Cap. 216 - Consumer Council Ordinance

To incorporate the Consumer Council, to define its functions and powers, to negative personal liability of members and employees for the Council’s or its committees’ acts or omissions, and for connected purposes. [15 July 1977] L.N. 167 of 1977(Format changes—E.R. 3 of 2021) Part I Preliminary 1. Short title This Ordinance may be cited as the Consumer Council Ordinance. 2. Interpretation In this Ordinance, unless the context otherwise requires—Council (委員會) means the Consumer Council incorporated by section 3(1);financial year (財政年度) means each period of 12 months ending with 31 March;member (委員) means a member of the Council. Part II Incorporation and Powers 3. Incorporation of Consumer Council (1) The Consumer Council existing at the commencement* of this Ordinance is hereby created a body corporate consisting of the persons who from time to time hold office as members of the Council.(2) The Council shall have perpetual succession and a common seal and shall be capable of suing and being sued and of doing and suffering all such other acts and things as bodies corporate may lawfully do and suffer.(3) The Council shall continue to be known in the Chinese language as “消費者委員會”. Editorial Note: * Commencement date: 15 July 1977. 4. Functions of Council (1) The functions of the Council are to protect and promote the interests of consumers of goods and services and purchasers, mortgagors and lessees of immovable property by—(a) collecting, receiving and disseminating information concerning goods, services and immovable property;(b) receiving and examining complaints by and giving advice to consumers of goods and services and purchasers, mortgagors and lessees of immovable property;(c) taking such action as it thinks justified by information in its possession, including tendering advice to the Government or to any public officer;(d) encouraging business and professional associations to establish codes of practice to regulate the activities of their members;(e) undertaking such other functions as the Council may adopt with the prior approval of the Chief Executive in Council. (Amended 66 of 2000 s. 3)(2) The Chief Executive may by notice in writing to the Council declare any goods, services or immovable property or class of goods, services or immovable property to be outside the scope of the Council’s functions under subsection (1). (Amended 66 of 2000 s. 3)(3) In subsection (1) and in section 5(2)(c) goods and services (貨品及服務) does not include goods and services which are— (a) supplied by—(i) the Government; or (Amended 39 of 1985 s. 60; 78 of 1999 s. 7)(ii) (Repealed 65 of 1994 s. 2) (b) made the subject of a declaration under subsection (2). (4) (Repealed 65 of 1994 s. 2)(Amended 5 of 1992 s. 2) 5. Powers of Council (1) The Council may do such things as are reasonably necessary to enable it to carry out its functions.(2) Without restricting the generality of subsection (1), the Council may in carrying out its functions—(a) acquire, hold and dispose of all kinds of property movable and immovable and in any manner which it thinks fit;(b) enter into any contract;(c) undertake the testing and examination of goods and services and inspection of immovable property; (Amended 5 of 1992 s. 3)(d) produce or distribute, by way of sale or otherwise, any publication which is of interest to consumers;(e) do any thing which it may do under this Ordinance in association or co-operation with any other person or sponsor any other person to do that thing;(f) charge for the use of any facility or service provided by the Council;(g) with the prior approval of the Chief Executive, become a member of or affiliate to any international body concerned with consumer matters. (Amended 66 of 2000 s. 3) 6. Membership of Council (1) The Council shall consist of the following members—(a) a Chairman who shall be appointed by the Chief Executive for a term not exceeding 2 years;(b) a Vice-Chairman who shall be appointed by the Chief Executive for a term not exceeding 2 years; and (Replaced 28 of 1985 s. 2)(c) not more than 20 other persons each of whom shall be appointed by the Chief Executive for a term not exceeding 2 years. (Replaced 28 of 1989 s. 2)(2) The Chairman, Vice-Chairman and any other member appointed under subsection (1)(c) may be reappointed upon expiry of their respective terms of office. (Amended 28 of 1985 s. 2)(3) The Chairman, Vice-Chairman and any other member appointed under subsection (1)(c) may at any time— (Amended 28 of 1985 s. 2)(a) resign his office by notice to the Chief Executive; or(b) be removed therefrom by the Chief Executive for permanent incapacity or other sufficient cause,and upon such resignation or removal the term for which he was appointed shall be deemed to have expired.(4) Where the Chairman, Vice-Chairman or any other member appointed under subsection (1)(c) is precluded by temporary incapacity or other cause from exercising his functions as such for any period the Chief Executive may appoint another person to act in place of the Chairman, Vice-Chairman or other member during such period with all such rights, powers, duties or liabilities as if he had been appointed under subsection (1). (Amended 28 of 1985 s. 2)(5) (Repealed 28 of 1985 s. 2)(6) Where any question arises under subsection (3) or (4) as to whether any incapacity or cause exists or whether any incapacity is temporary or permanent or any cause sufficient, the decision of the Chief Executive thereon shall be final.(Amended 66 of 2000 s. 3) 7. Meetings of Council (1) Meetings of the Council shall be held at such times and places as the Council, the Chairman or in his absence, the Vice-Chairman may from time to time appoint.