(Cap 2l8 section 32G(2)) (21 January 1994) (L.N. 77 of 1994) (L.N. 471 of 1993) Cap 218E s 1 (Omitted as spent) (Omitted as spent) (Enacted 1993) Cap 218E s 2 Interpretation In these Rules, unless the context otherwise requires- "accident" (意外) means an accident described in section 5A; (L.N. 104 of 1996) "application" (申请、申请书) has the meaning assigned to it by section 2 of the Rules; "judgment" (判决、判决书) has the meaning assigned to it by section 2 of the Rules; "proof of debt" (债权证明表) has the meaning assigned to it by section 2 of the Rules; "relative" (亲属), in relation to an outbound traveller, means- (a) a spouse; (b) a parent, step-parent or guardian; (c) a spouse's parent, step-parent or guardian; (d) a grandparent or great-grandparent; (e) a child or a ward of court under the care and control of the outbound traveller; (f) a stepchild or a ward of court under the care and control of the outbound traveller's spouse; (g) a grandchild; (h) a son-in-law or daughter-in-law; (i) a brother or sister; (j) a spouse's brother or sister; (k) a brother's or sister's spouse; (l) a half-brother or half-sister; (m) a step-brother or step-sister; (n) a brother's or sister's child; (o) a parent's brother or sister; (p) a parent's brother's spouse or parent's sister's spouse; or (q) a parent's brother's child or parent's sister's child; (L.N. 394 of 1998)"relevant country" (有关国家) means the country or the place outside Hong Kong where the accident occurred; (L.N. 104 of 1996) "relevant expenses" (有关开支) means the expenses described in section 5C; (L.N. 104 of 1996) "the Rules" (申领程序规则) means the Travel Industry Compensation Fund (Procedure for Ex gratia Payments) Rules (Cap 218 sub. leg.); "simplified procedure" (简化程序) means the procedure for making an application for an ex gratia payment described in section 3A of the Rules; (L.N. 129 of 1997) "specified amount" (指明款额) means the amount for the time being specified under section 4(2); (L.N. 129 of 1997) "spouse" (配偶), in relation to a person, includes- (a) a concubine of the person; and (b) a person with whom the person is cohabiting as husband or wife; (L.N. 394 of 1998)"travel agent" (旅行代理商) has the meaning assigned to it by section 32A of the Ordinance; "unsatisfied" (未清偿) in relation to a proof of debt means- (a) in the case of a winding up, that after the conclusion of the winding up, the full amount for which the proof of debt was admitted by the liquidator under the Companies (Winding-up) Rules (Cap 32 sub. leg.) has not been paid; (b) in the case of a bankruptcy, that after the payment of a final dividend, the full amount for which the proof of debt was admitted by the Official Receiver or the trustee in bankruptcy under the Proof of Debts Rules (Cap 6 sub. leg.), has not been paid. (Enacted 1993) Cap 218E s 2A Application (Part I) *PART I EX GRATIA PAYMENTS IN RESPECT OF AN OUTBOUND FARE (L.N. 104 of 1996) This Part shall apply to an ex gratia payment for the purposes of section 32E of the Ordinance in relation to a loss suffered in respect of an outbound fare. (L.N. 104 of 1996)___________________________________________________________________ Notes: * 1. The operation of this Part is affected by s. 5 of L.N. 129 of 1997, which section is reproduced as follows: "5. Transitional (1) Any application for an ex gratia payment in relation to a loss suffered before the commencement of the Amendment Rules in respect of an outbound fare shall be determined as if the Amendment Rules had not been made. (2) In this section "Amendment Rules" (修订规则) means the Travel Industry Compensation Fund (Amount of Ex gratia Payments and Financial Penalty) (Amendment) Rules 1997 (L.N. 129 of 1997) and the Travel Industry Compensation Fund (Procedure for Ex gratia Payments) (Amendment) Rules 1997 (L.N. 128 of 1997).". 2. L.N. 128 of 1997 and L.N. 129 of 1997 commenced operation on 4 April 1997. Cap 218E s 3 When an application may be made An application may be made by an outbound traveller or on his behalf for the purposes of section 32E of the Ordinance in relation to a loss suffered in respect of an outbound fare. (Enacted 1993. L.N. 104 of 1996) Cap 218E s 4 Amount of ex gratia payment (1) Any ex gratia payment under this Part shall be 90% of the outbound fare in respect of which the application for the payment is made. (L.N. 104 of 1996; L.N. 544 of 1996; L.N. 129 of 1997) (2) Subject to subsection (1), the maximum amount in respect of which an application for an ex gratia payment may be made in accordance with the simplified procedure is $10000. (L.N. 129 of 1997) (Enacted 1993) Cap 218E s 5 Circumstances of payment (1) Subject to subsection (1A), an ex gratia payment under this Part may be made to or on behalf of an outbound traveller if- (L.N. 104 of 1996; L.N. 129 of 1997) (a) in the case where an application is submitted with a judgment, such judgment is unsatisfied and it appears to the Board that reasonable efforts have been made to enforce it; (b) in the case where an application is submitted with evidence of a proof of debt- (i) any right to a dividend under the proof of debt has been assigned in writing to the Board; and (ii) the Board is indemnified- (A) to the extent of the amount of the ex gratia payment in the event of the proof of debt being rejected; or (B) to the extent of the difference between the ex gratia payment and 90% of the amount of the proof of debt admitted in the event of the amount admitted being less than the ex gratia payment. (L.N. 544 of 1996)(1A) Where an application is made in accordance with the simplified procedure, an ex gratia payment of an amount not exceeding the specified amount may be made to or on behalf of an outbound traveller if- (a) in the case where section 3A(5) of the Rules applies to application, the applicant gives an undertaking that no claim or application will be made for any amount in excess of the specified amount; (b) any right to a dividend under the proof of debt has been assigned in writing to the Board; and (c) the Board is indemnified- (i) to the extent of the amount of the ex gratia payment in the event of the proof of debt being rejected; or (ii) to the