Competition Ordinance/Part 10

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PART 10
Competition Tribunal

Division 1—Constitution

134. Establishment of Tribunal

(1) There is established, by virtue of this section, a tribunal to be known as the Competition Tribunal.

(2) The Tribunal is a superior court of record.

135. Constitution of Tribunal

(1) The Tribunal consists of the judges of the Court of First Instance appointed in accordance with section 6 of the High Court Ordinance (Cap. 4), by virtue of their appointments as such judges.

(2) A Justice of Appeal who sits in the Court of First Instance is not a member of the Tribunal.

Subdivision 1—President and Deputy President

136. President

(1) The Chief Executive, acting in accordance with the recommendation of the Judicial Officers Recommendation Commission, is to appoint one of the members of the Tribunal to be the President of the Tribunal.

(2) The President is to hold office for a term of at least 3 years, but not more than 5 years, as is stated in his or her letter of appointment, but is eligible for re-appointment.

(3) The President may give directions as to the arrangement of the business of the Tribunal, and is to perform such other functions as are assigned to the President under this Ordinance.

137. Deputy President

(1) The Chief Executive, acting in accordance with the recommendation of the Judicial Officers Recommendation Commission, is to appoint one of the members of the Tribunal to be the Deputy President of the Tribunal.

(2) The Deputy President is to hold office for a term of at least 3 years, but not more than 5 years, as is stated in his or her letter of appointment, but is eligible for re-appointment.

(3) The Deputy President may, subject to any directions given by the President, perform all the functions of the President.

(4) Every decision or other act or omission of the Deputy President while acting under subsection (3) is to be regarded as a decision, act or omission of the President.

138. Acting President

(1) If for any reason the President is unable, whether temporarily or otherwise, to perform the functions of the President, the Deputy President may act as President.

(2) If for any reason the Deputy President is unable, whether temporarily or otherwise, to perform the functions of the President when the President is unable to perform them himself or herself, the Chief Justice may appoint another member of the Tribunal to act as President.

(3) A person acting as President under this section may perform all the functions of the President.

(4) Every decision or other act or omission of a person acting as President under this section is to be regarded as the decision, act or omission of the President.

(5) The Chief Justice may at any time revoke an appointment made under subsection (2).

139. Resignation as President or Deputy President

(1) The President and Deputy President may, at any time, resign from their office by giving written notice of resignation to the Chief Executive.

(2) If the President or Deputy President resigns from office under this section, he or she continues to be a member of the Tribunal.

140. Vacancy in office of President or Deputy President

(1) The office of President or Deputy President becomes vacant if the President or Deputy President (as the case may be)—

(a) dies;

(b) ceases to be a judge of the Court of First Instance;

(c) is appointed to be a Justice of Appeal, or to a higher judicial office; or

(d) resigns his or her office under section 139.

(2) If the office of President or Deputy President has become vacant, the Chief Executive, acting in accordance with the recommendation of the Judicial Officers Recommendation Commission, is to appoint one of the members of the Tribunal to be the President or Deputy President (as the case requires).

(3) The President or Deputy President appointed under this section is to hold office for a term of at least 3 years, but not more than 5 years, as is stated in his or her letter of appointment, but is eligible for re-appointment.

Subdivision 2—Assessors

141. Assessors

(1) In any proceedings under this Ordinance, the Tribunal may appoint one or more specially qualified assessors and may dispose of the proceedings, wholly or in part, with the assistance of such assessor or assessors, but the decision of the Tribunal is that of the members of Tribunal only.

(2) The Tribunal may determine the remuneration, if any, to be paid to an assessor appointed under this section, but no remuneration may be paid to an assessor who is a public officer.

(3) An assessor is not personally liable for anything done or omitted to be done by the assessor in good faith in the performance of his or her functions or purported performance of his or her functions under this Ordinance.

Division 2—Jurisdiction and Powers

142. Jurisdiction of Tribunal

(1) The Tribunal has jurisdiction to hear and determine—

(a) applications made by the Commission with regard to alleged contraventions, or alleged involvements in contraventions, of the competition rules;

(b) applications for the review of reviewable determinations;

(c) private actions in respect of contraventions, or involvements in contraventions, of the conduct rules;

(d) allegations of contraventions, or involvements in contraventions, of the conduct rules raised as a defence;

(e) applications for the disposal of property;

(f) applications for the enforcement of commitments; and

(g) any matter related to a matter referred to in paragraph (a), (b), (c), (d), (e) or (f) if the matters arise out of the same or substantially the same facts.

(2) In the exercise of its jurisdiction, the Tribunal has the same jurisdiction to grant remedies and reliefs, equitable or legal, as the Court of First Instance.

143. Powers of Tribunal

(1) The Tribunal has, with respect to—

(a) the attendance, swearing and examination of witnesses;

(b) the production and inspection of documents;

(c) the enforcement of its orders; and

(d) all other matters necessary for the exercise of its jurisdiction,

all the powers, rights and privileges of a superior court of record.

