以下為今日（四月二十二日）在立法會會議上謝偉俊議員的提問和商務及經濟發展局局長蘇錦樑的書面答覆：
問題：
本會二○一二年通過修訂《商品說明條例》（第３６２章）（《條例》）。有關修訂就商戶使用不良營商手法訂定新罪行，例如「具威嚇性的營業行為」。早前有三人被法庭裁定在銷售身體護理療程服務過程中，作出「具威嚇性的營業行為」罪名成立並被判處入獄，是此罪行首宗個案。據報，有市民接獲自稱銀行職員人士來電，要求他立即償還整筆銀行按揭貸款，又表示可協助他另行申請低息貸款，藉此收取十多萬元手續費。亦有租者置其屋計劃單位業主接獲使用載有類似香港房屋委員會標誌信箋警告信，指他因非法借貸而觸犯《房屋條例》（第２８３章），可被檢控或收回單位，並表示可向他提供貸款，以協助他整合債務。有受滋擾人士向本人表示，即使他們最終沒有借取貸款，仍被中介公司透過收數公司以恐嚇會滋擾其家人手段，苛索中介費用。該等人士向本人查詢，當局可否引用經修訂《條例》檢控有關人士及其僱主。就此，政府可否告知本會：
（一）自經修訂《條例》關於上述新罪行的條文於二○一三年七月開始實施後，警方、消費者委員會（消委會）及香港海關分別接獲多少宗涉嫌以哄騙、威嚇、利誘甚至非法禁錮手法銷售樓宇按揭、轉按業務的案件，以及有關當局如何跟進該等案件；
（二）有否研究引用經修訂《條例》對涉及上述案件人士及其僱主提出檢控的可行性；如有，結果為何；如否，原因為何；及
（三）因應樓價近月持續飆升，物業二按中介公司滋擾市民個案不斷出現，當局就市民遇到二按中介公司滋擾時該如何應對可給予他們甚麼忠告；警方、香港海關、香港金融管理局及消委會會否研究設立專門處理機制、跨部門／機構處理機制，或電話熱線，以協助受恐嚇滋擾、徬徨無助市民；如會，詳情為何；如否，原因為何？
答覆：
主席：
《商品說明條例》（第３６２章）經《２０１２年商品說明（不良營商手法）（修訂）條例》修訂，於二○一三年七月十九日全面實施。經修訂《條例》從源頭打擊常見的不良營商手法，包括禁止商戶（註）就貨品及服務作出虛假商品說明、具威嚇性的營業行為等。香港海關是該條例的主要執法機關。
根據該條例第７Ａ條，任何商戶如將虛假商品說明應用於向消費者提供或要約向消費者提供的服務；或向消費者提供或要約向消費者提供已應用虛假商品說明的服務，即屬犯罪。
根據該條例第１３Ｆ條，任何商戶如就任何消費者作出具威嚇性的營業行為，即屬犯罪。如按某營業行為的實際情況，並考慮到該營業行為的所有特點及情況，該營業行為通過使用騷擾、威迫手段或施加不當影響，在相當程度上損害或相當可能在相當程度上損害一般消費者就有關產品在選擇及行為方面的自由；並因而導致或相當可能導致該消費者作出某項交易決定，而如該消費者沒有接觸該營業行為，該消費者是不會作出該項交易決定的，則該營業行為即屬具威嚇性的營業行為。
此外，根據《放債人條例》（第１６３章）第３０（１）條，任何人均不得藉虛假、誤導性或欺騙性陳述、申述或允諾，或藉不誠實地隱瞞重要事實，而欺詐地誘使或企圖誘使任何人向放債人借款。公司註冊處負責處理放債人牌照申請及續期的行政事宜，香港警務處則負責該條例的執法工作。
如有關商戶或人士的行為涉及其他刑事成分，香港警務處亦可根據《刑事罪行條例》（第２００章）下的刑事恐嚇罪、《盜竊罪條例》（第２１０章）下的欺詐罪及勒索罪，或《簡易程序治罪條例》（第２２８章）下的假冒公職人員罪，採取執法行動。
就問題的三部分，現答覆如下：
（一）自二○一三年七月十九日（經修訂《商品說明條例》於該日起全面實施）至二○一五年二月二十八日，香港海關接獲涉及財務公司提供樓宇按揭、轉按業務而作出具威嚇性的營業行為，以及消費者委員會接獲涉及財務公司提供樓宇按揭、轉按業務的營商手法和價格爭議的投訴個案數字及處理情況，載於附件。
此外，由二○一三年七月至二○一五年二月期間，警方共處理了六十宗涉及借貸罪行的個案。警方並無就該等個案是否涉及樓宇按揭或轉按業務作分類。
（二）每一宗個案的情況皆有其獨特性，是否構成個別條例下的罪行，須根據個案的事實及相關證據才能予以判斷，不能一概而論。
（三）就執行《商品說明條例》而言，香港海關會繼續留意市場趨勢，積極處理投訴個案，並與其他監管機構保持密切聯繫，以便採取適當的執法或跟進行動。警方十分關注非法放債活動，並在近年多次採取行動打擊有關行為。警方會繼續採取積極措施打擊非法放債活動。
政府及相關機構一直以不同途徑提醒市民借貸時需注意的事項。投資者教育中心（作為提升公眾金融理財知識和能力的專責機構）、消費者委員會及香港金融管理局不時進行各類公眾教育工作，提醒市民在簽訂任何借貸或財務合約前，應仔細了解有關條款及細則，包括借貸利息及其他有關費用的條款。
註：《商品說明條例》的適用範圍並不包括受《保險公司條例》（第４１章）、《銀行業條例》（第１５５章）、《強制性公積金計劃條例》（第４８５章）或《證券及期貨條例》（第５７１章）規管而售賣、供應或提供的貨品或服務。
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Following is a question by the Hon Paul Tse and a written reply by the Secretary for Commerce and Economic Development, Mr Gregory So, in the Legislative Council today (April 22):
Question:
This Council passed the amendments to the Trade Descriptions Ordinance (Cap. 362) (the Ordinance) in 2012, and the relevant amendments provided for new offences relating to unfair trade practices e.g. "aggressive commercial practices" engaged in by traders. Earlier on, three persons were convicted by the Court for engaging in "aggressive commercial practices" in the course of selling body care therapy services and they were sentenced to imprisonment, which was the first