Competition Ordinance/Part 3

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PART 3
Complaints and Investigations

Division 1—Complaints

37. Complaints

(1) Any person may, in accordance with guidelines issued under section 38, lodge a complaint with the Commission alleging that an undertaking has contravened, is contravening or is about to contravene a competition rule.

(2) The Commission is not required to investigate a complaint if it does not consider it reasonable to do so and may, in particular, refuse to investigate a complaint if it is satisfied that—

(a) the complaint is trivial, frivolous or vexatious; or

(b) the complaint is misconceived or lacking in substance.

38. Guidelines regarding complaints

The Commission must issue guidelines indicating the manner and form in which complaints are to be made.

Division 2—Investigations

39. Power to conduct investigations

(1) The Commission may conduct an investigation into any conduct that constitutes or may constitute a contravention of a competition rule—

(a) of its own volition;

(b) where it has received a complaint under this Part;

(c) where the Court of First Instance or the Tribunal has referred any conduct to it for investigation under section 118; or

(d) where the Government has referred any conduct to it for investigation.

(2) Despite subsection (1), the Commission may only conduct an investigation under this Part if it has reasonable cause to suspect that a contravention of a competition rule has taken place, is taking place or is about to take place.

40. Guidelines regarding investigations

The Commission must issue guidelines indicating—

(a) the procedures it will follow in deciding whether or not to conduct an investigation under this Part; and

(b) the procedures it will follow in conducting any investigation under this Part.

41. Powers to obtain documents and information

(1) This section applies where the Commission has reasonable cause to suspect that a person has or may have possession or control of documents or information or may otherwise be able to assist it in relation to a matter that constitutes or may constitute a contravention of a competition rule.

(2) For the purpose of conducting an investigation, the Commission may by notice in writing require any person—

(a) to produce to it any document or a copy of any document; or

(b) to provide it with any specified information,

relating to any matter it reasonably believes to be relevant to the investigation.

(3) A notice under subsection (2) must indicate—

(a) the subject matter and purpose of the investigation; and

(b) the nature of the offences created by section 52 (Failure to comply with requirement or prohibition), section 53 (Destroying or falsifying documents) and section 55 (Providing false or misleading documents or information).

(4) The Commission may also specify in the notice—

(a) the time and place at which any document is to be produced or any information is to be provided; and

(b) the manner and form in which any document is to be produced or any information is to be provided.

(5) The power under this section to require a person to produce a document includes power—

(a) if the document is produced—

(i) to make copies of it or to take extracts from it; or

(ii) to require that person or any other person who is a present or past employee or partner of that person, or was at any time employed by that person, to give an explanation of or further particulars about the document;

(b) if the document is not produced, to require that person to state, to the best of the person’s knowledge and belief, where it is.

(6) The power under this section to require a person to provide specified information includes power—

(a) in relation to information recorded otherwise than in legible form, to require the production of a copy of the information in a visible and legible form or in a form from which it can readily be produced in a visible and legible form; and

(b) to require the provision of instruction on the operation of equipment containing information stored electronically.

(7) In this section—

“specified” (指明) means—

(a) specified, or described, in the notice; or

(b) falling within a category that is specified, or described, in the notice.

42. Persons may be required to attend before Commission

(1) For the purpose of conducting an investigation, the Commission may, by notice in writing, require any person to attend before the Commission, at a time and place specified in the notice, to answer questions relating to any matter it reasonably believes to be relevant to the investigation.

(2) A notice under subsection (1) must indicate—

(a) the subject matter and purpose of the investigation; and

(b) the nature of the offences created by section 52 (Failure to comply with requirement or prohibition), section 53 (Destroying or falsifying documents) and section 55 (Providing false or misleading documents or information).

43. Statutory declaration regarding evidence

(1) The Commission may require a person giving any explanation, further particulars, answer or statement to the Commission under this Part to verify the truth of the explanation, particulars, answer or statement, by statutory declaration.

(2) For the purpose of subsection (1) any member of the Commission may administer an oath or affirmation.

(3) If a person fails to comply with a requirement made under this Part to give any explanation, further particulars, answer or statement to the Commission, the Commission may require that person to state, by statutory declaration, the reasons for the failure.

44. Immunity

(1) A person who gives evidence to the Commission under this Part and any counsel, solicitor, or other person who appears before the Commission under this Part has the same privileges and immunities as the person would have if the investigation were civil proceedings in the Court of First Instance.

(2) In subsection (1), the reference to the giving of evidence includes a reference to producing any document, making any statement, giving any information, explanation or further particulars and answering any question.

45. Self-incrimination

(1) A person is not excused—

(a) from giving any explanation or further particulars about a document; or

(b) from answering any question,

under this Division on the grounds that to do so might expose the person to proceedings referred to in subsection (3).

