TRADE DESCRIPTIONS ORDINANCE
TRADE DESCRIPTIONS ORDINANCE
(CHAPTER 362)
ARRANGEMENT OF SECTIONS
Section
PART I PRELIMINARY
1. Short title
2. Interpretation
3. Special provisions applicable to goldware
4. Marking orders
5. Information to be given in advertisements
PART II FALSE TRADE DESCRIPTIONS OR REPRESENTATIONS AND FORGED TRADE
MARKS
6. Applying a trade description, trade mark or mark to goods
7. Offences in respect of trade descriptions
8. Trade descriptions used in advertisements
9. Offences in respect of trade marks
10. False representations as to Royal approval or award. etc.
11. False representations as to supply of goods
12. Prohibited import and export of certain goods
13. Power to exempt goods sold for export
PART III ENFORCEMENT
14. Appointment of authorized officers
15. Power to enter premises and inspect and seize goods and documents
16. Restrictions on the entry and search of domestic premises
16A. Power to detain goods by locking or sealing premises or container
16B. Powers of arrest of authorized officers
16C. Disclosure of information, etc.
17. Offences of obstruction and disclosure of information
18. Penalties
19. Time limit for prosecutions
20. Offences by corporations
21. Offences due to fault of other person
22. Accessory to offences committed outside Hong Kong
23. Samples
24. Evidence by certificate
24A. Rule of evidence regarding imported goods with false trade
description
25. Description of trade mark in pleading
26. Defence mistake, accident, etc.
27. Innocent publication of advertisements
28. Costs in proceedings
29. Power to make orders with respect to property in possession of the
Crown
30. Forfeiture and disposal of certain goods
31. [Repealed]
PART IV MISCELLANEOUS
32. Trade marks containing trade descriptions
33. Definition Orders
34. Saving for civil rights
35. Compensation for loss of goods seized under section 15 (1) (f)
Whole document
To prohibit false trade descriptions, false marks and misstatements in
respect of goods provided in the course of trade; to confer power to
require information or instruction relating to goods to be marked on or to
accompany the goods or to be included in advertisements; to prohibit the
unauthorized use of devices or emblems signifying an award by the Queen or
the Governor; to restate the law relating to forgery of trade marks; and
for purposes connected therewith.
[1 April 1981.]
PART I PRELIMINARY
1. Short title.
This Ordinance may be cited as the Trade Descriptions Ordinance.
2. Interpretation.
(1) In this Ordinance, unless the context otherwise requires-
"advertisement" includes a catalogue, a circular and a price list;
"authorized officer" means a public officer appointed under section 14;
"Commissioner" means the Commissioner of Customs and Excise and any Deputy
or Assistant Commissioner of Customs and Excise; (Added, L. N. 294/82)
"Convention country" has the meaning assigned to it by section 13A (6) of
the Trade Marks Ordinance (Cap. 43.);
"false trade description" means-
(a) a trade description which is false to a material degree;
(b) a trade description which, though not false, is misleading, that is to
say, likely to be taken for such an indication of any of the matters
specified in the definition of "trade description" as would be false to a
material degree;
(c) anything which, though not a trade description, is likely to be taken
for an indication of any of the matters specified in the definition of
"trade description" and, as such an indication, would be false to a
material degree;
(d) a false indication, or anything likely to be taken as an indication
which would be false, that any goods comply with a standard specified or
recognized by any person or implied by the approval of any person if there
is no such person or no standard so specified, recognized or implied; or
(e) a false indication, or anything likely to be taken as an indication
which would be false, that any goods of any class or type-
(i) being goods in respect of which duty is payable under the laws of Hong
Kong, are supplied free of the duty so payable in respect of that class or
type of goods; or
(ii) not being goods in respect of which duty is payable under the laws of
Hong Kong, are supplied free of the duty so payable;
"goods" includes vessel and aircraft. things attached to land and growing
crops; "goods in transit" means goods which-
(a) are brought into Hong Kong solely for the purpose of taking them out
of Hong Kong; and
(b) remain at all times in or on the vessel, aircraft or vehicle in or on
which they are brought into Hong Kong;
"import" means to bring, or cause to be brought, into Hong Kong;
"premises" includes any place and any stall, vehicle, vessel or aircraft;
"trade description" means an indication, direct or indirect, and by
whatever means given, of any of the following matters with respect to any
goods or parts of goods, that is to say-
(a) quantity (which includes length, width, height, area, volume,
capacity, weight, and number), size or gauge;
(b) method of manufacture. production, processing or reconditioning;
(c) composition;
(d) fitness for purpose, strength, performance, behaviour or accuracy;
(e) any physical characteristics not included in the preceding paragraphs;
(f) testing by any person and results thereof;
(g) approval by any person or conformity with a type approved by any
person;
(h) place or date of manufacture , production, processing or
reconditioning;
(i) person by whom manufactured, produced, processed or reconditioned;
(j) other history, including previous ownership or use;
"trade mark" means-
(a) a trade mark relating to goods registered in Hong Kong under the Trade
Marks Ordinance (Cap. 43.);
(b) a trade mark registered in the register of trade marks kept under or
preserved by the Trade Marks Act 1938;
(c) a trade mark-
(i) registered, or in respect of which an application for registration has
been made, in a British territory or a Convention country; and
(ii) capable of registration in Hong Kong under the Trade Marks Ordinance
as a trade mark relating to goods, and
(iii) in respect of which a period of 6 months has not expired since the
date of the application for the registration thereof in a British
territory or a Convention country.
