COMPETITION COMMISSION v. W. HING CONSTRUCTION CO LTD AND OTHERS

COMPETITION COMMISSION v. W. HING CONSTRUCTION CO LTD AND OTHERS

Tribunal held that substantial parts of the expert Report lacked independent factual foundation and therefore could not stand unless the respondents were permitted to adduce proper witness statements; in the circumstances (novel statutory regime, pecuniary penalties and public interest) the Tribunal exercised discretion to allow late witness statements in proper form but struck out paragraphs 177–183 of the Report as outside the directed scope of expert evidence; remaining admissibility issues adjourned sine die.

Citation
[2018] HKCT 5
Parties
Applicant: Competition Commission; 1st Respondent: W. Hing Construction Company Limited (永興聯合建築有限公司); 2nd Respondent: Sun Spark Construction Limited (裕輝建築有限公司); 3rd Respondent: Lau Chung Yan (劉頌欣) and Lau Chun Kwok Adam (劉鎮國) (in partnership trading as Mau Hang Painting & Decoration Co); 4th Respondent: Cheung Yiu Fai Danny (張耀輝) and Wong Tung Hoi (黃東海) (in partnership trading as Tai Dou Building Contractor); 5th Respondent: Kam Kee Machine Electrical Iron Works Company Limited (金記機電鐵器工程有限公司); 6th Respondent: Hui Tak Cheong Kanly (許德昌) and Hui Tak On Bryan (許德安) (in partnership trading as Hip Yick Construction Company); 7th Respondent: Suen Sik Kau (孫錫球) (trading as Tai Wah Civil Engineering); 8th Respondent: Poon Wai Woon (潘維桓) and Poon Kai Wo Julio (潘啟和) (in partnership trading as Wai Sun Iron & Decoration Co); 9th Respondent: Yeung Kwok Yee (楊國儀) (trading as Wide Project Engineering & Construction Co); 10th Respondent: Luen Hop Decoration Engineering Co Limited (聯合裝飾工程有限公司)
Court
Competition Tribunal
Jurisdiction
Hong Kong
Judgment Date
28 September 2018
Case Number
CTEA2/2017
Procedural Posture
Competition Tribunal Enforcement Action No 2 of 2017 / Interlocutory Hearing on Admissibility of Expert Report and Leave to File Witness Statements (reasons for Decision)
Outcome
Court permitted further witness statements to be filed in proper form; ordered paragraphs 177–183 of the expert Report struck out; adjourned the remainder of the applicant's summons sine die.
Legal Topics
Expert Evidence Admissibility, Witness Statements, Strike Out, Economic Efficiencies Exclusion, Case Management
Source Language
EN
Competition Law Evidence Civil Procedure Expert Evidence Admissibility Witness Statements Strike Out Economic Efficiencies Exclusion Case Management

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Parties

Competition Commission

Applicant

W. Hing Construction Company Limited (永興聯合建築有限公司)

1st Respondent

Sun Spark Construction Limited (裕輝建築有限公司)

2nd Respondent

Lau Chung Yan (劉頌欣) and Lau Chun Kwok Adam (劉鎮國) (in partnership trading as Mau Hang Painting & Decoration Co)

3rd Respondent

Cheung Yiu Fai Danny (張耀輝) and Wong Tung Hoi (黃東海) (in partnership trading as Tai Dou Building Contractor)

4th Respondent

Kam Kee Machine Electrical Iron Works Company Limited (金記機電鐵器工程有限公司)

5th Respondent

Hui Tak Cheong Kanly (許德昌) and Hui Tak On Bryan (許德安) (in partnership trading as Hip Yick Construction Company)

6th Respondent

Suen Sik Kau (孫錫球) (trading as Tai Wah Civil Engineering)

7th Respondent

Poon Wai Woon (潘維桓) and Poon Kai Wo Julio (潘啟和) (in partnership trading as Wai Sun Iron & Decoration Co)

8th Respondent

Yeung Kwok Yee (楊國儀) (trading as Wide Project Engineering & Construction Co)

9th Respondent

Luen Hop Decoration Engineering Co Limited (聯合裝飾工程有限公司)

10th Respondent

Procedural Posture

Competition Tribunal Enforcement Action No 2 of 2017 / Interlocutory Hearing on Admissibility of Expert Report and Leave to File Witness Statements (reasons for Decision)

Legal Issues

  1. 1 Whether Tribunal should determine inadmissibility of expert evidence pre-trial
  2. 2 Whether parts of the expert Report should be struck out for lack of evidential foundation
  3. 3 Whether late witness statements should be permitted to validate expert assumptions

Ratio Decidendi

Tribunal held that substantial parts of the expert Report lacked independent factual foundation and therefore could not stand unless the respondents were permitted to adduce proper witness statements; in the circumstances (novel statutory regime, pecuniary penalties and public interest) the Tribunal exercised discretion to allow late witness statements in proper form but struck out paragraphs 177–183 of the Report as outside the directed scope of expert evidence; remaining admissibility issues adjourned sine die.

Court Disposition

Court permitted further witness statements to be filed in proper form; ordered paragraphs 177–183 of the expert Report struck out; adjourned the remainder of the applicant's summons sine die.

Orders

  • Leave granted to the 2nd, 3rd, 5th, 6th, 7th, 8th and 10th respondents to file and serve witness statements or supplemental witness statements in proper form
  • Paragraphs 177–183 of the expert Report struck out