The Competition Tribunal today handed down two decisions which clarified the principles in determining applications for redaction of information in the Statements of Agreed Facts and Decisions in Carecraft Procedure.
In Competition Commission v. Quadient Technologies Hong Kong Limited & Ors [2023] HKCT 1, both liability and the penalties sought by the Commission against all the respondents are agreed. The parties have, as required by what is known as the Kam Kwong Procedure in Hong Kong competition law enforcement proceedings, agreed Statements of Agreed Facts.
Likewise, in Competition Commission v Gray Line Tours of Hong Kong Limited [2023] HKCT 2, the 1st, 5th and 6th Respondents admitted the alleged contraventions and agreed with the Commission that the proceedings against them should be disposed of by the Kam Kwong Procedure.
In Competition Commission v. Quadient Technologies Hong Kong Limited & Ors [2023] HKCT 1, the Commission sought confidentiality treatment of various information including (i) price-related information; (ii) identities of individuals employed or formerly employed by the respondents; (iii) identities of non-parties to the proceedings; (iv) value of sales figures and (v) turnover figures set out in the Statement of Agreed Facts.
All the respondents did not insist on seeking confidential treatment of the value of sales figures and turnover figures. The Commission nonetheless invited the Tribunal to decide whether confidential treatment should be granted over (i) price-related information; (ii) employee identities and (iii) non-party identity. The Tribunal’s decision can be summarised as follows.
1. As a starting point, a more disciplined and rigorous approach should be adopted given that competition enforcement proceedings for breach of the First Conduct Rule involve “the determination of a criminal charge”, thereby engaging Articles 10 and 11 of the Hong Kong Bill of Rights Ordinance (the “BOR”), which have constitutional force by virtue of Article 39 of the Basic Law. There is thus little room for restricting information relied on by the Commission being made available to a respondent on the grounds of confidentiality. It is also the clear intention of Article 10 that restrictions on information that would otherwise become public, being made available to the public about legal proceedings before a tribunal, are exceptional.
2. The Statements of Agreed Facts form part of a judgment of the Tribunal which had to be made public and redaction should therefore only be made if Article 10 of the BOR is satisfied.
3. An example of circumstances which are capable of justifying departing from the open justice principle in the competition law enforcement context is a case in which it can be demonstrated that disclosure of information could harm competition and frustrate the purpose of the legislation and the proceedings.
4. This included the need to redact the identity of a witness in order to protect them from an unjustified degree of public or media attention and the ancillary risk that potential witnesses in other cases may be discouraged from assisting the Commission in its investigations if they anticipate their identity and involvement being made public. This has to be justified and demonstrated by cogent evidence rather than conjectures. The Tribunal held that: –
(1) So far as the identity of individuals in Statements of Agreed Facts or decisions of the Tribunal is concerned if nothing of importance turns on the identity of the individual they should be referred to as “an employee of X limited” or similar language.
(2) If the name of the individual is important, the Commission should be able to adduce precise evidence justifying its redaction.
(3) So far as originating notices of motion are concerned generally, the Tribunal will in future agree to the redaction of names of individuals as against the public. The redactions should take the form of a footnote to the name redacted describing the individual as “an employee of X limited or X Respondent” or a similar description unless the Commission can provide substantive evidence for not doing so.
5. Notwithstanding information like value of sales and turnover might be commercially sensitive, it was not apparent how making such information public might frustrate the purpose of the proceedings. The Tribunal is therefore of the view that there was no basis for the redaction of sales figures and turnover in this case.
The key takeaway is that the need for redactions and confidential treatment of information must be justified and demonstrated by cogent evidence and mere assertion of confidentiality or sensitivity will not be sufficient.
Connie Lee acted for the 4th Respondent in Competition Commission v. Quadient Technologies Hong Kong Limited & Ors [2023] HKCT 1 and attended the hearing on 10 June 2022.
