COMPETITION COMMISSION v. NUTANIX HONG KONG LTD AND OTHERS

COMPETITION COMMISSION v. NUTANIX HONG KONG LTD AND OTHERS

s45(2) protects only the person who was required by a s42 notice to attend and answer questions (the individual interviewee); it does not render statements inadmissible against the employer undertaking. The respondents' constructions and any read‑in remedy were rejected; therefore the strike out/debarment applications fail.

Citation
COMPETITION COMMISSION v. NUTANIX HONG KONG LTD AND OTHERS
Parties
Applicant: Competition Commission; 1st Respondent: Nutanix Hong Kong Limited; 2nd Respondent: BT Hong Kong Limited; 3rd Respondent: SIS International Limited; 4th Respondent: Innovix Distribution Limited (trading as Innovix Distribution); 5th Respondent: Tech 21 Systems Limited
Court
Competition Tribunal
Jurisdiction
Hong Kong
Judgment Date
3 October 2017
Case Number
CTEA1/2017
Procedural Posture
Enforcement Action (competition Tribunal) / Interlocutory (strike Out/debarment Applications)
Outcome
Applications dismissed
Legal Topics
Self Incrimination, Admissibility of Compelled Statements, S42 and S45 of the Competition Ordinance, Attribution of Employee Statements to Undertakings, Strike Out for Abuse/prejudice
Source Language
EN
Competition Law Evidence Administrative Law Statutory Interpretation Self Incrimination Admissibility of Compelled Statements S42 and S45 of the Competition Ordinance Attribution of Employee Statements to Undertakings +1 more

Case Brief

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Parties

Competition Commission

Applicant

Nutanix Hong Kong Limited

1st Respondent

BT Hong Kong Limited

2nd Respondent

SIS International Limited

3rd Respondent

Innovix Distribution Limited (trading as Innovix Distribution)

4th Respondent

Tech 21 Systems Limited

5th Respondent

Procedural Posture

Enforcement Action (competition Tribunal) / Interlocutory (strike Out/debarment Applications)

Legal Issues

  1. 1 Whether statements made by employees at s42 interviews are inadmissible against their employer undertakings under s45(2) of the Competition Ordinance
  2. 2 Proper construction of the word "person" in s45(2) and whether it includes an undertaking in the context of s42 interviews
  3. 3 Whether words should be read into s45(2) to extend protection to undertakings

Ratio Decidendi

s45(2) protects only the person who was required by a s42 notice to attend and answer questions (the individual interviewee); it does not render statements inadmissible against the employer undertaking. The respondents' constructions and any read‑in remedy were rejected; therefore the strike out/debarment applications fail.

Court Disposition

Applications dismissed

Orders

  • Applications by Nutanix and BT to strike out references to interview statements and to debar the Commission from adducing or relying on those statements are dismissed
  • On a provisional basis the Commission's costs are to be paid by Nutanix and BT