I ENFORCEMENT POLICIES AND GUIDANCE

i Overview of the Competition Ordinance

The Competition Ordinance (the Ordinance),2 Hong Kong’s first cross-sector competition law, was enacted on 14 June 2012 and came fully into effect on 14 December 2015. The text of the Ordinance draws influence from a number of sources, including the competition laws of the European Union, United Kingdom, Australia, Singapore and others.

The Ordinance has three key prohibitions (the Competition Rules):

  • a The First Con, which provides that, if the object or effect of the agreement, concerted practice or decision is to prevent, restrict or distort competition in Hong Kong, an undertaking must not make or give effect to an agreement; engage in a concerted practice; or as a member of an association of undertakings, make or give effect to a decision of the association.3
  • b The Second Conduct Rule, which provides that an undertaking that has a substantial degree of market power in a market must not abuse that power by engaging in conduct that has as its object or effect the prevention, restriction or distortion of competition in Hong Kong.4
  • c The Merger Rule, which provides that an undertaking must not, directly or indirectly, carry out a merger that has, or is likely to have, the effect of substantially lessening competition in Hong Kong.5 The Merger Rule currently only applies to mergers involving one or more undertakings that directly or indirectly control an undertaking that holds a telecommunications carrier licence.6
ii Enforcement structure

The Competition Ordinance has a two-tier enforcement mode, namely the Competition Commission (the Commission) and the Competition Tribunal (the Tribunal).

The Commission

The Commission is empowered to investigate suspected infringements of the Ordinance, both on its own initiative and in response to complaints. Following an investigation, the Commission may take the following actions:

  • a Decide to take no further action. This is likely where either the Commission concludes to its satisfaction that no infringement of the Ordinance has occurred, or that the Commission does not have sufficient grounds to take additional or alternative steps.
  • b Accept a legally binding commitment. The commitment would require the undertaking to take action or to refrain from taking action to the extent that the Commission considers that this is appropriate to address its concerns about a possible contravention of the Ordinance.
  • c Serve a warning notice. If the Commission has reasonable cause to believe that a contravention of the First Conduct Rule has occurred that does not involve serious anticompetitive conduct, the Commission must issue a warning notice, before bringing proceedings in the Tribunal. The warning notice may require the undertaking to alter its behaviour or to cease and desist from any conduct deemed by the Commission to infringe the Ordinance.
  • d Serve an infringement notice. If the Commission has reasonable cause to believe that there has been a contravention of the First Conduct Rule involving serious anticompetitive conduct or the Second Conduct Rule, or both. Similar to the warning notice, the infringement notice may require the undertaking to alter its behaviour or to cease and desist from any conduct deemed by the Commission to infringe the Ordinance.
  • e Enter into a leniency agreement. The Commission may agree not to bring proceedings against the undertaking in the Tribunal for a pecuniary penalty in exchange for the undertaking’s cooperation in an investigation or in proceedings against a cartel conduct.
  • f Commence enforcement proceedings in the Tribunal.
The Tribunal

The Tribunal is a specialist division within the High Court of Hong Kong, with primary responsibility to hear competition cases and issue decisions on breach, penalties and other relief. The Tribunal is empowered to impose interim orders, pending a final decision of the Commission or the Tribunal. The Tribunal is also empowered to hear appeals in relation to exemption, exclusion and enforcement decisions of the Commission. Decisions of the Tribunal may be appealed to the Court of Appeal and, where appropriate, to the Court of Final Appeal.7

There are no stand-alone rights of action. However, persons that have suffered loss or damage as a result of anticompetitive conduct may bring follow-on claims in the Tribunal to claim damages and other relief.

iii Guidelines and policies

As required under the Ordinance,8 the Commission has issued guidelines indicating how it intends to interpret and give effect to the provisions of the Ordinance. To date, the Commission has issued:

  • a six guidelines relating to each of the Conduct Rules and procedural matters (the Guidelines);
  • b three guidance notes on specific issues relating to the assessment of turnover for the purpose of turnover-based exclusions under the Ordinance, fees payable for making an application to the Commission, and investigation powers of the Commission and legal professional privilege; and
  • c two policy documents that address key aspects of the Commission’s approach in respect of enforcement discretion (Enforcement Policy) and leniency applications (Leniency Policy).
iv The First Conduct Rule

The First Conduct Rule prohibits any agreement, concerted practice or decision where the object or effect is to prevent, restrict or distort competition in Hong Kong.

