An Ordinance to provide for the establishment of a body to be known in the English language as the “Estate Agents Authority” and in the Chinese language as “地產代理監管局” and to define its functions, for the licensing of estate agents and certain salespersons, the regulation of estate agency work and certain agency agreements, and for matters related or incidental to the foregoing.
(Amended E.R. 1 of 2019)
[8 August 1997]
(Format changes—E.R. 1 of 2019)
(Enacting provision omitted—E.R. 2 of 2014)
This Ordinance may be cited as the Estate Agents Ordinance.
This Ordinance shall come into operation on a day to be appointed by the Secretary for Housing by notice in the Gazette, and different days may be so appointed for different provisions and for different purposes. (Amended L.N. 106 of 2002; L.N. 130 of 2007; L.N. 144 of 2022)
In this Ordinance—
advertisement (廣告) includes every form of advertisement, whether to the public or not, and whether— (a)in a newspaper or other publication; (b)by television or radio; (c)by the display of posters, notices, signs, labels, showcards or goods; (d)by the distribution of circulars, brochures, catalogues, price lists or any other material; (e)by the exhibition of pictures, models or films; or (f)in any other way, and any reference to the issue or publication of advertisements shall be construed accordingly; AML/CTF requirement (反洗錢及恐怖分子集資規定) means a requirement that— (a)is set out in Part 2, 3 or 4 of Schedule 2 to the Anti-Money Laundering and Counter-Terrorist Financing Ordinance (Cap. 615); and (b)applies under section 5A(4) of that Ordinance to an estate agent as defined by section 1 of Part 2 of Schedule 1 to that Ordinance; (Added 4 of 2018 s. 35) building (建築物) has the meaning assigned to it in section 2 of the Buildings Ordinance (Cap l23); certified public accountant (practising) (執業會計師) has the meaning given by section 2(1) of the Accounting and Financial Reporting Council Ordinance (Cap. 588); (Replaced 23 of 2004 s. 56. Amended L.N. 66 of 2022) client (客戶) means any person who whether on his own behalf or on behalf of another person retains or otherwise uses the services of, or otherwise engages or employs, an estate agent; committee (委員會) means a committee established under section 8; company (公司) means a company within the meaning of the Companies Ordinance (Cap. 622) and in addition it includes any body corporate— (Amended 28 of 2012 ss. 912 & 920) (a)incorporated or otherwise established by or under any other Ordinance; (b)incorporated or otherwise established outside Hong Kong; data equipment (數據設備) means any equipment which— (a)automatically processes information; (b)automatically records or stores information; (c)can be used to cause information to be automatically recorded, stored or otherwise processed on other equipment (wherever situated); (d)can be used to retrieve information, whether the information is recorded or stored in the equipment itself or in other equipment (wherever situated); data material (數據材料) includes— (a)any disc, tape or other device in which data other than visual images are embodied so as to be capable, with or without the aid of data equipment or other equipment, of being reproduced or otherwise retrieved from the disc, tape or other device; and (b)any film, tape or other device in which visual images are embodied so as to be capable, with or without the aid of data equipment or other equipment, of being reproduced or otherwise retrieved from the film, tape or other device; designated (指定) means designated by the Authority pursuant to section 17(1)(b); development (發展) means a development involving the construction of a new building; disciplinary committee (紀律委員會) means a committee established as a standing committee under section 8(1) for the purposes of performing the function of a disciplinary committee under sections 29 and 30; disposition (處置) means an act by a person whereby an interest he has in or over a property is affected, and acquisition (取得), in relation to a property, shall be construed accordingly; estate agency agreement (地產代理協議) means 1 or more written documents embodying the terms agreed for the time being between an estate agent and a client of such agent being terms on and subject to which estate agency work is to be done by such agent for the client, as from time to time varied or supplemented by an agreement made in accordance with regulations made under section 46(4); estate agency work (地產代理工作), subject to subsection (3), means any work done in the course of business for a client— (a)being work done in relation to the introduction to the client of a third person who wishes to acquire or dispose of a property, or to the negotiation for the acquisition or disposition of a property by the client; or (b)being work done, after the introduction in the course of that business to the client of a third person who wishes to acquire or dispose of a property or the negotiation in the course of that business for the acquisition or disposition of a property by the client, in relation to the acquisition or disposition, as the case may be, of the property by the client; estate agent (地產代理), subject to subsection (3), means a person who in the course of a business (whether or not he carries on that or any other business) does estate agency work; estate agent’s licence (地產代理牌照), except in section 17(1)(b), means a licence granted under section 17 and designated as being an estate agent’s licence and includes any such licence which is renewed under section 23; financial year (財政年度) means the period between the commencement of section 12 and the next following 31 March (inclusive), and thereafter— (a)each succeeding period of 12 months ending on 31 March; or (b)such other period as the Financial Secretary may determine in writing; group of companies (公司集團) means a group of companies within the meaning of the Companies Ordinance (Cap. 622); (Amended 28 of 2012 ss. 912 & 920) land (土地) has the meaning assigned to it by section 2 of the Conveyancing and Property Ordinance (Cap. 219), and this definition also applies to property outside Hong Kong; lease (租契) includes sub-lease, tenancy and sub-tenancy and it also includes an agreement for a lease where a party to the agreement is entitled to have a lease granted; licence (牌照), except when the context otherwise requires, means an estate agent’s licence or a salesperson’s licence, and includes a provisional licence, and licensee (持牌人) shall be construed accordingly; licensed estate agent (持牌地產代理) means a person who is the holder of an estate agent’s licence; licensed salesperson (持牌營業員) means a person who is the holder of a salesperson’s licence; manager (經理) means a manager appointed under section 38(1); occupation permit (佔用許可證) means an occupation permit, including a temporary occupation permit, issued by the Building Authority under section 21(2) of the Buildings Ordinance (Cap. 123); prescribed (訂明) means prescribed by regulation under this Ordinance and made with the Secretary’s approval; property (物業), except in section 6(2)(a), means an interest in land; provisional licence (臨時牌照) means a licence granted under section 23(3); purchaser (買方) means any person to whom a property is or is to be disposed of, and includes a prospective tenant; record (紀錄) includes data material; registered address (登記地址) means a registered address for the purposes of this Ordinance; salesperson (營業員) means an individual who in the course of his employment by, or as a director of, an estate agent does estate agency work; salesperson’s licence (營業員牌照), except in section 17(1)(b), means a licence granted under section 17 and designated as being a salesperson’s licence and includes any such licence which is renewed under section 23; Secretary (局長) means the Secretary for Housing; (Replaced L.N. 106 of 2002. Amended L.N. 130 of 2007; L.N. 144 of 2022) tenant (租客) includes a sub-tenant; the Authority (監管局) means the Estate Agents Authority; the Chairman (主席) means the Chairman of the Authority and any other person when acting as the Chairman; the Chief Executive Officer (行政總裁) means the Chief Executive Officer of the Authority for the time being appointed under section 11 and any other person when acting as the Chief Executive Officer; the register (登記冊), except in section 10, means the register established and maintained by the Authority under section 13; the Vice-chairman (副主席) means the Vice-chairman of the Authority and any other person acting as the Vice-chairman; (Amended E.R. 1 of 2019) unexecuted (未簽立) includes partly executed; unexecuted estate agency agreement (未簽立的地產代理協議) means 1 or more written documents embodying the terms of a prospective estate agency agreement, or 1 or more written documents embodying a prospective agreement which, if executed, would supplement or otherwise vary an estate agency agreement and unexecuted such agreement (該未簽立的協議) shall be construed accordingly; vendor (賣方) means any person by whom a property is or is to be disposed of, and includes a prospective landlord. (Amended E.R. 1 of 2019)(Amended E.R. 1 of 2019)
This Ordinance does not apply to anything done—
by an executor, administrator, trustee, liquidator, receiver, trustee or assignee of a bankrupt for the purposes of or in connection with the performance of his functions as such;
in the course of practising his profession by a solicitor, a notary public, an architect or a certified public accountant (practising) or by any person employed by him and acting in furtherance of that course; (Amended 23 of 2004 s. 56)
by any person in connection with a mortgage or other charge on property, whether done as regards its creation, transfer, assignment or otherwise;
in connection with the publication of advertisements or the dissemination of information by any person who does no other work which falls within the definition of estate agency work in subsection (1);
by any person as the vendor or purchaser, or where there is more than 1 vendor or purchaser, a vendor or purchaser of a property in connection with—
where the person is the vendor or a vendor of the property, the disposition of the property;
where the person is the purchaser or a purchaser of the property, the acquisition of the property;
by any person in connection with a property pursuant to instructions received by him in the course of his employment, in so far as such thing would have been within the scope of paragraph (e) if done by his employer;
by a company in connection with the disposition of a property within the meaning of subsection (4), if—
the company is a member of the same group of companies of which the vendor or, where there is more than 1 vendor, a vendor of the property is also a member;
the company, or a member of the same group of companies of which the company is a member, is a beneficial owner of any of the issued share capital of the vendor or, where there is more than 1 vendor, a vendor of the property; or
pursuant to a development agreement within the meaning of subsection (4) which is for the time being in force and entered into by the vendor or, where there is more than 1 vendor, the vendors of the property in relation to the property—
the company is to undertake or has undertaken for the vendor or the vendors, as the case may be, the development which is the subject of the development agreement, whether with other companies or not;
a member of the same group of companies of which the company is a member is to undertake or has undertaken for the vendor or the vendors, as the case may be, the development which is the subject of the development agreement, whether with other companies or not; or
the company, or a member of the same group of companies of which the company is a member, is a beneficial owner of any of the issued share capital of the company which is to undertake or has undertaken for the vendor or the vendors, as the case may be, the development which is the subject of the development agreement, whether with other companies or not;
by any person in connection with a property pursuant to instructions received by him in the course of his employment, in so far as such thing would have been within the scope of paragraph (g) if done by his employer; or (Amended E.R. 1 of 2019)
by any person in relation to a present, prospective or former employee of his or of any person by whom he also is employed if the thing is done by reason of the employment (whether past, present or future),
but this subsection shall not be construed as limiting the scope of section 46(5) or that section as applied by section 36(6).
For the avoidance of doubt it is hereby declared that—
references in this Ordinance to estate agency work are not to be construed as including references to work which relates solely to a survey, to a valuation or to a disposition by way of auction or tender; and
references in this Ordinance to an estate agent without qualification are not to be construed as including references either to a salesperson or to an auctioneer.
For the purposes of subsection (2)—
a reference to a property within the meaning of this subsection shall be a reference to a property which comprises a specified number of undivided shares in any area of land situated in Hong Kong, together with a right to the exclusive possession of a unit or other interest in a development of that area of land where—
the development of that area of land has been or is to be undertaken by the vendor or, where there is more than 1 vendor, the vendors of the property as owner of that area of land (whether with other companies or not), or by other company or companies for the vendor or the vendors, as the case may be, pursuant to an agreement, however described, entered into by the vendor or the vendors, as the case may be (whether with other companies or not) for the development of that area of land; and
no assignment or other instrument, other than that in favour of the vendor, or where there is more than 1 vendor, the vendors of the property, has been executed by way of completion of the sale and purchase of the property as such;
a reference to a development agreement within the meaning of this subsection, in relation to a property, shall be a reference to an agreement, however described, entered into for the development of the area of land referred to in paragraph (a) in relation to that property;
a reference to employment shall be a reference to employment under a contract of employment.