(2) (a) For the purposes of this Ordinance, goods shall be deemed to have
been-
(i) manufactured in the country in which they last underwent a treatment
or process which changed permanently and substantially the shape, nature,
form or utility of the basic materials used in their manufacture; or
(ii) produced in the country in which they were wholly grown or mined.
(b) The Commissioner may by order specify-(Amended, L. N. 294/82)
(i) in relation to any description of goods, what treatment or process is
to be regarded for the purposes of this Ordinance as resulting or not
resulting in a permanent and substantial change in shape, nature, form or
utility of the basic materials used in their manufacture;
(ii) in relation to any description of goods different parts of which were
manufactured or produced in different countries, or of goods assembled in
a country different from that in which their parts were manufactured or
produced, in which of those countries the goods are to be regarded for the
purposes of this Ordinance as having been manufactured or produced.
(c) This subsection shall not apply to goods which are the subject of a
notice published under subsection (2A).
(2A) The Director-General of Trade may by notice in the Gazette specify in
relation to any description of goods (being goods that are subject to a
scheme of import or export control specified in the notice) the place in
which the goods are to be regarded for the purposes of this Ordinance as
having been manufactured or produced, and any such goods shall, for the
purposes of this Ordinance, be deemed to have been manufactured or
produced in such place. (Added 96 of 1991, s. 2)
(3) For the purposes of this Ordinance, a trade description or statement
published in any newspaper, book or periodical or in any film or sound or
television broadcast shall not be deemed to be a trade description applied
or statement made in the course of a trade or business unless it is or
forms part of an advertisement.
3. Special provisions applicable to goldware.
(1) Notwithstanding the definition of "false trade description" in section
2, a trade description which indicates the fineness (whether in parts per
thousand or in carats) of gold shall be a false trade description if that
indication is false to any extend or degree, except by understating the
fineness.
(2) For the purpose of construing descriptions relating to the fineness of
gold-
(a) a description indicating that an article, or the metal in an article,
is so many carats shall be presumed to be an indication that the article
or metal is of gold, and that its fineness is that specified in the table
in the Schedule for that number of carats;
(b) paragraph (a) shall not apply if(as in a case where the article is a
precious stone) the word "carat" is used as a measure of weight for
precious stones, and not as a measure of fineness.
(3) Notwithstanding the definition of "false trade description" in section
2-
(a) a trade description which indicates that any article (other than an
article of pure gold) is of gold shall be a false trade description unless
the article consists solely of gold alloy and-
(i) contains not less than 8 carats of gold; or
(ii) bears a mark clearly indicating in carats, by number or by number and
the letters "k", "c" or "ct", the fineness of the gold content; or
(iii) bears a mark clearly indicating in parts per thousand the fineness
of the gold content; and
(b) a mark calculated to be taken as an indication of the fineness of gold
of an article-
(i) which is plated with or enclose in gold alloy or gilded; or
(ii) to which gold alloy is soldered or otherwise affixed, shall be a
false trade description unless it is manifest from the appearance of the
article that the mark refers solely to the part of the article which
consists of gold alloy.
(4) Any number of 1 or 2 digits on an article which indicates or purports
to indicate, or is likely to be taken as an indication of, the fineness in
carats of its gold content shall be a false trade description unless the
article contains at least the same proportion of pure gold as the number
bears to 24.
(5) Any number of 3 digits on an article which indicates or purports to
indicate, or is likely to be taken as an indication of, the fineness in
number of parts per thousand of its gold content shall be a false trade
description unless the article contains gold of such a standard of
fineness.
(6) For the purposes of this section "fineness" means the proportion of
pure gold in accordance with subsection (4) or the number of parts by
weight of gold in accordance with subsection (5) as the case may require.
4. Marking orders.
(1) The Governor in Council may by order require that any goods specified
in the order shall be marked with or accompanied by any information
(whether or not amounting to or including a trade description) or
instruction relating to the goods and, subject to the provisions of this
Ordinance, impose requirements for securing that the goods are so marked
or accompanied, and regulate or prohibit the supply of goods with respect
to which the requirements are not complied with; and the requirements may
extend to the form and manner in which the information or instruction is
to be given.
