1. Some tricky sellers may provide wrong information to mislead their customers. How am I protected against false descriptions made by sellers?
The Trade Descriptions Ordinance , Chapter 362 , Laws of Hong Kong (“TDO”), prohibits false trade descriptions for goods ( section 7 ) and services ( section 7A ).
False Trade Description in relation to goods
Any person who in the course of any trade or business:
- applies a false trade description to any goods;
- supplies or offers to supply any goods to which a false trade description is applied; or
- has in his possession for sale or for any purpose of trade or manufacture any goods to which a false trade description is applied
commits an offence.
False Trade Description in relation to services
A trader who:
- applies a false trade description to a service supplied or offered to be supplied to a consumer; or
- supplies or offers to supply to a consumer a service to which a false trade description is applied
commits an offence.
A trader who adopts “Unfair Trade Practices” commits an offence. There are five kinds of “Unfair Trade Practices” outlined under Part IIB of the TDO :
- Misleading Omissions
- Aggressive Commercial Practices
- Bait Advertising
- Bait and Switch
- Wrongly Accepting Payment
For more details, please go to Daily Lives Legal Issues > Consumer rights > The Trade Descriptions Ordinance .
2. In order to avoid certain liabilities, or to exploit customers, some sellers or service suppliers may insert exemption clauses into their contracts or impose unfair terms. Are these terms valid under the law?
The law prohibits sellers or service suppliers to avoid their responsibilities to customers if the latter are injured or property is lost or damaged due to the failure of the traders to take proper care. Sellers and service suppliers cannot hide behind cleverly worded clauses or a few lines of small print in a contract. They can still be liable to pay compensation.
Unreasonable Exemption Clauses
An exemption clause is used to avoid liability when things go wrong. Such a clause has to be “reasonable” before sellers and service suppliers can rely on it to avoid a claim brought against them by consumers. In other words, the relevant exemption clause may have no effect if it is proved to be unreasonable. Under normal circumstances, sellers or service suppliers cannot escape from liability arising from the death or personal injury of a consumer if the incident happened due to the traders’ negligence.
Unfair Contract Terms
The Unconscionable Contracts Ordinance ( Cap. 458 ) applies only to a contract for the sale of goods or supply of services in which one of the contracting parties is a consumer. If the Court finds out that the contract or any part thereof was unconscionable (unfair/not sensible) in circumstances relating to the contract at the time when it was made, the Court would have the jurisdiction under section 5 of the Unconscionable Contracts Ordinance to refuse to enforce the contract, or to enforce the remainder of the contract without the unconscionable part, or to limit the application of, or to revise or alter, any unconscionable part so as to avoid any unconscionable result.
For more about unreasonable exemption clauses and unfair contract terms, please visit Daily Lives Legal Issues > Consumer rights > Unreasonable exemption clauses and unfair contract terms .
3. Where can consumers seek assistance or make complaints?
Other than contacting the sellers or service suppliers directly, you may approach the following organizations:
The Consumer Council is a body corporate subsidized by Government funding. The functions of the Council are stipulated by law, which include providing consumers with information on goods and services, acting as mediator in resolving consumer complaints, tendering advice on policies touching on consumer rights and interest, and encouraging businesses and professional associations to establish codes of practice.
Since the Council is not a law-enforcement body, it has no authority to sue sellers or service suppliers. The relevant complaints are dealt with by way of mediation. However, the Council can censure trade mal-practices by naming/publicizing the sellers or service suppliers concerned. For cases that involve significant consumer interest but cannot be resolved by mediation or other means, applications for assistance can be made to the Consumer Legal Action Fund.
Consumer Council hotline: 29292222
Customs and Excise Department
For problems concerning “trade descriptions” or “safety of goods” (short weights and measures, overstating the fineness of gold and platinum, unsafe toys and children’s products, etc.) you can complain to the Customs and Excise Department directly.
General enquiry hotline: 28157711
Complaint hotline: 81003553
Travel Industry Council of Hong Kong (complaints against travel agents)
The Travel Industry Council (“TIC”) is entrusted with the responsibility to regulate outbound and inbound travel agents under the Travel Agents Ordinance ( Cap. 218 of the Laws of Hong Kong). Its mission is to maintain a high standard of professionalism within the industry and to protect the interests of both the traders and travellers.
TIC 24-hour public service hotline: 2969 8188
Inbound tourist service hotline: 2807 0707
Food and Environmental Hygiene Department
The mission of Food and Environmental Hygiene Department (“FEHD”) is to work hand in hand with the community in building Hong Kong into a world-class metropolis renowned for its food safety and public hygiene.
24-hour enquiry and complaint hotline: 2868 0000
The Insurance Claims Complaints Bureau
The Insurance Claims Complaints Bureau (“ICCB”) is a self-regulatory initiative implemented by the insurance industry to protect consumer interest. One of the main objectives of ICCB is to receive referrals for complaints relating to claims arising out of personal insurance policies and to facilitate the settlement or withdrawal of such complaints, disputes or claims whether by the making of awards (decisions/verdicts), or by such means as shall seem expedient.
24-hours telephone information service line: 2520 2728
For more information, please visit Daily Lives Legal Issues > Consumer rights > Channels for consumer complaints .
4. If consumers have to institute legal proceedings, what should they pay attention to?
Small Claims Tribunal
The most you can claim by using the small claims procedures is HK$75,000. No person can be represented by a lawyer in the Small Claims Tribunal (but you can consult a lawyer before attending the Tribunal’s hearing). Types of claims can be handled by the Small Claims Tribunal include debts, service charges, damage to property, and consumer claims (e.g. claims relating to goods or services with poor quality).
District Court or High Court
If the amount of your claim is over $75,000, you must submit your claim to the District Court or the High Court. The maximum claim that can be handled by the District Court is $3,000,000. While for the High Court, there is no upper limit on the claim amount. Since the claim amount is bigger and the procedures involved are much more complex, you are strongly advised to find a lawyer to represent you in any proceedings in these two courts. You may also apply for legal aid if you satisfy certain conditions set out by the Legal Aid Department.
Consumer Legal Action Fund
The Consumer Council runs a Consumer Legal Action Fund (“the Fund”), which will assist consumers to pursue their matters in courts. If you are an eligible consumer or a group of eligible consumers involved in a matter which relates to consumer transactions, or involves significant public interest or injustice, you can apply for legal assistance under the Fund.
For more details, please visit Daily Lives Legal Issues > Consumer rights > Channels for consumer complaints .
5. Recently I have purchased some coupons (prepaid coupons) from a beauty salon but that salon suddenly closes down. Can I claim my money back and by what means?
Consumers who find themselves in such an unfortunate situation may seek legal advice from lawyers, or contact the Consumer Council and the Police. If a winding-up order has been granted against the company (in case it is a limited company), then the aggrieved consumers are legally entitled to recover their payment for the tickets. However, the consumers will only be treated as ordinary or unsecured creditors on claiming their loss. Consumers will usually recover no more than a small proportion of the debt. If the company closes down suddenly without leaving any assets, the prospect of consumers (holding pre-paid coupons or vouchers) recovering their loss is usually very slim.
If you want to read more case illustrations regarding consumer complaints, please visit Daily Lives Legal Issues > Consumer rights > Case illustration .