The fair trading sections of the Trade Descriptions Ordinance (Cap. 362) (the “TDO”) (i.e. sections 4, 5, 7, 7A, 13E, 13F, 13G, 13H and 13I) prohibit specified unfair trade practices deployed by traders against consumers, including false trade descriptions of goods and services, misleading omissions, aggressive commercial practices, bait advertising, bait-and-switch and wrongly accepting payment. Contravention of the “fair trading sections” is a criminal offence. Upon conviction, the offender is liable to a maximum fine of $500,000 and to imprisonment for five years. The TDO also introduces a civil compliance-based mechanism to encourage compliance by traders and to stop identified non-compliant practices, under which the enforcement agencies may, as an alternative to criminal prosecution, accept an undertaking from a trader whom the enforcement agencies believe has engaged in a prohibited unfair trade practice to stop that practice.
The Customs and Excise Department is the principal agency responsible for enforcing the TDO. Concurrent jurisdiction is conferred on the Communications Authority (“CA”), with the Office of the Communications Authority (“OFCA”) as its executive arm, to enforce the “fair trading sections” in relation to the commercial practices of licensees under the Telecommunications Ordinance (Cap. 106) and the Broadcasting Ordinance (Cap. 562) that are directly connected with the provision of a telecommunications service or broadcasting service under the two Ordinances. To enforce the TDO effectively and to ensure that every case is taken up by the appropriate enforcement agency, the Commissioner of Customs and Excise (the “Commissioner”) and the CA have entered into a Memorandum of Understanding for the purpose of coordinating the performance of their functions.
Pursuant to the TDO, the Commissioner and the CA have published the Enforcement Guidelines to state the manner in which they will exercise their enforcement powers and provide guidance on the operation of the "fair trading sections".
The description of the "fair trading sections" of the TDO on this webpage / in this article is for general reference only. You should refer to the relevant provisions of the TDO for a complete and definitive statement of the law.