(2) Without limiting the scope of subsection (1), in proceedings before the Tribunal, the Tribunal may—

(a) receive and consider any evidence, whether by way of oral evidence, written statements, documents or otherwise, and whether or not it would otherwise be admissible in a court of law;

(b) determine the manner in which it will receive evidence referred to in paragraph (a);

(c) by notice in writing, signed by the presiding member of the Tribunal, summon any person—

(i) to produce any article or document that is relevant to the proceedings and is in that person’s possession or under that person’s control;

(ii) to appear before it and to give any evidence relevant to the proceedings; and

(d) exercise such other powers as may be necessary or ancillary to the conduct of any proceedings.

Division 3—Practice and Procedure

144. Procedures

(1) The Tribunal may decide its own procedures and may, in so far as it thinks fit, follow the practice and procedure of the Court of First Instance in the exercise of its civil jurisdiction, and for this purpose, has the same jurisdiction, powers and duties of the Court in respect of such practice and procedure, including the jurisdiction, powers and duties of the Court in respect of costs.

(2) Without limiting subsection (1), the Tribunal has the same jurisdiction, powers and duties of the Court of First Instance in respect of the punishment of a person guilty of contempt.

(3) The Tribunal is to conduct its proceedings with as much informality as is consistent with attaining justice.

145. Hearing and determination of applications

(1) An application to the Tribunal may be heard and determined by a Tribunal constituted by any of the following—

(a) the President;

(b) the President and one or more other members appointed by the President; or

(c) one or more other members appointed by the President.

(2) If the President is sitting with one or more other members, the President is to preside over the hearing; if the President is not sitting and there is more than one other member sitting, the President is to appoint one of those other members to preside over the sitting.

(3) Any difference between the members exercising the jurisdiction of the Tribunal is to be decided by majority vote and, in the event of an equality of votes, the member presiding is to have a second or casting vote.

146. Absence of member during course of proceedings

(1) If, after the commencement of any proceedings, a member of the Tribunal, other than the presiding member, is absent for any reason, the presiding member may, with the consent of the parties—

(a) direct that the proceedings be continued in the absence of that member; or

(b) direct that another specified member take the place of the absent member in the proceedings.

(2) If, after the commencement of proceedings, the presiding member of the Tribunal is absent for any reason, then—

(a) if there is only one member of the Tribunal remaining, and the parties agree, the proceedings may be continued in the absence of the presiding member; or

(b) if there is more than one member of the Tribunal remaining, and the parties agree—

(i) the proceedings may be continued in the absence of the presiding member; and

(ii) the most senior of the remaining members is to preside, with seniority determined according to the priority of their appointments as judges of the Court of First Instance.

(3) If—

(a) the presiding member has given a direction under subsection (1); or

(b) the members and parties have agreed to proceed under subsection (2),

the Tribunal as so constituted is to be regarded as properly constituted.

147. Rules of evidence

In proceedings under this Ordinance, other than proceedings in which the Commission applies for an order for—

(a) a pecuniary penalty under section 93; or

(b) a financial penalty under section 169,

the Tribunal is not bound by the rules of evidence and may receive and take into account any relevant evidence or information, whether or not it would be otherwise admissible in a court of law.

148. Evidence that might tend to incriminate

(1) A person appearing before the Tribunal to give evidence, other than in proceedings in which the Commission applies for an order for—

(a) a pecuniary penalty under section 93; or

(b) a financial penalty under section 169,

is not excused from answering any question on the grounds that to do so might expose the person to proceedings referred to in subsection (3).

(2) No statement or admission made by a person answering any question put to the person, in any proceedings to which subsection (1) applies, is admissible in evidence against that person in proceedings referred to in subsection (3).

(3) The proceedings referred to in subsections (1) and (2) are—

(a) proceedings in which the Commission applies for an order for—

(i) a pecuniary penalty under section 93; or

(ii) a financial penalty under section 169; and

(b) any criminal proceedings, other than proceedings for—

(i) an offence under section 55 (Providing false or misleading documents or information);

(ii) an offence under Part V (Perjury) of the Crimes Ordinance (Cap. 200); or

(iii) an offence of perjury.

149. Findings of fact by Tribunal

(1) A finding of fact by the Tribunal, which is relevant to an issue arising in any other proceedings, either in the Tribunal or in the Court of First Instance, relating to a contravention of a conduct rule, is evidence of that fact in those proceedings if—

(a) the time for bringing an appeal in respect of the finding has expired and the relevant party has not brought such an appeal; or

(b) the final decision of a court on such appeal has confirmed the finding.

(2) In this section—

“relevant party” (有關一方) means—

(a) in relation to the first conduct rule, a party to the agreement which is the subject of the alleged contravention; and

(b) in relation to the second conduct rule, the undertaking whose conduct is alleged to have contravened the conduct rule or any other person involved in the contravention.

150. Findings of fact by Court of First Instance

(1) A finding of any fact by the Court of First Instance in any proceedings transferred to it by the Tribunal under section 114(3), which is relevant to an issue arising in any other proceedings, either in the Court or in the Tribunal, relating to a contravention, or involvement in a contravention, of a conduct rule, is evidence of that fact in those other proceedings if—

(a) the time for bringing an appeal in respect of the finding has expired and the relevant party has not brought such an appeal; or

(b) the final decision of a court on such appeal has confirmed the finding.

