Competition Ordinance/Part 12

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PART 12
Miscellaneous

Division 1—General

162. Merger

Schedule 7 (Mergers) has effect.

163. Determination of turnover of undertaking

(1) For the purposes of this Ordinance, the turnover of an undertaking is to be determined in accordance with the regulations made by the Secretary for Commerce and Economic Development under subsection (2).

(2) The Secretary for Commerce and Economic Development may, by regulations published in the Gazette, provide for the determination of the turnover of an undertaking.

(3) Without limiting subsection (2), the regulations made under that subsection may—

(a) specify a period as the turnover period of an undertaking for the purpose of section 5(4) or 6(3) of Schedule 1;

(b) provide for different ways for the determination of the turnover of an undertaking obtained in Hong Kong or outside Hong Kong; and

(c) provide for different ways for the determination of the turnover of an undertaking in respect of different periods, including—

(i) a calendar year;

(ii) a financial year; and

(iii) a period specified as the turnover period of the undertaking under paragraph (a).

164. Fees

(1) The Commission may charge a fee for—

(a) the making of an application to the Commission under this Ordinance; and

(b) the provision of any service.

(2) The Chief Executive may make regulations prescribing the amount of the fees chargeable under this section.

(3) The amount of any fee that may be prescribed in a regulation made under subsection (2) is not limited by reference to the amount of administrative or other costs incurred or likely to be incurred in relation to the application or service to which the fee relates.

(4) A regulation made under this section may provide for—

(a) the amount of any fee to be charged by reference to a scale set out in the regulation;

(b) the payment of different fees by different persons or different classes or descriptions of person;

(c) fees that are to be paid annually or at other intervals; and

(d) the reduction, waiver or refund, in whole or in part, of any fee, either upon the happening of a certain event or in the discretion of the Commission.

(5) The Commission may recover any fee payable under this section as a civil debt due to the Commission.

165. Personal immunity of public officers

(1) A public officer is not personally liable for anything done or omitted to be done by the public officer in good faith in the performance of a function or purported performance of a function under this Ordinance.

(2) The protection conferred by subsection (1) does not affect any liability of the Government for the act or omission.

Division 2—Service of Documents

166. Service of documents on Commission

(1) A notice or other document required to be served on the Commission under this Ordinance may be served—

(a) by sending it by post to the offices of the Commission;

(b) by leaving it at the offices of the Commission;

(c) by sending it by facsimile transmission to the facsimile number of the Commission;

(d) by sending it by electronic mail transmission to the electronic mail address of the Commission; or

(e) by sending it by any other method specified in rules made by the Commission for this purpose under section 34 of Schedule 5.

(2) A notice or other document served in accordance with subsection (1) is to be taken, in the absence of evidence to the contrary, to have been served—

(a) if served by post, on the second day after the day on which it was posted;

(b) if left at the offices of the Commission, on the day after the day on which it was so left;

(c) if sent by facsimile transmission, on the day after the day on which it was transmitted; or

(d) if sent by electronic mail transmission, on the day after the day on which it was transmitted.

167. Service of documents other than on Commission

(1) A notice, direction or other document required to be served by the Commission for the purposes of this Ordinance may be served—

(a) in the case of service on a natural person—

(i) by delivering it to the person personally;

(ii) by sending it by post in a letter addressed to the person at the person’s usual place of residence or business or, if the person’s address is unknown, addressed to the person’s last known place of residence or business;

(iii) by sending it by facsimile transmission to the facsimile number of the person or, if that number is unknown, to the last known facsimile number of the person; or

(iv) by sending it by electronic mail transmission to the electronic mail address of the person or, if that address is unknown, to the last known electronic mail address of the person;

(b) in the case of service on a body corporate—

(i) by delivering it to any place in Hong Kong at which the body corporate carries on business and giving it to any person in the place who appears to be concerned in the management of, or employed by, the body corporate;

(ii) by sending it by post in a letter addressed to the body corporate at its registered office in Hong Kong or at any place in Hong Kong at which the body corporate carries on business or, if the body corporate’s address is unknown, addressed to the body corporate’s last known place of business;

(iii) by sending it by facsimile transmission to the facsimile number of the body corporate or, if that number is unknown, to the last known facsimile number of the body corporate; or

(iv) by sending it by electronic mail transmission to the electronic mail address of the body corporate or, if that address is unknown, to the last known electronic mail address of the body corporate;

