TRADE DESCRIPTIONS ORDINANCE

TRADE DESCRIPTIONS ORDINANCE

LAWS OF HONG KONG

TRADE DESCRIPTIONS ORDINANCE

CHAPTER 362





CHAPTER 362

TRADE DESCRIPTIONS ORDINANCE

ARRANGEMENT OF SECTIONS

Section ...................................Page

PARTI

PRELIMINARY

1. Short title................................. ... ... ... ... ... ... ... ... 3
2. Interpretation.............................. ... ... ... ... ... ... ... ...
3

3. Special provisions applicable to goldware ... ... ... ... ... ... ... ... 5

4. Marking orders ........................... ... ... ... ... ... ... ... . 6

5. Information to be given in advertisements ... ... ... ... ... ... ... ... 7

PART 11

FALSE TRADE DESCRIPTIONS OR
REPRESENTATIONS
AND FORGED TRADE MARKS

6. Applying a trade description, trade mark or mark to goods ... ... ... ... 7

7. Offences in respect of trade descriptions ... ... ... ... ... ... ... ... 8
8. Trade descriptions used in advertisements ... ... ... ... ... ... ... ... 8

9. Offences in respect of trade marks ......... ... ... ... ... ... ... ... 9

10. False representations as to Royal approval or award, etc. ... ... ... ... ... 10

11. False representations as to supply of goods ... ... ... ... ... ... ... 10
12. Prohibited import and export of certain goods ... ... ... ... ... ... ... 10

13. Power to exempt goods sold for export ..... ... ... ... ... ... ... ... 10

PART Ill

ENFORCEMENT

14. Appointment of authorized officers ......... ... ... ... ... ... ... ... 11

15. Power to enter premises and inspect and seize goods and documents ... ... 11

16. Restrictions on the entry and search of domestic premises ... ... ... ... 12

16A. Power to detain goods by locking or sealing premises or container ... ... ... 13

16B.......................Powers of arrest of authorized offlicers ... ... ... ... ... ... ... ... 13

16C..................Disclosure of information, etc . ... ... ... ... ... ... ... ... ... ... 14

17. Offences of obstruction and disclosure of information ... ... ... ... ... ... 14

is. Penalties .................................. ... ... ... ... ... ... ... 16

19. Time limit for prosecutions ................ ... ... ... ... ... ... ... ... 16
20. Offences by corporations ................... ... ... ... ... ... ... ... 16







21. Offences due to fault of other person ...... ... ... ... ... ... ... ... ... 16

22. Accessory to offences committed outside Hong Kong ... ... ... ... ... ... 16

23. Samples ................................. 17
24. Evidence by certificate 17
24A. Rule of evidence regarding imported goods with false trade description 17

25. Description of trade mark in pleading ... ... ... ... ... ... ... ... ... 17
26. Defence mistake, accident, etc . ... ... ... ... ... ... ... ... ... ... ... 17
27. Innocent publication of advertisements ... ... ... ... ... ... ... ... ... 18





Section Page
28. Costs in proceedings ... ... ... ... ... ... ... ... ... ... ... ... ... 18
29. Power to make orders with respect to property in possession of the Crown ... ... Is
30. Forfeiture and disposal of certain goods ... ... ... ... ... ... ... ... ... 19
31. [Repealed] ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 19

PART IV

MISCELLANEOUS

32.........................Trade marks containing trade descriptions ... ... ... ... ... ... ... 19

33............Definition Orders ............... ... ... ... ... ... ... ... ... ... ... 20
34............Saving for civil rights ......... ... ... ... ... ... ... ... ... ... ... ... 20

35..................................Compensation for loss of goods seized under section 15(1)(f) ... ... ... 20

Schedule........................................ ... ... ... ... ... ... ... ... ... 21





CHAPTER 362

TRADE DESCRIPTIONS

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 1

PRELIMINARY

1. This Ordinance may be cited as the Trade Descriptions
Ordinance.

2. (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. 294182)

'Convention country' has the meaning assigned to it by section
13A(6) of the Trade Marks Ordinance;

'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;

(e)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 transiC 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;

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 registered in Hong Kong under the Trade Marks
Ordinance;

(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; 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.
294182)

(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.

