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Monday, July 20, 2020, 10:52
ICAC must probe breach of election law in ‘primary’ of the opposition camp
By Tony Kwok
Monday, July 20, 2020, 10:52 By Tony Kwok

Hong Kong’s Legislative Council election is governed by the Elections (Corrupt and Illegal Conduct) Ordinance. The objects of the ordinance, as stated in Section 3 are, in essence, (a) to ensure the elections are conducted fairly, openly and honestly and are free from corrupt and illegal conduct; (b) to regulate electoral advertising so as to ensure the fairness and honesty of all candidates; and (c) to control the election expenditure and election donations for the sake of fairness, accountability and transparency.

Hence, on the face of it, it is clear that the opposition camp’s launching of the “primary election” of the Legislative Council is in breach of both the spirit and offenses of the election law, since it gives an unfair advantage to those candidates participating in the “primary’’ — by allowing them to commence their election campaign much earlier and, so they believe, to not account for the election expenses incurred in the “primary”.

However, the law provides a much wider definition of “election expenses”, which should cover all expenses incurred before, during or after the election, by or on behalf of the candidate or group of candidates. Therefore, while the “primary election” has no place in the law, it is clearly directly related to the official election and accordingly, its activities are covered and governed by the election law. Offenders are liable on conviction to a maximum fine of HK$500,000 ($64,479)and imprisonment for seven years.

It is said that the cost of running the “primary” amounts to millions of dollars. Such expenses are clearly “election expenses” as defined in the law and therefore subject to regulations such as proper accounting and returns to the Election Commission, as well as subject to the prescribed maximum amount. Failure to adhere to these regulations will constitute offenses under Section 24 and Section 37.

The “primary” is ultimately guilty of a blatant breach of the National Security Law as the candidates had to sign an undertaking to veto the government budget if elected, irrespective of its content

At the same time, questions should be asked as to where the money comes from. The organizers said that it comes from public donations and refuse to identify their sources. However, according to the law, if it comes from persons other than the candidates, it should be regarded as “election donations”. Under Section 19, all donations need to be accounted for and proper receipts issued to the donors, and the total amount must not exceed the prescribed limit. The organizers and all the candidates who participated in the “primary” could be liable for corrupt conduct if they failed to observe this rule.

The “primary” appeared to have been fiercely contested between traditional “pan-democrats” and the radicals. Throughout the entire campaign, there were lots of advertisements on social media and hard-copy posters flying around promoting or prejudicing certain candidates. The publication of election advertisements can be an offense under Section 34 if it failed to meet certain requirements. If any such advertisements and posters contained any false or misleading statement about certain candidates who eventually registered as candidates, it can also constitute an offense under Section 26.

Under Section 8, any person who uses duress, or threatens to use duress, to induce a person not to stand as a candidate in an election is treated as having engaged in corrupt conduct. Hence when Benny Tai Yiu-ting, the “primary” plotter and organizer, threatened anyone who lost in the “primary” not to stand for the LegCo election, and in response, Wong Pik-wan promptly announced her withdrawal from the election, despite the fact that she was already formally endorsed by her political party, the Democratic Party, as its nominated candidate for the LegCo election, it is arguable that Tai might have committed this offense.

Accordingly, the Independent Commission Against Corruption, the enforcer of this law, should look into the “primary’’, particularly its funding, as a matter of urgency, in order to bring any offenders to justice before the LegCo election in September, so as to ensure the integrity of this very important election.

One of the main objectives of the “primary” is believed to be the collection of the personal details of voters. They are most likely hardcore “yellow” supporters, who will be manipulated to follow the organizers’ commands to vote on certain candidates on the official election day to optimize the strategic distribution of anti-establishment votes. The Office of the Privacy Commissioner for Personal Data should therefore be alert to any abuses of personal data on election day.

Playing an equally important role in ensuring the fairness of the election is the Election Commission. But its response to the “primary” is disappointing. It merely issued a lukewarm press statement, making no substantive criticism of the “primary” but simply suggesting that it would be up to the relevant authorities to investigate whether the “primary” might be involved in any criminal offense and for the court to consider the verdict. It gives the impression that the commission will not be proactive in ensuring the election is fair, open, accountable and transparent. This is most irresponsible. When we looked at all the irregularities and unfairness in the last District Council election, such as the failure to ensure the safety of the candidates and their election offices, the chaos at the polling stations, and the deliberate double-queuing to deter the elderly from voting, the Election Commission nevertheless decided to take no remedial action. No wonder there were public calls for the resignation of its chairman. In particular, the proposed “priority queue” for the elderly is actually common sense, as we are seeing this practice being adopted at all immigration checkpoints all over the world. Alternatively, there is an easy compromise. The polling stations can simply open one hour earlier to allow only the elderly to vote. As most elderly are early birds, they can go there to vote while most of Hong Kong people are still asleep.

Most importantly, the “primary” is ultimately guilty of a blatant breach of the National Security Law as the candidates had to sign an undertaking to veto the government budget if elected, irrespective of its content. This is clearly in violation of subversion, which is punishable by up to life imprisonment. In view of the severity of the punishment, I seriously doubt the voters in the “primary” are fully aware of the legal implications of their voting in the “primary”. 

However, I am particularly intrigued over who is backing Tai, as he is, in all likelihood, just a front man. The funding for the “primary” has yet to be accounted for. But I read with interest a recent report revealing that the protesters in the social unrest were paid HK$20 million in cash from the 612 Humanitarian Fund with payments listed as “relief or pension”. With this incontrovertible evidence of foreign aid and interference, it is a perfect opportunity to show the full force of the new National Security Law.

The author is an adjunct professor of HKU Space and council member of the Chinese Association of Hong Kong and Macao Studies. He is also a former deputy commissioner of the ICAC.

The views do not necessarily reflect those of China Daily.


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