Speech by EAC Chairman on Legco Election Interim Report

*******************************************************

Following is the translation of the speech made by the Chairman of the Electoral Affairs Commission (EAC), Mr Justice Woo Kwok-hing, at a press conference today (November 10) on the Interim Report on the 2004 Legislative Council Election.

---------------------------------------------------------

Dear friends of the media,

Thank you for your presence at this press conference.

(1) Once again, I would like to take this opportunity to express EAC's sincere apology to electors and candidates for the inconvenience caused by administrative and planning errors during the poll for the third term of the Legislative Council (Legco) on September 12. Despite the events on that day, more than 1.78 million people came out to cast their votes, bringing about a historic 55.6% turnout rate. Most importantly, the election was conducted in an open, fair and honest manner. Candidates who were elected in the poll have all assumed office as legislators.

Interim Report

--------------

(2) The EAC is required by law to submit a report on the election to the Chief Executive of the Hong Kong Special Administrative Region Government within three months of the conclusion of the election. It shall comprise a report on any complaint made to the EAC in connection with the election. In view of the concern expressed by members of the public on the electoral arrangements, the EAC considers it necessary to submit an interim report to the Chief Executive to address certain issues of concern to the public. The interim report has been submitted to the Chief Executive, who has given his consent that the report can be made public.

(3) The interim report was compiled as objectively as possible, with the aim of finding facts and learning lessons so that future elections could be improved. The interim report, which is open to all, can easily be downloaded from the EAC website at www.gov.hk/eac. Printed copies can be collected from the Registration and Electoral Office (REO) and District Offices later.

(4) The interim report mainly covers the following issues: (i) reasons for insufficient supply of ballot boxes and adoption of various contingency measures, including the opening of sealed ballot boxes to repack ballot papers and the use of cardboard boxes as ballot boxes during the poll; (ii) legality of the emergency measures; (iii) discrepancies between voter turnout figures and the number of ballot papers counted in four functional constituencies; (iv) eviction or exclusion of candidates or their agents from polling stations; and (v) use of polling stations by disabled persons. Owing to time constraints, I won't discuss every issue in great detail now. I would rather focus on a few issues of concern to the public. Of course, you can raise any questions that are relevant after I finish my speech.

(5) I'd like to start with a brief note on the methods used by the EAC to conduct investigations into allegations. The EAC would require those involved, including the REO and polling cum counting officials, to answer queries and make clarifications relating to the complaints. Wherever necessary, the complaining party would be required to provide further information on the matter complained of or to give account of the events concerned. All the Presiding Officers were asked to complete a questionnaire on a number of aspects relating to the electoral processes and occurrences that took place on polling day. Please refer to the interim report for details about methodology and individual cases.

Insufficient supply of ballot boxes and contingency measures

---------------------------------------------------------

(6) Since some of the problems on the polling day were caused by an insufficient supply of ballot boxes, let me address this question first. In this election, ballot papers were bigger because candidates' particulars including their photographs had to be printed. Since the old ballot boxes were big and would be too heavy to handle when filled with the new ballot papers, a new type of ballot box had to be produced. Regrettably, staff members who designed the new ballot boxes over-estimated the capacity of these boxes. Based on an estimated capacity that 1,000 ballot papers could be inserted into each box, the REO ordered a total of 3,200 new ballot boxes to be made. Theoretically speaking, this provision could meet the demand for the entire registered electorate of about 3.2 million. However, when tests were conducted, ordinary A3 paper, and not the thicker paper eventually adopted for printing ballots, were used. When the estimation was made, it also failed to envisage that ballot papers could be folded and inserted into the ballot box in many different ways. As a result, ballot boxes originally allocated to polling stations were used up quickly and requests for additional ballot boxes flooded in soon.

(7) The contingency measures prepared by the REO were not designed to cater for urgent demands for replenishment from numerous polling stations made almost simultaneously or one very soon after another. In hindsight, the EAC considers that had a special contingency operational plan been made to cover unexpected scenarios, the ballot box shortage problem might well have been avoided or at least contained at an early stage.

(8) During the day, the Central Command Centre (CCC) deployed more than 40 vehicles and even resorted to taxis to deliver extra ballot boxes to a total of 180 polling stations. The CCC also sought the assistance of Hong Kong Police Force. The Police deployed some 30 vehicles to deliver extra ballot boxes to some 450 polling stations. Some 420 new geographical constituency ballot boxes in reserve and about 2,000 old-style white, red and blue big ballot boxes used in previous elections were either used or put on "standby".