(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. (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 'Talse 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 enclosd 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. (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. (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. (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. (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 purposes of making, or applying to goods a false
trade description commits an offence unless he proves that he acted
without intent to defraud.

8. (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. (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;

(e)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), (e) 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 resem-
bling that trade mark as to be calculated to deceive; or
(ii) falsifies any genuine trade mark, whether by altera-
tion, 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. 346182)

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, 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. (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. 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. (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. 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 111

ENFORCEMENT

14. (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. 294182)

15. (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;

(ein 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;

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;

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. (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. 294182)

(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. 294182)

(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. (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. (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 sub-
section (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:

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. (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 so nearly resembling a trade mark as to be calculated to
deceive is falsely applied, the Commissioner shall, wherever reason-
ably 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 Com-
missioner 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
1 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 reason-
able 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 Com-
missioner 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. (1) Without prejudice to any other Ordinance, any person
who-

(a)wilfully obstructs an authorized officer in the exercise of
his powers or the performance of his duties under this
Ordinance;





(b)wilfully 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. 65186)



commits and offence.

(2) Subject to subsection (M), 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.

(M) A person does not commit an o1Tence under subsection (2)
by disclosing information under section 16C(1) or (2) or under an order
of the High Court made under section l6C(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.
123182)

18. (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.

(IA) 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. 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 thewhichever is the earlier.

20. 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. 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. 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. (1) Where any act or omission constitutes both an offence
under this Ordinance and an offence under the Public Health and
Municipal Services Ordinance, 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. (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. 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. 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. (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. 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. 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. 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 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. (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. 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 as a registered user of the trade mark; and

(e)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. 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. 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. (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 suRred 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

(e) 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.

SCHEDULE [s. 3.

TABLE
Number of carats..................... Indicates gold of fineness of
8 ............................................ 333 parts per thousand
9 ............................................ 375 parts per thousand
12 ............................................. 500 parts per thousand
14 ............................................ 585 parts per thousand
15 ............................................ 625 parts per thousand
18 ............................................ 750 parts per thousand
22 ............................................ 916.6 parts per thousand

and so in proportion for any other number of carats.
Originally 69 of 1980. L.N. 123/82. L.N. 294/82. L.N. 346/82. L.N. 65/86. 10 of 1986. 2 of 1987. L.N. 64/81. Short title. Interpretation. (Cap. 43.) [cf. 1968 c. 29, s. 3.] [cf. 1968 c. 29, s. 2(1).] (Cap. 43.) (1938 c. 22.) [cf. 1968 c. 29, s. 36.] [cf. 1968 c. 29, s. 39(2).] Special provisions applicable to goldware. [cf. 1973 c. 43, s. 1(4).] [cf. 1973 c. 43, s. Sch. 1.] Schedule. Marking orders. [cf. 1968 c. 29, s. 8.] Information to be given in advertisements. [cf. 1968 c. 29, s. 9.] Applying a trade description, trade mark or mark to goods. [cf. 1968 c. 29, s. 4.] Offences in respect of trade descriptions. [cf. 1968 c. 29, s. 1.] Trade descriptions used in advertisements. [cf. 1968 c. 29, s. 5.] Offences in respect of trade marks. False representations as to Royal approval or award, etc. [cf 1968 c. 29,s . 12.] False representations as to supply of goods. [cf. 1968 c. 29, s. 13.] Prohibited import and export of certain goods. Power to exempt goods sold for export. [cf. 1968 c. 29, s. 32.] Appointment of authorized officers. Power to enter premises and inspect and seize goods and documents. [cf. 1968 c. 29, s. 27 & 28.] Restrictions on the entry and search of domestic premises. Power to detain goods by locking or sealing premises or container. Powers of arrest of authorized officers. (Cap. 232.) Disclosure of information, etc. Offences of obstruction and disclosure of information. [cf. 1968 c. 29, s. 29.] Penalties. Time limit for prosecutions. Offences by corporations. Offences due to fault of other person. 1968 c. 29, s. 23. Accessory to offences committed outside Hong Kong. Samples. (Cap. 132.) Evidence by certificate. [cf. 1968 c. 29, s. 31.] Rule of evidence regarding imported goods with false trade description. Description of trade mark in pleading. Defence mistake, accident, etc. 1968 c. 29,s . 24. Innocent publication of advertisements. 1968 c. 29,s . 25. Costs in proceedings. Power to make orders with respect to property in possession of the //crown. (Cap. 221.) Forfeiture and disposal of certain goods. Trade marks containing trade descriptions. [cf. 1968 c. 29, s. 34.] (Cap. 43.) Definition Orders. [cf. 1968 c. 29, s. 7.] Saving for civil rights. [cf. 1968 c. 29, s. 35.] Compensation for loss of goods seized under section 15(1)(f). [cf. 1968 c. 29, s. 33.]