(2) Where an order under this section is in force with respect to goods of
any description, any person who, in the course of any trade or business,
supplies or offers to supply goods of that description in contravention of
the order commits an offence.
(3) An order under this section may make different provision for different
circumstances and may, in the case of goods supplied in circumstances
where the information or instruction required by the order would not be
conveyed until after delivery, required the whole or part thereof to be
also displayed near the goods.
5. Information to be given in advertisements.
(1) The Governor in Council may by order require that any description of
advertisements of any goods specified in the order shall contain or refer
to information (whether or not amounting to or including a trade
description) relating to such goods and subject to the provisions of this
Ordinance impose requirements as to the inclusion of that information or
of an indication of the means by which it may be obtained.
(2) An order under this section may specify the form and manner in which
any such information or indication is to be included in advertisements of
any description and may make different provision for different
circumstances.
(3) Where an advertisement of any goods to be supplied in the course of
any trade or business fails to comply with any requirement imposed under
this section, any person who publishes the advertisement commits an
offence.
PART II FALSE TRADE DESCRIPTIONS OR REPRESENTATIONS AND FORGED TRADE MARKS
6. Applying a trade description, trade mark or mark to goods.
(1) A person applies a trade description or trade mark or mark to goods if
he-
(a) affixes or annexes it to or in any manner marks it on or incorporates
it with-
(i) the goods themselves; or
(ii) anything in, on or with which the goods are supplied;
(b) places the goods in, on or with anything which the trade description
or trade mark or mark has been affixed or annexed to, marked on or
incorporated with, or places any such thing with the goods;
(c) uses the trade description or trade mark or mark in any manner likely
to be taken as referring to the goods; or
(d) makes in any affidavit, declaration or writing any statement to the
effect that a trade description or trade mark or mark is applicable to the
goods.
(2) An oral statement may amount to the use of a trade description or
trade mark or mark.
(3) Where goods are supplied in pursuance of a request in which a trade
description or trade mark or mark is used and the circumstances are such
as to make it reasonable to infer that the goods are supplied as goods
corresponding to that trade description or trade mark or mark, the person
supplying the goods shall be deemed to have applied that trade description
or trade mark or mark to the goods.
7. Offences in respect of trade descriptions.
(1) Subject to the provisions of this Ordinance, any person who-
(a) in the course of any trade or business-
(i) applies a false trade description to any goods; or
(ii) supplies or offers to supply any goods to which a false trade
description is applied; or
(b) has in his possession for sale or for any purpose of trade or
manufacture any goods to which a false trade description is applied.
commits an offence.
(2) A person exposing goods for supply or having goods in his possession
for supply shall be deemed to offer to supply them.
(3) Subject to the provisions of this Ordinance any person who disposes of
or has in his possession any die, block, machine, or other instrument for
the purpose of making, or applying to goods a false trade description
commits an offence unless he proves that he acted without intent to
defraud.
8. Trade descriptions used in advertisements.
(1) The following provisions of this section shall have effect where in an
advertisement a trade description is used in relation to any class of
goods.
(2) The trade description shall be taken as referring to all goods of the
class, whether or not in existence at the time the advertisement is
published-
(a) for the purpose of determining whether an offence has been committed
under section 7 (1) (a) (i); and
(b) where goods of the class are supplied or offered to be supplied by a
person publishing or displaying the advertisement, also for the purpose of
determining whether an offence has been committed under section 7 (1) (a)
(ii).
(3) In determining for the purposes of this section whether any goods are
of a class to which a trade description used in an advertisement relates,
regard shall be had not only to the form and content of the advertisement
but also to the time, place, manner and frequency of its publication and
all other matters making it likely or unlikely that a person to whom the
goods are supplied would think of the goods as belonging to the class in
relation to which the trade description is used in the advertisement.
9. Offences in respect of trade marks.
(1) Subject to the provisions of this Ordinance, any person who-
(a) forges any trade mark;
(b) falsely applies to any goods any trade mark or any mark so nearly
resembling a trade mark as to be calculated to deceive;
(c) makes any die, block, machine or other instrument for the purpose of
forging, or of being used for forging, a trade mark;
(d) disposes of or has in his possession any die, block, machine or other
instrument for the purpose of forging a trade mark; or
(e) causes to be done anything referred to in paragraph (a), (b), (c) or
(d), commits an offence unless he proves that he acted without intent to
defraud.
(2) Subject to the provisions of this Ordinance, any person who sells or
exposes or has in his possession for sale or for any purpose of trade or
manufacture, any goods to which any forged trade mark is applied, or to
which any trade mark or mark so nearly resembling a trade mark as to be
calculated to deceive is falsely applied, commits an offence.