The Authority may, with the approval of the Secretary, by order exempt any class or description of persons specified by it in the order from all of the provisions of this Ordinance or, as the case may be, from any 1 or more of such provisions as are so specified.
The Authority shall cause an order under this section to be published in the Gazette.
The provisions of this section are in addition to those of section 2(2).
There is hereby established a body to be known in the English language as the “Estate Agents Authority” and in the Chinese language as “地產代理監管局”. (Amended E.R. 1 of 2019)
The Authority shall be a body corporate.
The provisions contained in the Schedule apply to the Authority.
The principal functions of the Authority are—
to regulate and control the practice of estate agents and salespersons;
to take such action as the Authority considers appropriate or necessary to promote integrity and competence amongst, or maintain or enhance the status of, estate agents and salespersons; and
if it thinks fit, to liaise with educational institutions and training bodies for the purposes of the provision by or on behalf of such institutions or bodies of training courses which are designed to ensure competency or establish standards of conduct or which are otherwise relevant to estate agency work.
The Authority may do such things as are expedient for or conducive to the performance of its functions or which, in the opinion of the Authority, are necessary to facilitate the proper performance of those functions.
Without affecting the generality of subsection (1), the Authority may—
acquire, hold and dispose of property of any kind including land and grant leases of land (including parts of buildings);
to such extent as it considers expedient, invest any of its moneys which are available for investment in such classes or descriptions of investment as the Financial Secretary may in writing specify for the purposes of this paragraph;
subject to the approval of the Financial Secretary, borrow moneys, in such manner and on such terms and conditions as it thinks fit;
accept gifts whether subject to any trust or other condition or not;
settle any dispute referred to the Authority for determination under section 49.
The Chief Executive may, if he considers the public interest so requires, give to the Authority such written general directions as to the performance of any of its functions as he considers appropriate.
The Authority shall, as soon as practicable, comply with any direction under this section.
A direction under this section shall remain in force until it is withdrawn by the Chief Executive.
Nothing in this section shall be construed as enabling the Chief Executive to exercise any power or control in relation to—
any particular application or other matter with which the Authority or a committee is concerned; or
any particular case with which a tribunal appointed under section 32(6) is concerned or which is pending.
(Amended 44 of 2000 s. 3)
The Authority may establish any committee, whether as a standing committee or otherwise, and, besides exercising as regards such a committee the power conferred on the Authority by section 9, may refer or assign any matter for consideration by the committee.
Each of the members of a committee shall be appointed by the Authority.
A committee shall consist of at least 3 members.
Subject to subparagraph (ii), a committee may include persons who are not members of the Authority.
A majority of the members of a committee established by the Authority as a standing committee shall be members of the Authority.
Where a committee is established, the Authority shall appoint a person to be the chairman of that committee.
A committee may be dissolved at any time by the Authority by resolution.
Any reference or assignment under subsection (1) and every appointment under subsection (2) may be withdrawn or revoked by the Authority, and no such reference or assignment shall prevent or restrict the concurrent performance by the Authority of any of its functions.
A committee may regulate its own procedure and business.
The Authority may delegate any of the Authority’s functions, other than a function specified in subsection (3), to a committee, the Chief Executive Officer or any other officer of the Authority.
A delegation under this section shall not prevent or restrict the concurrent performance by the Authority of the function delegated.
A delegation under this section may contain terms and conditions relating to the performance of the function delegated.
The functions which the Authority may not delegate under subsection (1) are—
the power to delegate conferred by subsection (1);
the appointment of a committee under section 8;
a power conferred by section 11(2) or (3) or 56 or any other regulation making power conferred on the Authority by this Ordinance.
The Authority may revoke a delegation under this section.
Where a person purports to act pursuant to a delegation under this section, he shall be presumed, until the contrary is proved, to be acting in accordance with the terms and conditions of the delegation.
As soon as practicable after appointment to membership or as and when occasion may thereafter require, a member of the Authority (including the Chairman and Vice-chairman) shall declare to the Authority in such manner as is for the time being determined by the Authority (whether by standing orders or otherwise) any interest of his which is of a class or description so determined.
The Authority shall establish and maintain a register for the purposes of this subsection in such form as the Authority shall decide.
Where a member of the Authority has declared any interest under this subsection, the Authority shall—
where no particulars in respect of such member has been entered in the register established and maintained under paragraph (b), cause the name of the member, together with the particulars of all interests so declared, to be entered in the register in such manner as the Authority shall determine;
where particulars in respect of such member have been entered in the register established and maintained under paragraph (b), cause the particulars of all interests so declared to be entered in the register by amending or adding to the particulars already entered in the register in such manner as the Authority shall determine.
The Authority shall make the register established and maintained under paragraph (b) available for public inspection at such reasonable time as the Authority shall determine.
A member of the Authority (including the Chairman and Vice-chairman) who is in any way directly or indirectly interested in a contract made or proposed to be made by the Authority, or in any other matter whatsoever which is to be considered, decided or determined by the Authority, shall comply with the following requirements—
he shall (if present) disclose to the relevant meeting of the Authority the nature of his interest (and such disclosure shall be recorded in the minutes of the meeting);
he shall withdraw from the meeting while the matter is being discussed or considered unless—
if he is not the person presiding at such meeting of the Authority, he is permitted by the person so presiding to take part in such discussion or consideration; or
if he is the person so presiding, a majority of the other members present at the meeting decides so to permit him;
he shall not vote or otherwise act as a member of the Authority in relation to the matter unless otherwise permitted; and
he shall neither influence nor seek to influence a decision of the Authority as regards the matter otherwise than with the Chairman’s prior approval or in accordance with paragraph (b).
Where a disclosure is made under subsection (2) and the person concerned is neither required to withdraw from the relevant meeting nor permitted to vote, then for so long as the matter to which the disclosure relates is being discussed or otherwise considered at such meeting the presence of the person by whom the disclosure was made shall be disregarded for the purposes of forming a quorum for the meeting.
The validity of any proceedings of the Authority shall not be affected by the failure by a member of the Authority to comply with a provision of this section.
The Authority may appoint any person as it thinks fit to be its Chief Executive Officer or other officers or employees.
Each of the Authority’s officers (including the Chief Executive Officer) and the other employees of the Authority shall, as regards their employment, be paid such remuneration and allowances and shall hold their offices or employment on such other terms and conditions as the Authority may determine.
The Authority may make arrangements for or in respect of the provision and maintenance of such schemes (whether contributory or not) for the payment to or in respect of its employees of such retirement benefits, gratuities or other superannuation allowances as it may determine.
The Authority may from time to time engage such consultants or advisers as it may consider necessary or expedient.
The Authority shall keep proper accounts and records of its transactions and shall within 3 months after the expiry of a particular financial year, or such longer period as the Secretary may allow, prepare a statement of accounts.
A statement of accounts referred to in paragraph (a) shall include an income and expenditure account for the financial year to which it relates and a balance sheet as on the last day of that financial year.
A statement of accounts referred to in subsection (1)(a) shall give a true and fair view of the state of affairs of the Authority as at the end of the financial year to which the statement relates.
A statement of accounts referred to in subsection (1)(a) shall be audited by an auditor who shall make a written report thereon to the Authority.
The auditor by whom an audit required by subsection (3) is to be carried out shall be appointed by the Authority and any such appointment shall be subject to the Secretary’s approval.
The Authority shall within 2 months of the receipt by it of the auditor’s report in respect of its accounts for a particular financial year, or such longer period as the Secretary may allow, and in any event not later than 6 months after the expiration of that financial year unless the Secretary otherwise allows, furnish to the Secretary—
a report on the affairs of the Authority for that financial year;
a copy of its statement of accounts for that financial year; and
a copy of the auditor’s report for that financial year,
and the Secretary shall cause copies thereof to be laid on the table of the Legislative Council.
Nothing in this section shall be construed as affecting section 15 of the Audit Ordinance (Cap. 122).
The Authority shall establish and maintain a register for the purposes of this Ordinance in such form as the Authority shall decide.
The register shall contain—
the following particulars as regards every licence granted under this Ordinance—
the name of the person to whom the licence was granted;
the period or periods for which the licence was granted, including the period or periods (if any) for which the licence was renewed;
if the licence is suspended, the period during which it is suspended; and
if the licence is revoked, the date of revocation;
separate lists of—
the individuals to whom estate agent’s licences have been granted, being licences which are for the time being in force, together with the registered addresses of those individuals;
the companies to which estate agent’s licences have been granted, being licences which are for the time being in force, together with the registered addresses of those companies;
the individuals to whom salesperson’s licences have been granted, being licences which are for the time being in force, together with the registered addresses of those individuals; and
such other particulars (if any) as may be prescribed.
The Authority may at any time publish, in such manner as it considers appropriate, the names and registered addresses of the companies or other persons who are for the time being registered in the register, or the names and addresses of a particular class of companies or other persons who are so registered.
A document, signed by the Chief Executive Officer and certified by him as being a true copy of or extract from any part of the register shall, until the contrary is proved, be evidence of the particulars entered in the part of the register to which the document so signed and certified relates.
It shall not be necessary in legal proceedings either to prove a signature on a document referred to in paragraph (a) or to prove that such a signature is that of the person holding the office of Chief Executive Officer on the date of the document.
The Authority shall make the register available for public inspection, at such reasonable time as the Authority shall determine, on payment of a prescribed fee.
Where a person applies to the Authority for a copy of or extract from any part of the register to be signed and certified as described in subsection (4), the Authority shall furnish the person with the copy or extract sought on payment of the prescribed fee (if any).
Subject to subsection (4), every licensee shall have an address in Hong Kong to which all communications and all notices may be sent.
The registered address shall be stated in an application for the grant or renewal of a licence.
Where an address ceases to be the registered address of a licensee, the licensee shall within the period of 14 days beginning on such cesser, notify the Authority in writing of another address to which all communications and notices may be sent.
Where the Authority receives a notification referred to in paragraph (a), it shall cause the address referred to in the notification to be entered appropriately in the register and thereupon that address shall be the registered address of the licensee by whom or on whose behalf the notification was sent to the Authority.
In the case of a company within the meaning of the Companies Ordinance (Cap. 622), the registered office for the time being of the company shall be the registered address of the company for the purposes of subsection (1). (Amended 28 of 2012 ss. 912 & 920)
Subject to this Ordinance, an individual shall not, either by himself or as a member of a partnership—
exercise or carry on or advertise, notify or state that he exercises or carries on, or is willing to exercise or carry on, the business of doing estate agency work as an estate agent; or
act as an estate agent; or
in any way hold himself out to the public as being ready to undertake, whether or not for payment or other remuneration (whether monetary or otherwise), estate agency work as an estate agent,
unless he is a licensed estate agent.
Subject to this Ordinance, a company shall not—
exercise or carry on or advertise, notify or state that it exercises or carries on, or is willing to exercise or carry on, the business of doing estate agency work as an estate agent; or
act as an estate agent; or
in any way hold itself out to the public as being ready to undertake, whether or not for payment or other remuneration (whether monetary or otherwise), estate agency work as an estate agent,
unless it is a licensed estate agent.
Subject to this Ordinance—
unless he is the holder of a licence, a person shall not be or act as a salesperson for any licensed estate agent, nor shall he hold himself out to the public as being a salesperson;
a person shall neither accept employment or an appointment as a salesperson from, nor act as a salesperson for, any other person who is required by this Ordinance to hold, but is not the holder of, an estate agent’s licence.
