Introduction
This is a report on the financial status of the Fund and the progress of assisted cases for the period from 1 April 2020 to 30 September 2020.
Finance
During the reporting period, the total income and expenditure of the Fund were HK$137,000 and HK$672,000 respectively. As at 30 September 2020, the total accumulated fund stood at about HK$15 million.
Report on cases
Overview
During the reporting period, the Fund received 12 new applications. In addition, 3 applications were received prior to the reporting period and were under process during the reporting period. Amongst these 15 applications, 3 were declined, 9 remains under consideration and 1 was resolved during application. The Fund has granted assistance to 2 applications.
Progress of cases
Cases Carried Over From Previous Year
- Columbarium (Case 1) – Refusal to Allow Interment of Ashes
The assisted consumer purchased a niche from a private columbarium in 2001 for placing the ashes of his mother after her death. On his mother’s death in 2017, the columbarium refused to allow interment of her ashes on the ground that the deceased’s name printed on the receipt issued by the columbarium was different from that printed on her death certificate and Hong Kong Identity Card. The name set out on the receipt had been written by the columbarium’s staff in 2001 without verification of the deceased’s identity documents.
During the reporting period, solicitors instructed by the Fund for the assisted consumer continued to monitor the progress of the columbarium’s applications under the Private Columbaria Ordinance. Subsequent to the promulgation of the new administrative measures of the Private Columbaria Affairs Office, negotiation with the columbarium resumed and was underway.
- Columbarium (Case 2) – Refusal to Allow Interment of Ashes
The assisted consumer’s mother purchased a niche from a private columbarium in 1996. In 2017, the assisted consumer wanted to inter her mother’s ashes into the niche after she passed away. However, the columbarium refused to do so on the ground that the deceased’s name printed on the receipt issued by the columbarium was different from the name on her death certificate and Hong Kong Identity Card.
During the reporting period, solicitors instructed by the Fund continued to monitor the progress of the columbarium’s applications under the Private Columbaria Ordinance.
- Time-sharing Scheme – Aggressive Commercial Practices
Evidence indicates that the assisted consumer was pressurised to enter into a vacation club membership agreement by aggressive sales tactics adopted by the trader including prolonged and persistent sales pitching and denial of a toilet break.
During the reporting period, the Court made an order for judgment to be entered in favour of the assisted consumer against the trader for a declaration that the membership agreement should be rescinded and the trader should make a refund to the assisted consumer and bear the legal costs of the assisted consumer and the Fund. The scope of assistance to the assisted consumer was extended to cover enforcement actions.
- Fitness Services – Aggressive Commercial Practices
Evidence indicates that the assisted consumer, being a person suffering from autism, entered into two membership agreements and one personal trainer’s agreement as a result of the unfair trade practices and unconscionable conduct of the fitness centre.
During the reporting period, the legal representatives instructed by the Fund issued a Writ of Summons with a full Statement of Claim against the fitness centre. In default of Defence, a Summons for Default Judgment against the fitness centre was subsequently issued and the hearing was scheduled in the District Court after the reporting period.
- Fitness Services – Aggressive Commercial Practices
The Fund granted assistance to a person suffering from autism to take legal action against a fitness centre with whom the assisted consumer had entered into a membership agreement. The Fund took the view that this person had entered into the membership agreement as a result of unfair trade practices and unconscionable conduct of the fitness centre, and the Fund was satisfied that there was significant consumer interest in this case.
With the assistance of the Fund, the Small Claims Tribunal ordered the fitness centre to make a full refund of the sum paid by the assisted consumer and to pay costs and interest. However, the fitness centre was in default of the order. In view of the significant consumer interest involved, the Fund extended the scope of assistance to cover enforcement actions against the fitness centre.
During the reporting period, investigations by the solicitors instructed by the Fund revealed that further enforcement actions would not be cost effective and the chance of recovering the assisted consumer’s loss and the Fund’s costs would be slim. After deliberation, it was decided that the enforcement action should be discontinued. The assistance to the assisted consumer was terminated.
- Financial Services – Breach of Duty and Contract
Evidence indicates that the assisted consumer sustained loss in investing in London Gold as a result of the breach of duty and contractual obligation by the trader. In view of the circumstances of the case, the Fund considered that there were sufficient merits and significant consumer interest for assistance to be granted for legal action to be taken against the trader.
During the reporting period, the Fund instructed solicitors to act for the assisted consumer to pursue legal action against the trader.
- Fitness Services – Unfair Trade Practices
The Fund granted assistance to an assisted consumer who, as evidence indicated, had entered into a membership agreement and a personal training agreement as a result of unfair trade practices and unconscionable conduct of the fitness centre. The fitness centre refused to cancel both agreements under the cooling-off clauses.
During the reporting period, the Fund instructed solicitors to act for the assisted consumer to pursue legal action against the fitness centre.
Newly Assisted Case
- Residential Renovation Works – Unscrupulous Trade Practices and Breach of Contract
The assisted consumer had contractual disputes with the trader concerning residential renovation works at his property. After measuring the flat, the trader greatly inflated the quotation price for the furniture as well as renovation works and thus the assisted consumer decided not to proceed with the trader. However, the trader alleged that an agreement had already been made and sued the assisted consumer in the District Court for the price of the works as stated in the quotations provided after the measurement had taken place.
The Fund considered that assistance should be granted to defend the trader’s claim as the matter had sufficient legal merits and if successful, the matter had publicity value and could promote the consumer cause and should have a deterrent effect on unscrupulous business practices in the renovation industry which had always been a problematic one. During the reporting period, the Fund instructed solicitors to act for the assisted consumer to defend the trader’s legal action.
- Purchase of Residential Property – Breach of duty and misrepresentation
Evidence indicates that the assisted consumer was induced to purchase a unit adjourning the flat roof in reliance of an improper floor plan and misrepresentations given by the estate agent.
The Fund considered that assistance should be granted to the assisted consumer as the matter involved significant consumer interest with sufficient legal merits.
Statistics
Annexure 1 to this report is a brief statistics of the Fund’s cases.