(3) For the purposes of this section, a person shall be deemed-
(a) to forge a trade mark who either-
(i) without the assent of the proprietor of the trade mark, makes that
trade mark or a mark so nearly resembling that trade mark as to be
calculated to deceive; or
(ii) falsifies any genuine trade mark, whether by alteration, addition,
effacement or otherwise;
(b) falsely to apply to goods a trade mark who without the assent of the
proprietor of that trade mark applies that trade mark to goods, (Amended,
L. N. 346/82) unless he proves that he acted without infringing the right
of the proprietor of the trade mark conferred by section 27 of the Trade
Marks Ordinance (Cap. 43), and "forged trade mark" shall be construed
accordingly.
(4) In any prosecution for an offence under subsection (1) (a) or (b) the
burden of proving the assent of the proprietor shall lie on the defendant.
10. False representations as to Royal approval or award, etc.
(1) Subject to the provisions of this Ordinance, any person who, in the
course of any trade or business, gives, by whatever means, any false
indication, direct or indirect, that any goods supplied by him are or are
of a kind supplied to or approved by Her Majesty or any member of the
Royal Family commits an offence.
(2) Subject to the provisions of this Ordinance, any person who, in the
course of any trade or business, uses-
(a) without the authority of Her Majesty, any device or emblem signifying
the Queen's Award to Industry or anything so nearly resembling such a
device or emblem as to be likely to deceive; or
(b) without the authority of the Governor, any device or emblem signifying
the Governor's Award for Hong Kong Design or anything so nearly resembling
such a device or emblem as to be likely to deceive,
commits an offence.
11. False representations as to supply of goods.
Subject to the provisions of this Ordinance, any person who, in the course
of any trade or business, gives, by whatever means, any false indication,
direct or indirect, that any goods supplied by him are of a kind supplied
to any person, commits an offence.
12. Prohibited import and export of certain goods.
(1) Subject to section 13, no person shall import or export any goods to
which a false trade description or forged trade mark, which expression
shall be construed in accordance with section 9 (3), is applied.
(2) Any person who imports or exports any goods contrary to subsection (1)
commits an offence unless he proves that-
(a) he did not know, had no reason to suspect and could not with
reasonable diligence have found out that the goods are goods to which a
false trade description or forged trade mark is applied; or
(b) the goods are not intended for trade or business.
(3) This section shall not apply to any goods in transit.
13. Power to exempt goods sold for export.
In relation to goods which are intended for despatch to a destination
outside Hong Kong, section 7 shall apply as if there were omitted from the
matters included in the definition of "trade description" in section 2
those specified in paragraph (a) thereof, and, if the Governor by order
specifies any other of those matters for the purposes of this section with
respect to any description of goods, section 7 shall apply, in relation to
goods of that description which are intended for despatch to a destination
outside Hong Kong, as if the matters so specified were also omitted from
those included in the definition of "trade description" in section 2.
PART III ENFORCEMENT
14. Appointment of authorized officers.
(1) The Commissioner may appoint any public officer to be an authorized
officer for the purposes of this Ordinance.
(2) The Commissioner may exercise any of the powers conferred on an
authorized officer under this Ordinance.
(Amended, L. N. 294/82)
15. Power to enter premises and inspect and seize goods and documents.
(1) An authorized officer may, on production, if required of evidence of
his appointment-
(a) make such purchases of goods as may appear expedient for the purpose
of determining whether or not the provisions of this Ordinance are being
complied with;
(b) for the purpose of ascertaining whether any offence under this
Ordinance has been or is being committed, inspect any goods and enter any
premises other than domestic premises;
(c) if he has reasonable cause to suspect that an offence under this
Ordinance has been committed, seize or detain any goods for the purpose of
ascertaining, by testing or otherwise, whether the offence has been
committed;
(d) if he has reasonable cause to suspect that an offence under this
Ordinance has been committed and for the purpose of ascertaining whether
it has been committed, require any person carrying on a trade or business
or employed in connection with a trade or business to produce any books or
documents relating to the trade or business and may take copies of, or of
any entry in, any such book or document;
(e) in the case of any premises, vehicle, vessel (other than a ship of
war) or aircraft (other than a military aircraft) in which he has
reasonable cause to suspect that there are goods in respect of which an
offence under this Ordinance has been or is being committed-
(i) subject to section 16, enter and search such premises;
(ii) stop and search such vehicle; or
(iii) stop, board and search such vessel or aircraft;
(f) seize, remove or detain-
(i) any goods in respect of which he has reasonable cause to suspect an
offence under this Ordinance has been or is being committed; and
(ii) anything which he has reason to believe may be required as evidence
in proceedings for an offence under this Ordinance.