Within this, a distinction is made between serious anticompetitive conduct (price-fixing, bid rigging, market sharing and output restrictions) and other anticompetitive conduct, which comprises any agreement, concerted practice or decision that is not serious anticompetitive conduct, but which nevertheless has the object or effect of preventing, restricting or distorting competition in Hong Kong.

Certain types of agreement are, by their very nature, regarded by the Commission as being so harmful to competition that their effect does not need to be examined and will be treated as having an anticompetitive ‘object’. Other conduct will be assessed by looking at whether it has or is likely to have an anticompetitive effect.

Prohibited conduct

The Guidelines indicate that the Commission will typically consider the following conduct to have the object of harming competition:

  • a agreements between competitors to fix prices, to share markets, to restrict output or to rig bids (i.e., ‘cartel’ agreements);
  • b the exchange of information between competitors in private on future individual intentions or price; and
  • c an agreement to engage in a group boycott when, in particular, a group of competitors agrees to exclude an actual or potential competitor.

In the case of vertical agreements, resale price maintenance agreements may be considered by the Commission as having the object of harming competition.

Other conduct may be considered by the Commission to have the effect of harming competition. Examples of such conduct are joint purchasing agreements, joint venture arrangements and exclusive distribution or customer allocation agreements.

v The Second Conduct Rule

The Second Conduct Rule prohibits the abuse of a substantial degree of market power where the object or effect of the conduct is to prevent, restrict or distort competition in Hong Kong.

Substantial degree of market power

The Ordinance sets out a number of factors that may be taken into consideration in determining whether an undertaking has a substantial degree of market power in a market. These factors include the market share of the undertaking, the undertaking’s power to make pricing and other decisions, and any barriers to entry to competitors into the relevant market.9

The Guidelines provide that, in general, an analysis of market shares may be useful as an initial screening device in the assessment of substantial market power. The Guidelines also state that undertakings are more likely to have a substantial degree of market power where they have high market shares. However, there has been no guidance from the Commission as to a specified market share safe-harbour or presumptive threshold over which a substantial degree of market power might be presumed.

Abusive conduct

The Ordinance cites predatory behaviour towards competitors, and limiting production, markets or technical development to the prejudice of consumers, as two particular examples of conduct that may constitute an abuse.10

The Guidelines provide additional non-exhaustive examples of types of conduct that the Commission may consider an abusive conduct: tying and bundling, margin squeeze conduct, refusals to deal and exclusive dealing (including conditional rebates).

vi Enforcement policy of the Commission

The Commission has published high-level guidance as to its enforcement priorities under its Enforcement Policy. The Enforcement Policy suggests that the Commission will consider three key issues when deciding which cases to investigate and how to resolve them, namely, compliance focus, severity factors, and effective and appropriate remedies.

Compliance focus

The Enforcement Policy provides that the Commission will encourage compliance by targeting anticompetitive conduct that is clearly harmful to competition and consumers in Hong Kong.

When considering whether to investigate a particular case, the Commission will accord priority to those cases that involve particularly harmful conduct, namely:

  • a cartel conduct;
  • b other agreements contravening the First Conduct Rule causing significant harm to competition in Hong Kong; and
  • c abuses of substantial market power involving exclusionary behaviour.

Cartel conduct refers to agreements and concerted practices between competitors to fix prices, share markets, restrict output or rig bids. The Enforcement Policy states that where the Commission considers a cartel conduct has occurred, the Commission may prioritise taking action against associations of undertakings or officers (or both), including directors of undertakings, in addition to taking action against the undertakings concerned.