Subsection (1) shall not be construed as—
requiring any licensed salesperson, by reason only of the fact that he does estate agency work solely as a salesperson, to hold an estate agent’s licence; or
requiring any licensed estate agent to hold a salesperson’s licence.
The Authority may grant licences for the purposes of this Ordinance.
Where a licence is granted, the Authority shall designate the licence as being either an estate agent’s licence or a salesperson’s licence.
A licence granted for the purposes of this Ordinance is not transferable.
The Authority may attach to a licence such conditions as it considers appropriate and conditions so attached to a licence may include conditions prescribed under section 56.
Any conditions attached to a licence under this section shall be specified in the licence.
Notwithstanding sections 19, 20 and 21, where, within the relevant period—
an individual or company makes an application for the grant of an estate agent’s licence to take effect at any time after the grant thereof and within the relevant period; or
an individual makes an application for the grant of a salesperson’s licence to take effect at any time after the grant thereof and within the relevant period,
then, subject to subsection (2) and to payment of the prescribed fee and, in the case of an individual, provided he has attained the age of 18 years and in any case, provided also that the applicant has complied with any requirement prescribed under section 56(1)(d) which is applicable to him or it, the applicant shall be entitled to be granted the licence sought.
No person making an application in accordance with subsection (1) shall be entitled to be granted the licence sought in the application unless the Authority considers that—
the person is a fit and proper person to hold the licence; and
in the case of a company making an application for the grant of an estate agent’s licence, each of the company’s directors for the time being is a fit and proper person for the purposes of this Ordinance.
In determining whether a person is fit and proper for the purposes of paragraph (a)(i) the Authority shall have regard to—
in the case of an individual making an application for the grant of an estate agent’s licence, the matters described in section 19(2)(a), (c) and (d);
in the case of a company making an application for the grant of an estate agent’s licence, the matters described in section 20(2)(a);
in the case of an individual making an application for the grant of a salesperson’s licence, the matters described in section 21(3)(c).
In determining whether a person who is a director of a company making an application for the grant of an estate agent’s licence is a fit and proper person for the purposes of this Ordinance, the Authority shall have regard to the matters described in section 20(3)(a), (c) and (d).
An individual shall not be eligible to be granted or hold or continue to hold an estate agent’s licence unless—
he has attained the age which is for the time being prescribed for the purposes of this subsection;
he satisfies the Authority—
that he has a good understanding of any regulations made for the time being under section 56(1)(j) and which apply to a licensed estate agent;
that he has the educational qualifications or experience or both prescribed for the time being under section 56(1)(d) and which apply to him; and
that he complies with such other requirements (if any) as are prescribed for the time being under section 56(1)(g) and which apply to him; and
the Authority otherwise considers him a fit and proper person to hold an estate agent’s licence.
In determining whether or not a person is fit and proper for the purpose of holding an estate agent’s licence, the Authority shall have regard to the following—
the fact that the person is an undischarged bankrupt, or has, within the 5 years immediately prior to the day on which the Authority considers, or, where appropriate, begins to consider the matter, made a composition or scheme of arrangement with his creditors;
the fact that the person is a director or officer of a company which is for the time being disqualified under this Ordinance for holding a licence, or was a director or officer of that company at the date when the company was so disqualified;
the fact that the person is a mentally disordered person or a patient within, in either case, the meaning of section 2 of the Mental Health Ordinance (Cap. 136);
any conviction, whether in Hong Kong or elsewhere, of the person for any offence (other than an offence under this Ordinance), being a conviction as regards which it was necessary to find that the person acted fraudulently, corruptly or dishonestly; and
any conviction of the person under this Ordinance in respect of which he has been sentenced to imprisonment, whether the sentence is suspended or not.
A company shall not be eligible to be granted or to hold or continue to hold an estate agent’s licence unless—
not less than a prescribed number or proportion of the company’s directors are, and each of its directors who is engaged in its business as an estate agent is, a licensed estate agent;
there is for the time being a licensed estate agent who is in effective control of the company’s business as an estate agent;
each of the company’s directors for the time being is, in the opinion of the Authority, a fit and proper person for the purposes of this Ordinance;
the Authority is satisfied that the company complies with such other requirements (if any) as are prescribed for the time being under section 56(1)(g) and which apply to the company; and
the Authority otherwise considers the company a fit and proper person to hold an estate agent’s licence.
In determining whether a company is fit and proper for the purpose of holding an estate agent’s licence, the Authority shall have regard to the following—
the fact that the company is in liquidation or is the subject of a winding-up order, or there is a receiver appointed in relation to it, or it has, within the 5 years immediately prior to the day on which the Authority considers, or, where appropriate, begins to consider the matter, entered into a composition or scheme of arrangement with its creditors; and
any conviction of the company under this Ordinance.
In determining whether a person who is a director of a company referred to in subsection (1) is a fit and proper person for the purposes of this Ordinance, the Authority shall have regard to the following—
the fact that—
where the person is an individual, such individual is an undischarged bankrupt, or has, within the 5 years immediately prior to the day on which the Authority considers, or, where appropriate, begins to consider the matter, made a composition or scheme of arrangement with his creditors; or
where the person is a company, such company is in liquidation or is the subject of a winding-up order, or there is a receiver appointed in relation to it, or that it has, within the 5 years specified in subparagraph (i), entered into a composition or scheme of arrangement with its creditors;
the fact that the person is a director or officer of a company which is for the time being disqualified under this Ordinance for holding a licence, or was a director or other officer of that company at the date when the company was so disqualified;
the fact that the person is a mentally disordered person or a patient within, in either case, the meaning of section 2 of the Mental Health Ordinance (Cap. 136);
any conviction, whether in Hong Kong or elsewhere, of the person for any offence (other than an offence under this Ordinance), being a conviction as regards which it was necessary to find that the person acted fraudulently, corruptly or dishonestly; and
any conviction of the person under this Ordinance in respect of which he has been sentenced to imprisonment, whether the sentence is suspended or not.
A salesperson’s licence shall not be granted to a body of persons, whether corporate or unincorporate.
An individual shall not be eligible to be granted or hold or continue to hold a salesperson’s licence unless—
he has attained the age which is for the time being prescribed for the purposes of this subsection;
he satisfies the Authority—
that he has a good understanding of any regulations made for the time being under section 56(1)(j) and which apply to a licensed salesperson;
that he has the educational qualifications or experience or both prescribed for the time being in regulations under section 56(1)(d) and which apply to him; and
that he complies with such other requirements (if any) as are prescribed for the time being in regulations under section 56(1)(g) and which apply to him; and
the Authority otherwise considers him a fit and proper person to hold a salesperson’s licence.
In determining whether a person is fit and proper for the purpose of holding a salesperson’s licence, the Authority shall have regard to the following—
the fact that the person is an undischarged bankrupt, or has, within the 5 years immediately prior to the day on which the Authority considers, or, where appropriate, begins to consider the matter, made a composition or scheme of arrangement with his creditors;
the fact that the person is a director or officer of a company which is for the time being disqualified under this Ordinance for holding a licence, or was a director or officer of that company at the date when the company was so disqualified;
the fact that the person is a mentally disordered person or a patient within, in either case, the meaning of section 2 of the Mental Health Ordinance (Cap. 136);
any conviction, whether in Hong Kong or elsewhere, of the person for any offence (other than an offence under this Ordinance), being a conviction as regards which it was necessary to find that the person acted fraudulently, corruptly or dishonestly; and
any conviction of the person under this Ordinance in respect of which he has been sentenced to imprisonment, whether the sentence is suspended or not.
An application for the grant of a licence shall be made to the Authority in the prescribed manner and be in the prescribed form and it shall also contain such particulars (if any) as are prescribed under section 56(1)(b) and apply in relation to it.
Where a licence is granted under this Ordinance, the Authority shall cause notice thereof to be published in the Gazette.
A licensee may apply in the prescribed manner to the Authority to renew the relevant licence.
Where an application is allowed under this section, subject to compliance with any regulations under section 56 which are relevant to the application, the Authority may in allowing the application do all or any of the following, namely, vary or remove conditions already attached to the licence or attach new conditions to the licence.
Pending the determination of an application under this section, the Authority shall, where the licence whose renewal is sought has expired, grant a provisional licence to the applicant and whether or not conditions were attached to the licence whose renewal is sought, the Authority when granting such a provisional licence may attach thereto such conditions (if any) as it considers appropriate.
Where an application under this section is allowed, the Authority shall cause notice thereof to be published in the Gazette.
An application under subsection (1) may, and may only, be made before the licence in respect of which renewal is sought expires.
Where an application under this section is allowed, the period of renewal shall be such as the Authority specifies when allowing the application and such period shall begin to run or, where appropriate, shall be deemed to have begun to run, immediately after the day on which the relevant licence would otherwise have expired.
The Authority may refuse an application for the grant or renewal of a licence if, and only if it is satisfied that any 1 or more of the requirements of such of the following as apply in the particular case, namely, section 18, 19, 20, 21 or 22, are not met or complied with by the applicant or that any 1 or more of such requirements or other provisions of regulations under this Ordinance as are relevant to the application are not complied with or otherwise satisfied.
Where an application for the grant or renewal of a licence is refused, the Authority shall, within the period of 21 days beginning on the date of the refusal, notify the applicant in writing of its decision and such notification shall state the reasons for the decision.
Where—
an application for the grant or renewal of a licence is refused; or
a licence is revoked by the Authority,
the applicant or, where appropriate, the former licensee shall not be entitled to make an application under section 22 or 23 within the period prescribed for the purposes of this section.
Notwithstanding subsection (1), the Authority may allow an application under section 22 or 23 within the period prescribed for the purposes of this section if, and only if, it is satisfied by the applicant that to refuse to allow the application would, having regard to the particular circumstances of the case, be unreasonable.
Subject to subsection (2), an applicant described in subsection (1) shall, during the period prescribed for the purposes of this section, be regarded as being disqualified for holding a licence.
A licence shall be in the prescribed form and shall not have effect unless and until the relevant prescribed fee has been paid by or on behalf of the applicant for the licence.
Subject to any regulation made in that regard under section 56, the period during which a licence is to be in force shall be that specified in the licence.
Subject to the provisions of this section, the Authority may suspend a licence for such a period of time as it thinks fit, or revoke a licence.
The Authority may suspend or revoke a licence—
if in the case of an estate agent’s licence, a notice is received under section 40(1);
if in the case of a salesperson’s licence, a notice is received under section 40(1) and if, and only if, the Authority considers that the relevant licensee is no longer a fit and proper person to hold a salesperson’s licence within the meaning of section 21(2)(c);
if in the opinion of the Authority, the licensee has been generally doing estate agency work in a manner which, in such opinion, is contrary to the public interest as perceived by it and if in such opinion to permit him to continue so to do such work in such manner would be contrary to the public interest as so perceived;
if the relevant licensee is not eligible to hold or continue to hold the licence under section 19, 20 or 21, or is not entitled to be granted the licence under section 18, as the case may be;
if the relevant licensee has failed to pay any fee, charge or penalty charged or imposed under this Ordinance, and the period within which it should have been paid has expired;
if the relevant licensee has failed to comply with any of the conditions attached to the licence; (Amended 4 of 2018 s. 36)
if the relevant licensee has contravened or failed to comply with any requirements or other provisions of this Ordinance; or (Amended 4 of 2018 s. 36)
if the relevant licensee has contravened or failed to comply with an AML/CTF requirement. (Added 4 of 2018 s. 36)
Where the Authority proposes to suspend or revoke a licence it shall give the relevant licensee written notice of the proposal and the reasons for it.
