8th April 2019

Expat guide: knowing your legal rights in Hong Kong (Part 1)

By Sean Martin

Any fan of Harry Potter will know that the alohomora spell opens a locked door and the expecto patronum charm provides protection. With a little know how and wizardry, the legal myths of Hong Kong can be unlocked and the unwary newcomer or even a seasoned resident protected from the ‘commodum habitus es’, or more simply being taken advantage of. As a former lawyer I have never known a place that has so many legal myths which are perpetuated by the social grapevines. As a consumer it's frustrating to say the least and these myths need to be busted. So!

Wands at the ready. Let’s begin with opening perhaps the simplest door; the one that contains the myth of returning faulty goods. You’ve no doubt heard if you buy something and it turns out to be defective you have to return it to the manufacturer. MYTH.

Alohomora! It is the retailer/seller who is responsible and not the manufacturer. Your legally binding contract is with the seller. Manufacturers guarantees and warranties make no difference, responsibility is still with the seller.

Expecto patronum! You are entitled to reject the goods (and opt for a refund, replacement or repair-it’s YOUR CHOICE), if they are faulty, not of satisfactory quality … this means the seller is in breach of contract; this is set out in the Sale of Goods Ordinance-your ‘patronus protection’. ‘Satisfactory’ includes ‘appearance and finish’, ‘safety’ and ‘durability’. Goods must be free from defects, even minor ones! This is except where the seller has pointed out any defect. ‘Durability’ is often ignored by sellers. Look at it this way. When you buy something, think about how long you think it should reasonably keep working? This is the benchmark.

Sellers will try and say its company ‘policy’ or the terms and conditions on the back of the invoice that you can only return it within a specific period of time (usually 10 days in Hong Kong). Guess what! Expecto patronus! Both the Sale of Goods Ordinance and the Unconscionable Contracts Ordinance say different.

A guarantee or warranty will no doubt last for a lot less time than any reasonable person would expect an item to last. Guarantees and warranties are a device for sellers to ‘pass the buck’ or deny any responsibility. You have your patronus-the law; no guarantee, warranty or policy will trump that!! The patronus charm as ‘Potterites’ will know, is not easy, must be practiced and not feared.

Even the seemingly reputable seller will resort to the manufacturers responsibility, guarantees, warranties and policies to wriggle. Don’t be put off, even when they try to say, it’s customary to go to the manufacturer. Don’t think so; for custom to be considered legally effective it must have been in use from ‘time immemorial’, a period back in time where there is no record or recollection to prove a custom. ‘Time immemorial’ is before 1189, so expecto patronus; sellers can’t use it …

Happy Shopping.

Sean Martin over the last 10 years in Hong Kong has worked in a variety of TESOL settings, including teaching academic English to secondary and tertiary learners. He has also taught professional adults of various nationalities to develop their English skills across a range of commercial sectors, including law, aviation, hospitality and leisure. In addition to his work at EfA as a Trinity Colege London cert.TESOL tutor and delivering CPD workshops, Sean works with the University of Sunderland on their English for Academic Purposes programme. He has academic interests in sociolinguistics and its application in the classroom.