(2) An authorized officer may-
(a) break open any container or open any vending machine for the purpose
of exercising his powers under subsection (1) (f) to seize goods;
(b) break open any outer or inner door of any place which he is empowered
or authorized by or under this Ordinance to enter and search;
(c) forcibly board any vessel or aircraft which he is empowered by this
Ordinance to stop, board or search;
(d) remove by force any person or thing obstructing him in the exercise of
any power conferred on him by this Ordinance;
(e) detain any person found in any premises which he is empowered or
authorized by or under this Ordinance to search until such place has been
so searched;
(f) detain any vessel or aircraft which he is empowered by this Ordinance
to stop, board and search, and prevent any person from approaching or
boarding such vessel or aircraft until it has been so searched;
(g) detain any vehicle which he is empowered by or under this Ordinance to
stop and search until it has been so searched.
16. Restrictions on the entry and search of domestic premises.
(1) No domestic premises shall be entered and searched by an authorized
officer unless-
(a) a magistrate has issued a warrant under subsection (2); or
(b) the Commissioner has given an authorization under subsection (3).
(Amended, L. N. 294/82)
(2) A magistrate may, if he is satisfied by information on oath that there
is reasonable ground for suspecting that there is in any domestic premises
any goods or thing which may be seized, removed or detained under section
15 (1) (f), issue a warrant authorizing an authorized officer to enter and
search the premises.
(3) The Commissioner may, if he is satisfied that there is reasonable
ground for suspecting-(Amended, L. N. 294/82)
(a) that there is in any domestic premises any goods or thing which may be
seized, removed or detained under section 15 (1) (f); and
(b) that unless the premises are entered and searched immediately such
goods or thing are likely to be removed from the premises,
authorize in writing an authorized officer to enter and search the
premises.
(4) An authorized officer authorized under subsection (2) or (3) to enter
and search any domestic premises may take with him such other persons and
such equipment as may appear to him to be necessary.
16A. Power to detain goods by locking or sealing premises or container.
(1) An authorized officer may, for the purpose of detaining, under section
15-
(a) any goods in respect of which he has reasonable cause to suspect that
an offence under this Ordinance has been or is being committed; and
(b) anything which he has reason to believe may be required as evidence in
proceedings for an offence under this Ordinance, place a lock or seal on
any premises or container in which the goods or things are.
(2) If a lock or seal is placed on any premises or container under
subsection (1), the period for which the lock or seal is placed shall not
exceed 7 days without the consent in writing of the owner of the premises
or container, or his authorized agent.
(3) If an authorized officer has placed a lock or seal on any premises or
container under subsection (1), any person who breaks or interferes with
such lock or seal commits an offence unless he does so-
(a) in the bona fide belief that it is necessary immediately to break or
interfere with the lock or seal in order to prevent-
(i) injury being suffered by any person; or
(ii) damage being incurred to any such premises or container, as the case
may be; or
(b) in the exercise of his duties as a public officer.
(Added, 2 of 1987, s. 2)
16B. Powers of arrest of authorized officers.
(1) An authorized officer may, subject to subsection (2), arrest or detain
for further enquiries without warrant any person whom he reasonably
suspects of having committed any offence under this Ordinance.
(2) An authorized officer who arrests any person under subsection (1)
shall forthwith take the person to a police station or, if further
enquiries are necessary, first to an office of the Customs and Excise
Department and then to a police station, there to be dealt with in
accordance with the provisions of the Police Force Ordinance (Cap. 232.):
Provided that in no case shall any person be detained for more than 48
hours without being charged and brought before a magistrate.
(3) If any person forcibly resists or attempts to evade arrest under this
section, the authorized officer may use such force as is reasonably
necessary to effect the arrest. (Added, 2 of 1987, s. 2)
16C. Disclosure of information, etc.
(1) Where goods seized or detained under section 15 are, or are reasonably
suspected by the Commissioner to be, goods to which a forged trade mark is
applied, or to which a trade mark or mark or mark so nearly resembling a
trade mark as to be calculated to deceive is falsely applied, the
Commissioner shall, wherever reasonably practicable, notify the proprietor
of the trade mark or his authorized agent of the seizure or detention, as
the case may be.
(2) In the circumstances specified in subsection (1), the Commissioner may
disclose to the proprietor of the trade mark or to his authorized agent-
(a) the time, and the address of the place, of seizure or detention of the
goods;
(b) the name and address of the person from whom the goods have been
seized or detained;
(c) the nature and quantity of the goods seized or detained;
(d) any statement made to the Commissioner by any person in connection
with the seizure or detention, either with the prior consent in writing of
that person or without such consent where that person is dead or cannot
after reasonable enquiries by the Commissioner as to his whereabouts be
found by the Commissioner;
(e) any other information or document relating to the goods seized or
detained which the Commissioner thinks fit to disclose.
