Hong Kong Ordinances

ESTATE AGENTS ORDINANCE - SECT 2

Interpretation

(Past version on 08/09/2004).
(Past version on 01/07/2002).
(Past version on 08/08/1997).

For the saving and transitional provisions relating to the amendments made by
the Resolution of the Legislative Council (L.N. 130 of 2007), see paragraph
(12) of that Resolution.

(1) 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;

"the Authority" (監管局) means the Estate Agents Authority;

"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 assigned to it in the
Professional Accountants Ordinance ( Cap 50); (Replaced 23 of 2004 s. 56)

"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;

"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 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" (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 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;

"the register" (登記冊), except in section 10, means the register
established and maintained by the Authority under section 13;

"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 Transport and Housing; (Replaced
L.N. 106 of 2002. Amended L.N. 130 of 2007)

"tenant" (租客) includes a sub-tenant;

"unexecuted" (未簽立) includes partly executed;

"unexecuted estate agency agreement" (未簽立的地產代理議) 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;

"the Vice-chairman" (副主席) means the Vice-chairman of the Authority and
any other person acting as the Vice-chairman. (Amended 23 of 2004 s. 56)

(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.

"advertisement" (廣告)

"the Authority" (監管局)

"building" (建築物) "certified public accountant (practising)"
(執業會計師)

"the Chairman" (主席)

"the Chief Executive Officer" (行政總裁)

"client" (客戶)

"committee" (委員會)

"company" (公司)

"data equipment" (數據設備)

"data material" (數據材料)

"designated"(指定)

"development" (發展)

"disciplinary committee" (紀律委員會)

"disposition" (處置)

"acquisition" (取得)

"estate agency agreement" (地產代理協議)

"estate agency work" (地產代理工作)

"estate agent" (地產代理)

"estate agent's licence" (地產代理牌照)

"financial year" (財政年度)

"group of companies" (公司集團)

"land" (土地)

"lease" (租契)

"licence" (牌照)

"licensed estate agent" (持牌地產代理)

"licensed salesperson" (持牌營業員)

"manager" (經理)

"occupation permit" (佔用許可證)

"prescribed" (訂明)

"property" (物業)

"provisional licence" (臨時牌照)

"purchaser" (買方)

"record" (紀錄)

"the register" (登記冊)

"registered address" (登記地址)

"salesperson" (營業員)

"salesperson's licence" (營業員牌照)

"Secretary" (局長)

"tenant" (租客)

"unexecuted" (未簽立)

"unexecuted estate agency agreement" (未簽立的地產代理議)

"unexecuted such agreement" (該未簽立的協議)

"vendor" (賣方)

"the Vice-chairman" (副主席)