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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 "地产代理监管局" 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. [Parts I, II, sections 41, 54(1), 56 and 57, and the Schedule］ 8 August 1997 L.N. 411 of 1997 Part III except sections 15 and 16; sections 31, 32, 33, 35, 53, 54(2) and 55(1)(c), (d), (h)(iv), (i), (j) and (k), (3)(b) and (d) and (6) 21 October 1998 L.N. 330 of 1998 Sections 15 and 16; section 28 (except subsection (9)(b)(vi)); section 29; section 30 (except subsection (4)); sections 34, 38 (except subsection (3)), 39, 40, 42, 43; section 55(1)(a), (b), (e), (f), (g) and (h)(i), (ii) and (iii), (2), (3)(a) and (c), (4) and (5) 1 January 1999 L.N. 390 of 1998 Sections 28(9)(b)(vi), 30(4), 38(3), 55(1)(h)(v) and 58; Part VII; section 36, 37 and 44 and Part VI for the purposes of the application of those sections and that Part to and in relation to any property in Hong Kong used wholly or primarily for human habitation 1 November 1999 L.N. 190 of 1999] (Originally 48 of 1997) Cap 511 s 1 Short title and commencement PART I PRELIMINARY (1) This Ordinance may be cited as the Estate Agents Ordinance. (2) This Ordinance shall come into operation on a day to be appointed by the Secretary for Housing, Planning and Lands 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) Cap 511 s 2 Interpretation (1) In this Ordinance- "advertisement" (广告) 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;"the Authority" (监管局) means the Estate Agents Authority; "certified public accountant (practising)" (执业会计师) has the meaning assigned to it in the Professional Accountants Ordinance (Cap 50); (Replaced 23 of 2004 s. 56) "building" (建筑物) has the meaning assigned to it in section 2 of the Buildings Ordinance (Cap l23); "the Chairman" (主席) means the Chairman of the Authority and any other person when acting as the Chairman; "the Chief Executive Officer" (行政总裁) 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; "client" (客户) 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" (委员会) means a committee established under section 8; "company" (公司) means a company within the meaning of the Companies Ordinance (Cap 32) and in addition it includes any body corporate- (a) incorporated or otherwise established by or under any other Ordinance; (b) incorporated or otherwise established outside Hong Kong;"data equipment" (数据设备) 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" (数据材料) 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" (发展) means a development involving the construction of a new building; "disciplinary committee" (纪律委员会) 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" (处置) 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" (地产代理协议) 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" (地产代理工作), 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" (地产代理), 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" (地产代理牌照), 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" (财政年度) 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" (公司集团) means a group of companies within the meaning of the Companies Ordinance (Cap 32); "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" (持牌地产代理) means a person who is the holder of an estate agent's licence; "licensed salesperson" (持牌营业员) means a person who is the holder of a salesperson's licence; "manager" (经理) means a manager appointed under section 38(1); "occupation permit" (占用许可证) 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" (订明) means prescribed by regulation under this Ordinance and made with the Secretary's approval; "property" (物业), except in section 6(2)(a), means an interest in land; "provisional licence" (临时牌照) means a licence granted under section 23(3); "purchaser" (买方) means any person to whom a property is or is to be disposed of, and includes a prospective tenant; "record" (纪录) includes data material; "the register" (登记册), except in section 10, means the register established and maintained by the Authority under section 13; "registered address" (登记地址) means a registered address for the purposes of this Ordinance; "salesperson" (营业员) 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" (营业员牌照), 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" (局长) means the Secretary for Housing, Planning and Lands; (Replaced L.N. 106 of 2002) "tenant" (租客) includes a sub-tenant; "unexecuted" (未签立) includes partly executed; "unexecuted estate agency agreement" (未签立的地产代理议) 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" (该未签立的协议) shall be construed accordingly; "vendor" (卖方) means any person by whom a property is or is to be disposed of, and includes a prospective landlord; "the Vice-chairman" (副主席) means the Vice-chairman of the Authority and any other person acting as the Vice-chairman. (2) This Ordinance does not apply to anything done- (a) 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; (b) 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) (c) by any person in connection with a mortgage or other charge on property, whether done as regards its creation, transfer, assignment or otherwise; (d) 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); (e) 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- (i) where the person is the vendor or a vendor of the property, the disposition of the property; (ii) where the person is the purchaser or a purchaser of the property, the acquisition of the property;(f) 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; (g) by a company in connection with the disposition of a property within the meaning of subsection (4), if- (i) 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; (ii) 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 (iii) 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- (A) 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; (B) 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 (C) 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;(h) by any person is 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 (i) 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). (3) For the avoidance of doubt it is hereby declared that- (a) 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 (b) 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.