hklii_samples/en_cases_hkct/2024_HKCT_1/case.json

{
  "Date": "11 Jan, 2024",
  "Action No.": "CTEA2/2022",
  "Neutral Cit.": "[2024] HKCT 1",
  "case_title": "COMPETITION COMMISSION V. ATAL BUILDING SERVICES ENGINEERING LTD AND OTHERS",
  "page_title": "COMPETITION COMMISSION V. ATAL BUILDING SERVICES ENGINEERING LTD AND OTHERS | [2024] HKCT 1 | HKLII",
  "case_history": [],
  "appeal_history": [
    {
      "name": "CTEA2/2022",
      "link": "https://www.hklii.hk/en/appealhistory/CTEA/2022/2"
    },
    {
      "name": "CTEA2/2023",
      "link": "https://www.hklii.hk/en/appealhistory/CTEA/2023/2"
    }
  ],
  "case_url": "https://www.hklii.hk/en/cases/hkct/2024/1",
  "neutral_cit": "[2024] HKCT 1",
  "court_code": "HKCT",
  "content": "CTEA2A/2022 COMPETITION COMMISSION v. ATAL BUILDING SERVICES ENGINEERING LTD AND OTHERS\nCTEA 2/2022 and CTEA 2/2023\n(HEARD TOGETHER)\n[2024] HKCT 1\nCTEA 2/2022\nIN THE COMPETITION TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOMPETITION TRIBUNAL ENFORCEMENT ACTION NO 2 OF 2022\n____________________\nBETWEEN\nCOMPETITION COMMISSION\nApplicant\nand\nATAL BUILDING SERVICES ENGINEERING LIMITED\n1\nst\nRespondent\nANALOGUE HOLDINGS LIMITED\n2\nnd\nRespondent\nSHUN HING ENGINEERING CONTRACTING COMPANY LIMITED\n3\nrd\nRespondent\nSHUN HING HOLDINGS COMPANY LIMITED\n4\nth\nRespondent\nSER KA WAI\n5\nth\nRespondent\nCHENG KIT SHUN\n6\nth\nRespondent\nKWAN SIU KIN\n7\nth\nRespondent\nAND\nCTEA 2/2023\nIN THE COMPETITION TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOMPETITION TRIBUNAL ENFORCEMENT ACTION NO 2 OF 2023\n____________________\nBETWEEN\nCOMPETITION COMMISSION\nApplicant\nand\nATAL BUILDING SERVICES ENGINEERING\n1\nst\nRespondent\nLIMITED\nJOHNSON CONTROLS HONG KONG LIMITED\n2\nnd\nRespondent\nYORK INTERNATIONAL (NORTHERN ASIA) LIMITED\n3\nrd\nRespondent\nJOHNSON CONTROLS INTERNATIONAL PLC\n4\nth\nRespondent\nLEE YUI MING\n5\nth\nRespondent\n____________________\n(HEARD TOGETHER)\nBefore:\nHon Harris J, President of the Competition Tribunal in Chambers\nDate of Hearing:\n27 November 2023\nDate of Decision:\n27 November 2023\nDate of Reasons for Decision:\n11 January 2024\n_________________________________\nREASONS FOR DECISION\n_________________________________\n1.\nOn 25 October 2023 I handed down my decision in respect of applications heard on 29 August 2023 in CTEA 2/2023 (“\n1\nst\nAction\n”). The applications were for an order that a\nKam Kwong\napplication that had been made in the 1\nst\nAction (although wrongly formulated as an order for a declaration and penalty by consent\n[1]\n) by the Commission and the 1\nst\nRespondent (“\nATAL\n”) be heard together with a similar application in CTEA 2/2022 (“\n2\nnd\nAction\n”), although no such application had been issued and listed in the 2\nnd\nAction before 29 August 2023. I determined that the applications in the 1\nst\nAction and (necessarily when the requisite application was made) in the 2\nnd\nAction, be heard at or immediately after the trial of the Actions or when all the Respondents had agreed that the Actions be determined by\nKam Kwong\napplications for the reasons explained in my decision. The Commission seeks leave to appeal that decision along with directions to which ATAL and 5\nth\nand 6\nth\nRespondents (employees of ATAL) agree for the\nKam Kwong\napplications in the 2\nnd\nAction to be heard at the same time as the\nKam Kwong\napplications to be made in the 1\nst\nAction.\n2.\nI wrote to the Parties in both Actions on 18 September 2023 directing that as the Commission and ATAL sought one penalty of HK$150,000,000 be imposed in both the Actions that at the next CMC the following questions be addressed:\n“2.1\nIssue 1\n: whether one pecuniary penalty can be imposed in two proceedings;\n2.2\nIssue 2\n: if yes, the matters to be taken into account in determining the appropriate penalty;\n2.3\nIssue 3\n: when the pecuniary penalty in Action 1 should be determined (this matter was addressed in Action 2); and\n2.4\nIssue 4\n: whether the facts of the Actions make it appropriate for a single pecuniary penalty to be imposed.”\n3.\nIt was apparent from ATAL’s skeleton that it understood that my concern was whether the Tribunal could properly give one composite judgment imposing one composite fine in two proceedings. At the hearing it was accepted by both the Commission and ATAL that this would not be appropriate, although the calculation of the penalties would need to be calculated so as to avoid unfairly imposing in each proceeding a penalty, which duplicated the penalty imposed in the other proceeding. This seems to me broadly correct. As a consequence, the 2\nnd\nand 4\nth\nquestions did not require consideration.