A notice under this subsection shall state that within the period of 21 days beginning on the date of the notice, or within such longer period as the Authority may allow in the particular case, representations regarding the proposed suspension or revocation, as the case may be, may be made in writing to the Authority by or on behalf of the licensee concerned (which representations are hereby authorized to be made).
Where representations are made pursuant to subsection (3)(b), the Authority shall not suspend or revoke the licence concerned without having considered the representations.
Where the Authority suspends or revokes a licence pursuant to this section, it shall—
within the period of 21 days beginning on the date of the suspension or revocation, notify the relevant licensee or, where appropriate, former such licensee, in writing of the decision and such notice shall state the reasons for the Authority’s decision together with, in the case of a suspension, the period for which the relevant licence is suspended; and
publish notice of the decision in the Gazette.
A suspension or revocation referred to in paragraph (a) shall take effect on the date of the relevant notice under paragraph (a)(i), or such later date as may be specified in the notice, and such suspension or revocation shall have effect as regards a particular case notwithstanding any 1 or more of the following, namely, that the licensee concerned has appealed under section 31, that the time for the making of such an appeal has not expired, or that a notice has not yet been published pursuant to paragraph (a)(ii). (Amended 32 of 2000 s. 48)
Where a licence is suspended under this section, the Authority may in its discretion shorten the period for which the licence is suspended or lift the suspension.
Where the Authority shortens the period of suspension of a licence or lifts such a suspension, it shall—
within the period of 21 days beginning on the date of its decision, notify the relevant licensee or, where appropriate, the former such licensee in writing of the decision and such notice shall state the period for which suspension of the relevant licence has been shortened; and
publish notice of the decision in the Gazette.
The shortening of a period or the lifting of a suspension referred to in paragraph (a) shall take effect on the date of the relevant notice under paragraph (a)(i) to the relevant licensee or, where appropriate, the former such licensee, or such later date as may be specified in the notice, and such a shortening or lifting shall have effect as regards a particular case notwithstanding the fact that such notice has not yet been published pursuant to paragraph (a)(ii).
Where any licence is suspended or revoked under this section, no fee or other sum paid in respect of the grant or renewal of the licence shall be refunded.
Where the Authority has reason to believe that a requirement or other provision of this Ordinance, or an AML/CTF requirement, may not have been complied with or, where appropriate, may have been contravened by a licensee, the Authority may appoint in writing 1 or more of its employees, or 1 or more certified public accountants (practising), or both (the investigator) to conduct such investigation as the Authority considers necessary. (Amended 23 of 2004 s. 56; 4 of 2018 s. 37)
Where any matter is investigated under subsection (1), the licensee in relation to whom the investigation is conducted is, for the purposes of this section, referred to as the licensee under investigation.
The Authority shall inform in writing the licensee under investigation the reasons for which the investigation is conducted in relation to him as soon as reasonably practicable after the appointment of the investigator.
Any costs or expenses incurred by a person (other than an employee of the Authority) acting as the investigator under this section shall be paid out of moneys provided by the Legislative Council.
The licensee under investigation or any person who is reasonably believed or suspected by the investigator to have in his possession or under his control any record or other document which contains, or which is likely to contain, information relevant to an investigation under this section, or who is so believed or suspected of otherwise having such information in his possession or under his control, shall—
if reasonably required by the investigator, produce to the investigator, within such time and at such place as he may reasonably require, any record or other document specified by the investigator or any record or other document which is of a class or description so specified, which, in the investigator’s opinion in either case, is, or may be, relevant to the investigation, and which is in his possession or under his control;
if reasonably required by the investigator, give to him such explanation or further particulars in respect of a record or other document produced in compliance with a requirement under paragraph (a) as the investigator shall specify; and
if reasonably required by the investigator, give to the investigator all assistance in connection with the investigation which he is reasonably able to give.
The investigator shall be furnished by the Authority with a copy of the appointment under subsection (1) and shall, before exercising any power under this section, produce the copy to the person concerned for his inspection.
The investigator may, and if so directed by the Authority shall, make interim reports to the Authority, and on the conclusion of his investigation shall make a final report to the Authority.
In any final report made to the Authority under paragraph (a), the investigator shall make recommendations to the Authority as to whether the exercise of powers under section 30 should be considered.
The Authority shall, as soon as reasonably practicable after the receipt of any final report made to it under paragraph (a), inform the licensee under investigation, in such manner as the Authority thinks fit, of—
the result of the investigation;
any recommendations made by the investigator as to whether exercise of powers under section 30 should be considered; and
such other comments arising from the investigation as the Authority thinks fit to make.
Where the licensee under investigation or any other person is convicted by a court or magistrate on a prosecution instituted as a result of an investigation under this section, the court or magistrate may order him to pay to the Authority the whole or part of the costs or expenses of the investigation.
Where an amount is paid to the Authority pursuant either to an order under paragraph (a) or to an order under section 30(1)(vii) (the first amount) and costs or expenses are or are to be paid pursuant to subsection (4) (the second amount), the Authority shall pay to the Financial Secretary an amount equal to the second amount unless the first amount is less than the second amount in which case it shall so pay an amount equal to the first amount.
Subject to paragraph (b) and except in the performance of a function under this section, the investigator and the Authority and any person who performs or assists the investigator or the Authority in the performance of a function under this section shall maintain confidentiality in respect of all matters and information produced or given or otherwise furnished for the purposes of an investigation under this section.
Nothing in paragraph (a) shall prevent the disclosure of information—
with a view to the institution or otherwise for the purposes of any criminal proceedings or any investigation in connection therewith, whether under this Ordinance or otherwise, in Hong Kong;
in connection with any civil proceedings to which the Authority is a party;
in connection with any inquiry conducted pursuant to section 29;
in connection with the exercise of any power under section 30;
in connection with any appeal conducted pursuant to section 31;
in connection with the proceedings of a determination of any dispute under section 49.
Nothing in this section shall be construed as requiring an institution authorized to carry on banking business or the business of taking deposits under the Banking Ordinance (Cap. 155) to disclose any information or produce any record or other document relating to the affairs of a customer to the investigator unless—
the customer is a person whom the investigator has reason to believe may be able to give information relevant to the investigation; and
the Authority is satisfied that the disclosure or production is necessary for the purposes of the investigation and certifies in writing that that is the case,
and, where the conditions in paragraphs (a) and (b) are met in respect of any such institution, such institution shall comply with any provision of subsection (5) that applies in the particular case.
A complaint that a licensee—
has failed to comply with the requirements of, or has contravened, any 1 or more provisions of this Ordinance with which he is required to comply and which are specified in the complaint;
is not eligible to hold or continue to hold a licence under section 19, 20 or 21, or is not entitled to be granted a licence under section 18, as the case may be;
has failed to comply with a specified condition attached to his licence;
has failed to comply with, or has contravened, 1 or more regulations made under this Ordinance and which are so specified; or
has failed to comply with, or has contravened, an AML/CTF requirement, (Added 4 of 2018 s. 38)
shall be made to the Authority which may, in its discretion, deal with the matter itself or refer the matter to a disciplinary committee.
Where the Chief Executive Officer has reason to believe that subsection (1)(a), (b), (c), (d) or (e) applies to a licensee he shall submit the facts to the Authority which may, in its discretion, deal with the matter itself or refer the matter to a disciplinary committee.
The Authority or the disciplinary committee to which the matter is referred under subsection (1) or (2), having considered the case, may in its discretion conduct such inquiry as it thinks fit.
(Amended 4 of 2018 s. 38)
Where—
an investigator within the meaning of section 28 recommends to the Authority that exercise of powers under this section should be considered; and
the Authority or, where the Authority refers the matter to a disciplinary committee, the disciplinary committee accepts the recommendation; or
a complaint made under section 29(1) or a submission made under section 29(2) is considered by the Authority or, as the case may be, a disciplinary committee; and
the Authority or, as the case may be, the disciplinary committee is satisfied that the complaint or submission is well-founded,
the Authority or, where appropriate, the disciplinary committee may, subject to this section, exercise such of the following powers as it considers appropriate—
admonish or reprimand the licensee concerned;
attach specified conditions to the licence concerned;
vary any condition already attached to such licence;
suspend such licence for a specified period not exceeding 2 years;
revoke such licence;
impose a fine of a specified amount not exceeding $300,000;
make such order as it thinks fit with regard to the payment of any 1 or more of the following, namely, the whole or part of its costs regarding the proceedings, or, where a recommendation referred to in paragraph (a) is made, the whole or part of the costs of the investigator by whom the recommendation was made, or the whole or part of the costs of a complainant under section 29 or of the licensee concerned.
Before any power is exercised under subsection (1), the licensee concerned and any other person against whom the power is exercised shall be given a reasonable opportunity of being heard.
No power shall be exercised under subsection (1) against a licensee, if the licensee shows—
in a case where subsection (1)(a) applies, that he had taken all reasonable steps and exercised all due diligence to avoid the non-compliance or contravention which is the subject of the investigation in question;
in a case where subsection (1)(b) applies, that he had taken all reasonable steps and exercised all due diligence to avoid the occurrence of the matter which is the subject of the complaint or submission (as the case may be) in question.
Without limiting the generality of subsection (3), where the investigation or the complaint or submission in question relates to non-compliance with or contravention of section 36(1)(a)(ii), the licensee concerned shall, for the purposes of that subsection, be regarded as having shown that he had taken all reasonable steps and exercised all due diligence to avoid such non-compliance or contravention, if he shows that—
he relied on information obtained from a source prescribed for the purposes of this subsection in respect of such information;
it was reasonable for him to have relied on such information; and
he had taken all steps reasonably open to him to avoid the non-compliance or contravention.
Where any of the powers described are exercised, the Authority—
shall within the period of 21 days beginning on the date of the relevant decision, notify in writing the licensee and any other person against whom the decision is made of the decision and such notice shall state the reasons for the decision together with, in case the licence concerned is suspended, the period during which such licence is suspended; and
shall, where any of the powers are exercised under any of the provisions of subsection (1)(ii) to (v), publish notice of the decision in the Gazette;
may, where none of the powers are exercised under any of the provisions of subsection (1)(ii) to (v), publish notice of the decision in such manner as it thinks fit.
The exercise of a power referred to in paragraph (a) shall have effect on the date of the relevant notice under paragraph (a)(i), or on such later date as may be specified in the notice, and such exercise shall have effect as regards a particular case notwithstanding any 1 or more of the following, namely, that the relevant licensee has appealed under section 31, that the time for making such an appeal has not expired, or that notice has not yet been published pursuant to paragraph (a)(ii).
Where a licence is suspended or revoked under this section, no fee or other sum paid in respect of the grant or renewal of the licence shall be refunded.
Nothing in this section shall be deemed to require the Authority or a disciplinary committee to inquire into the question whether a licensee was properly convicted but the Authority or the disciplinary committee may consider the record of a case in which such conviction was recorded and such other evidence as may show the nature and gravity of the offence.
Any fine imposed by virtue of subsection (1) and any costs awarded by virtue of that subsection may be recovered as a civil debt.
