COMPETITION COMMISSION v. FUNGS E&M ENGINEERING CO LTD

COMPETITION COMMISSION v. FUNGS E&M ENGINEERING CO LTD

Substitution and joinder were refused because enforcement proceedings are prosecutorial in nature and the Tribunal must not usurp the Commission's discretion to decide whom to prosecute; the Pau Agreement, even if genuine, does not prevent the Commission pursuing R1 and does not justify substitution or addition as a party. Leave to issue third party proceedings against Pau was granted because the conditions under Order 16(1) RHC are met (claim for contribution/indemnity and Pau has a legitimate legal/financial interest), bringing her in avoids multiplicity and leaves Tribunal findings binding, and the Tribunal has jurisdiction under s142(1)(g) of the Competition Ordinance.

Citation
[2020] HKCT 4
Parties
Applicant: Competition Commission; 1st Respondent: Fungs E&M Engineering Company Limited (馮氏機電工程有限公司); 2nd Respondent: Yee Hing Metal Shop (義興鐵器土木油漆工程); 3rd Respondent: Cheung Min (張棉) trading as Accord Construction & Decoration Co (雅閣建築裝修工程公司); 4th Respondent: Hing Shing Construction Company (興盛建築公司); 5th Respondent: Luen Hop Decoration Engineering Company Limited (聯合裝飾工程有限公司); 6th Respondent: Dao Kee Construction Company Limited (陶記營造廠有限公司); 7th Respondent: Wong Wai Chuen (黃偉銓); 8th Respondent: Wong Fu San (黃富新); 9th Respondent: Cheung Yun Kam (張潤錦); Intended Third Party: Pau Wai Lin (鮑惠蓮)
Court
Competition Tribunal
Jurisdiction
Hong Kong
Judgment Date
17 July 2020
Case Number
CTEA1/2019
Procedural Posture
Enforcement Proceedings Under the Competition Ordinance / Application for Substitution, Joinder and Leave to Issue Third Party Notice (decision on Applications)
Outcome
Substitution and joinder applications dismissed; leave granted to issue third party proceedings against Pau Wai Lin; costs reserved
Legal Topics
Substitution, Joinder, Third Party Proceedings, Indemnity and Contribution, Prosecutorial Prerogative, Follow on Actions, Competition Ordinance Jurisdiction
Source Language
ET
Competition Law Civil Procedure Substitution Joinder Third Party Proceedings Indemnity and Contribution Prosecutorial Prerogative Follow on Actions +1 more

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Parties

Competition Commission

Applicant

Fungs E&M Engineering Company Limited (馮氏機電工程有限公司)

1st Respondent

Yee Hing Metal Shop (義興鐵器土木油漆工程)

2nd Respondent

Cheung Min (張棉) trading as Accord Construction & Decoration Co (雅閣建築裝修工程公司)

3rd Respondent

Hing Shing Construction Company (興盛建築公司)

4th Respondent

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

5th Respondent

Dao Kee Construction Company Limited (陶記營造廠有限公司)

6th Respondent

Wong Wai Chuen (黃偉銓)

7th Respondent

Wong Fu San (黃富新)

8th Respondent

Cheung Yun Kam (張潤錦)

9th Respondent

Pau Wai Lin (鮑惠蓮)

Intended Third Party

Procedural Posture

Enforcement Proceedings Under the Competition Ordinance / Application for Substitution, Joinder and Leave to Issue Third Party Notice (decision on Applications)

Legal Issues

  1. 1 Whether Pau Wai Lin should be substituted for R1
  2. 2 Whether Pau should be joined as a respondent
  3. 3 Whether R1 should be permitted to issue a third party notice against Pau for contribution or indemnity

Ratio Decidendi

Substitution and joinder were refused because enforcement proceedings are prosecutorial in nature and the Tribunal must not usurp the Commission's discretion to decide whom to prosecute; the Pau Agreement, even if genuine, does not prevent the Commission pursuing R1 and does not justify substitution or addition as a party. Leave to issue third party proceedings against Pau was granted because the conditions under Order 16(1) RHC are met (claim for contribution/indemnity and Pau has a legitimate legal/financial interest), bringing her in avoids multiplicity and leaves Tribunal findings binding, and the Tribunal has jurisdiction under s142(1)(g) of the Competition Ordinance.

Court Disposition

Substitution and joinder applications dismissed; leave granted to issue third party proceedings against Pau Wai Lin; costs reserved

Orders

  • Substitution application dismissed
  • Application to add Pau Wai Lin as a respondent dismissed