(2) In this section—

“relevant party” (有關一方) has the meaning given by section 149(2).

151. Order not to disclose material

(1) The Tribunal may order a person not to publish or otherwise disclose any material the Tribunal receives.

(2) A person who fails to comply with an order made under subsection (1) commits an offence and is liable to a fine at level 6 and to imprisonment for 6 months.

152. Decisions of Tribunal

(1) A decision of the Tribunal must be recorded in writing.

(2) Where it is appropriate to give reasons for a decision, the decision may be made initially without giving reasons but, if this is done, the reasons must be recorded in writing.

153. Orders of Tribunal

An order made by the Tribunal must be recorded in writing.

154. Appeal to Court of Appeal

(1) Subject to subsection (2) and section 155, an appeal lies as of right to the Court of Appeal against any decision (including a decision as to the amount of any compensatory sanction or pecuniary penalty), determination or order of the Tribunal made under this Ordinance.

(2) An appeal does not lie—

(a) against an order of the Tribunal allowing an extension of time for appealing against a decision, determination or order of the Tribunal;

(b) against a decision, determination or order of the Tribunal if it is provided by any Ordinance or by the rules of the Tribunal made under section 158 that the decision, determination or order is final; or

(c) without the leave of the Court of Appeal or the Tribunal, against an order of the Tribunal made with the consent of the parties or relating only to costs that are left to the discretion of the Tribunal.

(3) Rules of the Tribunal made under section 158 may provide for decisions, determinations or orders of any prescribed description to be treated for any prescribed purpose connected with appeals to the Court of Appeal as final or interlocutory.

(4) An appeal does not lie against a decision of the Court of Appeal as to whether a decision, determination or order of the Tribunal is, for any purpose connected with an appeal to the Court, final or interlocutory.

(5) The Court of Appeal has jurisdiction to hear and determine an appeal under subsection (1) and may—

(a) confirm, set aside or vary the decision, determination or order of the Tribunal;

(b) where the decision, determination or order of the Tribunal is set aside, substitute any other decision, determination or order it considers appropriate; or

(c) remit the matter in question to the Tribunal for reconsideration in the light of the decision of the Court.

(6) Except in the case of an appeal against the imposition, or the amount, of a pecuniary penalty, the making of an appeal under this section does not suspend the effect of the decision, determination or order to which the appeal relates.

155. Leave to appeal required for interlocutory appeals

(1) Except as provided by the rules of the Tribunal made under section 158, an appeal does not lie to the Court of Appeal against any interlocutory decision, determination or order of the Tribunal unless leave to appeal has been granted by the Court of Appeal or the Tribunal.

(2) Rules of the Tribunal made under section 158 may specify an interlocutory decision, determination or order of any prescribed description as being an interlocutory decision, determination or order to which subsection (1) does not apply and accordingly an appeal lies as of right against the decision, determination or order.

(3) Leave to appeal for the purpose of subsection (1) may be granted—

(a) in respect of a particular issue arising out of the interlocutory decision, determination or order; and

(b) subject to any conditions that the Court of Appeal or the Tribunal considers necessary in order to secure the just, expeditious and economical disposal of the appeal.

(4) Leave to appeal may only be granted under subsection (1) if the Court of Appeal or the Tribunal is satisfied that—

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.

Division 4—Miscellaneous

156. Registrar and other staff of Tribunal

Every Registrar, senior deputy registrar, deputy registrar and any other officer such as a Bailiff of the High Court, by virtue of that appointment, holds the corresponding office or position in the Tribunal.

157. Seal of Tribunal

(1) The Tribunal is to have a seal approved by the Chief Justice.

(2) All writs, judgments, orders and other documents, and any exemplification or copies of writs, judgments, orders and other documents, are to be sealed with the seal.

(3) All writs, judgments, orders and other documents, and any exemplification or copies of writs, judgments, orders and other documents, when purporting to be so sealed, are admissible in evidence before any court on production without further proof.

158. Tribunal rules

(1) The Chief Judge may, after consulting the President, make rules regulating and prescribing—

(a) the practice and procedure to be followed in the Tribunal in all matters with respect to which the Tribunal has jurisdiction; and

(b) any matters incidental to or relating to that practice or procedure.

(2) Without limiting subsection (1), rules may be made for the following purposes—

(a) prescribing fees and regulating matters relating to the fees payable in connection with applications to the Tribunal and proceedings in the Tribunal;

(b) prescribing the manner and form in which documents are to be issued or served in relation to proceedings in the Tribunal;

(c) prescribing the manner in which and the terms on which proceedings are conducted with the assistance of an assessor;

(d) prescribing the manner and form in which documents may be filed in the Tribunal and the manner in which evidence may be given in proceedings; and

(e) prescribing the allowances to be paid to witnesses appearing before the Tribunal.