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 Important Notice to Complainants

EAA's Functions

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.  As to the parties’ rights, liabilities and claims vis-à-vis each other or a third party, the complainant is advised to seek legal and/or other professional advice to protect his own interest. 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 and the complainant should pursue it through legal proceedings by himself.  Any criminal allegation against the licensees (except those under the Ordinance) is also not within the EAA’s jurisdiction.  If the complainant suspects any licensee has committed any crime or offence, the complainant should immediately report the matter to the Police, the ICAC or other law enforcement agencies.

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 Ordinance1 .

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.  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 complainant to appeal against the decision of the Disciplinary Committee.

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:

Investigation Procedure

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 and shall provide his full name, I.D. Card no., business or residential address and telephone number as means of contact and for service of witness summons when necessary.  The complainant shall also provide the EAA with all relevant evidence and/or witness(es) to assist the complaint investigation.  The case officer will normally ask the complainant to attend the EAA’s office to give a statement detailing his version of events.

6.2

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.  However, if the investigation so warrants, the EAA will inform the complainee and the witness(es) of the full facts of the complaint and who is making it.  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.

6.3

The investigation progress is affected by various factors, such as the complexity of the case, the cooperation of the complainant, the complainee and the witness(es) in providing the EAA with adequate and accurate information, and the number of complaints received by the EAA at the time.  The processing time will also be prolonged in the situation as stated in paragraph 6.10 below.  However, without disclosing any detail or information obtained in the investigation, the case officer will inform the complainant of the investigation progress in writing every three months. For details of the EAA’s other performance pledges for its complaint investigation work, please refer to the EAA’s relevant webpage.

6.4

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 (e.g. Housing Authority, Sales of First-hand Residential Properties Authority, Lands Department, Buildings Department, Stamp Office etc.) for investigation, without notifying the parties concerned.

6.5

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.

6.6

If the information provided by the complainant is insufficient for pursuing the case, or there has been a long lapse of time and the complainant is unable to recall the event and supply evidence, or the complainant cannot be reached by the EAA for further information, the EAA may, due to insufficient information, need to close the case.

6.7

If the complainant wishes to withdraw the complaint, he should notify the EAA of the withdrawal in writing.  Despite the withdrawal, 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.

6.8

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, provided that he is able to adduce new information, evidence and/or witness(es), the complainant may request for a review of the case but such request has to be made in writing. 

 

 

Inquiry Hearing

6.9

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.

6.10.

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.

6.11

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, including the complainant, to attend the inquiry hearing to give evidence.  If the complainant does not attend the inquiry hearing as a witness, the EAA may not be able to further pursue the case due to insufficient evidence.

6.12

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.

6.13

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.

 

 

Personal Data

7

All personal data submitted by the complainant 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.

 
 
Notes:
1 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.

2 This Notice will be revised from time to time where necessary.

 

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