(9) The delivery services arranged by the CCC, which did its best, were simply overwhelmed by the widespread demands and could not meet the required number of deliveries. Many polling stations found that the ballot boxes that they had were insufficient to fully accommodate the ballot papers cast or to be cast by electors, and various contingency measures to cater for the emergency were employed. Some people complained to the EAC querying the legality of these contingency measures. For example, there were a few complaints about the propriety of inserting rulers or other instruments through the slot of a ballot box to flatten or press ballot papers inside. These measures, just like shaking a ballot box, are to avoid jamming of the slot, and to ensure that ballot papers fall better and more smoothly into a ballot box and free up more space in the box. These measures had been taken in previous elections without any complaint. Insofar as care is taken not to damage any ballot paper inside the box, these measures should not give rise to concern. As a matter of fact, there were 21 geographical constituency ballot papers that had been rendered void for being substantially mutilated in the current Legco election, compared with 34 in the 2000 Legco election. As such, there is no sufficient reason to suspect that the measures adopted this time damaged any large number of ballot papers.

(10) To relieve the emergency situation of insufficient ballot boxes at polling stations, the CCC, on the instructions of the EAC, gave directions on expedient measures to be taken. The first stage started sometime around 3.30pm when the EAC instructed the Presiding Officers to unlock the front slot of apparently full geographical constituency ballot boxes, for ballot papers to be compressed through the slot. The second stage started sometime around 4.40pm when the EAC instructed the Presiding Officers to open the back of the ballot boxes for ballot papers to be re-arranged to free up space.

(11) The EAC had already instructed the Presiding Officers at that time that any such act of opening ballot boxes should be made in the presence of the candidates or their election/polling agents, or, in their absence, a police officer should serve as a witness. By so doing, the fairness, openness and honesty of the election should not be affected. Enquiries with the Presiding Officers show that staff in 56 stations opened ballot boxes for re-arrangement of ballot papers inside. All 56 stations followed the condition imposed by the EAC, and the ballot boxes were opened in the presence of witnesses.

(12) There are some complaints against the Presiding Officer of the polling station at Sheung Wan Post Office, who had to turn away electors while awaiting supply of additional ballot boxes. The Presiding Officer did not close the polling station. He merely asked electors to leave and return an hour later to cast their votes. When a few of the electors told the Presiding Officer that they would not be free to return, they were allowed to cast their votes by pushing their ballot paper into the already full ballot boxes. Operation of this particular polling station returned to normal after about 45 minutes. The Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation Section 44(2) provides that in order to ensure that polling takes place smoothly and efficiently, the Presiding Officer may regulate the number of electors to be admitted to the polling station at any one time or exclude any person from the polling station. In this case, as the ballot boxes in the polling station had been used up, and new supplies had yet to arrive, in order to maintain order and ensure that polling took place smoothly and efficiently, the Presiding Officer had the discretion to ask electors to leave and return later to cast their votes. This step taken by him did not forbid electors to vote, although it caused them inconvenience. The EAC considers this arrangement acceptable under such exceptional circumstances.

(13) The EAC's enquiry has revealed two cases where cardboard boxes were used as ballot boxes before additional ballot boxes arrived. In one station, two cartons were so used with the agreement of the polling agents of three different geographical constituency candidates' lists. The cartons were sealed and signed in the presence of these agents, who also witnessed the transfer of the cast ballot papers in the cartons to one of the extra ballot boxes when they arrived. In another polling station, one carton was used, and the entire process of ballot casting was conducted in the presence of a polling agent and a police officer who also witnessed the transfer of ballot papers from the carton into one of the original ballot boxes after it was opened and the ballot papers inside it had been re-arranged to free up space. The EAC considers that this stopgap measure, though not normal practice, was effective in ensuring the polling process was not disrupted in the absence of any other immediate and better solutions. The EAC considers that the various contingency measures described above were adopted in good faith to ensure the smooth processing of the election, and should not affect the integrity of the electoral process.

Legality of emergency measures adopted by the EAC

-------------------------------------------------

(14) It has been suggested that the expediency measures adopted by EAC breached the combined effects of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation Sections 47, 48 and 73A, and the act of opening a ballot box in use might have contravened the Election (Corrupt and Illegal Conduct) Ordinance Section 17(1)(e).