(3) The proprietor of a trade mark or his authorized agent-
(a) where he seeks disclosure of any information or document that is not
referred to in subsection (2); or
(b) where information or a document that is referred to in subsection (2)
is not disclosed by the Commissioner,
may apply to the High Court for an order requiring the Commissioner to
disclose such information or document and the High Court may on such an
application make such order for disclosure as it deems fit.
(4) An application under subsection (3) may be begun by motion with
previous notice to the Commissioner.
(Added, 2 of 1987, s. 2)
17. Offences of obstruction and disclosure of information.
(1) Without prejudice to any other Ordinance, any person who-
(a) willfully obstructs an authorized officer in the exercise of his
powers or the performance of his duties under this Ordinance;
(b) willfully fails to comply with any requirement properly made to him by
any such authorized officer; or
(c) without reasonable excuse fails to give such authorized officer any
other assistance or information which the authorized officer may
reasonably require of him for the purpose of the performance of the
officer's functions under this Ordinance, (Amended, L. N. 65/86)
commits and offence.
(2) Subject to subsection (2A), any person who discloses to any other
person-(Amended, 2 of 1987, s. 3)
(a) any information with respect to any manufacturing process or trade
secret obtained by him in premises which he has entered by virtue of this
Ordinance; or
(b) any information obtained by him in pursuance of this Ordinance,
commits an offence unless the disclosure was made-
(i) in or for the purpose of the performance by him or any other person of
functions under this Ordinance; or
(ii) in the case of paragraph (b) under the direction or order of a court.
(2A) A person does not commit an offence under subsection (2) by
disclosing information under section 16C (1) or (2) or under an order of
the High Court made under section 16C (3). (Added, 2 of 1987, s. 3)
(3) Any person who, in giving any such information as is referred to in
subsection (1) (c), makes any statement which he knows to be false commits
an offence.
(4) Subject to subsection (5), nothing in this section shall be taken to-
(a) require a person to answer any question or give any information if to
do so might incriminate that person or the wife or husband of that person;
or
(b) compel the production by a solicitor of a document containing a
privileged communication made by or to him in that capacity or authorize
the seizure of any such document in his possession.
(5) A person shall not be excused, by reason that to do so may incriminate
that person or the wife or husband of that person of an offence under this
Ordinance-
(a) from answering any question put to that person in any civil
proceedings;
(b) from complying with any order made in any such proceedings, but no
statement or admission made by a person in answering a question put or
complying with an order made shall, in proceedings for an offence under
this Ordinance, be admissible in evidence against that person or (unless
they married after the making of the statement or admission) against the
wife or husband of that person. (Amended, L. N. 123/82)
18. Penalties.
(1) Any person who commits an offence under section 4, 5, 7, 9, 10, 11 or
12 shall be liable-
(a) on conviction on indictment, to a fine of $500,000 and to imprisonment
for 5 years; and
(b) on summary conviction, to a fine of $100,000 and to imprisonment for 2
years.
(1A) Any person who commits an offence under section 16A (3) shall be
liable to a fine of $5,000 and to imprisonment for 3 months. (Added, 2 of
1987, s. 4)
(2) Any person who commits an offence under section 17 shall be liable to
a fine of $10,000 and to imprisonment for 1 year.
19. Time limit for prosecutions.
No prosecution for an offence under this Ordinance shall be brought after-
(a) the expiration of 3 years from the date of commission of the offence;
or
(b) the expiration of 1 year from the date of discovery of the offence by
the prosecutor, whichever is the earlier.
20. Offences by corporations.
Where a body corporate is convicted of an offence under this Ordinance,
every person who, at the time of the commission of the offence, was a
director, manager, secretary or other similar officer of the body
corporate, or any person who was purporting to act in any such capacity,
shall be deemed to be guilty of that offence unless he proves that the
offence was committed without his knowledge, or that he exercised all due
diligence to prevent the commission of the offence.
21. Offences due to fault of other person.
Where the commission by any person of an offence under this Ordinance is
due to the act or default of some other person, that other person shall be
guilty of the offence, and a person may be charged with and convicted of
the offence by virtue of this section whether or not proceedings are taken
against the first-mentioned person.
22. Accessory to offences committed outside Hong Kong.
Subject to the provisions of this Ordinance, any person who, in Hong Kong,
procures, counsels, aids, abets or is accessory to the commission outside
Hong Kong of an act which, if committed in Hong Kong, would be an offence
under this Ordinance, commits that offence as a principal and shall be
liable to be prosecuted in Hong Kong as if the offence had been committed
within Hong Kong.
