Criminal standard of proof not insurmountable, Hong Kong antitrust chief says as he ponders bid for application of civil standard

The burden of proving an antitrust violation beyond reasonable doubt before a court is weighty, but not impossible for Hong Kong’s Competition Commission, its chief says.

Recent rulings on the first two cases brought by the regulator are proof that the “criminal standard, while high, is not insurmountable, especially in cartel cases,” Competition Commission Chief Executive Brent Snyder told an antitrust conference today in Hong Kong.

Justice Godfrey Lam, president of the Competition Tribunal, in judgments handed down last week in the first two cases brought to it by the commission, ruled that in proceedings before the tribunal, the commission bore the burden of proving a contravention of the Competition Ordinance beyond reasonable doubt.

All but one of the 15 companies accused by the regulator of anticompetitive conduct in the two cases were found to have violated the law.

Snyder said that the regulator, which had argued before the judge that the applicable standard should be civil, was still assessing whether to appeal on that point and thinking about its impact on future enforcement.

“It’s certainly possible to prove cases at that high standard,” he said. “However, the higher standard does mean that the quality of the evidence that we present at trial is even more important.”

Snyder said leniency applications were one way in which enforcement agencies were able to obtain high-quality evidence to support their enforcement actions.

“But in my experience, trial cases are far stronger when the evidence of a leniency applicant is supplemented and corroborated by evidence that comes from companies and individuals that don’t receive leniency, and instead admit a contravention and are penalized,” he said.

The commission recently introduced a cooperation policy that offers potential discounts on fines in exchange for companies’ cooperation during investigations, including admissions to wrongdoing before the tribunal.