case under this offence. It has been reported that a member of the public received a telephone call from a person claiming to be a bank staff and demanding him to make immediate and full repayment of his bank mortgage loan. That person also said that he could assist the member of the public in applying for another loan at a low interest rate so as to charge him a handling fee of $100,000-odd. In addition, an owner of a flat under the Tenants Purchase Scheme received a warning letter using letterhead bearing a logo similar to that of the Hong Kong Housing Authority, in which he was told that because he had contravened the Housing Ordinance (Cap. 283) for obtaining an unlawful loan, he might be liable to prosecution and his flat might be repossessed. He was further told that a loan could be offered to him to help him restructure his debts. Some people who have been so harassed indicated to me that even though they did not take out any loan in the end, the intermediaries still sought to extort intermediary charges from them through debt collection agencies by threatening to harass their family members. These people have enquired with me whether the authorities may invoke the amended Ordinance to prosecute the relevant persons and their employers. In this connection, will the Government inform this Council:
(1) of the respective numbers of cases received by the Police, the Consumer Council and the Customs and Excise Department since the sections of the amended Ordinance relating to the aforesaid new offences came into operation in July 2013, in which duping, coercion, bait and even unlawful detention were adopted as the means to sell property mortgages and property re-financing, and how the relevant authorities have followed up such cases;
(2) whether it has studied the feasibility of invoking the amended Ordinance to prosecute the persons involved in the aforesaid cases and their employers; if so, of the outcome; if not, the reasons for that; and
(3) given the continuous soaring of property prices in recent months and the repeated occurrence of cases in which members of the public were harassed by intermediaries engaging in second property mortgages, of the advice that the authorities can offer members of the public on what they should do when they encounter harassment from intermediaries engaging in second property mortgage business; whether the Police, the Customs and Excise Department, the Hong Kong Monetary Authority and the Consumer Council will study the establishment of a dedicated handling mechanism, an inter-departmental/organisational handling mechanism, or a telephone hotline for offering assistance to helpless members of the public who are subjected to threats and harassment; if so, of the details; if not, the reasons for that?