23. Samples.
(1) Where any act or omission constitutes both an offence under this
Ordinance and an offence under the Public Health and Municipal Services
Ordinance (Cap, 132.), evidence on behalf of the prosecution concerning
any sample procured for analysis shall be admissible in proceedings in
respect of the offence under this Ordinance if, but only if, the
provisions of section 63 of the Public Health and Municipal Services
Ordinance have been complied with. (Amended, 10 of 1986, s. 32)
(2) The Governor in Council may by regulations provide that in any
proceedings for an offence under this Ordinance in relation to such goods
as may be specified in the regulations (other than proceedings for an
offence referred to in subsection (1)) evidence on behalf of the
prosecution concerning any sample procured for analysis shall not be
admissible unless the sample has been dealt with in such manner as may be
specified in the regulations.
24. Evidence by certificate.
(1) The Governor in Council may by regulations provide that certificates
issued by such persons as may be specified by the regulations in relation
to such matters as may be so specified shall, subject to this section, be
received in evidence of those matters in any proceedings under this
Ordinance.
(2) Such a certificate shall not be received in evidence-
(a) unless the party against whom it is to be given in evidence has been
served with a copy thereof not less than 7 days before the hearing; or
(b) if that party has, not less than 3 days before the hearing served on
the other party a notice requiring the attendance of the person issuing
the certificate.
(3) For the purposes of this section any document purporting to be such a
certificate as is referred to in this section shall be deemed to be such a
certificate unless the contrary is shown.
24A. Rule of evidence regarding imported goods with false trade
description. In any prosecution for an offence under this Ordinance in
respect of the import of goods to which a false trade description of the
place or country of manufacture, production, processing or reconditioning
is applied, evidence that the goods were imported from a place or country
shall be prima facie evidence that the goods were manufactured, produced,
processed or reconditioned, as the case may be, in such place or country.
(Added, 2 of 1987, s. 5)
25. Description of trade mark in pleading.
In any information, indictment, pleading, proceeding or document in which
any trade mark or forged trade mark is intended to be mentioned, it shall
be sufficient, without further description and without any copy or
facsimile, to state that trade mark or forged trade mark to be a trade
mark or forged trade mark.
26. Defence mistake, accident, etc.
(1) In any proceedings for an offence under this Ordinance it shall,
subject to subsection (2), be a defence for the person charged to prove-
(a) that the commission of the offence was due to a mistake or to reliance
on information supplied to him or to the act or default of another person,
an accident or some other cause beyond his control; and
(b) that he took all reasonable precautions and exercised all due
diligence to avoid the commission of such an offence by himself or any
person under his control.
(2) If in any case the defence provided by subsection (1) involves the
allegation that the commission of the offence was due to the act or
default of another person or to reliance on information supplied by
another person, the person charged shall not, without leave of the court,
be entitled to rely on that defence unless, within a period ending 7 clear
days before the hearing, he has served on the prosecutor a notice in
writing giving such information identifying or assisting in the
identification of that other person as was then in his possession.
(3) In any proceedings for an offence under section 7 (1) (a) (ii) or (b)
it shall be a defence for the person charged to prove that he did not
know, had no reason to suspect and could not with reasonable diligence
have ascertained, that the goods did not conform to the description or
that the description had been applied to the goods.
(4) In any proceedings for an offence under section 9 (2) it shall be a
defence for the person charged to prove that he did not know, had no
reason to suspect and could not with reasonable diligence have
ascertained, that a forged trade mark had been applied to the goods or
that a trade mark or mark so nearly resembling a trade mark as to be
calculated to deceive had falsely been applied to the goods.
27. Innocent publication of advertisements.
In proceedings for an offence under this Ordinance committed by the
publication of an advertisement, it shall be a defence for the person
charged to prove that he is a person whose business it is to publish or
arrange for the publication of advertisements and that he received the
advertisement for publication in the ordinary course of business and did
not know and had no reason to suspect that its publication would amount to
an offence under this Ordinance.
28. Costs in proceedings.
In any proceedings under this Ordinance, the magistrate or court hearing
the proceedings may, notwithstanding any provision of any other Ordinance,
make such order as to costs as he or it may think fit.
29. Power to make orders with respect to property in possession of the
Crown.
Where any property has come into the possession of the Crown or any
authorized officer acting under this Ordinance, section 102 of the
Criminal Procedure Ordinance (Cap. 221) shall, subject to this Ordinance,
apply to such property in all respects as though such property had come
into the possession of the police in connection with a criminal offence
and such section shall be construed as though references to the Crown or
such authorized officer, as the case may be, were substituted therein for
references to the police.
30. Forfeiture and disposal of certain goods.
(1) Any goods in respect of which an offence under this Ordinance has been
committed shall be liable to forfeiture, whether or not any person has
been convicted of any such offence.
(2) Where goods are seized or detained by an authorized officer under
section 15, the Commissioner may at any time release such goods to the
person who appears to him to be the owner thereof or his authorized agent
subject to any such condition as the Commissioner may specify in writing.
