### Trade Descriptions Ordinance 《商品說明條例》

26. Defence mistake, accident, etc.
(1) In any proceedings for an offence under this Ordinance, the person charged is, subject to subsection (2), entitled to be acquitted if—
(a) sufficient evidence is adduced to raise an issue that—
(i) the commission of the offence was due to—
(A) a mistake;
(B) reliance on information supplied to the person charged by another person;
(C) the act or default of another person;
(D) an accident; or
(E) some other cause beyond the control of the person charged; and
(ii) the person charged took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by—
(A) the person charged; or
(B) any person under the control of the person charged; and
(b) the contrary is not proved by the prosecution beyond reasonable doubt. (Replaced 18 of 2014 s. 53)
(2) If in any case the issue raised under subsection (1)(a) 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 issue unless, within a period ending 7 clear days before the hearing, the person charged 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 the possession of the person charged. (Amended 18 of 2014 s. 53)
(3)-(4) (Repealed 18 of 2014 s. 53)[cf. 1968 c. 29 s. 24 U.K.]

26AA. Additional defence (supply of goods or service to which false trade description is applied etc.)
Without limiting section 26, in any proceedings for an offence under section 7(1)(a)(ii) or (b) or 7A(1)(b), the person charged is entitled to be acquitted if—
(a) sufficient evidence is adduced to raise an issue that the person charged—
(i) did not know;
(ii) had no reason to suspect; and
(iii) could not with reasonable diligence have ascertained,
that the goods or service did not conform to the trade description, or that the trade description had been applied to the goods or service; and
(b) the contrary is not proved by the prosecution beyond reasonable doubt.
(Added 18 of 2014 s. 54)

### Trade Descriptions Ordinance 《商品說明條例》

26AAB. Additional defence (sale of goods to which forged trade mark is applied etc.)
Without limiting section 26, in any proceedings for an offence under section 9(2), the person charged is entitled to be acquitted if—
(a) sufficient evidence is adduced to raise an issue that the person charged—
(i) did not know;
(ii) had no reason to suspect; and
(iii) 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; and
(b) the contrary is not proved by the prosecution beyond reasonable doubt.
(Added 18 of 2014 s. 54)

26A. Additional defence (bait advertising)
Without limiting section 26, in any proceedings for an offence under section 13G the person charged is entitled to be acquitted if—
(a) sufficient evidence is adduced to raise an issue that—
(i) the trader offered to supply, or to procure a third person to supply, products of the kind advertised to the consumer within a reasonable time, in a reasonable quantity and at the advertised price and—
(A) if that offer was accepted by the consumer, the trader so supplied, or procured a third person to so supply, the products; or
(B) if that offer was not accepted by the consumer, the trader would have been able to so supply, or procure a third person to so supply, the products had the offer been accepted at the time it was made; or
(ii) the trader offered to supply immediately, or to procure a third person to supply within a reasonable time, equivalent products to the consumer in a reasonable quantity and at the price at which the advertised products were advertised and—
(A) if that offer was accepted by the consumer, the trader so supplied, or procured a third person to so supply, the equivalent products; or
(B) if that offer was not accepted by the consumer, the trader would have been able to so supply, or procure a third person to so supply, the equivalent products had the offer been accepted at the time it was made; and
(b) the contrary is not proved by the prosecution beyond reasonable doubt.
(Added 25 of 2012 s. 19)

### Trade Descriptions Ordinance 《商品說明條例》

26B. Additional defence (wrongly accepting payment)
(1) Without limiting section 26, in any proceedings for an offence under section 13I the person charged is entitled to be acquitted if—
(a) sufficient evidence is adduced to raise an issue that—
(i) the trader offered to procure a third person to supply the products and—
(A) if that offer was accepted by the consumer, the trader procured a third person to supply the products; or
(B) if that offer was not accepted by the consumer, the trader would have been able to procure a third person to supply the products had the offer been accepted at the time it was made; or
(ii) the trader offered to supply, or to procure a third person to supply, equivalent products—
(A) within the period specified by the trader at or before the time at which the payment or other consideration was accepted; or
(B) if no period was specified at or before that time, within a reasonable period,
and—
(C) if that offer was accepted by the consumer, the trader so supplied, or procured a third person to so supply, the equivalent products; or
(D) if that offer was not accepted by the consumer, the trader would have been able to so supply, or procure a third person to so supply, the equivalent products had the offer been accepted at the time it was made; and
(b) the contrary is not proved by the prosecution beyond reasonable doubt.
(2) Without limiting section 26, in any proceedings for an offence under section 13I(2)(c), the person charged is entitled to be acquitted if—
(a) sufficient evidence is adduced to raise an issue that a refund in full of the payment or other consideration for the product was made within a reasonable period after the expiry of the period referred to in section 13I(2)(c)(i) or (ii), as the case may be; and
(b) the contrary is not proved by the prosecution beyond reasonable doubt.
(Added 25 of 2012 s. 19)

27. Innocent publication of advertisements
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.
[cf. 1968 c. 29 s. 25 U.K.]

28. Costs in proceedings
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.

### Trade Descriptions Ordinance 《商品說明條例》

29. Power to make orders with respect to property in possession of the Government
Where any property has come into the possession of the Government or any authorized officer acting under this Ordinance, section 102 of the Criminal Procedure Ordinance (Cap. 221) 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 Government or such authorized officer, as the case may be, were substituted therein for references to the police.
(Amended 65 of 2000 s. 3)