COMPETITION COMMISSION v. ATAL BUILDING SERVICES ENGINEERING LTD AND OTHERS

COMPETITION COMMISSION v. ATAL BUILDING SERVICES ENGINEERING LTD AND OTHERS

The President refused leave to appeal because the timing of Kam Kwong applications is a discretionary case management decision raising no substantive point of law; directed that Kam Kwong applications be dealt with at or immediately after trial or when all respondents agree; held that a single composite fine across two proceedings is inappropriate and penalties must be calculated to avoid duplication; ordered disclosure of correspondence relating to cooperation agreements between two ATAL employees and the Commission and granted an interim stay of that disclosure decision pending ATAL's application to the Court of Appeal; directed the two proceedings be heard together with liberty to...

Citation
[2024] HKCT 1
Parties
Applicant (ctea 2/2022 & CTEA 2/2023): Competition Commission; 1st Respondent (ctea 2/2022): ATAL Building Services Engineering Limited; 2nd Respondent (ctea 2/2022): Analogue Holdings Limited; 3rd Respondent (ctea 2/2022): Shun Hing Engineering Contracting Company Limited; 4th Respondent (ctea 2/2022): Shun Hing Holdings Company Limited; 5th Respondent (ctea 2/2022): Ser Ka Wai; 6th Respondent (ctea 2/2022): Cheng Kit Shun; 7th Respondent (ctea 2/2022): Kwan Siu Kin; 1st Respondent (ctea 2/2023): ATAL Building Services Engineering Limited; 2nd Respondent (ctea 2/2023): Johnson Controls Hong Kong Limited; 3rd Respondent (ctea 2/2023): York International (Northern Asia) Limited; 4th Respondent (ctea 2/2023): Johnson Controls International Plc; 5th Respondent (ctea 2/2023): Lee Yui Ming
Court
Competition Tribunal
Jurisdiction
Hong Kong
Judgment Date
11 January 2024
Case Number
CTEA2/2022
Procedural Posture
Competition Tribunal Enforcement Action / Case Management Conference; Applications for Leave to Appeal and Directions (kam Kwong Applications); Decision on Disclosure and Costs
Outcome
Leave to appeal refused; disclosure order made but interim stay granted until determination of ATAL's application to the Court of Appeal; directions that the two proceedings be heard together with liberty to apply; costs ordered
Legal Topics
Pecuniary Penalty, Kam Kwong Applications, Case Management, Leave to Appeal, Disclosure, Cooperation Agreements, Costs Allocation
Source Language
EN
Competition Law Civil Procedure Appeals Evidence and Disclosure Pecuniary Penalty Kam Kwong Applications Case Management Leave to Appeal +3 more

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Parties

Competition Commission

Applicant (ctea 2/2022 & CTEA 2/2023)

ATAL Building Services Engineering Limited

1st Respondent (ctea 2/2022)

Analogue Holdings Limited

2nd Respondent (ctea 2/2022)

Shun Hing Engineering Contracting Company Limited

3rd Respondent (ctea 2/2022)

Shun Hing Holdings Company Limited

4th Respondent (ctea 2/2022)

Ser Ka Wai

5th Respondent (ctea 2/2022)

Cheng Kit Shun

6th Respondent (ctea 2/2022)

Kwan Siu Kin

7th Respondent (ctea 2/2022)

ATAL Building Services Engineering Limited

1st Respondent (ctea 2/2023)

Johnson Controls Hong Kong Limited

2nd Respondent (ctea 2/2023)

York International (Northern Asia) Limited

3rd Respondent (ctea 2/2023)

Johnson Controls International Plc

4th Respondent (ctea 2/2023)

Lee Yui Ming

5th Respondent (ctea 2/2023)

Procedural Posture

Competition Tribunal Enforcement Action / Case Management Conference; Applications for Leave to Appeal and Directions (kam Kwong Applications); Decision on Disclosure and Costs

Legal Issues

  1. 1 Whether a single pecuniary penalty can be imposed in two separate proceedings
  2. 2 When Kam Kwong applications should be determined (trial or post-trial or upon agreement)
  3. 3 Whether leave to appeal should be granted against the case management directions

Ratio Decidendi

The President refused leave to appeal because the timing of Kam Kwong applications is a discretionary case management decision raising no substantive point of law; directed that Kam Kwong applications be dealt with at or immediately after trial or when all respondents agree; held that a single composite fine across two proceedings is inappropriate and penalties must be calculated to avoid duplication; ordered disclosure of correspondence relating to cooperation agreements between two ATAL employees and the Commission and granted an interim stay of that disclosure decision pending ATAL's application to the Court of Appeal; directed the two proceedings be heard together with liberty to...

Court Disposition

Leave to appeal refused; disclosure order made but interim stay granted until determination of ATAL's application to the Court of Appeal; directions that the two proceedings be heard together with liberty to apply; costs ordered

Orders

  • Refused leave to appeal against the case management directions regarding timing of Kam Kwong applications
  • Refused leave to appeal against the disclosure direction (but ordered interim stay of the disclosure decision until Court of Appeal determines ATAL's application)