(4) For the purposes of subsection (2)- (a) 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- (i) 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 (ii) 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;(b) 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; (c) a reference to employment shall be a reference to employment under a contract of employment. Cap 511 s 3 Exemptions (1) 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. (2) The Authority shall cause an order under this section to be published in the Gazette. (3) The provisions of this section are in addition to those of section 2(2). Cap 511 s 4 The Authority PART II ESTATE AGENTS AUTHORITY (1) There is hereby established a body to be known in the English language as the Estate Agents Authority and in the Chinese language as "地产代理监管局". (2) The Authority shall be a body corporate. (3) The provisions contained in the Schedule apply to the Authority. Cap 511 s 5 Principal functions of the Authority The principal functions of the Authority are- (a) to regulate and control the practice of estate agents and salespersons; (b) 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 (c) 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. Cap 511 s 6 General powers, etc. of the Authority (1) 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. (2) Without affecting the generality of subsection (1), the Authority may- (a) acquire, hold and dispose of property of any kind including land and grant leases of land (including parts of buildings); (b) 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; (c) subject to the approval of the Financial Secretary, borrow moneys, in such manner and on such terms and conditions as it thinks fit; (d) accept gifts whether subject to any trust or other condition or not; (e) settle any dispute referred to the Authority for determination under section 49. Cap 511 s 7 Directions by Chief Executive Remarks: Adaptation amendments retroactively made - see 44 of 2000 s. 3 (1) 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. (2) The Authority shall, as soon as practicable, comply with any direction under this section. (3) A direction under this section shall remain in force until it is withdrawn by the Chief Executive. (4) Nothing in this section shall be construed as enabling the Chief Executive to exercise any power or control in relation to- (a) any particular application or other matter with which the Authority or a committee is concerned; or (b) any particular case with which a tribunal appointed under section 32(6) is concerned or which is pending. (Amended 44 of 2000 s. 3) Cap 511 s 8 Authority may establish committees (1) 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. (2) (a) Each of the members of a committee shall be appointed by the Authority. (b) A committee shall consist of at least 3 members. (c) (i) Subject to subparagraph (ii), a committee may include persons who are not members of the Authority. (ii) A majority of the members of a committee established by the Authority as a standing committee shall be members of the Authority.(d) Where a committee is established, the Authority shall appoint a person to be the chairman of that committee.(3) A committee may be dissolved at any time by the Authority by resolution. (4) 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. (5) A committee may regulate its own procedure and business. Cap 511 s 9 Delegation and sub-delegation of Authority's functions (1) 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. (2) (a) A delegation under this section shall not prevent or restrict the concurrent performance by the Authority of the function delegated. (b) A delegation under this section may contain terms and conditions relating to the performance of the function delegated.(3) The functions which the Authority may not delegate under subsection (1) are- (a) the power to delegate conferred by subsection (1); (b) the appointment of a committee under section 8; (c) a power conferred by section 11(2) or (3) or 56 or any other regulation making power conferred on the Authority by this Ordinance.(4) The Authority may revoke a delegation under this section. (5) 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. Cap 511 s 10 Disclosure of interest, etc. (1) (a) 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. (b) The Authority shall establish and maintain a register for the purposes of this subsection in such form as the Authority shall decide. (c) Where a member of the Authority has declared any interest under this subsection, the Authority shall- (i) 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; (ii) 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.(d) 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.(2) 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- (a) 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); (b) he shall withdraw from the meeting while the matter is being discussed or considered unless- (i) 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 (ii) if he is the person so presiding, a majority of the other members present at the meeting decides so to permit him;(c) he shall not vote or otherwise act as a member of the Authority in relation to the matter unless otherwise permitted; and (d) 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).(3) 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. (4) 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. Cap 511 s 11 Staff of Authority, consultants (1) The Authority may appoint any person as it thinks fit to be its Chief Executive Officer or other officers or employees. (2) 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. (3) 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. (4) The Authority may from time to time engage such consultants or advisers as it may consider necessary or expedient. Cap 511 s 12 Accountants and audits, Authority's report (1) (a) 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. (b) 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.(2) 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. (3) 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. (4) 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. (5) 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) a report on the affairs of the Authority for that financial year; (b) a copy of its statement of accounts for that financial year; and (c) 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. (6) Nothing in this section shall be construed as affecting section 15 of the Audit Ordinance (Cap 122). Cap 511 s 13 The register PART III REGISTRATION AND LICENSING (1) The Authority shall establish and maintain a register for the purposes of this Ordinance in such form as the Authority shall decide. (2) The register shall contain- (a) the following particulars as regards every licence granted under this Ordinance- (i) the name of the person to whom the licence was granted; (ii) the period or periods for which the licence was granted, including the period or periods (if any) for which the licence was renewed; (iii) if the licence is suspended, the period during which it is suspended; and (iv) if the licence is revoked, the date of revocation;(b) separate lists of- (i) 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; (ii) 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; (iii) 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(c) such other particulars (if any) as may be prescribed.(3) 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. (4) (a) 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. (b) 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.(5) 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. (6) 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). Cap 511 s 14 Registered address (1) Subject to subsection (4), every licensee shall have an address in Hong Kong to which all communications and all notices may be sent. (2) The registered address shall be stated in an application for the grant or renewal of a licence. (3) (a) 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. (b) 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.