Severity factor

The Commission will also take into account whether the conduct involves one or more of the following severity factors:

  • a the conduct demonstrates a blatant disregard for the law;
  • b the conduct was deliberate;
  • c the conduct was engaged in by or under the direction of the senior management of an undertaking; or
  • d the conduct was carried out by a person previously warned about the conduct by the Commission or found by the Tribunal to have breached the Ordinance.
Effective and appropriate remedies

The Commission will generally favour remedies that would achieve the following remedial goals:

  • a stopping the unlawful conduct speedily;
  • b undo the harm caused by the unlawful conduct, such as by affording damages to affected parties;
  • c imposing sufficient economic sanction to encourage compliance with the Ordinance, both by the persons involved in the contravention and other participants in the market; and
  • d consistency with previous remedies for similar conduct, reflecting the culpability of the parties, and setting an appropriate standard for future similar cases (if there are no existing precedents).

II COOPERATION WITH OTHER JURISDICTIONS

The Guidelines provide that where a cartel operates in multiple jurisdictions, the Commission may cooperate with authorities in other jurisdictions when conducting their respective cartel investigations. Undertakings who are cooperating with the Commission (either as a party to a leniency agreement or otherwise) will be expected to provide the Commission with details of the other jurisdictions where they have sought immunity or leniency, and an indication of the ongoing status of their application in those jurisdictions. In appropriate cases and where permitted by law, the Commission may require a leniency applicant to authorise the Commission to exchange confidential information with authorities in another jurisdiction.

To date, the Commission has signed a memorandum of understanding (MOU) with the Canadian Competition Bureau with the purpose of enhancing cooperation, coordination and information sharing between the two agencies on competition issues of mutual concern. The MOU provides a framework for the sharing of information about enforcement matters and for the coordination of enforcement activities between the agencies. This is the Commission’s first international cooperation instrument in the area of competition policy and law. It is expected that the Commission will continue to build up its bilateral exchanges with overseas counterparts.

III JURISDICTIONAL LIMITATIONS, AFFIRMATIVE DEFENCES AND EXEMPTIONS

i Extraterritoriality

Prohibitions under the Conduct Rules can apply to conduct engaged in outside Hong Kong if it may have an impact on competition in Hong Kong.

The First and Second Conduct Rules expressly provide that they apply to conduct that has as its object or effect the prevention, restriction or distortion of competition in Hong Kong even if the undertaking engaging in the conduct is outside Hong Kong, or if the conduct is engaged in outside Hong Kong.11

The Merger Rule provides that it applies to a merger even if the arrangement for the creation of the merger, or the merger itself, takes place outside Hong Kong, or if any the parties involved are located outside Hong Kong.12

Hong Kong recognises the legal doctrine of sovereign immunity. The courts have in the past held that foreign states and the Chinese government enjoy absolute immunity from enforcement by and the jurisdiction of the Hong Kong courts.13 Where a party seeks to enforce a contract with a foreign state in the Hong Kong courts, it must establish that the foreign state has waived its entitlement to immunity.

ii Exclusions and exemptions
Efficiency exclusion

The Ordinance provides an exclusion from the First Conduct Rule for agreements that enhance overall economic efficiency, if it can be demonstrated that:

  • a the agreement contributes to improving production or distribution, or promoting technical or economic progress;
  • b consumers receive a fair share of the efficiencies;
  • c the agreement does not impose on the undertakings concerned restrictions that are not indispensable to the attainment of the relevant efficiencies; and
  • d the agreement does not afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the goods or services in question.14

The Ordinance does not limit the type of conduct that may be excluded under the efficiency exclusion. However, the Guidelines provide that as a practical matter, cartel conduct involving price-fixing, market sharing, output restriction or bid rigging is unlikely to be justifiable. Given the absence of a general vertical block exemption in Hong Kong, it would not be surprising to see parties frequently seeking to rely on this exclusion to justify conduct (e.g., around distribution system management). It remains to be seen how the Commission, and the Tribunal and appeal courts, will approach such arguments.