Originally 69 of 1980. L.N. 123/82. L.N. 294/82. L.N. 346/82. L.N. 65/86. 10 of 1986. 2 of 1987. L.N. 64/81. Short title. Interpretation. (Cap. 43.) [cf. 1968 c. 29, s. 3.] [cf. 1968 c. 29, s. 2(1).] (Cap. 43.) (1938 c. 22.) [cf. 1968 c. 29, s. 36.] [cf. 1968 c. 29, s. 39(2).] Special provisions applicable to goldware. [cf. 1973 c. 43, s. 1(4).] [cf. 1973 c. 43, s. Sch. 1.] Schedule. Marking orders. [cf. 1968 c. 29, s. 8.] Information to be given in advertisements. [cf. 1968 c. 29, s. 9.] Applying a trade description, trade mark or mark to goods. [cf. 1968 c. 29, s. 4.] Offences in respect of trade descriptions. [cf. 1968 c. 29, s. 1.] Trade descriptions used in advertisements. [cf. 1968 c. 29, s. 5.] Offences in respect of trade marks. False representations as to Royal approval or award, etc. [cf 1968 c. 29,s . 12.] False representations as to supply of goods. [cf. 1968 c. 29, s. 13.] Prohibited import and export of certain goods. Power to exempt goods sold for export. [cf. 1968 c. 29, s. 32.] Appointment of authorized officers. Power to enter premises and inspect and seize goods and documents. [cf. 1968 c. 29, s. 27 & 28.] Restrictions on the entry and search of domestic premises. Power to detain goods by locking or sealing premises or container. Powers of arrest of authorized officers. (Cap. 232.) Disclosure of information, etc. Offences of obstruction and disclosure of information. [cf. 1968 c. 29, s. 29.] Penalties. Time limit for prosecutions. Offences by corporations. Offences due to fault of other person. 1968 c. 29, s. 23. Accessory to offences committed outside Hong Kong. Samples. (Cap. 132.) Evidence by certificate. [cf. 1968 c. 29, s. 31.] Rule of evidence regarding imported goods with false trade description. Description of trade mark in pleading. Defence mistake, accident, etc. 1968 c. 29,s . 24. Innocent publication of advertisements. 1968 c. 29,s . 25. Costs in proceedings. Power to make orders with respect to property in possession of the //crown. (Cap. 221.) Forfeiture and disposal of certain goods. Trade marks containing trade descriptions. [cf. 1968 c. 29, s. 34.] (Cap. 43.) Definition Orders. [cf. 1968 c. 29, s. 7.] Saving for civil rights. [cf. 1968 c. 29, s. 35.] Compensation for loss of goods seized under section 15(1)(f). [cf. 1968 c. 29, s. 33.]

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