2. If consumers have to institute legal proceedings, what should they pay attention to?
Apart from complaining to the Consumer Council or the Customs and Excise Department, you can seek the advice of a solicitor. There is always the option of going to court. Sometimes, just telling a bad trader that you may go to court is enough to get your complaint sorted out.
Small Claims Tribunal
If you do decide to go to court, there is a special way of suing for small amounts by using the small claims procedures in the Small Claims Tribunal. No person can be represented by a lawyer in the Small Claims Tribunal (but you can consult a lawyer before attending the Tribunal's hearing).
The most you can claim by using the small claims procedures is HK$75,000 . If the claim exceeds $75,000, you are not allowed to subdivide it in order to bring to the Tribunal a number of cases that are each below the $75,000 limit. The only way you can bring a claim in excess of the $75,000 limit before the Tribunal is if you abandon any amount above $75,000.
Types of claims can be handled by the Small Claims Tribunal include:
- service charges;
- damage to property;
- consumer claims (e.g. claims relating to goods or services with poor quality).
Before commencing a formal trial at the Tribunal, the Adjudicator (Tribunal's judge) and the Tribunal Officer will attempt to mediate the dispute between the parties. If both parties agree to settle, the Tribunal will grant a written consent order and further trials or hearings can be avoided.
For details about the procedures and fees for hearings at the Small Claims Tribunal, please visit the Judiciary's webpage.
If the parties cannot reach an amicable settlement at the first hearing, you need to get ready for the subsequent trial. To get more information about how to prepare for the trial (from both the Claimant's and the Defendant's perspective), please click here.
District Court or High Court
If the amount of your claim is over $75,000 , you must submit your claim to the District Court or the High Court. The maximum claim that can be handled by the District Court is $3,000,000. While for the High Court, there is no upper limit on the claim amount. Since the claim amount is bigger and the procedures involved are much more complex, you are strongly advised to find a lawyer to represent you in any proceedings in these 2 courts.
Financial assistance for consumer legal actions
The Consumer Council also runs a Consumer Legal Action Fund (“the Fund”), which will assist consumers to pursue their matters in courts.
You can apply for legal assistance under the Fund if you are a consumer or a group of consumers involved in a matter which:
(a) relates to consumer transactions, such as:
- unmerchantable (poor quality) goods, including food and drugs;
- unfair and unconscionable contract terms;
- unreasonable exemption clauses in consumer contracts;
- false or misleading advertising claims;
- false trade descriptions;
- any other case of significant consumer interest; or
(b) involves significant public interest or injustice (e.g. other consumers may be affected if the defaulting trader continue to do business).
In order to be eligible for the Fund, normally you must have already exhausted all other means of resolving the dispute in question, and be unable to qualify for any form of legal aid .
Applicants for assistance under the Fund need not undergo a mandatory means test in order to qualify for assistance. However the Trustee may take into account an applicant's financial resources in deciding whether to accept or reject a particular case.
There is a non-refundable application fee payable at the time of application. If your case is to be tried in the Small Claims Tribunal, the application fee is HK$100. If your case is to be tried in the District Court or other higher courts, the application fee is HK$1,000.
If your case is unsuccessful, you need not make any further payment. The Fund pays for all your costs and expenses. On the other hand, if your matter is successful, you will be asked to pay a contribution to the Fund.
For more information about the Fund, please visit the Consumer Council's webpage.
If you want to obtain an application form for the Fund, the Consumer Council has provided the form. Please click here to download the form.
B) Legal Aid
If you are not submitting your claim to the Small Claims Tribunal, and wish to have it tried in the District Court or the High Court, you may apply for legal aid if you satisfy certain conditions set out by the Legal Aid Department. For details, please go to another topic – Legal Aid.