Other exclusions

The Ordinance contains a number of other general exclusions from the First and Second Conduct Rules for compliance with legal requirements, undertakings entrusted by the government with the operation of services of a general economic interest, and mergers.15 The Ordinance also does not apply to statutory bodies, except those specifically approved by the Chief Executive in Council, even where such statutory bodies carry out economic activities on the market.16 This was a highly controversial move by the Administration and signals a significant backward step in Hong Kong’s economic policy.

In addition, the Ordinance provides a general exclusion for ‘agreements of lesser significant’, which excludes:

  • a the application of the First Conduct Rule from agreements between undertakings (except serious anticompetitive conduct) with a combined turnover for the relevant turnover period not exceeding HK$200 million; and17
  • b the application of the Second Conduct Rule from conduct engaged in by an undertaking for the relevant turnover period not exceeding HK$400 million.18
Block exemption

The Commission is empowered to issue a block exemption order to exempt a particular type of agreement from the First Conduct Rule, if it is satisfied that such category of agreement is excluded as a result of the efficiency exclusion.19

To date, the Commission has not issued any block exemption order. However, the Commission has published a proposed block exemption order for consultation that declares that activities usually undertaken pursuant to vessel sharing agreements (VSAs) are excluded from the application of the First Conduct Rule, subject to certain conditions, including that the parties to the VSA do not collectively exceed a market share threshold of 40 per cent.

IV LENIENCY PROGRAMMES

The Ordinance provides that the Commission may, in exchange for a person’s cooperation in an investigation or in proceedings, enter into a leniency agreement with the person that it will not bring or continue proceedings for a pecuniary penalty in respect of an alleged contravention of a Conduct Rule.20

The Commission’s Leniency Policy provides that leniency is available only in respect of ‘cartel’ conduct contravening the First Conduct Rule, and for the first cartel member who reports the cartel conduct to the Commission and meets all the requirements for receiving leniency.21

In exchange for a cartel member’s cooperation, the Commission will undertake not to commence proceedings for a pecuniary penalty against the cartel member who enters into a leniency agreement with the Commission. The Commission will also agree not to bring any other proceedings before the Tribunal or other courts other than proceedings for an order declaring that the cartel member has contravened the First Conduct Rule. However, a leniency agreement does not provide immunity from follow-on actions by persons who have suffered loss or damage as a result of the cartel.

The Leniency Policy only applies to undertakings. However, the Commission has said that it will extend leniency to current officers and employees of the cartel member and specifically named former officers or employees and current and former agents of the cartel member who cooperate with the Commission.

i Leniency application
Applying for a marker

The Commission uses a marker system to establish a queue in order of the date and time the Commission is contacted with respect to the conduct for which leniency is sought. A request for marker may only be made by using the leniency hotline.

To obtain a marker, the caller must provide sufficient information to identify the conduct for which leniency is sought, including, at a minimum, disclosing the identity of the undertaking applying for the marker, information on the nature of the suspected cartel (such as the products or services involved), the main participants in the suspected cartel conduct and the caller’s contact details.

Invitation to apply for leniency

The Commission will make a preliminary determination on whether the reported conduct is potential cartel conduct and whether leniency is available. If this is affirmative, the Commission will notify the undertaking with the highest ranking marker that it may make an application for leniency.

Submission of ‘proffer’

The undertaking invited to apply for leniency is asked to provide a detailed description of the suspected cartel, the entities involved, the role of the applicant, a timeline of the conduct and the evidence the leniency applicant can provide in respect of the conduct (commonly referred to as a ‘proffer’). The proffer may be made in hypothetical terms and through a legal representative on a ‘without prejudice‘ basis. The proffer should include an explanation of how the conduct affects or relates to competition in Hong Kong, in order to establish a jurisdictional nexus and provide an estimate of the value and volume of sales affected by the suspected cartel in Hong Kong.