Where—
an application for the grant or renewal of a licence is refused under section 24;
a condition is attached to a licence pursuant to section 17;
a licence is suspended or revoked under section 27; or
a power under section 30 is exercised,
the applicant, the licensee concerned or the former such licensee, as the case may be, may, within the period of 21 days beginning on the date of the relevant notice under section 24(2), 27(5) or 30(5) or of the relevant licence, as the case may be, by a notice in writing addressed to the Secretary, appeal against the refusal, or, as may be appropriate, the attachment, suspension, revocation or exercise.
Where a notice of appeal under this section is given, the Secretary shall cause notice of the appeal to be published in the Gazette.
Where a notice of an appeal is published pursuant to subsection (2), any person may within the period of 21 days beginning on the date of such publication, by a notice in writing addressed and delivered to the Secretary, request to be heard at the appeal to which the notice so published relates.
Where a notice referred to in paragraph (a) is received by the Secretary, the person by or on whose behalf it was given shall be entitled to be heard or represented at the appeal to which the notice relates.
For the purpose of hearing appeals under section 31, the Secretary shall appoint a panel of persons (the panel) comprising a chairman and 11 other members, none of whom shall be a public officer.
A person who for the time being holds an appointment under subsection (1) shall not be eligible for membership of the Authority.
A person who for the time being is a member of the Authority shall not be eligible for appointment under subsection (1).
A person who holds an appointment under subsection (1) may surrender his appointment by letter addressed to the Secretary.
Subject to subsection (3), an appointment under subsection (1) shall remain in force for such period as is specified in the appointment, being a period of not more than 2 years beginning on the date of the appointment.
Where an appointment under subsection (1) expires, the person concerned shall be eligible for reappointment.
Where a person appeals under section 31, the chairman of the panel shall appoint from the members thereof a tribunal consisting of not less than 3 members to determine the appeal, and 1 of the members so appointed shall also be appointed chairman of the tribunal.
Where a person appeals under section 31, the chairman of the panel shall—
fix the date, time and place for the hearing of the appeal so as to enable the hearing to commence as soon as reasonably practicable; and
not less than 28 days before the date so fixed, give the parties to the appeal, and any person who is entitled to be heard or represented at the appeal pursuant to section 31(3)(b), a notice of the date, time and place so fixed in such form as he may determine.
A tribunal appointed under subsection (6) may, in relation to an appeal under section 31, confirm, vary or reverse any of the decision to which the appeal relates.
The decision of a tribunal appointed under subsection (6) shall be final.
The Secretary may make regulations regulating the procedure for appeals under section 31 or otherwise relating to such proceedings.
For the purposes of proceedings conducted by a tribunal under section 32, subject to any regulations under section 32(10) which are for the time being in force, the tribunal concerned may—
determine its own procedure;
receive and consider any material, whether by way of oral evidence, written statements, documents or other thing, even though such material would not be admissible in civil or criminal proceedings;
by notice in the prescribed form, require any person to attend before it to give evidence and produce documents;
administer oaths and affirmations;
examine on oath, affirmation or otherwise any person attending before it and require such person to answer all questions put by or with the consent of the tribunal;
award to a witness such expenses as, in its opinion, he has reasonably incurred by reason of his attendance at the proceedings;
determine the manner in which the material referred to in paragraph (b) is to be received;
adjourn any proceedings;
make such order, if any, as it thinks fit with regard to the payment of the whole or part of the costs of the tribunal, by any 1 or more of the following, namely, the applicant, the licensee concerned or such former licensee, the Authority, or any other person who was heard or represented during the proceedings; and
do or cause to be done any other thing which is either necessary or expedient to enable it to perform its functions.
Any party in proceedings mentioned in subsection (1) shall, subject to any order made by the tribunal concerned under subsection (3), be entitled to be present during the proceedings and may participate therein either in person or through counsel or a solicitor or, with the consent of the tribunal concerned, through some other person throughout the proceedings.
For the purposes of paragraph (a), where a party in the proceedings mentioned in subsection (1) is a company, the party shall be regarded as participating in the proceedings in person if it participates through any of its directors.
Subject to paragraphs (b) and (c), the proceedings mentioned in subsection (1) shall be conducted in public.
Where the tribunal concerned, after consulting the parties to the appeal, is satisfied that it is desirable to do so, it may by order—
direct that the proceedings or a part or parts of the proceedings shall take place in private and give directions as to the persons who may be present;
give directions prohibiting or restricting the publication or disclosure by any or all of the parties to the appeal, or by any or all of the persons who may be present, of any evidence given at the proceedings or of any matter contained in any document or thing produced or received in evidence for the purposes of the proceedings.
Without limiting the generality of paragraph (b), the tribunal concerned shall, in determining whether or not it is desirable to make an order under that paragraph, take into account any views of the parties to the appeal, including the private interests of and any claim as to privilege by any of those parties.
For the purposes of this subsection, any question in relation to a claim by any party as to privilege shall be a question of law.
Costs awarded by virtue of subsection (1)(i) may be recovered as a civil debt.
For the purposes of an inquiry under section 29, the Authority or, as the case may be, the disciplinary committee conducting the inquiry shall have the following powers—
to take evidence on oath;
to summon any person to attend the inquiry to give evidence or produce any document or other thing which may be relevant to the inquiry and which is in his possession or under his control and to examine him as a witness; and
to award to a witness such expenses as, in the opinion of the Authority or, as the case may be, the disciplinary committee, he has reasonably incurred by reason of his attendance.
A summons under this section shall be in the prescribed form and shall be signed by—
in the case the inquiry is conducted by the Authority, the Chairman;
in case the inquiry is conducted by a disciplinary committee, the chairman of the disciplinary committee.
At any inquiry conducted under section 29—
the complainant, or his counsel or solicitor;
the Chief Executive Officer;
any other officer of the Authority expressly appointed by it as regards the inquiry; or
if the Authority so directs, counsel or a solicitor for the Authority,
shall present the case against the licensee to whom the inquiry relates.
Subject to paragraphs (b) and (c), an inquiry under section 29 shall be conducted in public.
Where the Authority or, as the case may be, the disciplinary committee conducting an inquiry under section 29, after consulting the complainant and the licensee to whom the inquiry relates, is satisfied that it is desirable to do so, it may by order—
direct that the inquiry or a part or parts of the inquiry shall take place in private and give directions as to the persons who may be present;
give directions prohibiting or restricting the publication or disclosure by any or all of the persons who may be present (including the complainant and the licensee to whom the inquiry relates) of any evidence given at the inquiry or of any matter contained in any document or thing produced or received in evidence for the purposes of the inquiry.
Without limiting the generality of paragraph (b), the Authority or the disciplinary committee conducting an inquiry under section 29 shall, in determining whether or not it is desirable to make an order under that paragraph, take into account any views of the complainant and the licensee to whom the inquiry relates, including the private interests of and any claim as to privilege by any of those persons.
For the purposes of this subsection, any question in relation to a claim by any person as to privilege shall be a question of law.
Section 33(2) shall apply mutatis mutandis to an inquiry conducted under section 29.
No contractual or other liability shall be affected in any way by reason only of the suspension, revocation or expiration of a licence.
Subject to section 38(3), every licensed estate agent shall, as regards every property (whether situated in Hong Kong or elsewhere) in relation to which he has entered into an estate agency agreement—
if he acts for the vendor, then for so long as he so acts, have in his possession or under his control information prescribed for the purposes of this paragraph;
be reasonably satisfied as regards the accuracy of information prescribed for the purposes of this paragraph;
supply to persons who are of a class or description prescribed for the purposes of this paragraph information so prescribed;
comply with requirements prescribed for the purposes of this paragraph when supplying to others information which is required by this Ordinance to be supplied to them;
inform a client who is a vendor of each offer received as regards the property concerned at any time prior to that at which the client expressly instructs him not to do so, or that at which under or pursuant to any provision of the estate agency agreement with the client the requirement to do so no longer applies to him, whichever is the earlier;
disclose to a client full particulars of any pecuniary or other beneficial interest which such agent has in the property concerned, together with particulars of any benefit, including any commission or any interest of any kind whatever in such property, whether monetary or otherwise, which will accrue to such agent should the property be disposed of; and
if as regards a particular property he acts both for the vendor and for the purchaser—
inform both of such clients that he is so acting; and
without affecting any of the requirements applicable to him, including those in respect of the supply of information, under any of the foregoing subparagraphs, provide to either of such clients at the request of that client any information provided by the other client as regards the property concerned, unless he has been expressly instructed by that other client not to do so.
For the purposes of this subsection the fact that a licensed estate agent or a partnership carries on an estate agency business and 1 or more other businesses is immaterial.
Without affecting the generality of subsection (1), information prescribed for the purposes of subsection (1)(a) in relation to any property situated in Hong Kong, being property in relation to which a particular licensed estate agent has entered into an estate agency agreement, or in relation to any property which is of a prescribed class or description of such properties, may include the following— (Amended 32 of 2000 s. 48)
particulars of current ownership and subsisting encumbrances in respect of the relevant property, as recorded in records or other documents which are of a class or description prescribed for the purposes of this paragraph and extracted in a manner prescribed for the purposes of this paragraph;
the total or entire area, calculated and expressed in a manner prescribed for the purposes of this paragraph, which the relevant property comprises;
where applicable, the year or period in which construction of the relevant property was completed, as recorded in an occupation permit or in a document which is of a class or description prescribed for the purposes of this paragraph;
any restrictions on the user of the relevant property which are imposed by any document which is of a class or description prescribed for the purposes of this paragraph;
the unexpired term of the relevant Government or other lease together with a statement as to whether there is any right of renewal of such Government or other lease; (Amended 29 of 1998 s. 105)
if a lease of the relevant property is to be granted, the term of the proposed lease; and (Amended 32 of 2000 s. 48)
a statement, made by the vendor in a manner prescribed for the purposes of this paragraph, containing—
any information so prescribed and within the vendor’s knowledge, being information of a kind so prescribed and relating to structural additions to or alterations of a building or other structure, whether already carried out or not; and
any information so prescribed and within the vendor’s knowledge, being information relating to the following repairs or improvements—
repairs or improvements which are required or proposed as regards the relevant premises and, in case such premises form part of a building, as regards any other part of that building, or as regards any part of the site on which such premises are situated; and
repairs or improvements for the cost of which a purchaser of such premises will be wholly or partly liable.
Subject to section 38(3), where a licensee who is not a licensed estate agent to which subsection (1) applies but who in the course of his employment or appointment as a salesperson by an estate agent does estate agency work in relation to a particular property, the following provisions shall apply—
in so far as he does such work, the obligations imposed by subparagraphs (v), (vi) and (vii) of subsection (1)(a) are hereby imposed on him;
if as regards the particular property he fails to discharge an obligation imposed on him by paragraph (a) and because of any such failure the relevant vendor or purchaser suffers loss or damage, the failure shall constitute a cause of action described in subsection (4).
Where as regards a particular property a licensed estate agent fails to comply with a requirement of subsection (1) which applies to him and because of any such failure the relevant client suffers loss or damage, the failure shall constitute a cause of action whereby damages or any other relief or remedy may be recovered or obtained in legal proceedings.
In any legal proceedings to which this subsection applies it shall be presumed until the contrary is proved that the licensed estate agent (or a person who was formerly a licensed estate agent) concerned was, or should reasonably have been, aware of any particulars or other information which under subsection (1)(a)(iii) is required to be supplied and which is relevant to the proceedings.
