In October 2017 the Hong Kong Competition Tribunal (Tribunal) handed down its judgment on applications made by two respondents, Nutanix and BT, to strike out certain statements given by their employees during interviews conducted by the Hong Kong Competition Commission (HKCC) and to debar the HKCC from using such statements in the upcoming substantive hearing. The present case concerned an application by the HKCC earlier this year against five IT companies for allegedly engaging in bid-rigging activities. This also marked the first case that the HKCC brought before the Tribunal since the Competition Ordinance (CO) commenced full operation in December 2015.
Under section 42 of the CO, the HKCC has the power to issue a written notice to require any person to attend an interview (Interview Notice). Non-compliance with the Interview Notice is a criminal offence. At the same time, the CO protects interviewees against self-incrimination for any statement made during such interview.
During the hearing, Nutanix and BT argued that the scope of this protection against self-incrimination covers not only the individuals but the companies themselves. Nutanix contended that certain statements made are inadmissible against the employer where the employee’s conduct is sought to be attributed to the employer, and the employee attended the interview and spoke on behalf of the employer. BT submitted that where the HKCC seeks to attribute the employee’s conduct to the employer, the selfincrimination provision should cover the employer. In response, the HKCC argued that the statements made by the employee during the interview should not be regarded as statements made by the employer and therefore such statements remain admissible against the employer.
The presiding judge, Mr. Justice Godfrey Lam (the President of the Tribunal), held that the statements made during the interview are inadmissible only against the subject of compulsion, which is the person named on the Interview Notice, but not anyone else. Since the Interview Notices were each addressed to the named employee, it is the individual employee who can enjoy the privilege but not his/her employer. Nutanix and BT’s applications were therefore rejected by the Tribunal.
Given the broad powers provided to the HKCC by the CO to summon any person to attend an interview, the privilege against self-incrimination would appear to offer companies little (if any) protection in relation to statements made during such interviews. There may be a stronger argument for a company to seek to exclude self-incriminating statements made if the Interview Notice is addressed to the company itself (and the company decides which employee to send to attend the interview). In particular, Mr. Justice Lam has confirmed that the word “person” in section 45 is, as a matter of definition, capable of meaning an undertaking, be it a company, partnership, unincorporated association or individual.
The case is scheduled for a 15-day trial before the Tribunal in June 2018.