extent of the difference between the ex gratia payment and 90% of the amount of the proof of debt admitted in the event of the amount admitted being less than the ex gratia payment. (L.N. 129 of 1997)(2) Where, by reason of an assignment under subsection (1)(b)(i) or (1A)(b), the amount of a dividend received by the Board is in excess of the amount of the ex gratia payment concerned, the Board shall pay to the relevant applicant the amount of such excess. (L.N. 129 of 1997) (Enacted 1993) Cap 218E s 5A Application (Part II) PART II EX GRATIA PAYMENTS IN RESPECT OF AN ACCIDENT (1) This Part shall apply to an ex gratia payment for the purposes of section 32E of the Ordinance in relation to a loss suffered in respect of an accident which arises out of and in the course of an outbound travel service and which results in the death of, or personal injury sustained by an outbound traveller. (2) An accident which arises out of and in the course of an activity which is not provided or organized by the travel agent concerned shall be disregarded for the purposes of subsection (1). (L.N. 104 of 1996) Cap 218E s 5B When an application may be made (1) An application may be made by an outbound traveller or on his behalf for the purposes of section 32E of the Ordinance in relation to a loss described in section 5A. (2) A loss in relation to which an application under subsection (1) may be made shall be limited to the relevant expenses actually incurred. (L.N. 104 of 1996) Cap 218E s 5C Amount of ex gratia payment Any ex gratia payment under this Part shall be subject in respect of each type of relevant expenses to the maximum amount set out in column 2 of the Table as follows- TABLE Column 1 Column 2 (a) medical expenses reasonably incurred in the relevant country in respect of an accident $100000 (b) expenses reasonably incurred in the relevant country in relation to the funeral of an outbound traveller or incurred in relation to the delivery back to Hong Kong of the dead body of the outbound traveller (including ashes resulting from cremation thereof), in a case where the accident results in the death of the outbound traveller $ 40000 (c) expenses reasonably incurred by up to 2 relatives of an outbound traveller for paying visits to the relevant country for a purpose relating to or consequent upon the death of or personal injury sustained by the outbound traveller $20000 per relative (d) if a deceased or injured outbound traveller does not have any relatives, expenses reasonably incurred by a former spouse of the traveller in visiting the relevant country for a purpose connected with the traveller's death or injury (L.N. 394 of 1998) $20000 (e) expenses reasonably incurred by not more than 2 relatives of a deceased outbound traveller in visiting Hong Kong for a purpose connected with the traveller's death, but only if there is no relative or former spouse of the traveller residing in Hong Kong (L.N. 394 of 1998) $20000 per relative (f) if a deceased outbound traveller does not have any relatives, expenses reasonably incurred by a former spouse of the traveller in visiting Hong Kong for a purpose connected with the traveller's death (L.N. 394 of 1998) $20000 (L.N. 104 of 1996) Cap 218E s 5D Circumstances of payment An ex gratia payment under this Part may be made to or in respect of an outbound traveller if, and only if the application is accompanied by- (a) a declaration in writing by the applicant or, as the case may be, the person on whose behalf the application is made, as to- (i) whether he or any other person has received any damages or compensation in respect of the relevant expenses incurred in relation to the accident; and (ii) whether he or any other person has made any claim or instituted any legal proceedings in respect of those relevant expenses; and(b) an undertaking in writing by the applicant or, as the case may be, the person on whose behalf the application is made that he will- (i) notify the Board, within such period as may be specified in the undertaking, of the making by him or any other person of any claim or the institution of any legal proceedings by him or any other person in respect of those relevant expenses; (ii) in the event that damages or compensation in respect of those relevant expenses are or is paid to him or any other person, pay to the Board the amount of the ex gratia payment or the amount of the damages or compensation so paid, whichever is the less; and (iii) in the event that the amount of the ex gratia payment is in excess of the relevant expenses reasonably incurred, indemnify the Board to the extent of the excess. (L.N. 104 of 1996) Cap 218E s 6 Financial penalty PART III FINANCIAL PENALTY (L.N. 104 of 1996) (1) Where the Board is satisfied that a travel agent has failed to pay or not duly paid any amount due as the Fund levy in accordance with a relevant determination made under section 32H(2)(b) of the Ordinance or any amount due as the Council levy in accordance with a relevant determination made under section 32I(2) of the Ordinance, the Board may impose on the travel agent concerned a financial penalty not exceeding- (a) $10000 as regards a failure; (b) $50000 as regards a second failure within the period of 2 years beginning on the date of a previous failure; and (c) $100000 as regards a third or any subsequent such failure within the period of 2 years referred to in paragraph (b).(2) In imposing a financial penalty under subsection (1), the Board shall have regard to whether the Travel Industry Council has imposed any penalty on the travel agent as regards such failure and any other circumstances which it considers relevant. (3) The Board may review any decision to impose a financial penalty under subsection (1). (Enacted 1993) Cap 218E s 7 Transitional provision for sections 4 and 5 Where the ex gratia payment relates to a loss suffered before 20 December 1996- (a) the amount of such payment shall be 80% of the outbound fare; and (b) the percentage of the amount of the proof of debt for the purposes of section 5(1)(b)(ii)(B) shall be 80%. (L.N. 544 of 1996)
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