In any proceedings to which this subsection applies, it shall be a defence for a defendant to show that he had taken all reasonable steps and exercised all due diligence to avoid the failure to which the proceedings relate.
Without limiting the generality of subparagraph (i), in the case of failure to comply with a requirement under subsection (1)(a)(ii) in respect of any information, the defendant shall, for the purposes of that subparagraph, be regarded as having shown that he had taken all reasonable steps and exercised all due diligence to avoid the failure, if he shows that—
he relied on information obtained from a source prescribed for the purposes of this subparagraph in respect of such information;
it was reasonable for him to have relied on such information; and
he had taken all steps reasonably open to him to avoid the failure.
Neither subsection (3)(b) nor subsection (4) shall be regarded as limiting or otherwise affecting any right or other cause of action, existing apart from those subsections (or either of them), whereby damages or any other relief or remedy may be recovered or obtained in legal proceedings.
This subsection applies to any legal proceedings which—
are instituted against a licensee (or a person who was formerly a licensee); and
are so instituted wholly or partly by virtue of subsection (4).
Section 46(5) shall apply to subsection (1)(a)(vi), and also to that subsection as applied by subsection (3), as it applies to section 46(3).
Without limiting or diminishing any liability which a licensed estate agent or a vendor may incur under the general law, it is hereby declared that nothing in this section shall be construed as requiring a licensed estate agent or a vendor to warrant the accuracy of any statement made pursuant to the requirements of regulations made by virtue of subsection (2)(g).
| This section came into operation on 1 November 1999 only for the purposes of its application to and in relation to any property in Hong Kong used wholly or primarily for human habitation—see L.N. 190 of 1999. |
The Authority may, with the approval of the Secretary, make regulations—
as to the opening and keeping by licensed estate agents to whom the regulations apply of accounts at banks for moneys received or held for or on account of their clients;
as to the keeping by such licensed estate agents of accounts containing particulars and information as to moneys received or held or paid by them for or on account of their clients;
enforcing compliance with the regulations;
empowering the Authority to take such action as may be appropriate to enable it to ascertain whether or not the regulations are being complied with (including provisions requiring the production by any such licensed estate agent of accounts, records or other documents in his possession or under his control and their inspection and examination by an officer of the Authority.
The provisions contained in regulations made under this section for ascertaining whether the regulations have been complied with may include, in particular, provisions requiring licensed estate agents to whom the regulations apply to furnish a certificate given by a certified public accountant (practising) that the regulations have been complied with. (Amended 23 of 2004 s. 56)
Regulations under this section may prescribe circumstances in which licensed estate agents or any prescribed class of such agents are exempt from any of the regulations.
Regulations under this section may make provision for requiring any licensed estate agent to whom the regulations apply—
to keep on deposit in a separate account at a bank for the benefit of the client all or any prescribed class or description of the moneys received for or on account of a client; or
to pay to the client a sum equivalent to the interest which would have accrued if such moneys had been so kept on deposit.
The cases in which a licensed estate agent may be required by regulations under this section to act as mentioned in subsection (1) may be specified in such regulations, among other things, by reference to the amount of any sum received or the period for which it is or is likely to be retained or both; and the regulations may include provision for enabling a client (without prejudice to any other remedy) to require that any question arising under the regulations in relation to any of the moneys received for or on account of the client be referred to and determined by the Authority.
Where regulations under this section which contain provisions described in subsection (4)(b) are for the time being in force, except as provided by those provisions, a licensed estate agent shall not be liable by virtue of the relation between estate agent and client to account to any client for interest received by the agent on moneys deposited at a bank, being moneys received or held for or on account of his clients generally.
| This section came into operation on 1 November 1999 only for the purposes of its application to and in relation to any property in Hong Kong used wholly or primarily for human habitation—see L.N. 190 of 1999. |
Subject to paragraph (d), a licensed estate agent shall ensure that his business at his principal or only office, and every one of his other offices, if any (whether such other offices are referred to as branch offices, sub-offices or otherwise), is under the effective and separate control of a manager appointed by him, and a person appointed under this subsection shall be an individual and the licensed estate agent concerned shall also ensure that such a person is the holder of an estate agent’s licence.
A person who is not a licensed estate agent shall be disqualified for holding an appointment referred to in paragraph (a).
A person shall neither purport to accept nor purport to act pursuant to an appointment referred to in paragraph (a), unless he is a licensed estate agent.
Where—
an estate agent’s licence is revoked or suspended; and
at the time of the revocation or suspension the person concerned holds an appointment referred to in paragraph (a),
then such revocation or suspension shall operate to revoke or, where appropriate, suspend the appointment referred to.
Where a licensed estate agent is employed or appointed by another estate agent, and, in the course of his employment or appointment, does estate agency work as a salesperson, then to the extent that he does such work, paragraph (a) shall not apply to him.
Subsection (1) shall not be construed as preventing a licensed estate agent appointing himself to manage his office in accordance with the requirements of this section or, in case he has more than 1 office, so to manage the business at a particular 1 of his offices.
Where—
a manager acts in relation to a particular property; and
he has not been appointed by virtue of subsection (2),
the requirements of section 36(1)(a)(i) to (vii) shall apply to him as if he were the licensed estate agent who entered into the relevant estate agency agreement.
The requirements of subsection (1) shall not be regarded as being complied with as regards the business at an office of a particular estate agent—
unless the manager of such office—
generally acts in a managerial capacity at the office; and
in particular manages the estate agent’s business at the office;
if and for so long as a particular person appointed under subsection (1)(a) is in control either of the business at more than 1 office of the particular estate agent or of the business at any office of the particular estate agent as well as the business at 1 or more offices of another estate agent.
Where 2 or more estate agents are in partnership and the partnership does estate agency work at a particular office, then for the purposes of paragraph (a)(ii) that office shall not be regarded as being the office of another estate agent.
The Authority may, with the approval of the Secretary, make regulations requiring salespersons to be under the supervision and control of a manager referred to in subsection (1) and also providing that not more than a prescribed number of such salespersons may at any time be under the supervision and control of any such manager.
Where regulations under subsection (5) are for the time being in force, the requirements of subsection (1) shall be regarded as being complied with if, and only if, the requirements of the regulations are also complied with.
A licensed estate agent shall not employ or continue to employ as a salesperson any person who for the time being is not the holder of a licence.
Where a person suffers loss or damage by reason of a licensed estate agent’s failure to comply with a requirement of subsection (1), such failure shall constitute a cause of action.
Where a licensee ceases to be engaged in estate agency work, he shall, before the expiration of the period of 31 days beginning on the date of the cesser, notify the Authority in writing thereof.
Where a licensed estate agent—
employs a person as a salesperson; or
ceases to employ a person as a salesperson,
the agent shall, before the expiration of the period of 31 days beginning on the date of the employment or, where appropriate, the cesser, notify the Authority in writing of the employment or cesser.
Where a licensed estate agent—
appoints a person as a manager for the purposes of this Ordinance; or
terminates the appointment of such a manager,
the agent shall, before the expiration of the period of 31 days beginning on the date of the appointment or, where appropriate, the termination, notify the Authority in writing of the appointment or termination.
Where a company is a licensed estate agent, and—
a person is appointed as a director of the company; or
a person ceases to be such a director,
the company shall, before the expiration of the period of 31 days beginning on the date of the appointment or, where appropriate, the cesser, notify the Authority in writing of the appointment or cesser.
Where—
a licensed estate agent—
becomes a member of a partnership; or
ceases to be a member of a partnership; and
the partnership does, or it is proposed that it will do, estate agency work,
the agent shall, before the expiration of the period of 31 days beginning on the date of his so becoming or ceasing to be such a member, notify the Authority in writing thereof.
In addition to notification of the matters contained in subsections (1), (2), (3), (4) and (5), a notice for the purposes of any of those subsections shall contain such additional particulars (if any) as are prescribed for the time being for the purposes of this section by the Authority, and the Authority may in addition prescribe the manner in which any such particulars are to be verified.
Any notice which is required by this Ordinance to be given shall be properly given if—
in the case of an individual, it is—
delivered to him; or
left at, or sent by post to, his registered address;
in the case of a company, it is—
delivered to an officer of the company; or
left at, or sent by post to, the company’s registered address.
Where a person by whom an offence under this Ordinance has been committed is a company and it is proved that the offence was committed with the consent or connivance of a director or other officer concerned in the management of the company, or any person purporting to act as such director or officer, the director or other officer or the person, as the case may be, shall be guilty of the like offence.
An estate agent is liable to repay to a client, moneys received by or on behalf of that agent for or on account of that client, being moneys received in the course of his business as an estate agent.
Where—
in the course of an estate agency business moneys are received by or on behalf of a person when that person is acting as a salesperson and is employed by the estate agent concerned; and
the moneys are so received for or on account of a client of the estate agent,
the person referred to in paragraph (a) shall forthwith pay such moneys, or cause them to be paid, either to the estate agent or to an account maintained by that agent pursuant to the requirements of regulations under section 37.
Where moneys are—
received by an estate agent in a manner described in subsection (1); or
paid by a salesperson pursuant to and in accordance with subsection (2); or
kept on deposit by an estate agent pursuant to the requirements of regulations under section 37,
the estate agent shall comply with the following provisions, namely, apart from complying with the requirements of such regulations, he shall use the moneys or any part thereof for, and only for, the following purposes—
the making of payments to the client concerned; or
the making of other payments if, and only if, any such payment is made pursuant to and in accordance with such client’s prior written instructions regarding that payment.
The Authority may, with the approval of the Secretary, by regulation regulate advertising by licensed estate agents to whom the regulations apply in such manner as appears to the Authority to be appropriate.
Without affecting the generality of subsection (1), regulations under this section may—
prohibit the inclusion by licensed estate agents in advertisements issued by them or on their behalf, and relating wholly or partly to their estate agency business, statements or particulars which are false or misleading in a material particular;
prohibit the issue by licensed estate agents or on their behalf of advertisements as regards a particular property unless the vendor concerned has previously agreed to such issue and the terms of the agreement are contained in an estate agency agreement, whether entered into with such licensed estate agents or otherwise;
require prescribed statements or particulars to be included in all advertisements to which the regulations apply or in advertisements which are of a prescribed class or description;
prohibit the inclusion in such advertisements of prescribed statements or particulars.
| This section came into operation on 1 November 1999 only for the purposes of its application to and in relation to any property in Hong Kong used wholly or primarily for human habitation—see L.N. 190 of 1999. |
Where a person (in this section referred to as the agent) proposes or undertakes (whether for a commission or other fee or not) to perform estate agency work for a client, whether as regards a particular property or not, a right or other cause of action whereby damages or any other relief or remedy may be recovered or obtained in legal proceedings as regards the proposal or undertaking shall lie at the suit of the agent if, and only if—
an agency agreement (in this Ordinance referred to as an estate agency agreement) embodying the terms of the proposal or undertaking, being an agreement between the agent and the client which is in the prescribed form and which contains such particulars (if any) in respect of the proposal or undertaking as are prescribed for the purposes of this section has been entered into and, in the case of a written document, properly executed; and
the agent was a licensed estate agent at the time when the estate agency agreement was so entered into and executed.
