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Criminal Conviction (December 2018)

1.  Below sets out the EAA’s policy on the determination of whether a licence applicant or a licensee, as the case may be, with criminal conviction is a fit and proper person to be granted, to hold or to continue to hold a licence.

2.  The following factors will be taken into account:

(a)  Nature and type of the offence (Estate Agents Ordinance related? Was it necessary to find that the offender acted fraudulently, corruptly or dishonestly? Was the offence committed when conducting estate agency work?) ;

(b)  When and how the offence was committed (a conviction which is more than five years old will not normally be considered unless the offence is of a very serious nature which may cast doubt on the applicant’s/ licensee’s fitness and properness to hold a licence);

(c)  Age of the offender at the time and now;

(d)  Punishment meted out by the court;

(e)  Any repetition of commission of the same or similar offences;

(f)  Any remorse shown;

(g)  Behaviour after conviction;

(h)  Character reference;

(i)  Any special circumstances or mitigating factor;

(j)  Public interests implications.

3.  The factors described in paragraph 2 are not exhaustive. The EAA is entitled to and does take into account other factors, as may be appropriate in the circumstances.

4.  A licence application will normally be refused or a licence revoked in the following circumstances [*]:

(a)  If the individual was convicted of any offence and for which he:

(i)  is currently on probation, bound over (with conviction), remission or suspended sentence; or

(ii)  has been released from imprisonment for less than three years; or

(b)  If the individual was convicted of any of the following offences within a period of five years prior to the date when his case (licence application or revocation of licence, as the case may be) is being determined by the EAA:

(i)  any offence (other than an offence under the Estate Agents Ordinance), being a conviction as regards which it was necessary to find that the person acted fraudulently, corruptly or dishonestly; or

(ii)  any offence under the Estate Agents Ordinance in respect of which the individual has been sentenced to imprisonment (whether suspended or not); or

(iii)  any sexual offence or any offence involving indecent conduct committed in the course of conducting estate agency work (irrespective of the sentence meted out by the court) or in respect of which the individual has been sentenced to imprisonment (whether suspended or not); or

(iv) any offence involving violence committed in the course of conducting estate agency work or during such time when the licence status of the offender was known to the general public [#] ; or

(v) any offence involving violence committed in the course of engaging in any promotional activities relating to the sale of first-hand properties, while the individual was then not holder of a valid licence; or

(c)  If the individual was convicted of any of the following offences within a period of three years prior to the date when his case (licence application or revocation of licence, as the case may be) is being determined by the EAA:

(i)  any offence under the Estate Agents Ordinance (other than one in respect of which the individual has been sentenced to imprisonment (whether suspended or not)); or

(ii)  any sexual offence or any offence involving indecent conduct not committed in the course of conducting estate agency work (other than one in respect of which the individual has been sentenced to imprisonment (whether suspended or not)).

5.  If the EAA decides to grant a licence or allow a licensee to continue to hold a licence, it may attach to the licence appropriate conditions. 

 

N.B.:

(1) For ease of reference, please click here for a summary of paragraph 4; and

(2) For the avoidance of doubt, there is no implication that a person convicted of any offences other than those mentioned in paragraph 4 above will automatically be considered a fit and proper person to be granted, to hold or to continue to hold a licence. His case will be considered on a case-by-case basis in accordance with the factors set out in paragraph 2 above. 

 

[*] The circumstances listed in paragraph 4 above are not exhaustive.

[#] This paragraph shall not apply to licence applicants / former licensees who have been convicted of any such offence and whose licence applications / licences have been refused / revoked by the Licensing Committee of the EAA on or before 30th November 2018. Such application would be separately considered by the Licensing Committee on a case-by-case basis.

 

Special vetting procedure

Click here to see special vetting procedure applicable to cases involving further consideration on whether the relevant person is a fit and proper person.

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