(2) The following procedural provisions shall apply to every meeting of the Council and subject thereto the Council may regulate its own procedure—(a) at meetings of the Council 11 members shall form a quorum; (Replaced 28 of 1989 s. 3. Amended 5 of 1992 s. 4)(b) the Chairman or in his absence, the Vice-Chairman shall preside or, if both are absent or disqualified under section 9(c), the members present shall appoint one of their number to preside;(c) every question shall be determined by a majority of votes of the members present and voting thereon;(d) in the event of an equality of votes the member presiding shall have a casting vote in addition to his ordinary vote.(Amended 28 of 1985 s. 3) 8. Committees (1) The Council may appoint committees and may delegate to them the exercise and performance of any of its powers and functions except this power of delegation.(2) Persons who are not members of the Council are eligible for appointment to committees.(3) Subject to the terms of any delegation by the Council, every committee—(a) may exercise and perform the delegated powers and functions with the same effect as if it were the Council itself;(b) shall be presumed to be acting in accordance with the terms of the delegation in the absence of proof to the contrary;(c) may regulate its own procedure. 9. Disclosure of member’s interest If a member of the Council, or of any committee of the Council, has a direct or indirect commercial interest in any matter under discussion at a meeting of the Council or of the committee, being an interest greater than that which he has as a member of the general public, the following provisions shall apply—(a) he shall disclose the nature of his interest at the meeting;(b) the disclosure shall be recorded in the minutes;(c) where the disclosure is made by the member presiding, he shall vacate the chair during the discussion;(d) the member (including one who has vacated the chair under paragraph (c)) shall, if so required by the member presiding, withdraw from the meeting during the discussion and shall not in any case, except as otherwise determined by the member presiding, vote on any resolution concerning the matter or be counted for the purpose of establishing the existence of a quorum. 10. Appointment of staff and advisers (1) Subject to subsection (4), the Council shall appoint a person to hold office as its chief executive. (Amended 28 of 1985 s. 4)(2) The Council may appoint such other employees as it thinks fit and, subject to subsection (4), determine all matters relating to their remuneration and terms and conditions of appointment or employment.(3) The Council may engage the services of technical and professional advisers in such manner and on such terms and conditions as it thinks fit.(4) The Council shall obtain the prior approval of the Chief Executive to—(a) any appointment proposed to be made under subsection (1) and the terms and conditions thereof;(b) the suspension or dismissal of its chief executive;(c) the salary or salary scale (including allowances and other pecuniary benefits) and conditions of employment applicable to its chief executive and every other employee or class of employee, and any variation thereof. (Amended 28 of 1985 s. 4)(5) No person shall be employed by the Council otherwise than on the salary or salary scale or on the conditions of employment applicable to that person approved by the Chief Executive under subsection (4).(Amended 66 of 2000 s. 3) 11. Documents of Council (1) The Council may make and execute all such documents as may be expedient for or conducive to the exercise and performance of its powers, functions and duties.(2) The fixing of the seal of the Council to any document shall—(a) be authorized by resolution of the Council; and(b) be authenticated by the signatures of any 2 members authorized by resolution of the Council, either generally or specially, to act for that purpose.(3) Any document purporting to be duly executed under the seal of the Council shall, unless the contrary is proved, be considered to be duly executed.(4) Any contract or instrument which if entered into or executed by a person not being a body corporate would not be required to be in the form of a deed may be entered into or executed on behalf of the Council by any person generally or specially authorized by the Council for that purpose. Part III Financial 12. Resources of Council (1) The Chief Executive may, out of money appropriated for the purpose by the Legislative Council, authorize payment to the Consumer Council of such amounts as he thinks fit. (Amended 66 of 2000 s. 3)(2) The resources of the Council shall consist of—(a) all money received by the Council pursuant to subsection (1);(b) money paid to the Council by way of donations, fees, subscriptions, rent and interest;(c) all other money and property, including accumulations of income, received by the Council for its purposes. 13. Borrowing powers The Council may, with the approval of the Financial Secretary, borrow or otherwise raise money and charge all or any part of its property as security therefor. 14. Investment of funds All money of the Council that is not immediately required shall be invested—(a) on fixed deposit in any bank or savings bank approved by the Financial Secretary, either generally or in any particular case, for the purpose; or(b) in such other forms of investment as the Financial Secretary may approve. 