Question

Question 1 (34 Marks) a) Discuss the criminal offences of the Trade Description Ordinance. (10 marks) b) Jane went to shopping at Causeway bay last Saturday. Winter is coming so she went to put out a wool sweater. But she has a skin problem so she picked cashmere thinking it would not give her any rashes. When she went home after trying on her new wool sweater, there were rashes all over her back. Jane then quickly went back to the shop to ask for refund. The shop refuses saying there is nothing wrong with the sweater. She is obviously very unhappy and told the shop owner that she will sue them. Advice Jane if she can sue the shop under Sale of Goods Ordinance. Illustrate with a case law. (24 marks)

Answer 1

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[A] Discuss the criminal offenses of the Trade Description Ordinance?

The Trade Descriptions Ordinance [TDO], as changed by the Trade Descriptions [Unfair Trade Practices] came into full activity on July 19, 2013. The revised TDO handles basic uncalled unfair trade practices at source, including denying traders from applying false trade descriptions connection to services and products and taking part in aggressive commercial rehearses, and so forth. The Customs and Excise Department [C&ED] is the primary authorization agency of the TDO. The amendments:

• Widened the extent of the TDO;
• Introduced new offenses, including aggressive commercial practices, wrongly accepting payment misleading omissions, bait, and switch, and bait advertising;
• Introduced an enforcement instrument to discourage unfair trade practices utilized by traders against buyers;
• Allow bothered consumers to look for harms from dealers.

Unfair Trade Practices - At present, unfair trade practices are managed by different statutory offenses and common law, for instance, deception and misrepresentation offenses are managed under the Theft Ordinance [Cap. 210], just as under industry-explicit administrative systems, for example, the Securities and Futures Ordinance [Cap. 571]. Consumers may likewise fall back on private activities to look for solutions for the bad behavior of traders under contract law, the law of misrepresentation or tort law. Be that as it may, as the applicable men's rea is required for consumers and criminal offenses are frequently hesitant or unfit to make a private move because of the expense of remedial action, litigation is constrained.

The Amendment Ordinance makes offenses for five kinds of unfair trade practices. Any trader saw as blameworthy of taking part in the unreasonable exchange practices will be dependent upon penalty of up to HK$500,000 and detainment for a long time [on conviction on indictment] or punishment of HK$100,000 and detainment for a long time [on outline conviction]. The criminal offenses of the Trade Description Ordinance are -

[i] Under segment 7A of the Trade Description Ordinance, a trader who applies a false trade depiction to assistance provided or offered to be provided to a purchaser; or supplies or offers to supply to a buyer help to which a false trade portrayal is applied, submits an offense.

[ii] Under section 13F of the Trade Description Ordinance, a trader who takes part in connection to a consumer in a business practice that is forceful commits an offense. A business practice is forceful if, in its real setting, assessing the entirety of its highlights and conditions, it altogether impedes or is likely fundamentally to hinder the normal buyer's opportunity of decision or direct in connection to the product worried using provocation, compulsion or undue impact; and it subsequently causes or is probably going to make the purchaser settle on a value-based choice that the consumer would not have made generally.

[iii] Misleading omission - A trader commits an offense under the amended Trade Description Ordinance on the off chance that he excludes or shrouds material data, gives material data in a way that is unclear, incomprehensible and questionable or troublesome way, or neglects to recognize its business expectation.

An ordinary example will be a mobile administrator promoting an “unlimited mobile data plan "to consumers. On the off chance that the mobile administrator neglects to make reference to that the unlimited mobile data plan is dependent upon a use limitation under which the download information pace of the administration will be considerably hindered and charges will be higher if a specific utilization edge is surpassed, the inability to specify such confinement is probably going to compare to an oversight of material data that customers require so as to settle on an educated value-based choice. An oversight in such conditions is probably going to be viewed as a breach of the changed statute.

[iv.] Aggressive commercial practices - Traders are illegal to debilitate consumers' opportunity of the decision using badgering, pressure or undue impact, which prompts the consumers going into an exchange that they would not have generally subscribed to.

[v] Bait advertising - Traders are disallowed from promoting items at a predetermined cost if there is no sensible justification for accepting that they will have the option to offer for supply those products at that cost in a sensible amount and timeframe.

[vi] Baiting and switching - Traders must not offer to sell any product at a predefined cost with the goal of advancing an alternate product by utilizing any at least one of the accompanying out of line rehearses: [a] declining to appear or exhibit the products to the consumers; [b] declining to take orders for the products or convey it inside a sensible time; or [c] appearing or showing a defective sample of the products.

[vii] Wrongly accepting payment - Traders are denied from tolerating any pre-payment of products if, at the hour of tolerating payment or other thought for an item, they don't expect to supply the products or plan to supply a really unique products, or the conditions are to such an extent that there is no sensible justification for accepting that they would have the option to supply the merchandise or administrations in the time indicated or, if no time is determined, inside a sensible time.