(2) No statement made by a person—

(a) in giving any explanation or further particulars about a document; or

(b) in answering any question,

under this Division is admissible against that person in proceedings referred to in subsection (3) unless, in the proceedings, evidence relating to the statement is adduced, or a question relating to it is asked, by that person or on that person’s behalf.

(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.

46. Obligation of confidence

(1) A person is not excused from providing to the Commission any information or producing any document to the Commission under this Part in respect of which an obligation of confidence is owed to any other person.

(2) A person who, when required to do so under this Ordinance, produces any document or provides any information to the Commission, in respect of which an obligation of confidence is owed to any other person, is not personally liable for that act.

Division 3—Search and Seizure

47. Appointment of authorized officers

The Commission may, in writing, appoint any employee of the Commission as an authorized officer of the Commission (an “authorized officer”) for the purposes of this Part.

48. Warrant to enter and search premises

(1) A judge of the Court of First Instance may issue a warrant authorizing a person specified in the warrant, and any other persons who may be necessary to assist in the execution of the warrant, to enter and search any premises if the judge is satisfied, on application made on oath by an authorized officer, that there are reasonable grounds to suspect that there are or are likely to be, on the premises, documents that may be relevant to an investigation by the Commission.

(2) A warrant under subsection (1) may be issued subject to any conditions specified in it that apply to the warrant itself or to any further authorization under it (whether granted under its terms or any provision of this Ordinance).

49. Duty to produce evidence of authority

An authorized officer executing a warrant must, if requested, produce for inspection—

(a) documentary evidence of his or her identity;

(b) documentary evidence of his or her authorization under section 47; and

(c) the warrant.

50. Powers conferred by warrant

(1) A warrant issued under section 48 authorizes the persons specified in it—

(a) to enter and search the premises specified in the warrant;

(b) to use such force for gaining entry to the premises and for breaking open any article or thing found on the premises as is reasonable in the circumstances;

(c) to make use of such equipment as is reasonable in the circumstances;

(d) to remove by force any person or thing obstructing the execution of the warrant;

(e) to require any person on the premises to produce any document that appears to be a relevant document, in the possession or under the control of that person;

(f) to make copies of or take extracts from any document that appears to be a relevant document found on the premises or produced to a person executing the warrant;

(g) to prohibit any person found on the premises from—

(i) altering or otherwise interfering with any document that appears to be a relevant document; or

(ii) removing any such document from the premises or causing or permitting any other person to remove such document from the premises;

(h) to take possession of any documents found on the premises that appear to be relevant documents if—

(i) such action appears to be necessary for preserving the documents or preventing interference with them; or

(ii) it is not reasonably practicable to take copies of the documents on the premises;

(i) to take any other steps that appear to be necessary for the purpose mentioned in paragraph (h)(i);

(j) to take possession of any computer or other thing found on the premises that the person executing the warrant has reasonable grounds for believing will, on examination, afford evidence of a contravention of a competition rule;

(k) to require any person on the premises to give an explanation of any document appearing to be a relevant document or to state, to the best of his or her knowledge and belief, where such an explanation may be found or obtained;

(l) to require any information which is stored in electronic form and is accessible from the premises and which the person executing the warrant considers relates to any matter relevant to the investigation, to be produced in a form—

(i) in which it is visible and legible or from which it can readily be produced in a visible and legible form; and

(ii) in which it can be taken away.

(2) In this section—

“relevant document” (有關文件) means a document of a kind that could be required to be produced to the Commission under this Part.

Division 4—Offences in Relation to Investigations

51. Interpretation

In this Division—

“Commission” (競委會) includes any member, employee or authorized officer of the Commission;

“information” (資料) includes information provided in answer to a question.

52. Failure to comply with requirement or prohibition

(1) A person who, without reasonable excuse, fails to comply with a requirement or prohibition imposed on that person under—

(a) section 41 (Powers to obtain documents and information);

(b) section 42 (Persons may be required to attend before Commission);

(c) section 43 (Statutory declaration regarding evidence); or

(d) section 50 (Powers conferred by warrant), commits an offence.

(2) A person who commits an offence under subsection (1) is liable—

(a) on conviction on indictment, to a fine of $200,000 and to imprisonment for 1 year; or

(b) on summary conviction, to a fine at level 5 and to imprisonment for 6 months.

53. Destroying or falsifying documents

(1) A person commits an offence if, having been required to produce a document under section 41 (Powers to obtain documents and information) or section 50 (Powers conferred by warrant), the person—

(a) intentionally or recklessly destroys or otherwise disposes of it, falsifies it or conceals it; or

(b) causes or permits its destruction, disposal, falsification or concealment.

