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CIRCULARS

Circular No. 03-10 (CR) October 2003
Unethical/unlawful Transfer of Clientele

According to information provided to the Authority, there have been suspected incidents involving salespersons employed by one agency arranging for the transactions of its clients to be taken over by another agency without the consent or knowledge of the employer, who thus suffer a loss of commission. On the other hand, some agencies offer higher commission rates or other benefits to induce the agents of other agencies to refer business to them in this way. Such arrangements may have serious consequences.

As employees, in addition to the duties under the employment contract, salespersons owe a duty of loyalty and fidelity to their employers under common law. Civil liabilities may arise from the breach of these duties. To transfer a client's transaction to another firm may also prejudice the client's interests.

Para. 3.7.1 of the Code of Ethics provides that estate agents and salespersons shall not seek unfair advantage over other agencies. Failure to adhere to the same may subject an agent to disciplinary sanctions.

As agents of their employers, salespersons are also subject to section 9 of the Prevention of Bribery Ordinance (Cap. 201), which provides that any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for his doing any act in relation to his principal's business shall be guilty of an offence and punishable by a fine and/or imprisonment. Persons offering such advantage to the salespersons may commit the same offence.

Estate agency companies and practitioners should refrain from the above-mentioned unethical or unlawful practice. The Authority will initiate disciplinary proceedings against any suspected cases which come to its knowledge, or refer the same to the relevant authorities.

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