(3) Where goods have not been released under subsection (2), the
Commissioner may, whether in the same proceedings where an offence is
prosecuted or in other proceedings under this Ordinance, apply to a court
or magistrate for the forfeiture of the goods.
(4) If, on the hearing of an application under subsection (3), the court
or magistrate is satisfied that the goods are liable to forfeiture, the
court or magistrate may order that-
(a) the goods be forfeited to the Crown;
(b) the goods be destroyed;
(c) any false trade description or forged trade mark applied to the goods
be obliterated and thereafter the goods be disposed of in such manner and
subject to any such condition as the court or magistrate may specify in
the order; or
(d) any false trade description or forged trade mark applied to the goods
be obliterated and thereafter the goods be released to the owner thereof
or his authorized agent subject to any condition which the court or
magistrate may specify in the order.
(5) Where under subsection (3) an application is made to a court or
magistrate for the forfeiture of goods otherwise than in proceedings where
an offence is prosecuted, the Commissioner shall forthwith notify in
writing the owner of the goods or his authorized agent, unless the owner
or his authorized agent has indicated in writing to the Commissioner that
such notification is not required:
Provided that, if there is more than one owner of the goods, it shall be
sufficient for the purposes of this subsection to give notice to one such
owner or his authorized agent, unless one such owner or his authorized
agent has indicated that such notification is not required.
(Replaced, 2 of 1987, s. 6)
31. [Repealed, 2 of 1987, s. 6]
PART IV MISCELLANEOUS
32. Trade marks containing trade descriptions.
The fact that a trade description is a trade mark, or part of a trade
mark, does not prevent it from being a false trade description when
applied to any goods, except where the following conditions are satisfied,
that is to say-
(a) that it could have been lawfully applied to the goods if this
Ordinance had not been enacted;
(b) that the trade mark as applied is used to indicate such a connection
between the goods and the proprietor of the trade mark or a person
registered under section 58 of the Trade Marks Ordinance (Cap. 43) as a
registered user of the trade mark; and
(c) that the person who is the proprietor of the trade mark is the same
person as, or a successor in title of, the proprietor on the commencement
of this Ordinance.
33. Definition Orders.
Where it appears to the Governor in Council-
(a) that it would be in the interest of persons to whom any goods are
supplied; or
(b) that it would be in the interest of persons by whom any goods are
exported and would not be contrary to the interest of persons to whom such
goods are supplied in Hong Kong, that any expressions used in relation to
the goods should be understood as having definite meanings, the Governor
in Council may by regulations assign such meanings either-
(i) to those expressions when used in the course of a trade or business
as, or as part of, a trade description applied to the goods; or
(ii) to those expressions when so used in such circumstances as may be
specified in the regulations,
and where such a meaning is so assigned to an expression, it shall be
deemed for the purposes of this Ordinance to have that meaning when used
as referred to in paragraph (i) or, as the case may be, paragraph (ii) of
this section.
34. Saving for civil rights.
A contract for the supply of any goods shall not be void or unenforceable
by reason only of a contravention of any provision of this Ordinance.
35. Compensation for loss of goods seized under section 15 (1) (f).
(1) Where any goods are seized or detained by an authorized officer under
section 15 the Government shall, subject to this section, be liable to
compensate the owner of the goods for any loss suffered by him by reason
of the seizure or detention thereof or by reason that the goods, during
the detention, are lost or damaged or deteriorate; but the owner shall not
be entitled to compensation for any such loss if-
(a) the goods are forfeited;
(b) he is convicted of an offence under this Ordinance committed in
relation to the goods; or
(c) an order has been made in respect of the goods under section 30 (4).
(Amended, 2 of 1987, s. 7)
(2) In any proceedings against the Government in respect of a claim for
compensation on any of the grounds referred to in subsection (1),
the amount of the compensation recoverable shall be such amount as is just
and equitable in all the circumstances of the case, including the conduct
and comparative blameworthiness of-
(a) the owner of the goods;
(b) the person in charge or control of the goods at the time they were
seized;
(c) the agents of the person specified in paragraphs (a) and (b); and
(d) authorized officers, public officers and other persons concerned.
(3) No proceedings shall be maintainable in respect of any claim for
compensation on any of the grounds referred to in subsection (1) unless
the proceedings are commenced-
(a) in the case of a claim for compensation in respect of goods released
to their owner by order of a court or magistrate or by any person having
authority to release the goods to him, not later than 6 months after the
release thereof;
(b) in the case of a claim for compensation on the ground that any goods
were lost during the detention thereof, not later than 6 months after-
(i) the discovery by the owner of the existence of such ground; or
(ii) the date on which the owner could, by the exercise of reasonable
diligence, have discovered the existence of such ground,
whichever is the earlier.
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