(2) A person who commits an offence under subsection (1) is liable—

(a) on conviction on indictment, to a fine of $1,000,000 and to imprisonment for 2 years; or

(b) on summary conviction, to a fine at level 6 and to imprisonment for 6 months.

54. Obstruction of search

(1) It is an offence for a person to obstruct any person exercising a power under a warrant issued under section 48.

(2) A person who commits an offence under subsection (1) is liable—

(a) on conviction on indictment, to a fine of $1,000,000 and to imprisonment for 2 years; or

(b) on summary conviction, to a fine at level 6 and to imprisonment for 6 months.

55. Providing false or misleading documents or information

(1) If any person produces or provides any document or information to the Commission under this Part, that person commits an offence if—

(a) the document or information is false or misleading in a material particular; and

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

(2) A person who—

(a) provides any document or information to another person, knowing the document or information to be false or misleading in a material particular; or

(b) recklessly provides any document or information to another person that is false or misleading in a material particular,

knowing that the document or information is to be used for the purpose of providing information to the Commission in connection with any of its functions under this Part, commits an offence.

(3) A person who commits an offence under this section is liable—

(a) on conviction on indictment, to a fine of $1,000,000 and to imprisonment for 2 years; or

(b) on summary conviction, to a fine at level 6 and to imprisonment for 6 months.

Division 5—Miscellaneous

56. Retention of property

(1) If property is produced to the Commission in response to a requirement under this Part or is obtained under a warrant issued under section 48, the Commission may retain that property—

(a) for as long as may be necessary for the purpose of its investigation; or

(b) where it may be required for legal proceedings, for as long as may be necessary for the purpose of those proceedings.

(2) If a document obtained under this Part is in the possession of the Commission, the Commission must, if requested by a person otherwise entitled to possession of the document, supply that person with a copy of the document certified by a member of the Commission to be a true copy of the original.

(3) Until such a certified copy is issued, the Commission must, at any time and place it considers appropriate, allow a person otherwise entitled to possession of the document, or a person authorized by that person, to inspect and make copies of or take extracts from the document.

(4) A certified copy of a document issued under this section is admissible in evidence in all courts as if it were the original.

57. Disposal of property

(1) If any property has come into possession of the Commission under this Ordinance, the Tribunal may order the disposal of the property in the manner provided in this section.

(2) The Tribunal may, either of its own motion or on application—

(a) make an order for the delivery of the property to the person who appears to the Tribunal to be entitled to the property;

(b) if the person entitled to the property is unknown or cannot be found, make an order that the property be sold or retained in the possession of the Tribunal or the Commission; or

(c) if the property is of no value, order that the property be destroyed.

(3) An order for the delivery, sale or destruction of property must not, except where the property is perishable, be made under subsection (2) unless the Tribunal is satisfied that the property will not be required for the purpose of any proceedings before the Tribunal or any other court.

(4) If—

(a) the Tribunal orders the sale or retention of any property under subsection (2); and

(b) no person establishes a claim to the property or the proceeds of sale of the property within 6 months after the day on which the order is made,

the Tribunal may, either of its own motion or on application by the Commission, order that the property or the proceeds of sale become the property of the Government.

(5) An order made under subsection (2), other than an order for the retention of property, must not, except where the property is perishable, be carried out until the period allowed for making an appeal against the order has expired or, where such an appeal is made, until the appeal is finally disposed of.

(6) An appeal is finally disposed of, for the purpose of subsection (5)—

(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.

58. Legal professional privilege

(1) Subject to subsection (2), this Part does not affect any claims, rights or entitlements that would, but for this Part, arise on the ground of legal professional privilege.

(2) Subsection (1) does not affect any requirement under this Ordinance to disclose the name and address of a client of a counsel or solicitor.

59. Guidelines

(1) The Commission may amend any guidelines it issues under this Part.

(2) Guidelines issued under this Part, and any amendments made to them, may be published in any manner the Commission considers appropriate.

(3) Before issuing any guidelines or amendments to them under this Part, the Commission must consult the Legislative Council and any persons it considers appropriate.

(4) The Commission must make available copies of all guidelines issued under this Part and of all amendments made to them—

(a) at the offices of the Commission during ordinary business hours;

(b) through the Internet or a similar electronic network; and

(c) in any other manner the Commission considers appropriate.

(5) A person does not incur any civil or criminal liability only because the person has contravened any guidelines issued under this Part or any amendments made to them.

(6) If, in any legal proceedings, the Tribunal or any other court is satisfied that a guideline is relevant to determining a matter that is in issue—

(a) the guideline is admissible in evidence in the proceedings; and

(b) proof that a person contravened or did not contravene the guideline may be relied on by any party to the proceedings as tending to establish or negate the matter.

(7) Guidelines issued under this Part and all amendments made to them are not subsidiary legislation.