(4) In the case of a company within the meaning of the Companies Ordinance (Cap 32), the registered office for the time being of the company shall be the registered address of the company for the purposes of subsection (1). Cap 511 s 15 Estate agents to be licensed (1) Subject to this Ordinance, an individual shall not, either by himself or as a member of a partnership- (a) 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 (b) act as an estate agent; or (c) 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. (2) Subject to this Ordinance, a company shall not- (a) 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 (b) act as an estate agent; or (c) 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. Cap 511 s 16 Salespersons to be licensed (1) Subject to this Ordinance- (a) 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; (b) 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.(2) Subsection (1) shall not be construed as- (a) 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 (b) requiring any licensed estate agent to hold a salesperson's licence. Cap 511 s 17 Licences and conditions (1) (a) The Authority may grant licences for the purposes of this Ordinance. (b) Where a licence is granted, the Authority shall designate the licence as being either an estate agent's licence or a salesperson's licence.(2) A licence granted for the purposes of this Ordinance is not transferable. (3) 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. (4) Any conditions attached to a licence under this section shall be specified in the licence. Cap 511 s 18 Right to grant of licences (1) Notwithstanding sections 19, 20 and 21, where, within the relevant period- (a) 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 (b) 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. (2) (a) 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- (i) the person is a fit and proper person to hold the licence; and (ii) 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. (b) In determining whether a person is fit and proper for the purposes of paragraph (a)(i) the Authority shall have regard to- (i) 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); (ii) 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); (iii) 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).(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).(3) In this section "the relevant period" (有关期间) means the period determined for the purposes of this section by the Authority with the prior approval of the Secretary and specified in a notice published in the Gazette. Cap 511 s 19 Grant of estate agent's licences to individuals restricted (1) An individual shall not be eligible to be granted or hold or continue to hold an estate agent's licence unless- (a) he has attained the age which is for the time being prescribed for the purposes of this subsection; (b) he satisfies the Authority- (i) 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; (ii) 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 (iii) 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(c) the Authority otherwise considers him a fit and proper person to hold an estate agent's licence.(2) 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- (a) 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; (b) 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; (c) 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); (d) 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 (e) 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. Cap 511 s 20 Grant of estate agent's licences to companies restricted (1) A company shall not be eligible to be granted or to hold or continue to hold an estate agent's licence unless- (a) 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; (b) there is for the time being a licensed estate agent who is in effective control of the company's business as an estate agent; (c) 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; (d) 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 (e) the Authority otherwise considers the company a fit and proper person to hold an estate agent's licence.(2) 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- (a) 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 (b) any conviction of the company under this Ordinance.(3) 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- (a) the fact that- (i) 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 (ii) 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;(b) 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; (c) 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); (d) 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 (e) 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. Cap 511 s 21 Grant of salesperson's licences restricted (1) A salesperson's licence shall not be granted to a body of persons, whether corporate or unincorporate. (2) An individual shall not be eligible to be granted or hold or continue to hold a salesperson's licence unless- (a) he has attained the age which is for the time being prescribed for the purposes of this subsection; (b) he satisfies the Authority- (i) 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; (ii) 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 (iii) 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(c) the Authority otherwise considers him a fit and proper person to hold a salespersons licence.(3) 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- (a) 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; (b) 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; (c) 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); (d) 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 (e) 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. Cap 511 s 22 Applications for grant of licences (1) 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. (2) Where a licence is granted under this Ordinance, the Authority shall cause notice thereof to be published in the Gazette. Cap 511 s 23 Renewal of licences (1) A licensee may apply in the prescribed manner to the Authority to renew the relevant licence. (2) 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. (3) 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. (4) Where an application under this section is allowed, the Authority shall cause notice thereof to be published in the Gazette. (5) (a) An application under subsection (1) may, and may only, be made before the licence in respect of which renewal is sought expires. (b) 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. Cap 511 s 24 Refusal of application for licence or renewal (1) 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. (2) 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. Cap 511 s 25 Application for licence, etc. not to be made within prescribed period (1) Where- (a) an application for the grant or renewal of a licence is refused; or (b) 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. (2) 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. (3) 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. Cap 511 s 26 Form of licences, payment of licence fee and duration of licences (1) 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. (2) 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. Cap 511 s 27 Suspension or revocation of licences (1) 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. (2) The Authority may suspend or revoke a licence- (a) if in the case of an estate agent's licence, a notice is received under section 40(1); (b) 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); (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; (d) 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; (e) 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; (f) if the relevant licensee has failed to comply with any of the conditions attached to the licence; or (g) if the relevant licensee has contravened or failed to comply with any requirements or other provisions of this Ordinance.