\n4.\nThe 2\nnd\nquestion is academic, because it is the same issue as that already determined in the 1\nst\nAction and in respect of which leave to appeal is sought, namely, whether the\nKam Kwong\napplication in respect of ATAL should be determined at this stage or, as I have directed, at trial or, if all the Respondents reach agreement with the Commission, at that stage. For the same reasons it seems to me that the\nKam Kwong\nProceedings in the 2\nnd\nAction should be dealt with after trial or if all the Respondents reach agreement with the Commission, at that stage. As I understand it the Commission and ATAL accept, unsurprisingly, that the\nKam Kwong\nApplications should be dealt with together, whenever that may be. I refused to grant leave to appeal. The question of when a\nKam Kwong\napplication be determined is, in my view, clearly a matter of discretion and its determination ultimately a case management decision. There is no material point of law involved. The Commission simply wish to reargue the matter before the Court of Appeal.\n5.\nI also determined, on the 1\nst\nRespondent’s application, that the Commission should disclose correspondence relating to cooperation agreements entered between two of ATAL’s employees and the Commission. Leave is also sought to appeal that decision (“\nDecision\n”). I also refused leave in respect of this application. It does not seem to me that it has been demonstrated that the appeal has a reasonable prospect of success or raises an issue on which in my view it would be helpful for the Court of Appeal to opine. However, I ordered an interim stay of my Decision until the determination of ATAL’s application to Court of Appeal.\n6.\nI will direct on the consent summons dated 18 August 2023 in CTEA 2/2023 and the summons dated 27 September 2023 in CTEA 2/2022 that the two proceedings be heard together with liberty to apply, and costs reserved. I will make no other directions until the Court of Appeal has determined the leave application in CTEA 2/2023 other than in respect of costs. In my view the vast majority of the time at the Case Management Conference involved dealing with the applications for leave to appeal and the questions I refer to in [2], which in the case of issue 1 seems from the lengthy submissions filed by the Commission to have been misunderstood by the Commission. I order that 80% of the costs in both proceedings be paid by the Commission; 20% be paid by the 1\nst\nRespondent to the  3\nrd\nto 7\nth\nRespondents in CTEA 2/2022 and 2\nnd\nto 5\nth\nRespondents in CTEA 2/2023 with a certificate for two counsel.\n(Jonathan Harris)\nPresident of the Competition Tribunal\nCTEA 2/2022\nMr Norman NIP SC, Ms Leticia Tang and Mr Jonathan Fung, instructed by Dentons Hong Kong LLP, for the applicant\nMr Abraham Chan SC and Mr Joshua Chan, instructed by Deacons, for the 1\nst\nand 2\nnd\nrespondents\nMs Ebony Ling, instructed by Wong Heung Sum & Lawyers, for the 3\nrd\nrespondent\nMr Dicky Cheung and Mr Jonathan Ip, instructed by Au Yeung Chan & Ho, Solicitors, for the 4\nth\nrespondent\nMr Patrick Siu, instructed by Tang & Ku Solicitors, for the 5\nth\nand 6\nth\nrespondents\nThe 7\nth\nrespondent appeared in person\nCTEA 2/2023\nMr Norman NIP SC, Ms Leticia Tang and Mr Jonathan Fung, instructed by Dentons Hong Kong LLP, for the applicant\nMr Abraham Chan SC and Mr Joshua Chan, instructed by Deacons, for the 1\nst\nrespondent\nMr Paul Shieh SC and Mr Jonathan Ng, instructed by Baker & McKenzie, for the 2\nnd\nto 4\nth\nrespondents\nMr Stephen Crosswell, solicitor advocate of Baker & McKenzie, for the 2\nnd\nto 4\nth\nrespondents\nThe 5\nth\nrespondent was not represented and did not appear\n[1]\nSee [3] of my decision in\nCompetition Commission v Kam Kwong Engineering Co Ltd\n[2020] 4 HKLRD 61.",
  "attachments": [
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      "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2022/CTEA000002A_2022.docx",
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      "file_ext": ".docx",
      "status": "success"
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}