(15) The effect of Sections 47, 48 and 73A of the aforesaid Regulation is that before the poll starts, the Presiding Officer has to show the empty ballot boxes to those present in the polling station and lock and seal them in their presence. At the close of the poll, the Presiding Officer has to lock and seal the boxes, which should be kept under lock and seal until the start of the count when the seal is broken and the lock opened for the contents to be emptied for counting. In the normal course of events, therefore, the ballot boxes once locked and sealed at the start of the poll will be kept locked and sealed until the beginning of the count.

(16) However, there is no prohibition in the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation that ballot boxes must in no circumstances be opened. As far as Section 17(1)(e) of the Election (Corrupt and Illegal Conduct) Ordinance is concerned, the prohibition against opening a ballot box in use is subject to the condition that it is done "without lawful authority".

(17) Although the aforesaid provisions are to prevent interference with or opening of the ballot boxes in use, there are no provisions to cover unexpected contingencies or emergencies. For example, if smoke or fumes were found emitting from inside a ballot box in use or after it had been filled, it would be unreasonable for the ballot box not to be opened in order to ensure that the ballot papers inside were safe and undamaged. In such an unexpected event, the EAC, as well as the Presiding Officer, would no doubt need to act swiftly and take expediency measures, including the opening of the ballot box.

(18) It is clearly stated under Section 4(b), 4(h) and 5(g) of the Electoral Affairs Commission Ordinance that the EAC has the function and power to take the expedient measures insofar as it makes sure that the electoral process is open, fair and honest.

(19) In the exceptional, unexpected and emergent circumstances of the shortage of ballot boxes that prevailed in the course of polling on September 12, the EAC was certainly entitled to give the directive to the Presiding Officers, to cater for the emergency, for ballot boxes to be opened for the ballot papers inside to be rearranged to make room for more votes to be cast, or spare ballot boxes for use, in the presence of candidates, their election agents or polling agents, or in their absence, police officers.

(20) As the person in charge of a polling station for electors to cast their votes, the Presiding Officer was entrusted with the power and authority to ensure that the polling process was not disrupted in the absence of any other better immediate solution. The EAC is satisfied that the stopgap measure taken by the Presiding Officers, though not normal practice, is acceptable and not improper in the circumstances, insofar as they made sure that the electoral process was open, fair and honest.

(21) Both in the opening of the ballot boxes to reshuffle their contents and in the use of cartons as ballot boxes, the Presiding Officers did so in the presence and observation of the polling staff, election agents or polling agents, police officer, Civil Aid Service officers (where the agents or officers were present) and the electors inside the polling station at the time. Where polling agents were present, the Presiding Officer had invariably made the proposal to take the measure to them and obtained their agreement. Everything was done in a fair, honest and transparent manner. And the police officers on duty at polling stations were given the duties to maintain law and order and to assist Presiding Officers in the fair and impartial conduct of the election.

(22) All the above acts to cater for the unexpected and emergent situation of the shortage of ballot boxes were performed in good faith to ensure the least disruption to the polling process. The principle of fair, honest and open election has not, in any way, been jeopardised.

Crowdedness of polling stations

-------------------------------

(23) I will also briefly touch on several other issues that are covered in the interim report. The first one is the complaints about crowdedness or prolonged queuing outside polling stations. The majority of these complaints concerned a polling station at a school. The cause of the problem was that the staff concerned failed to foresee that a larger space would be needed because the registered electorate assigned to cast their votes at this station had increased from about 6,000 to just over 7,000. Also, the turnout of 4,208 this time greatly surpassed the turnout of 2,937 in the 1998 Legco election and indeed the turnout at any election thereafter. There had been no complaints of crowdedness or long queues at this station in the past. This may have rendered working staff less alert to such problems. The EAC offers its apology to an elector who has indicated that he did not cast his vote because of the long queue, and to others who were affected.

Ballot discrepancies in four functional constituencies

----------------------------------------------------

(24) Regarding the alleged ballot discrepancies in four of the functional constituencies, upon the request of one of the candidates, the REO has very carefully checked and examined all relevant data. It has been found in all these cases that the number of ballot papers counted was smaller than the number of ballot papers believed to have been cast by a difference of one to three ballots. There is nothing exceptional as a few electors might have taken away the ballot paper without casting it. The EAC firmly believes that the discrepancies and the mistakes should not make any material difference and would not have affected the election results.