15. Estimates The Council shall in each financial year adopt estimates of income and expenditure for the ensuing financial year and, before a date to be appointed by the Secretary for Commerce and Economic Development, send them to the Chief Executive for his approval together with a programme of its proposed activities for the ensuing financial year.(Amended 66 of 2000 s. 3; L.N. 125 of 2004; L.N. 130 of 2007) 16. Accounts, audit and annual report (1) The Council shall keep proper accounts and proper records in relation thereto and shall within 3 months after the expiry of a financial year, or such further period as the Secretary for Commerce and Economic Development may allow, prepare a statement of the accounts of the Council, which statement shall include an income and expenditure account and a balance sheet. (Amended L.N. 125 of 2004; L.N. 130 of 2007)(2) The Council shall, subject to subsection (3), appoint an auditor, who shall be entitled to have access at any time to all books of account, vouchers and other financial records of the Council and to require such information and explanations relating thereto as he thinks fit.(3) The Council shall obtain the prior approval of the Secretary for Commerce and Economic Development to any appointment proposed to be made under subsection (2). (Amended L.N. 125 of 2004; L.N. 130 of 2007)(4) The auditor shall, as soon as is practicable, audit the accounts required by subsection (1) and shall submit a report thereon to the Council.(5) The Council shall within 3 months after the receipt by it of the auditor’s report in respect of its accounts for a financial year, or within such further period as the Secretary for Commerce and Economic Development may allow, furnish— (Amended L.N. 125 of 2004; L.N. 130 of 2007)(a) a report on the affairs of the Council for that year;(b) a copy of its accounts therefor; and(c) the auditor’s report on the accounts,to the Chief Executive who shall cause the same to be tabled in the Legislative Council. (Amended 66 of 2000 s. 3) Part IV General 17. Council not servant or agent of the Government The Council is not a servant or agent of the Government and does not enjoy any status, immunity or privilege of the Government.(Amended 23 of 2002 s. 28) 18. Chief Executive may give directions (1) The Chief Executive may, if he considers that the public interest so requires, give to the Council such directions as he thinks fit with respect to the exercise and performance by the Council of its powers, functions and duties under this Ordinance, either generally or in any particular case. (Amended 66 of 2000 s. 3)(2) The Council shall comply with any direction given to it under subsection (1). 19. Protection of members of Council and committees (1) No member or employee of the Council or of any committee of the Council shall be personally liable for any act done or default made—(a) by the Council; or(b) by any committee of the Council,acting in good faith in the course of the operations of the Council or of the committee.(2) The protection hereby conferred on members and employees of the Council or of a committee in respect of any act or default shall not in any way affect any liability of the Council for that act or default. 20. Prohibition of exploitation of the Council’s name for advertisement purposes (1) No person shall, with a view to promoting or disparaging any goods, services or immovable property or promoting the image of any person, publish or cause to be published any advertisement which either expressly or by implication makes reference to—(a) the Council;(b) any committee, member, agent or employee of the Council;(c) the Council’s publication or finding of tests or surveys conducted by or on behalf of the Council; or(d) any other information published by the Council,without written consent of the Council.(2) Any person who contravenes subsection (1) commits an offence and is liable to a fine at level 6. (Amended E.R. 3 of 2021)(3) For the purpose of subsection (1) advertisement (廣告) may be constituted by any words, whether written or spoken, or any picture, drawing, visual image, figure or article—(a) appearing in any publication; or(b) brought to the notice of the public or any section of the public in any other way.(Replaced 5 of 1992 s. 5) 21. Transitional provisions (1) All property of whatever kind and whether movable or immovable vested in or belonging to the Consumer Council existing at the commencement* of this Ordinance shall as from that date vest in or belong to that Council in its corporate capacity without any further assurance.(2) All obligations and liabilities of the said Consumer Council are as from the commencement of this Ordinance the obligations and liabilities of the Council in its corporate capacity.(3) Where anything has been commenced by or under the authority of the said Consumer Council before the commencement of this Ordinance such thing may be carried on and completed by the Council in its corporate capacity.(4) Every person who immediately before the commencement of this Ordinance holds an appointment as Chairman, Executive Director or a member of the said Consumer Council is, as from such commencement but subject to the terms of his appointment, the Chairman, Executive Director, or a member of the Council, as the case may be, for the purposes of this Ordinance.(5) Notwithstanding the definition of financial year in section 2 the period between the commencement of this Ordinance and 31 March 1978 shall be deemed to be a financial year.(6) No stamp duty shall be payable in respect of any transfer of property under this section. Editorial Note: * Commencement date: 15 July 1977. Schedule (Repealed 65 of 1994 s. 3)