Where a person (the agent) makes a proposal or gives an undertaking to perform estate agency work for a client as described in subsection (1), the agent shall be entitled to recover from, or to require the payment by any other person of, any amount in respect of any outgoing paid or payable by the agent as regards any acquisition or disposition of any property to which the proposal or undertaking relates if, and only if—
an estate agency agreement between the agent and the client which is both in the prescribed form and contains in respect of the proposal or undertaking such particulars (if any) as are prescribed for the purposes of this section has been entered into and, in the case of a written document, properly executed; and
the agent was a licensed estate agent at the time when the estate agency agreement was so entered into and executed.
A right or other cause of action described in subsection (1) shall not lie at the suit of any person other than the agent within the meaning of this section by reason only of anything contained in this section.
| This section came into operation on 1 November 1999 only for the purposes of its application to and in relation to any property in Hong Kong used wholly or primarily for human habitation—see L.N. 190 of 1999. |
An estate agency agreement shall comprise 1 or more written documents, and any agreement made in accordance with regulations made under subsection (4) to vary or supplement any such documents.
For the purposes of section 45, the Authority may, with the approval of the Secretary, by regulation prescribe particulars or other matters to be included in estate agency agreements and, subject to subsection (3), regulations under this subsection may contain such provisions as appear to the Authority to be appropriate in order to ensure that clients of licensed estate agents are made aware of—
the rights and obligations conferred on or imposed by any particular such agreement on the parties to it;
the amount or the rate, as the case may be, of any commission or other fee payable by such clients under any such agreement;
any other matters which, in the opinion of the Authority, it is desirable for persons who are such clients to know about in connection with any such agreement.
Regulations under subsection (2) may provide that an estate agency agreement shall—
specify the amount or the rate, as the case may be, of any commission or other fee payable under the agreement and, in case it is not payable to the licensed estate agent concerned, the person or persons to whom it is payable;
state—
whether or not the licensed estate agent concerned or, in case any salesperson employed or appointed by him acts as regards the relevant property, whether or not that salesperson, has a pecuniary or other beneficial interest in the relevant property;
whether or not the licensed estate agent concerned is, as regards the relevant property, also acting, or has agreed to act, for a person other than the client with whom the agreement is made;
if such agent is so acting or has so agreed, whether or not remuneration is payable to such agent (or to 1 or more other persons) by reason of such agent’s so acting or having so agreed to act; and
in case remuneration is so payable, its amount or its rate, as the case may be, and the person or persons to whom it is payable;
contain an undertaking that the licensed estate agent concerned, should he agree to act in a manner described in paragraph (b)(ii), will, as soon as may be, supply to the client with whom the agreement is made all of the particulars required by paragraph (b)(iii) and (iv) to be but which have not then been stated in the agreement;
specify—
obligations, if any, which will apply as regards the client with whom the agreement is made should he acquire or dispose of any part of the relevant property otherwise than through the licensed estate agent concerned; and
the period (which shall not be longer than a period (if any) prescribed for the purposes of this subparagraph) during which such obligations, if any, are to have effect under the agreement; and
specify terms and conditions on or subject to which the client with whom the agreement is made agrees to advertising as regards the relevant property.
Regulations under this section may in particular—
require prescribed information to be included in a prescribed manner in documents of a prescribed class or description;
require prescribed material to be excluded from documents of such a class or description;
contain requirements to ensure that prescribed information is clearly brought to the attention of clients of licensed estate agents, and that one part of a document is not given insufficient or excessive prominence compared with another;
prescribe the manner in which agreements which vary or supplement the terms and conditions of or any prescribed class or description of the terms and conditions of an estate agency agreement are to be made;
apply to all estate agency agreements or to such agreements which are of a prescribed class or description.
For the purposes of subsection (3)(b), a person shall be regarded as having a beneficial interest in the relevant property to which a particular estate agency agreement relates if—
the person or his specified relative, or any nominee of his or of his specified relative, is a member of a company or any other body which has a beneficial interest in such property;
the person or his specified relative, or any nominee of his or of his specified relative, is in partnership with or is in the employment of a person who has a beneficial interest in such property;
the person or his specified relative, or any nominee of his or of his specified relative, is a party to any arrangement or agreement (whether enforceable or not) concerning such property.
In this subsection—
brother or sister (兄弟或姊妹), in relation to a person, includes any child of a parent of the person; child (子女) includes a child who is illegitimate or adopted and a step child, and parent (父母) shall be construed accordingly; specified relative (指明親屬), in relation to a person, means the spouse, parent, child, brother or sister of the person; spouse (配偶), in relation to a person, means any person to whom the first-mentioned person is, by reason of the form of marriage contracted, lawfully married.| This section came into operation on 1 November 1999 only for the purposes of its application to and in relation to any property in Hong Kong used wholly or primarily for human habitation—see L.N. 190 of 1999. |
If an unexecuted estate agency agreement is presented personally by or on behalf of a licensed estate agent for signature by or on behalf of a client of that agent, but on the occasion when it is to be so signed the document does not become an executed such agreement, a copy of it, and of any other document referred to in it, must be delivered there and then by that agent to the person to whom the unexecuted such agreement was so presented.
If an unexecuted estate agency agreement is sent by or on behalf of a licensed estate agent for signature by or on behalf of a client of that agent, a copy of it, and of any other document referred to in it, must be sent at the same time to the person whose signature is sought.
For the purposes of section 45, an estate agency agreement is not properly executed if the requirements of this section are not complied with.
| This section came into operation on 1 November 1999 only for the purposes of its application to and in relation to any property in Hong Kong used wholly or primarily for human habitation—see L.N. 190 of 1999. |
If an unexecuted estate agency agreement is presented personally by or on behalf of a licensed estate agent for signature by or on behalf of a client of that agent, and on the occasion when it is signed the document becomes an executed such agreement, a copy of the executed such agreement, and of any other document referred to in it, must be delivered there and then by that agent to the person to whom the unexecuted such agreement is so presented.
A copy of an executed estate agency agreement, and of any other document referred to in it, must be given to the client of the licensed estate agent within the period of 7 days following the execution of the agreement unless—
subsection (1) applies; or
the unexecuted estate agency agreement was sent by or on behalf of the licensed estate agent for signature by or on behalf of the client and, on the occasion when it was so signed, the document became an executed such agreement.
For the purposes of section 45, an estate agency agreement is not properly executed if the requirements of this section are not complied with.
| This section came into operation on 1 November 1999 only for the purposes of its application to and in relation to any property in Hong Kong used wholly or primarily for human habitation—see L.N. 190 of 1999. |
Where—
there is a dispute between a licensed estate agent and 1 or more of his clients as regards a commission or other fee of such agent;
the dispute relates to the amount of the commission or other fee or the manner in which it is to be calculated or is payable; and
the requirements of section 45 are complied with in relation to the commission or other fee,
the dispute may, with the agreement of such agent and his client or, where appropriate, each of his clients, be referred to the Authority for determination by it.
The Authority may at any time, whether before or after commencement of the proceedings conducted for the purposes of a determination under this section, either of its own motion or upon the application of any of the parties who referred the dispute to the Authority under this section, decline jurisdiction if—
the amount of the commission or other fee in dispute exceeds the amount prescribed for the purposes of this subsection; or
it is otherwise of the opinion that for any reason the dispute should not be determined by it.
The practice and procedure to be adopted in the proceedings of a determination by the Authority under this section shall, subject to this section and to any regulation made hereunder, be determined by the Authority.
The Authority may, with the approval of the Secretary, by regulation regulate the practice and procedure to be adopted in the proceedings of a determination under this section or otherwise relating to such proceedings.
Subject to this section, an appeal shall lie to the District Court from any determination of the Authority under section 49.
No appeal shall lie from a determination of the Authority under section 49 after the expiry of 14 days from the date of such determination.
The District Court may, if it thinks fit, extend the period within which to appeal under this section, whether or not the period within which to so appeal has expired.
On an appeal under this section, the District Court may confirm, vary or reverse any determination of the Authority under section 49 and may make such order as to costs as it may think fit.
On an appeal under this section, a decision of the District Court shall be final.
An appeal which is pending determination under this section shall not operate as a stay of execution of a determination by the Authority under section 49, unless the District Court otherwise orders, and any stay of execution may be subject to such conditions as to costs, the giving of security or otherwise as the District Court may think fit.
Save as is provided in this Ordinance, the District Court shall, upon or in connection with any question to be determined on an appeal under section 50, have all the powers and jurisdictions exercisable by it in or in connection with civil actions before it in the like manner as if it had by the District Court Ordinance (Cap. 336) been empowered to determine an appeal under section 50 whatever the amount involved, and the law, rules and practice relating to such civil actions and to the enforcement of judgments and orders of the District Court shall mutatis mutandis apply.
The District Court shall have jurisdiction to hear and determine any appeal under section 50 notwithstanding that the amount claimed exceeds the sum mentioned in section 33 of the District Court Ordinance (Cap. 336).
The District Court may, in any proceedings brought in the District Court on an appeal under section 50, order that there shall be included in the sum for which an order for payment is made interest at such rate as it thinks fit on the whole or any part of such sum for the whole or any part of the period between the date when the cause of action arose and the date of the order.
After the period within which to appeal under section 50 has expired, a determination by the Authority of any dispute under section 49 may, where no appeal under section 50 is pending determination, be registered, in such manner as may be specified by the Registrar of the District Court, in the District Court and shall, on such registration, become for all purposes a judgment of the District Court and may be enforced accordingly, notwithstanding that the amount for which the determination has been given is otherwise not within the jurisdiction of the District Court.
(Amended 23 of 2002 s. 126)
The Authority may, with the approval of the Secretary, by regulation provide that this Ordinance is, as regards licensed estate agents who are members of a partnership to which the regulations apply, to apply to them with prescribed modifications or subject to other amendments (including exceptions) which are prescribed, and regulations under this section may contain such other provisions as will enable the regulations to have full effect.
The Authority may by regulation so made provide that, where 2 or more licensed estate agents are members of a partnership to which the regulations apply, prescribed requirements or other prescribed provisions of this Ordinance shall, as regards each of the members, be regarded as being complied with if, and only if, the requirement or other provision has been complied with by at least 1 of such members.
No personal liability shall be incurred by any person in respect of anything done, or omitted to be done, by him in good faith in relation to the performance or purported performance of any function under this Ordinance (including a function duly delegated under this Ordinance).
Without affecting the generality of subsection (1), this subsection applies to—
an investigation conducted by an investigator under section 28;
an inquiry conducted by the Authority or by a disciplinary committee under section 29;
proceedings conducted by a tribunal under section 32; or
proceedings of a determination by the Authority of any dispute under section 49.
A person who complies with a requirement made for the purposes of any investigation, inquiry or proceedings referred to in paragraph (a) shall not incur any liability to any person by reason only of that compliance.
No liability shall be incurred by any person by reason only of something said or otherwise done by him in good faith at or in connection with any investigation, inquiry or proceedings referred to in paragraph (a).