(25) On voter turnout figures that were announced at regular intervals on the polling day, preliminary findings indicate that there were shortfalls in the design and capacity of the Interactive Voice Response System (IVRS) and deficiencies in the testing of the system during the implementation stage, and that the built-in contingency plan could not cope with the significant failure of the system on polling day. The EAC will report further on these aspects, including the question of responsibility, in the final report.

Eviction or exclusion of candidates or their agents from polling stations

--------------------------------------------------------

(26) There have been so far 15 complaints relating to the eviction or exclusion of candidates or their agents from 31 polling stations when they were being converted for counting purposes. Investigations show that the cases could be broadly classified into four types, (a) cases in which no request had been made by agents to enter the polling station after the close of the poll; (b) cases in which Presiding Officers refused entry of counting agents but allowed polling agents to stay as a result of a misunderstanding of the Operational Manual; (c) cases in which no agents were admitted; and (d) cases in which both polling and counting agents were admitted to observe the conversion process. There are still some complaints that need to be investigated and some that are still under investigation. The EAC has found that there were four stations under category (c) (ie, no agents were admitted). But for the reasons given in Appendix VI to the interim report, the EAC considers that there should not be any reasonable grounds to suspect that the integrity of the polling and counting processes conducted at these four polling stations had been adversely affected. The EAC has sent a letter of caution to each of the four Presiding Officers concerned, pointing out the mistakes they made and disapproving what they did.

Part of the Recommendations

---------------------------

(27) With the lessons learned, the interim report has put forward some recommendations to improve future elections. One of them requires that the EAC thoroughly reviews the design of the ballot box and other electoral equipment. In the future, newly designed equipment will be cautiously tested by various means, including real life trial use.

(28) Moreover, enhanced training on problem-solving and crisis-management will have to be arranged for electoral staff in future general elections. Special contingency plan must be made in the preparatory stage. A change in the command structure at the CCC to put more experienced senior officers in charge must be introduced. It is also necessary for the REO to fully revamp the Operational Manual to make the contents fully compliant with electoral provisions and the election guidelines.

(29) In order to avoid any misunderstanding and too much reliance being placed on the turnout rates published or reported by each polling station on an hourly basis, the EAC proposes that in future there should be an express warning that the turnout rates provided are imprecise and can only be used for temporary reference only. At the same time, wherever practicable, ways should be identified to improve the accuracy of the hourly turnout.

(30) Consideration will be given as to whether it is necessary to seek assistance from outside experts to follow up on the findings and recommendations of the report. The Chief Executive has decided to set up an Independent Committee of Experts to review the management, planning and conduct of elections. We welcome this, and shall be pleased to work with the committee.

Concluding Note

---------------

(31) Finally, I have to make it clear, the outcome of the investigations conducted by the EAC has confirmed that the openness, fairness and honesty of the election was not, in any way, jeopardised, nor was the integrity of the election compromised. We have identified a number of administrative and planning errors that were made on polling day. The EAC and the REO must take responsibility for the problems and inadequacies relating to the conduct of this election. We would like to tender our sincere apology again for the confusion and inconvenience caused to the public, the electorate, the candidates and their agents. With the experience that we have gained this time, we will make every effort to avoid making similar errors and problems in the future. Despite the inadequacies in this election, we highly commend the majority of working staff for doing their utmost to complete polling and counting tasks amid difficulties and immense pressure. We profoundly appreciate the attitude of those who have so graciously taken the difficulties experienced with understanding, patience and forgiveness. Despite the adversities, the EAC made every effort to defend the creditability of the electoral processes and to ensure that the election was conducted openly, fairly and honestly.

(32) Save for the complaints into which investigation has been made and a finding has been reached as described in this report, the EAC is continuing to investigate the uncompleted cases as well as other issues such as the failure of the IVRS resulting in the delay in announcing the election results. A comprehensive review of the electoral arrangements relating to the election will also be conducted with a view to identifying ways and means to forestall the repetition of the problems that arose in the polling and counting processes and to bring about improvement for future elections. Our findings, observations, views and recommendations will be included in the commission's final report to be submitted to the Chief Executive.

(33) Thank you. Any questions, please?

Ends/Wednesday, November 10, 2004

NNNN

Real Media (Floor / Chinese / English)
Windows Media (Floor / Chinese / English )