The Commission will invite the undertaking to submit an application by completing its proffer within a specified period, ordinarily within 30 calendar days. The undertaking’s marker will automatically lapse if the undertaking fails to complete its proffer within this time frame, or any extension to it as might be agreed by the Commission. Based on the proffer and any additional information requested and provided by the applicant, the Commission will determine whether to make an offer to enter into a leniency agreement.

Enter into a leniency agreement

The Commission will extend an offer to the applicant to enter into a leniency agreement if the applicant meets the requisite conditions. The Leniency Policy provides that the leniency agreement will require the applicant to confirm that:

  • a it has provided and will continue to provide full and truthful disclosure to the Commission;
  • b it has not coerced other parties to engage in the reported conduct;
  • c it has taken prompt and effective action to terminate its involvement in the reported conduct (absent a consent from the Commission);
  • d it will keep confidential all aspects of the leniency application and the leniency process (unless the Commission’s prior consent has been given or the disclosure of information is required by law);
  • e it will provide continuing cooperation to the Commission including in proceedings against other undertakings;
  • f it will agree to and sign a statement of agreed facts admitting to its participation in a cartel, on the basis of which the Tribunal may be asked jointly by the Commission and the applicant to make an order declaring that the applicant has contravened the First Conduct Rule; and
  • g it is prepared to continue with, or adopt and implement, at its own cost, an effective corporate compliance programme to the satisfaction of the Commission.

The Commission may terminate the agreement if the undertaking fails to abide by the terms of the leniency agreement, or if the Commission has reasonable grounds to suspect that the information on which it based its decision to make the agreement was incomplete, false or misleading.

Concerns were raised by various parties when the Commission was consulting on its draft Leniency Policy, that requiring parties to commit to a written agreement at an early stage in an investigation may not be workable. It remains to be seen whether, and if so how, the Commission brings its procedure in line with the leniency procedure in other significant jurisdictions. This will be particularly important in respect of multi-jurisdictional cartel investigations.

ii Cooperation outside of leniency

The Leniency Policy provides that the Commission will rely on its enforcement discretion in relation to undertakings that engaged in or were involved in possible cartel conduct but do not qualify for leniency. For undertakings that provide cooperation, the Commission will, to the extent permitted by law, consider a lower level of enforcement action, including recommending to the Tribunal a reduced pecuniary penalty or the making of an appropriate order. The Commission will consider a range of factors in assessing the extent and value of cooperation, including whether the undertaking:

  • a approached the Commission in a timely manner seeking to cooperate;
  • b provided significant evidence regarding the cartel conduct;
  • c provided full and truthful disclosure, and cooperated fully and expeditiously;
  • d coerced any other person to participate in the cartel; and
  • e acted in good faith in dealings with the Commission.

Notwithstanding the above, it is ultimately the Tribunal and appeal courts that decide whether a pecuniary penalty is appropriate and if so, the level of the penalty that should be imposed.

V PENALTIES

Hong Kong has not introduced criminal jail terms for individuals engaged in cartel conduct. This is no surprise given that even the suggestion of a competition law itself was highly controversial in what had, until recently, been a staunchly laissez-faire economy.

Infringement of the First or Second Conduct Rule is a civil offence potentially resulting in severe penalties. The Commission may apply to the Tribunal for a pecuniary penalty to be imposed on any person it has reasonable cause to believe has contravened or has been involved in a contravention of a Conduct Rule.22 The Commission must make the application within five years after the day on which the contravention ceased or the Commission became aware of the infringement, whichever is later.23 The Tribunal may, on application by the Commission, order that person to pay to the government a pecuniary penalty of up to 10 per cent of the Hong Kong turnover of the undertaking concerned for each financial year in which the contravention occurred, up to a maximum of three years.24 In determining the amount of the pecuniary penalty, the Tribunal must have regard to:

  • a the nature and extent of the conduct that constitutes the contravention;
  • b the loss or damage, if any, caused by the conduct;
  • c the circumstance in which the conduct took place; and
  • d whether the person has previously been found by the Tribunal to have contravened the Ordinance.

