Money Lenders Ordinance
The following summary of the provisions of the Money Lenders Ordinance is of great importance for the protection of all parties entering into a loan agreement and should be read carefully. This summary does not form part of the law. If in doubt, one should refer to the relevant provisions of the Money Lenders Ordinance.
Summary of Part III of the Money Lenders Ordinance - Transactions by Money Lenders
Section 18 of the Ordinance sets out the requirements for loans made by money lenders. Every loan agreement must be in writing and signed by the borrower within 7 days of the making of the agreement and before the money is lent. When signing the Agreement, a copy of the signed Agreement Notes shall be given to the Borrower together with a copy of this Summary. The note must contain full details of the loan, including the repayment terms, form of security and interest rate. An agreement that does not comply with the above requirements shall not be enforceable unless the court is satisfied that it would be unjust not to enforce the agreement.
Section 18 of the Ordinance sets out the requirements for loans made by money lenders. Every loan agreement must be in writing and signed by the borrower within 7 days of the making of the agreement and before the money is lent. When signing the Agreement, a copy of the signed Agreement Notes shall be given to the Borrower together with a copy of this Summary. The note must contain full details of the loan, including the repayment terms, form of security and interest rate. An agreement that does not comply with the above requirements shall not be enforceable unless the court is satisfied that it would be unjust not to enforce the agreement. Section 19 of the Ordinance provides that if the borrower makes a written request and pays the prescribed fee for the relevant expenses, the money lender shall give to the borrower the original and a copy of the statement of account of the current debt status of the borrower under the loan agreement (including the amount paid, the amount due or to be due and the interest rate). The borrower shall endorse on the copy of the statement to the effect that he has received the original statement and return the copy of the statement so endorsed to the money lender. The money lender must retain the returned copy of the statement during the continuance of the agreement to which the statement relates. If the money lender fails to do so, he or she commits a crime. The money lender must also provide a copy of any document relating to the loan or security upon written request by the borrower. However, the above request shall not be made more than once within one month. If a money lender fails, without good cause, to comply with a requirement under this paragraph, he shall not charge interest for the period during which the requirement was outstanding.
Section 20 of the Ordinance provides that, unless the guarantor is also the borrower, a signed note of the agreement, a copy of the instrument of security (if any) and a statement detailing the total amount payable shall be given to the guarantor within 7 days of the agreement being made. If the surety makes a written request at any time (not more than once in a month), the money lender must give him a signed statement showing in detail the total amount paid and the total amount still due. If the money lender fails to comply with the requirement without sufficient reason, the security shall not be enforceable during the period for which the requirement remains uncomplied with.
Section 21 of the Ordinance provides that the borrower may repay the loan and the interest calculated up to the repayment date at any time after giving written notice, and the money lender shall not charge a higher interest rate for early repayment by the borrower.
The above provisions do not apply if the money lender is a money lender approved by the Financial Secretary by notice published in the Gazette under section 33A(4) of the Money Lenders Ordinance or a member of an approved society.
Section 22 of the Ordinance states that any loan agreement which provides for the payment of compound interest or for prohibiting repayment of the loan by instalments is illegal. In addition, any loan agreement that provides for the charge of a higher rate of interest on sums not paid when due is also illegal, but the agreement may provide that simple interest shall be charged on the unpaid portion of the principal and interest, but the rate shall not exceed the rate that would be payable in the absence of default; but if the court is satisfied that it would be unjust if the agreement were illegal because it did not comply with the provisions of this section, it may declare the illegal agreement legal in whole or in part.
Section 23 of the Ordinance states that a loan agreement with a money lender and a security given to him shall not be enforceable if the money lender is not licensed at the time the loan agreement is made or the security is accepted; but the court may declare the whole or part of the agreement or security enforceable if it is satisfied that it would be unjust if the agreement or security were unenforceable because of this section.
Summary of Part IV of the Money Lenders Ordinance - Excessive Interest Rates
Section 24 of the Ordinance stipulates that the maximum effective interest rate on any loan is 48% per annum (the "effective interest rate" shall be calculated in accordance with Schedule 2 to the Ordinance). Any loan agreement that stipulates a higher effective interest rate will be unenforceable and the money lender will be liable to prosecution. This maximum rate can be changed by the Legislative Council, but existing agreements will not be affected. This section does not apply to a loan made to a company the full paid-up share capital of which is not less than $1,000,000, or to a person who makes such a loan.
Section 25 of the Ordinance provides that in court proceedings for the enforcement of a loan agreement or a loan security, or when a borrower or a guarantor applies to the court for relief, the court may examine the terms of the agreement to see whether they are grossly unfair or the interest rate is excessive (if the actual interest rate exceeds 36% per annum or such other rate as may be fixed by the Legislative Council, it may be presumed on that ground alone that the interest rate is excessive), and the court may, having regard to all the circumstances, vary the terms of the agreement so as to make it fair to all parties to the agreement. This section does not apply to a loan made to a company the full paid-up share capital of which is not less than $1,000,000, or to a person who makes such a loan.