Important Notice to Complainees
1. The Estate Agents Authority (“the EAA”) deals with complaints against licensed estate agents or salespersons for committing any breach of the provisions of the Estate Agents Ordinance (“the Ordinance”), its subsidiary legislation or any misconduct or failing to comply with any specified condition attached to his licence in accordance with section 29 of the Ordinance. The EAA will not give legal advice to the complainant or the agent on their civil disputes.
2. The EAA carries out its function to regulate and control the practice of estate agents and salespersons pursuant to the Ordinance. Any claim for damages caused by misconduct or breach of duty of the licensees is not within the EAA's jurisdiction.
3. The EAA does not have the jurisdiction to deal with the complainant’s dispute on agency commission with an estate agent unless both parties agree to refer it to the EAA for a determination under section 49 of the Ordinance*.(*Both parties should agree to refer the dispute to the EAA for determination and pay relevant fees, including (1) a filing fee of $500 by each party (deductible from the determination fee) and (2) a determination fee, being 10% of the total amount of commission and other fee in dispute, subject to a minimum of $2,000.)
4. The EAA will deal with a complaint under section 29(2) of the Ordinance unless the complainant specifies that his complaint should be dealt with under section 29(1) and be referred to the Disciplinary Committee direct.
Complaints Procedure under s.29(1) of the Ordinance
5. If the complainant refers his complaint to the Disciplinary Committee direct, in order to ensure the case be dealt with fairly and impartially, the EAA will not conduct investigation or provide any information and/or assistance to any party. The complainant shall apply to the Disciplinary Committee to be the presenter to present the case by himself, or his counsel or solicitor at the inquiry hearing according to section 34(3) of the Ordinance. The complainee may act in person or may be represented by solicitor or counsel, or with the consent of the Disciplinary Committee, by some other person. When the Disciplinary Committee has conducted inquiry hearing(s) for the case, the complainee may appeal against the decision made by the Disciplinary Committee pursuant to section 31 of the Ordinance.
Complaints Procedure under s.29(2) of the Ordinance
6. If the complainant requests the EAA to deal with his complaint under section 29(2) of the Ordinance, the EAA will handle the case under the following procedures:
6.1 The EAA will first make a preliminary assessment of all the materials provided by the complainant. If the complaint falls within the EAA’s jurisdiction, a complaint file will be opened and assigned to a case officer of the Complaints Section for investigation. The complainant provides assistance to the EAA as a witness.
6.2 Since the Ordinance does not impose a time limit on when the complainant should make a complaint, the EAA will not refuse to deal with a complaint by reason that there has been a long lapse of time. However, the EAA will consider whether the complainant is unable to recall the event and supply evidence when there has been a long lapse of time.
6.3 In the majority of the cases, the case officer will set out the allegations made against the complainee in writing and give the complainee the opportunity to respond in person or in writing. Under normal circumstances, the first letter requesting for responses to the allegations will be sent to the complainee’s registered address by ordinary post, and the time limit for the complainee to respond to the allegations will be 14 days from the date of the letter. If no response is received after the time limit, the case officer will issue another letter by registered post. The time limit for the complainee to respond to the allegations will be 14 days from the date of the second letter. If response is still not received after the time limit, the case officer may only rely on the complainant’s version and refer the case to the Disciplinary Proceedings Section for consideration of referring it to the Disciplinary Committee.
6.4 The case officer will also conduct interviews with the witnesses and other related parties, do site visits as well as review relevant documents and materials. Under normal circumstances, the EAA will request relevant documents and materials from the complainee and/or his estate agency company. The EAA may also enlist the help of law enforcement agencies and other government authorities where necessary. All information received by the EAA (no matter whether it is supplied by the complainant, the complainee, or the witness(es)) will be treated in strict confidence.
6.5 If, in the course of the investigation, it is found that the complainee and/or his estate agency company and/or any licensee may have committed any breach of the provisions of the Ordinance, its subsidiary legislation or any misconduct or failed to comply with any specified condition attached to his licence, the EAA will also conduct investigation thereinto.