The Tribunal may also, on application by the Commission, make a director’s disqualification order against a person for a period not exceeding five years.25 In addition, the Tribunal may (either of its own motion or on application by a third party) make any order it considers appropriate against that person, including an order:

  • a prohibiting a person from making or giving effect to an agreement;
  • b declaring any agreement (the making or giving effect to which constitutes the contravention of the Conduct Rules) to be void or voidable;
  • c requiring a person to pay damages to any person who has suffered loss or damage as a result of the contravention; and
  • d requiring any person to pay to the government or to any other specified person the amount of any profit gained or loss avoided as a result of the contravention, as the Tribunal considers appropriate.26

Although it remains to be tested by the courts, both members of the Commission and the president of the Tribunal have stated their view that individuals, as well as undertakings, are exposed to prosecution and, where appropriate, financial penalties. There is no reference in the Guidelines on the possible liability of individuals. Some commentators argue that they are subject to the same potential penalties as undertakings. The lack of clarity is unfortunate and it is not clear why this issue was not raised in the Guidelines or the public consultation preceding their introduction.

VI ‘DAY ONE’ RESPONSE

i The Commission’s investigative powers

The Commission has broad powers to investigate under the Ordinance. The Commission may issue notices requiring a person to provide documents or specific information, where it has reasonable cause to suspect that person has or may have possession or control of relevant documents or information, or may otherwise be able to assist the Commission in its investigation.27 The Commission may also require any person to appear before it, at a specified time and place, to answer questions relating to any matter the Commission reasonably believes to be relevant to an investigation and to give a declaration confirming the accuracy of the answers.28

The Commission is also entitled to seek a search warrant from the Court of First Instance to enter and search specific premises for evidence.29 A search warrant may be issued where a judge of the Court of First Instance is satisfied, on the basis of an application made on oath by an authorised officer of the Commission, that there are reasonable grounds to suspect that there are or are likely to be, on the premises in question, documents that may be relevant to an investigation by the Commission. A search warrant authorises the Commission to, among other matters:

  • a use reasonable force to gain entry to or access evidence on the premises;
  • b remove any obstructions to the execution of the warrant (including individuals who are obstructing the execution of the warrant);
  • c take such action and steps as necessary for the preservation of any relevant documents or the prevention of any interference with them (including the alteration or removal of such documents from the premises), such as by taking possession of any computer or other device found on the premises that Commission officers believe will, on examination, afford evidence of a contravention;
  • d search, copy or confiscate relevant documents and equipment (such as a computer or other device) that might reasonably provide evidence of a contravention of a Conduct Rule; and
  • e seek explanations from individuals present at the premises about any documents that may appear to be relevant.30

In the first nine months of the full implementation of the Ordinance, the Commission said it had already conducted six dawn raids. It is expected that the Commission will use this power liberally as a means of collecting evidence in cartel cases.

ii Sanctions for non-compliance with investigations

The Ordinance contains certain criminal offences relating to obstruction of the Commission’s investigations.

Failure to comply without reasonable excuse with any requirement (or prohibition) imposed under the Commission’s investigation powers is a criminal offence punishable by fines of up to HK$200,000 and imprisonment for one year.31

Providing false or misleading information, destroying, falsifying or concealing documents, obstructing a search under warrant, or disclosing confidential information received from the Commission is also a criminal offence punishable by fines of up to HK$1 million and imprisonment for two years.32

VII PRIVATE ENFORCEMENT

Under the Ordinance, only the Commission can commence proceedings in the Tribunal against an alleged contravention of a Conduct Rule. The Ordinance does not provide for a private stand-alone right to enforce the Conduct Rules or the Merger Rule. However, a person who has suffered loss or damage as a result of a contravention of a Conduct Rule has a follow-on right of action. This right only arises where:

  • a the Tribunal (or the appellate courts) has determined the act contravened a Conduct Rule; or
  • b a person has admitted to contravening a Conduct Rule in a commitment that has been accepted by the Commission.33

A leniency agreement does not provide immunity from follow-on actions by persons who have suffered loss or damage as a result of the cartel. The Commission has said that a leniency applicant will be required to agree to and sign a statement of agreed facts admitting to its participation in the cartel, on the basis of which the Tribunal may be asked jointly by the Commission and the applicant to make an order declaring that the applicant has contravened the First Conduct Rule.