(c) in the case of service on a partnership—

(i) by delivering it to any place in Hong Kong at which the partnership carries on business and giving it to any person in the place who appears to be concerned in the management of, or employed by, the partnership;

(ii) by sending it by post in a letter addressed to the partnership at any place in Hong Kong at which the partnership carries on business or, if the partnership’s address is unknown, addressed to the partnership’s last known place of business;

(iii) by sending it by facsimile transmission to the facsimile number of the partnership or, if that number is unknown, to the last known facsimile number of the partnership; or

(iv) by sending it by electronic mail transmission to the electronic mail address of the partnership or, if that address is unknown, to the last known electronic mail address of the partnership; or

(d) in the case of service on an undertaking other than a natural person, a body corporate or a partnership—

(i) by delivering it personally to an officer of the undertaking or a member of its governing body;

(ii) by sending it by post in a letter addressed to the undertaking at any place in Hong Kong at which the undertaking carries on business or, if the undertaking’s address is unknown, addressed to the undertaking’s last known place of business;

(iii) by sending it by facsimile transmission to the facsimile number of the undertaking or, if that number is unknown, to the last known facsimile number of the undertaking; or

(iv) by sending it by electronic mail transmission to the electronic mail address of the undertaking or, if that address is unknown, to the last known electronic mail address of the undertaking.

(2) A notice, direction or other document served in accordance with subsection (1) is to be taken to have been served—

(a) if served by post, on the second day after the day on which it was posted;

(b) if sent by facsimile transaction, on the day after the day on which it was transmitted; or

(c) if sent by electronic mail transmission, on the day after the day on which it was transmitted.

Division 3—Indemnities

168. Certain indemnities of officers, employees or agents void

(1) Subject to section 170, no person may indemnify another person who is or was an officer, employee or agent of an undertaking against liability for paying—

(a) a pecuniary penalty under Part 6; or

(b) costs incurred in defending an action in which that other person is—

(i) convicted of contempt of the Tribunal;

(ii) convicted of an offence under this Part or Part 3; or

(iii) ordered to pay a pecuniary penalty under Part 6.

(2) An indemnity given in contravention of subsection (1) is void.

(3) In this section—

“employee” (僱員), in relation to an undertaking, means a person engaged by the undertaking for the provision of services, whether under a contract of employment or otherwise;

“officer” (高級人員) means—

(a) in relation to an undertaking being a corporation, a director, manager or company secretary of the undertaking, and any other person involved in the management of the undertaking; and

(b) in relation to an undertaking not being a corporation, any member of the governing body of that undertaking.

169. Financial penalty for contravention of section 168

(1) If it appears to the Commission that a person has indemnified any other person in contravention of section 168, the Commission may apply to the Tribunal for an order imposing a financial penalty on that person.

(2) If the Tribunal is satisfied that a person has contravened section 168, it may make an order imposing a financial penalty on that person.

(3) The amount of a financial penalty imposed under this section may not exceed twice the value of the indemnity given in contravention of section 168.

170. Provision of funds for indemnity for defending proceedings

(1) Section 168 does not prohibit any person from providing funds to another person who is or was an officer, employee or agent of an undertaking to meet expenditure incurred or to be incurred by that other person in defending any proceedings under Part 6 for a pecuniary penalty, if it is done on the following terms—

(a) that the funds are to be repaid in the event of the other person being required by the Tribunal to pay the pecuniary penalty; and

(b) that they are to be repaid not later than the date when the decision of the Tribunal becomes final.

(2) For the purpose of this section a decision of the Tribunal becomes final—

(a) if not appealed against, at the end of the period for bringing an appeal; or

(b) if appealed against, when the appeal or further appeal is finally disposed of.

(3) An appeal is finally disposed of, for the purpose of subsection (2)—

(a) if it is determined and the period for bringing any further appeal has ended; or

(b) if it is abandoned or otherwise ceases to have effect.

(4) In this section—

“employee” (僱員) has the meaning given by section 168(3);

“officer” (高級人員) has the meaning given by section 168(3).

Division 4—Offences

171. Criminal proceedings not to be brought in Tribunal

(1) Criminal proceedings for an offence under this Ordinance may not be brought in the Tribunal.

