On 3 October 2017, the Competition Tribunal ruled in CTEA 1/2017 that statements made by employees of Nutanix Hong Kong Limited (Nutanix) and BT Hong Kong Limited (BT) during the interviews with the Competition Commission (Commission) should remain admissible against their employers in the substantive hearing. The Tribunal clarified the scope of privilege against self-incrimination under s.45(2) of the Competition Ordinance (Cap 619) (CO) and held that in a case where an individual was required to attend before the Commission in his personal capacity, statements made by the individual at such attendance will only be protected against self-incrimination of that individual and cannot be extended to protect another person, including the individual’s employer.
The Competition Tribunal’s decision and reasoning potentially applies to investigations by other regulators such as the Securities and Futures Commission and confirms the well understood position that privilege against self-incrimination is only available to protect against incrimination of the maker of the statements during the compelled interview and cannot be extended to protect another person, including the maker’s employer.
The underlying proceedings in this case are an application by the Commission contending that the conduct of five companies, namely the First to Fifth Respondents, constituted “bid-rigging” which infringes the first conduct rule stipulated under the CO. Nutanix and BT are the First and Second Respondents respectively.
In exercising its investigative powers, the Commission issued notices under s.42 of the CO to one employee of Nutanix and two employees of BT requiring their attendance before the Commission to answer questions. The employee of Nutanix attended the interview accompanied by Nutanix’s legal advisors, who now claimed to be acting only for Nutanix and that their assistance was provided to the employee in his capacity as Nutanix’s employee, but not his personal capacity. Further, one of the employees of BT attended the interview with his own legal advisors and without the presence of BT’s legal advisors, while the other BT employee attended the interview with BT’s legal advisors.
Subsequent to the interviews, both Nutanix and BT filed an Originating Notice of Application seeking an order to strike out references to certain statements made by their employees during the interviews and to debar the Commission from adducing into evidence or relying upon all such statements in the substantive hearing against Nutanix and BT.
Nutanix and BT’s Arguments
Nutanix and BT contended that the statements made by their employees are inadmissible against them in the substantive hearing by virtue of s.45(2) of the CO. This section provides that no statement made by “a person” in giving any explanation or further particulars about a document or in answering any question is admissible against “that person” in the proceedings. Put simply, it was the case of Nutanix and BT that the “person” who made the statements is or includes them and so they should be protected by the privilege against self-incrimination.
Two grounds were raised by Nutanix. First, it argued that its employee was called to speak at the interview on Nutanix’s behalf and so the statements he made during the interview should be regarded as statements made on its behalf. Nutanix relied on the fact that the employee was made available by Nutanix to attend before the Commission and that he was accompanied at the interview by Nutanix’s legal advisors.
The second ground raised by Nutanix is that where the Commission seeks to attribute the allegedly infringing conduct of an employee to its employer to hold the employer liable, the statements made by the employee during an interview should be regarded as the employer’s answers. This was also the sole ground relied on by BT.
The issue was whether the privilege against self-incrimination under s.45(2) of the CO extends to protect persons other than the maker of the statement.
The Tribunal acknowledged that in a case where a company itself was required by the Commission to provide information, the company will then be the “person” under s.45(2) of the CO and can enjoy the privilege therein. However, this was not the case here. The Tribunal held that the identity of the person required by the Commission to attend and answer questions depends on the construction of the notice itself. In this case, the notices were not addressed to the employers, but to the employees personally.
In a case where the notice to attend before the Commission is issued to a natural person, his obligation to attend is personal to him and he does not become a representative or agent of his employer in answering questions merely because he was somehow made available by his employer or because he was accompanied by his employer’s legal advisors. On this basis, the Tribunal rejected Nutanix’s argument that the employee was its representative and had attended the interview on its behalf.
Further, the Tribunal clarified that where the Commission requires a natural person to attend and answer questions, it is the knowledge of that person to which the Commission seeks to gain access. The Tribunal did not see any policy reasons to require that such attendance and answers be attributed to the person’s employer and pointed out that the employee could even have been uncooperative with or even hostile to his employer. Further, attribution is a matter to be established, if at all, at the end of the case, while questions of admissibility are determined earlier. The argument by Nutanix and BT on attribution was also rejected.
The Tribunal concluded that there is no authority suggesting that an employee has the privilege to refuse to answer questions on the ground that it may incriminate his employer, nor do employers have the privilege to prevent statements made by their employees in their personal capacities to be used against them. The Tribunal affirmed the legal principle that privilege against self-incrimination is understood to be a privilege against incrimination of the maker of the statements and cannot be extended to protect another person.
It is a common feature in some Hong Kong legislation, notably the Securities and Futures Ordinance (Cap. 571) (ss. 184(4) & 187), Anti-Money Laundering and Counter-Terrorist Financing (Financial Institutions) Ordinance (Cap. 615) (ss. 13(11) & 15), Insurance Ordinance (Cap. 41) (41G(6) & 41H) and Mandatory Provident Fund Schemes Ordinance (Cap. 485) (ss. 34ZZC(6) & 34ZZE) that an interviewee is not excused from responding to questions put to him by the regulator during a compelled interview on the ground of privilege against self-incrimination, but in exchange, the law has limited or prevented the admissibility of the statements against the maker in subsequent criminal proceedings against the maker (save for false statements or perjury).
The Competition Tribunal’s decision and reasoning potentially applies to similar provisions in other legislation mentioned above and confirms the well understood position that privilege against self-incrimination is only available to protect against incrimination of the maker of the statements during the compelled interview and cannot be extended to protect another person, including the maker’s employer.
It is not uncommon in regulatory investigations that a number of employees will be called upon to attend compelled interviews by the regulator. Practitioners should be reminded to assess and continuously review and monitor the conflicts of interest as between the employer company and the employee and among the various employees when representing them in the same investigation. If necessary, separate legal representation should be adopted.