VIII CURRENT DEVELOPMENTS

The Commission has disclosed that since the implementation of the Ordinance and as of 14 June 2016, the Commission has received 1,250 enforcement contacts, of which 272 related to alleged cartels, 238 related to alleged resale price maintenance, 267 related to alleged abusive conduct and 224 related to the general state of competition. Out of the 1,250 enforcement contacts, the Commission has moved 111 cases to the initial assessment phase, 10 of which are currently under in-depth investigation. As of 28 October 2016, the Commission has conducted six raids.

The Commission published its first ever enforcement action on 31 May 2016. The Hong Kong Newspaper Hawker Association had issued a notice to its members to increase the recommended price at which they sold certain branded cigarette products. The Commission decided not to take any further action after the association quickly rectified its conduct by withdrawing the price recommendation notice and reminding its members that they should individually determine their own prices. The Commission’s decision took into consideration the fact that the conduct was public, in apparent ignorance of the law and that the association quickly rectified its conduct.

On 24 May 2016, the Commission announced the results of its study into the residential building renovation and maintenance market. The report noted that suspicious patterns were identified that point to the possibility of prevailing bid manipulation practices. However, there was no conclusive proof that collusive activities had taken place. If the Commission was to encounter similar patterns using more recent data, it would very likely investigate them. The Commission is also undertaking a study into the auto fuel market in Hong Kong and is expected to release the results soon.

Footnotes

1 Stephen Crosswell is a partner, Tom Jenkins is a senior associate and Donald Pan is an associate at Baker McKenzie.

2 Chapter 619.

3 Section 6, Competition Ordinance.

4 Section 21, Competition Ordinance.

5 Section 3 and 4, Schedule 7, Competition Ordinance.

6 As defined in Section 2, Telecommunications Ordinance.

7 Sections 154 and 155, Competition Ordinance.

8 Section 35, Competition Ordinance.

9 Section 21(3), Competition Ordinance.

10 Section 21(a), Competition Ordinance.

11 Sections 8 and 23, Competition Ordinance.

12 Section 2, Schedule 7, Competition Ordinance.

13 Democratic Republic of the Congo v. FG Hemisphere Associates [2011] HKCFA 41; Intraline Resources SDN BHD v. The Owners of the Ship or Vessel “Hua Tian Long” [2010] 3 HKLRD 67.

14 Section 1, Schedule 1, Competition Ordinance.

15 Sections 2, 3 and 4, Schedule 1, Competition Ordinance.

16 Section 3, Competition Ordinance.

17 Section 5, Schedule 1, Competition Ordinance.

18 Section 6, Schedule 1, Competition Ordinance.

19 Section 15, Competition Ordinance.

20 Section 80, Competition Ordinance.

21 That being said, the Leniency Policy also states that it does not preclude the Commission from entering into a leniency agreement with an undertaking with respect to an alleged contravention of a Conduct Rule that is not covered by the policy.

22 Section 92(1), Competition Ordinance.

23 Section 92(2)(b), Competition Ordinance.

24 Section 93, Competition Ordinance.

25 Section 101(2), Competition Ordinance.

26 Section 94 and Schedule 3, Competition Ordinance.

27 Section 41, Competition Ordinance.

28 Section 42, Competition Ordinance.

29 Section 48, Competition Ordinance.

30 Section 50, Competition Ordinance.

31 Section 52, Competition Ordinance.

32 Sections 55, 53, 54 and 128(3), Competition Ordinance.

33 Section 110(3), Competition Ordinance.