaged in the illegal conduct in section 27A(1), according to the current standard of prosecution, the prosecution would have to establish that there was "an intent to incite". 9. Mrs Regina IP concurred with PSCMA's view. She pointed out that in some legislation such as the Public Order Ordinance (Cap. 245), it was not necessary to make the elements of "wilfully" or "deliberately" explicit in the offences such as "incitement" and "sedition" which had already carried the meaning of "intent to commit a crime". 10. Dr Priscilla LEUNG said that in the National Anthem Ordinance, it is an offence if a person publicly and intentionally insults the national anthem in any way. She suggested that the Administration should make reference to the National Anthem Ordinance and consider including the elements of intentionality, as well as the ultimate aim to disrupt an election, in the proposed offence of engaging in the illegal conduct in section 27A(1).