As regards any investigation, inquiry or proceedings referred to in paragraph (a), any party, counsel, solicitor, witness or other person appearing at or otherwise participating in the investigation, inquiry or proceedings shall have the same privileges and immunities as he would have if the investigation, inquiry or proceedings were civil proceedings conducted by the Court of First Instance. (Amended 25 of 1998 s. 2)
Any person who, without reasonable excuse—
contravenes section 15(1) or (2);
contravenes section 16(1);
makes any statement or furnishes any information, which is false or misleading in a material particular, in connection with any application for the grant or renewal of an estate agent’s licence;
makes any statement or furnishes any information, which is false or misleading in a material particular, in connection with any application for the grant or renewal of a salesperson’s licence;
fails to comply with section 28(5);
fails to comply with section 28(9);
contravenes section 38(1)(b)(ii);
makes any statement or furnishes any information, which is false or misleading in a material particular—
in purported compliance with any requirement imposed on him under or pursuant to section 28(5);
in purported compliance with any requirement imposed on him for the purposes of an inquiry conducted by the Authority or a disciplinary committee under section 29;
pursuant to or by virtue of section 30(2);
in purported compliance with any requirement imposed on him for the purposes of proceedings conducted by a tribunal under section 32; or
in purported compliance with any requirement imposed on him for the purposes of the proceedings of a determination by the Authority of any dispute under section 49;
having been summoned or required to attend as a witness or required to produce a document or other thing or to answer any questions put to him under any provision of this Ordinance, refuses or fails to do so;
obstructs the Authority or any person in the exercise or performance of any of its or his functions;
otherwise than in performing a function under this Ordinance, obliterates, defaces or otherwise alters any existing entry in the register, or makes a new entry therein,
commits an offence.
A licensed estate agent or a licensed salesperson who, without reasonable excuse—
for or in connection with an estate agency business uses any name other than the name specified in his licence;
fails to comply with section 39(1);
fails to comply with section 43(1) or (3);
fails to comply with section 43(2),
commits an offence.
A person shall be liable—
where he commits an offence under subsection (1)(a)—
on conviction upon indictment to a fine of $500,000, to imprisonment for 2 years or both to such a fine and such imprisonment;
on summary conviction to a fine at level 6, to imprisonment for 6 months or both to such a fine and such imprisonment;
where he commits an offence under subsection (1)(b), (e), (f), (h), (i), (j) or (k)—
on conviction upon indictment to a fine of $200,000, to imprisonment for 1 year or both to such a fine and such imprisonment;
on summary conviction to a fine at level 6, to imprisonment for 6 months or both to such a fine and such imprisonment;
where he commits an offence under subsection (1)(g)—
on conviction upon indictment to a fine of $150,000, to imprisonment for 6 months or both to such a fine and such imprisonment;
on summary conviction to a fine at level 5, to imprisonment for 3 months or both to such a fine and such imprisonment;
where he commits an offence under subsection (1)(c) or (d)—
on conviction upon indictment to a fine at level 6, to imprisonment for 1 year or both to such a fine and such imprisonment;
on summary conviction to a fine at level 5, to imprisonment for 6 months or both to such a fine and such imprisonment.
A licensed estate agent shall be liable—
where he commits an offence under subsection (2)(c) or (d)—
on conviction upon indictment to a fine of $200,000, to imprisonment for 1 year or both to such a fine and such imprisonment;
on summary conviction to a fine at level 6, to imprisonment for 6 months or both to such a fine and such imprisonment;
where he commits an offence under subsection (2)(a) or (b)—
on conviction upon indictment to a fine at level 6, to imprisonment for 6 months or both to such a fine and such imprisonment;
on summary conviction to a fine at level 5, to imprisonment for 6 months or both to such a fine and such imprisonment.
A licensed salesperson shall be liable—
where he commits an offence under subsection (2)(d)—
on conviction upon indictment to a fine of $150,000, to imprisonment for 6 months or both to such a fine and such imprisonment;
on summary conviction to a fine at level 5, to imprisonment for 3 months or both to such a fine and such imprisonment;
where he commits an offence under subsection (2)(a)—
on conviction upon indictment to a fine at level 6, to imprisonment for 3 months or both to such a fine and such imprisonment;
on summary conviction to a fine at level 5, to imprisonment for 1 month or both to such a fine and such imprisonment.
Where any person is convicted of an offence under this Ordinance, the court or the magistrate may order that such person shall be disqualified for holding a licence for such period not exceeding 5 years beginning on the date of such conviction as may be specified in the order.
A licence held by the person against whom an order is made under paragraph (a) shall on the date of the order cease to have effect.
The Authority may, with the approval of the Secretary, by regulation—
prescribe particulars to be contained in the register and the form in which it shall be kept;
prescribe the manner in which, the form of and particulars to be contained in applications of any class or description for the grant or renewal of a licence;
prescribe a minimum age for the purposes of section 19 or 21;
prescribe any educational qualifications or experience or both required to be held for the purposes of section 18, 19 or 21;
prescribe conditions which may be attached to licences;
prescribe fees—
for the purposes of sections 13, 18 and 26;
which are payable to the Authority in respect of prescribed services provided by it;
prescribe requirements for the purposes of section 19(1)(b)(iii), 20(1)(d) or 21(2)(b)(iii);
prescribe the period during which all licences or licences of a prescribed class or description are to be in force;
prescribe the circumstances in which conditions already attached to a licence may be amended or varied (including amendment or variation by agreement) or in which new conditions may be attached to any licence or in which any licence may be amended;
regulate or prescribe the conduct or practice to be observed or followed in prescribed circumstances or in relation to prescribed matters by licensed estate agents or licensed salespersons;
prescribe the form of and particulars to be included in documents of a prescribed class or description, and, where appropriate, require them, or any of them, which are of a prescribed class or description, to be used or furnished by a licensee or any other persons in relation to prescribed matters or in prescribed circumstances;
prescribe particulars to be included in notices under section 40 and the manner in which any such particulars are to be verified for the purposes of that section;
make such provisions as the Authority considers requisite or expedient to give effect to this Ordinance;
prescribe any matter or thing which is referred to in this Ordinance as prescribed.
Any regulation made under this section or any other provision of this Ordinance may provide for the exercise or performance by the Authority of any powers or functions under the regulations.
Any regulation made under this section or any other provision of this Ordinance may create offences in respect of contravention of any of the regulations and may provide for the imposition of a fine not exceeding $500,000, of imprisonment for a period not exceeding 2 years or for the imposition of such a fine and such imprisonment, and such regulation may specify defences which may be raised in proceedings for such an offence.
(Omitted as spent—E.R. 1 of 2019)
(Omitted as spent—E.R. 1 of 2019)
(Amended 21 of 2020 s. 75)
The Authority shall provide itself with a seal.
The seal of the Authority shall be authenticated by the signature of the Chairman or of the Vice-chairman, and if the Chairman is or, where appropriate, both the Chairman and the Vice-chairman are, absent from Hong Kong or otherwise unable so to authenticate, the signature of some other member of the Authority authorized by it to act in that behalf.
The Authority shall not be regarded as a servant or agent of the Government or as enjoying any status, immunity or privilege of the Government.
(Amended 23 of 2002 s. 39)
The Authority shall consist of the Chairman, the Vice-chairman and such number, to be determined by the Chief Executive (but being not more than 18), of ordinary members.
Subject to paragraph (c), the Chairman, the Vice-chairman and every ordinary member shall be appointed by the Chief Executive.
The following provisions shall apply as regards appointments to membership of the Authority—
at all times 1 of the ordinary members shall be a public officer;
but more than 1 such officer may be appointed to such membership;
subject to subparagraphs (i)(B), (iii) and (iv) and to compliance with subparagraph (i)(A), the appointments shall be made from amongst the following categories—
individuals who do estate agency work (persons of Category A);
individuals, not being persons of Category A, who, either because of their experience in property development, general administration or consumer affairs or because of their professional or occupational experience, appear to the Chief Executive either to have knowledge of estate agency work, or to be otherwise particularly suitable for appointment to membership of the Authority (persons of Category B); and
individuals, who are neither persons of Category A nor persons of Category B, who appear to the Chief Executive to be suitable for appointment to membership of the Authority (persons of Category C);
a person of Category A shall not be eligible for appointment as the Chairman or the Vice-chairman;
at any time when he makes 1 or more such appointments the Chief Executive shall ensure that the appointment or appointments are made so that, immediately after its or their making, not less than one half of the members of the Authority (excluding the Chairman and the Vice-chairman) are persons of Category C and the remaining members should, as far as possible, be equally represented by persons of Category A and persons of Category B.
Where the number of ordinary members falls below the number which is equal to the number required for a quorum by subsection (9) plus 1 (the requisite number), the Chief Executive shall make such appointment or appointments as are necessary to make the number of ordinary members not less than the requisite number.
Where the total number of members of the Authority (excluding the Chairman and the Vice-chairman) for the time being is not an even number, then for, but only for, the purposes of determining the number of persons appointed to Category C under paragraph (c)(iv), that total number shall be regarded as having being increased by 1. (Amended 44 of 2000 s. 3)
The expenses or other allowances (if any) payable to, and the other terms and conditions of office of, the Chairman, the Vice-chairman or other members of the Authority shall be such as the Chief Executive may determine and different such terms and conditions may be so determined in relation to different classes or descriptions of such members. (Amended 44 of 2000 s. 3)
The Chairman, the Vice-chairman or any other member of the Authority may at any time resign from his office by letter addressed to the Chief Executive. (Amended 44 of 2000 s. 3)
The Chief Executive may by notice in writing remove from office the Chairman, the Vice-chairman or any other member of the Authority whose removal appears to him to be desirable for the effective performance by the Authority of its functions. (Amended 44 of 2000 s. 3)
If the Chairman is absent from Hong Kong or is unable to act as chairman for any other reason, the Vice-chairman shall act as chairman in his place.
The term of office of the Chairman, the Vice-chairman or any other member of the Authority shall be such, not exceeding 2 years, as the Chief Executive shall fix when making the appointment. (Amended 44 of 2000 s. 3)
Where a person is appointed under subsection (1) or removed under subsection (4), notice of the appointment or removal shall be published in the Gazette.
A former member of the Authority (including a former Chairman or Vice-chairman), other than a person who has been removed from office pursuant to subsection (4), shall be eligible for reappointment to membership, whether as Chairman, Vice-chairman or otherwise, of the Authority.
At a meeting of the Authority the following shall preside—
the Chairman; or
if the Chairman is absent, the Vice-chairman; or
if neither the Chairman nor the Vice-chairman is present, such other member as the members present shall select.
The quorum for a meeting of the Authority shall be at least half of the members of the Authority for the time being (including the Chairman and the Vice-chairman whether present or not).
Each member of the Authority present at a meeting thereof shall have a vote.
Every question or other matter for decision or determination at a meeting of the Authority shall be decided or determined by a majority of votes of the members present and entitled to vote and, in the event that voting is equally divided, the Chairman or other member presiding at the meeting shall have a casting vote.
A meeting of the Authority may be convened by the Chairman, or if the Chairman is absent from Hong Kong or is otherwise unable to convene a meeting, the Vice-chairman or in any case by any other 2 members of the Authority.
Where for the time being the number of members of the Authority (including the Chairman and the Vice-chairman), is not an even number, then for, and only for, the purposes of subsection (9) that number shall be regarded as having been increased by 1.
The validity of any proceedings of the Authority shall not be affected by—
any defect in the appointment or qualification of any person purporting to be a member of the Authority;
the absence of any member of the Authority from the meeting at which any such proceedings are conducted; (Amended L.N. 95 of 1999)
any vacancy in the membership of the Authority;
any minor irregularity in the convening of any meeting of the Authority.
In this Schedule ordinary member (普通成員) means any member of the Authority who is neither the Chairman nor the Vice-chairman.