(2) To avoid doubt, subsection (1) does not affect the jurisdiction, powers and duties of the Tribunal in respect of the punishment of a person guilty of contempt, granted by section 144(2).

172. Provision of false information

(1) A person commits an offence if the person, in any representation made to the Commission under this Ordinance—

(a) provides any information that is false or misleading in a material particular; and

(b) knows or is reckless as to whether the information is false or misleading in a material particular.

(2) A person who commits an offence under this section is liable to a fine at level 6 and to imprisonment for 6 months.

173. Employees not to suffer termination etc. for assisting Commission

(1) A person who employs another person under a contract of employment (an “employee”) must not—

(a) terminate or threaten to terminate the employment of that employee;

(b) discriminate in any way against that employee;

(c) intimidate or harass that employee; or

(d) cause that employee any injury, loss or damage,

because the employee has taken any action referred to in subsection (2).

(2) The actions referred to in subsection (1) are—

(a) providing any material to the Commission in connection with the Commission’s functions; or

(b) giving evidence or agreeing to give evidence in any proceedings brought by the Commission for the enforcement of this Ordinance.

(3) A person who contravenes subsection (1) commits an offence and is liable to a fine at level 4 and to imprisonment for 3 months.

174. Obstruction of specified persons

(1) A person who, without reasonable excuse, obstructs a specified person in the performance of any function under this Ordinance commits an offence and is liable—

(a) on conviction on indictment, to a fine of $1,000,000; or

(b) on summary conviction, to a fine at level 6.

(2) In this section—

“specified person” (指明人士) has the meaning given by section 122.

175. Offences by bodies corporate and partners

(1) If a person by whom an offence under this Ordinance is committed is a body corporate, and it is proved that the offence—

(a) was committed with the consent or connivance of a director, manager, company secretary or other person concerned in the management of the body corporate; or

(b) was attributable to any neglect or omission on the part of a director, manager, company secretary or other person concerned in the management of the body corporate,

the director, manager, company secretary or other person also commits the offence.

(2) If a person by whom an offence under this Ordinance is committed is a partner in a partnership, and it is proved that the offence—

(a) was committed with the consent or connivance of any other partner or any person concerned in the management of the partnership; or

(b) was attributable to any neglect or omission on the part of any other partner or any person concerned in the management of the partnership,

the partner or the person concerned in the management of the partnership also commits the offence.

Division 5—Consequential, Related, Transitional and Savings Provisions

176. Consequential and related amendments

Schedule 8 contains consequential and related amendments to other enactments.

177. Transitional and savings provisions in relation to amendments made by this Ordinance

(1) Schedule 9 contains transitional and savings provisions in relation to amendments made by this Ordinance to the Telecommunications Ordinance (Cap. 106), the Broadcasting (Miscellaneous Provisions) Ordinance (Cap. 391) and the Broadcasting Ordinance (Cap. 562).

(2) The Chief Executive may make regulations containing transitional provisions and savings that are necessary or convenient for the transition to the provisions of this Ordinance from the provisions of the Telecommunications Ordinance (Cap. 106), the Broadcasting (Miscellaneous Provisions) Ordinance (Cap. 391) or the Broadcasting Ordinance (Cap. 562) as amended by this Ordinance.

(3) Without limiting subsection (2), regulations made under this section may, in particular, provide for—

(a) the application of provisions of this Ordinance to telecommunications services or broadcasting services; or

(b) the continued application of provisions of the Telecommunications Ordinance (Cap. 106), the Broadcasting (Miscellaneous Provisions) Ordinance (Cap. 391) or the Broadcasting Ordinance (Cap. 562) in force immediately before the commencement of any provision of this Ordinance to telecommunications services or broadcasting services.

(4) Regulations made under this section may, if they so provide, be deemed to have come into operation on a date earlier than the date on which they are published in the Gazette but not earlier than the date on which this Ordinance is published in the Gazette.

(5) To the extent that any regulations made under this section come into operation on a date earlier than the date on which they are published in the Gazette, those regulations are to be construed so as not to—

(a) affect, in a manner prejudicial to any person, the rights of that person existing before the date on which the regulations are published in the Gazette; or

(b) impose liabilities on any person in respect of anything done, or omitted to be done, before the date on which the regulations are published in the Gazette.

(6) If there is any inconsistency between any regulations made under this section and the provisions of Schedule 9, Schedule 9 prevails to the extent of the inconsistency.