Hong Kong antitrust regulator to seek more engagement between investigators, subjects of probes

29 May 2018 3:40pm

21 May 2018. By Xu Yuan.

Hong Kong’s antitrust chief is looking to invite a greater level of engagement between investigators and companies or individuals being investigated.

Brent Snyder, who was appointed CEO of Hong Kong’s Competition Commission last September, told a conference* in Hong Kong that he has encouraged investigators at the commission to make sure the regulator is inviting a greater level of engagement with counsels for subjects who are under investigation.

“One of the surprises for me since arriving in Hong Kong has been there seems to be little...engagement between commission investigators and counsel for companies and individuals during the investigative stage,” Snyder said.

The former US Department of Justice official said he would like to change that.

Snyder said he favors providing informal processes that go beyond even what either the Competition Ordinance or due process requires during investigations because greater engagement will benefit both the competition enforcement agency and the corporates and individuals subject to its investigations.

“This engagement process offers an opportunity for a subject to get a more accurate view of its potential liability and the nature of the evidence against it,” he said. “This, in turn, allows it to make a more timely and better informed decision about how to respond to the investigation.”

“Although the investigative process will not be completely transparent, trying to achieve a greater level of transparency than is required by procedural due process can make our work more efficient and effective,” Snyder said. “This ultimately benefits not only the commission and the subject of its investigations, but Hong Kong’s consumers on whose benefit the commission acts.”

— Standard of proof —

Snyder also said the commission’s considerations regarding whether there is reasonable cause to believe a contravention has occurred will be better informed after the Competition Tribunal determines the standard of proof that the commission must satisfy at trial to establish a contravention.

“The commission’s assessment of whether there is a reasonable cause to believe a contravention has occurred will benefit by the establishment of a clear standard of proof that will be applied at trial, whether on a preponderance of probability, as the commission believes it should be, or the heightened beyond reasonable doubt standard,” he said.

He said the commission believes both cases currently before the tribunal are supported by evidence sufficient to meet either standard, but the commission may in future cases turn on the standard of proof that must be met.

The two cases currently before the tribunal are scheduled for trial in June and November, respectively.

*Antitrust in Asia: One Size Fits All? Asean, China, Hong Kong, India, Hong Kong, May 18, 2018

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