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Following is a question by Hon Kenneth Leung and a written reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (March 16):
Question:
Under the law, a candidate who is validly nominated for the Legislative Council election may send, free of postage, one letter addressed to each elector for the constituency concerned (relevant letter). It has been reported that in the 2016 Legislative Council By-election (New Territories East Geographical Constituency) just held, the authorities refused to deliver the relevant letters of a certain candidate on the ground that the letter specimen he submitted contained some wording that contravened the Basic Law and was suspected of inciting the use of violence to achieve goals. Moreover, when the vote counting was conducted at a counting station in Ma On Shan, a ballot box could not be opened because the key was found missing. After seeking legal advice from the Department of Justice (DoJ), the Presiding Officer (PRO) of that polling station arranged police officers to open the ballot box. The PRO then counted the votes after mixing the ballot papers in the ballot box in question together with the ballot papers in other ballot boxes from that counting station. Regarding the electoral arrangements, will the Government inform this Council:
(1) of the details of the aforesaid incident in which delivery of the relevant letters for the candidate concerned was refused, including the specific wording in the relevant letters which contravened the related provisions, the content of the legal advice obtained from DoJ by the authorities before making such a decision and the legal basis for that decision;
(2) of the number of cases, since the establishment of the Hong Kong Special Administrative Region, in which the candidates in previous Chief Executive elections, Election Committee subsector elections, Legislative Council elections and District Council elections were refused by the authorities the delivery of the relevant letters free of postage for them, and the details of each of such cases (including the name and date of the election, the name of the candidate concerned and the specific reasons for refusing to deliver the relevant letters);
(3) whether it has put in place a mechanism for candidates to lodge appeals against the authorities' decisions of refusing to deliver the relevant letters for them; if so, of the details of the mechanism; if not, the reasons and the legal basis for that, and whether it will consider establishing such a mechanism to safeguard the rights of the candidates;
(4) whether the Post Office will, upon the candidates' payment of the postage due, deliver for them those letters the postage-free delivery for which has been refused by the authorities, and whether such postage must be included in the declaration of election expenses to be submitted by the candidates to the appropriate authority;
(5) of the details of the legal advice obtained by the aforesaid PRO in respect of handling the ballot box whose key had been lost; and
(6) whether it has investigated the causes for the loss of the ballot box key; if it has, of the outcome; whether it formulated, before this by-election, contingency measures and guidelines on handling such a situation; if it did, of the details; whether it has any plan to review the entire process of vote counting in this by-election, including if it was a reasonable practice of counting the votes after mixing the ballot papers in the ballot box in question together with other ballot papers; if it has such a plan, of the details and the timetable; if not, the reasons for that?
Reply:
President,
According to sections 4 and 8 of the Electoral Affairs Commission Ordinance (EACO) (Cap. 541), the Electoral Affairs Commission (EAC) is responsible for the conduct and supervision of elections, and, within three months of the conclusion of an election, making a report to the Chief Executive on matters relating to that election in respect of which the EAC has any function under the EACO or any other Ordinance. The Registration and Electoral Office (REO) provides the EAC with the necessary support.
The Legislative Council New Territories East Geographical Constituency By-election was held on February 28, 2016, and was conducted and supervised by the EAC according to the relevant legal provisions. The questions raised by the Member involve the handling of individual cases by the EAC and the REO during the by-election, which are matters relating to the by-election to be reported by the EAC to the Chief Executive. Nevertheless, having consulted the REO and relevant departments, a consolidated reply is given as follows.
Pursuant to section 43 of the Legislative Council Ordinance (Cap. 542), a list of candidates for a geographical constituency/District Council (second) functional constituency or a candidate of traditional functional constituency (candidate) who is validly nominated may send free of postage one letter addressed to each elector for the constituency concerned. The purpose of the free postage is to enable the candidates to mail election advertisements (EAs) to promote or advertise themselves in relation to the election to electors in the constituency.
According to the current arrangement, validly nominated candidates wishing to make use of the free postage facility should submit the specimens of their election mails to the Post Office for written approval before they may send to electors their postings in bulk. The Post Office would inspect if the specimens comply with the postal requirements, and would, according to the established procedure, consult the REO on whether the contents of the specimens comply with the requirements of relevant laws. Where necessary, the REO would seek legal advice on the contents. If the contents of a specimen are found to be unacceptable having taken into account the overall circumstances of the case and the relevant legal advice, the candidates concerned would be so informed in writing by the Post Office. The candidate concerned may submit a revised specimen before the relevant deadline.
The REO has not compiled statistics or conducted analysis on cases of rejection of free postage in previous public elections, and is therefore not able to furnish such information as requested.
According to the current arrangement, if the content of the specimen of an election mail of a candidate is not approved, the candidate concerned would be informed of the reason of rejection in writing by the Post Office. The candidate concerned may submit a revised specimen or another specimen before the relevant deadline to the Post Office for approval.
The Post Office processes all mail items according to the Post Office Ordinance (Cap. 98) and the relevant laws, as well as the Post Office Guide. Postage paid by a candidate for mailing of election advertisements should be counted towards the candidate's election expenses in accordance with the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554).
Regarding the incident concerning the loss of key to one of the ballot boxes in a counting station in Ma On Shan, according to what the EAC told the press after the announcement of the result of the by-election, the REO's initial investigation revealed that the ballot box concerned had all along been placed in the said polling station; a police officer had stayed in the polling station concerned all the while; and there was no sign that the ballot box had been tampered with. For the sake of prudence, the Presiding Officer had sought legal advice before making the decision to break the padlock with a tool in order to take out the ballot papers for counting. The EAC will conduct a thorough review on the arrangements for the said by-election and submit a report to the Chief Executive within three months as required under the law.
Ends/Wednesday, March 16, 2016
Issued at HKT 12:58
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