6.6 Despite the complainant’s withdrawal of his complaint against the complainee, if circumstances so warrant, the EAA may and can continue the complaint investigation and adduce the information or materials supplied by the complainant as evidence to investigate whether the complainee and/or his estate agency company and/or any licensee has committed any breach of the provisions of the Ordinance, its subsidiary legislation or any misconduct or failed to comply with any specified condition attached to his licence.
6.7 If the complaint investigation by the EAA reveals any possible commission of any crime or offence or breach of any law, the EAA may refer the matter to the Police, the ICAC, other law enforcement agencies or relevant government authorities for investigation, without notifying the parties concerned.
6.8 Where any matter substantially or closely related to the complaint is being investigated by other law enforcement agencies, or is being or about to be tried or litigated, the EAA may defer the investigation of the complaint until the parallel investigation or judicial proceedings are over so as not to prejudice such parallel investigation or judicial proceedings.
6.9 The EAA shall perform its functions according to the Ordinance and deal with complaints based on evidence. If the evidence obtained from the investigation is insufficient to support the complainant’s allegations against the complainee, both parties will be notified in writing. If the complainant does not agree to the investigation findings, and is able to adduce new information, evidence and/or witness(es), the complainant may request for a review of the case. The EAA may re-investigate or re-consider all relevant allegations and the investigation findings may be different after the review of the case.
6.10 If, after the investigation, there is sufficient prima facie evidence to support the complainant’s allegations against the complainee, the case will be handled by the Disciplinary Proceedings Section of the EAA for consideration of referring it to the Disciplinary Committee. The Disciplinary Proceedings Section will have regard to various factors, such as the evidence obtained in the investigation and the standard of proof required in the proceedings, when framing the allegations against the complainee. Therefore, the allegations presented by the Disciplinary Proceedings Section to the Disciplinary Committee may not be identical to the complainant’s allegations.
6.11 If, after analyzing the evidence obtained in the investigation from a legal perspective, the Disciplinary Proceedings Section considers it necessary to reframe the allegations against the complainee, the case may be returned to the Complaints Section to collect further evidence (including asking for further information from the complainant, the complainee and/or the witness(es)) and to give the complainee an opportunity to respond to the reframed allegations.
6.12 If the Disciplinary Committee decides to conduct inquiry hearing(s), the case will be presented by the representative of the EAA to the Disciplinary Committee. The Disciplinary Committee has the power to summon any person to attend the inquiry hearing to give evidence. The complainee may act in person or may be represented by solicitor or counsel, or with the consent of the Disciplinary Committee, by some other person.
6.13 Depending on the situation of the case, the Disciplinary Committee may conduct separate inquiry hearing for each complainee in the case. After the Disciplinary Committee has conducted all the inquiry hearings for the whole case, both parties will be notified of the outcome in writing.
6.14 When the Disciplinary Committee has conducted inquiry hearing(s) for the case, whether or not the complainant agrees to the decision made by the Disciplinary Committee, the Disciplinary Committee has no power to accommodate the complainant’s request to rehear the case and the Ordinance does not provide any mechanism for the EAA or the complainant to appeal against the decision of the Disciplinary Committee. However, the complainant may apply in writing to the Disciplinary Committee to request for the Reasons for Decision. The complainee may appeal against the decision made by the Disciplinary Committee pursuant to section 31 of the Ordinance.
7. All personal data submitted by the complainee will only be used for purposes of carrying out the functions of the EAA or for purposes which are directly related to the complaint, and may be transferred to parties who will be involved in the processing of the complaint and the undertaking of disciplinary proceedings, or to such persons and agencies who are authorized to receive information relating to undertaking disciplinary action, law enforcement, prosecution, review of decision or carrying out the functions of the EAA under the Ordinance.
Version Date: 28 June 2013
(This Notice will be revised from time to time where necessary.)