Reply:
President,
The Trade Descriptions Ordinance (Cap. 362) (TDO), as amended by the Trade Descriptions (Unfair Trade Practices) (Amendment) Ordinance 2012, came into full operation on July 19, 2013. The amended TDO tackles common unfair trade practices at source, including prohibiting traders (Note) from applying false trade descriptions in relation to goods and services and engaging in aggressive commercial practices, etc. The Customs and Excise Department (C&ED) is the main enforcement agency of the TDO.
Under section 7A of the TDO, a trader who applies a false trade description to a service supplied or offered to be supplied to a consumer; or supplies or offers to supply to a consumer a service to which a false trade description is applied, commits an offence.
Under section 13F of the TDO, a trader who engages in relation to a consumer in a commercial practice that is aggressive commits an offence. A commercial practice is aggressive if, in its factual context, taking account of all of its features and circumstances, it significantly impairs or is likely significantly to impair the average consumer's freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and it therefore causes or is likely to cause the consumer to make a transactional decision that the consumer would not have made otherwise.
Meanwhile, under section 30(1) of the Money Lenders Ordinance (Cap.163), a person shall not, by any false, misleading or deceptive statement, representation or promise, or by any dishonest concealment of material facts, fraudulently induce or attempt to induce any person to borrow money from a money lender. The Companies Registry is responsible for handling administrative matters related to the processing of licence applications and renewals. The Hong Kong Police Force (HKPF) is responsible for the enforcement of the Money Lenders Ordinance.
If the practices of a trader or an individual involve other criminal elements, HKPF may take enforcement actions in relation to the offence of criminal intimidation under the Crimes Ordinance (Cap. 200), the offences of fraud and blackmail under the Theft Ordinance (Cap. 210) or the offence of falsely pretending to be a public officer under the Summary Offences Ordinance (Cap. 228).
Our reply to the three parts of the question is as follows:
(1) The number and handling of complaints received from July 19, 2013 (the date on which the amended TDO came into full operation) to February 28, 2015 by C&ED involving aggressive commercial practices of financial companies providing property mortgage and property re-financing services, and by the Consumer Council involving sales practices and price disputes of financial companies providing property mortgage and property re-financing services, are set out at the Annex.
Separately, from July 2013 to February 2015, HKPF has handled 60 cases of loans-related offences. HKPF has not further categorised the cases by whether property mortgage and property re-financing services are involved.
(2) Every case is unique. Whether an offence under any individual ordinance is committed should be determined according to the facts and evidence of each case. A generalised conclusion cannot be drawn readily.
(3) As far as the enforcement of the TDO is concerned, C&ED will continue to monitor market trends and proactively deal with complaints, and will also maintain close liaison with other regulatory authorities in order to take appropriate enforcement or follow-up actions. HKPF is concerned about illegal money-lending practices and has taken enforcement actions on various occasions in recent years. HKPF will continue to take proactive actions to combat illegal money-lending practices.
The Government and related organisations have been, through different channels, reminding the public of the points to note when taking out loans. The Investor Education Centre (a dedicated organisation for enhancing the public's knowledge and skills in financial management), the Consumer Council and the Hong Kong Monetary Authority organise public education activities from time to time, reminding the public to understand thoroughly relevant terms and conditions (including those concerning interest rates and other fees and charges) before they enter into any loan agreements or financial contracts.
Note: The TDO does