(3) (a) 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. (b) 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).(4) Where representations are made pursuant to subsection (3)(b), the Authority shall not suspend or revoke the licence concerned without having considered the representations. (5) (a) Where the Authority suspends or revokes a licence pursuant to this section, it shall- (i) 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 (ii) publish notice of the decision in the Gazette. (b) 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)(6) 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. (7) (a) Where the Authority shortens the period of suspension of a licence or lifts such a suspension, it shall- (i) 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 (ii) publish notice of the decision in the Gazette. (b) 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).(8) Where any licence is suspended or revoked under this section, no few or other sum paid in respect of the grant or renewal of the licence shall be refunded. Cap 511 s 28 Investigations Remarks: Subsection (9)(b)(vi) has only come into operation since 1 November 1999. PART IV INVESTIGATIONS AND DISCIPLINE (1) Where the Authority has reason to believe that a requirement or other provision of this Ordinance 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) (2) 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". (3) 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. (4) 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. (5) 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- (a) 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; (b) 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 (c) if reasonably required by the investigator, give to the investigator all assistance in connection with the investigation which he is reasonably able to give.(6) 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. (7) (a) 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. (b) 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. (c) 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- (i) the result of the investigation; (ii) any recommendations made by the investigator as to whether exercise of powers under section 30 should be considered; and (iii) such other comments arising from the investigation as the Authority thinks fit to make.(8) (a) 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. (b) 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.(9) (a) 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. (b) Nothing in paragraph (a) shall prevent the disclosure of information- (i) 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; (ii) in connection with any civil proceedings to which the Authority is a party; (iii) in connection with any inquiry conducted pursuant to section 29; (iv) in connection with the exercise of any power under section 30; (v) in connection with any appeal conducted pursuant to section 31; (vi) in connection with the proceedings of a determination of any dispute under section 49.(10) 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- (a) the customer is a person whom the investigator has reason to believe may be able to give information relevant to the investigation; and (b) 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. (11) In this section, "produce" (交出), in relation to any record or other document; includes produce by way of supply of a reproduction of the record or other document, or, where the record or other document is kept otherwise than in a legible form, produce by way of supply of a reproduction of the record or other document in a legible form. Cap 511 s 29 Complaints (1) A complaint that a licensee- (a) 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; (b) 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; (c) has failed to comply with a specified condition attached to his licence; or (d) has failed to comply with, or has contravened, 1 or more regulations made under this Ordinance and which are so specified,shall be made to the Authority which may, in its discretion, deal with the matter itself or refer the matter to a disciplinary committee. (2) Where the Chief Executive Officer has reason to believe that subsection (1)(a), (b), (c) or (d) 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. (3) 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. Cap 511 s 30 Disciplinary powers Remarks: Subsection (4) has only come into operation since 1 November 1999. (1) Where- (a) (i) an investigator within the meaning of section 28 recommends to the Authority that exercise of powers under this section should be considered; and (ii) the Authority or, where the Authority refers the matter to a disciplinary committee, the disciplinary committee accepts the recommendation; or(b) (i) 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 (ii) 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- (i) admonish or reprimand the licensee concerned; (ii) attach specified conditions to the licence concerned; (iii) vary any condition already attached to such licence; (iv) suspend such licence for a specified period not exceeding 2 years; (v) revoke such licence; (vi) impose a fine of a specified amount not exceeding $300000; (vii) 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.(2) 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. (3) No power shall be exercised under subsection (1) against a licensee, if the licensee shows- (a) 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; (b) 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.(4) 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- (a) he relied on information obtained from a source prescribed for the purposes of this subsection in respect of such information; (b) it was reasonable for him to have relied on such information; and (c) he had taken all steps reasonably open to him to avoid the non-compliance or contravention.(5) (a) Where any of the powers described are exercised, the Authority- (i) 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 (ii) (A) 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;. (B) 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. (b) 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).(6) 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. (7) 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. (8) Any fine imposed by virtue of subsection (1) and any costs awarded by virtue of that subsection may be recovered as a civil debt. Cap 511 s 31 Appeals (1) Where- (a) an application for the grant or renewal of a licence is refused under section 24; (b) a condition is attached to a licence pursuant to section 17; (c) a licence is suspended or revoked under section 27; or (d) 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, susp