Navigating the Hong Kong Competition Law – Self-incrimination and the role of Legal Professional Privilege

16 February 2016

Richard Keady, Kathryn Edghill, Zhaofeng Zhou, Cicely Sylow

The Competition Ordinance (Ordinance) provides the Competition Commission (Commission) with powers to issue a notice that compels a person to produce documents or information, or to attend and give evidence, where the Commission has 'reasonable cause' to suspect there has been a contravention of a competition rule.

The Commission also has the power to conduct a 'dawn raid' if it obtains a warrant authorising it to enter and search premises to obtain documents and information, including computers and electronic devices.

If you are issued with a notice or experience a dawn raid, there are two important legal issues you should be aware of: the right to claim legal professional privilege and the limited role of self-incrimination.

Self-incrimination

When the Commission exercises its compulsory information gathering powers a person or company is not excused from explaining a document or answering a question on the basis that it will incriminate that person or company and could expose that person or company to criminal proceedings or civil proceedings where a pecuniary or financial penalty is sought. 

However, the Commission is restricted from using any incriminating statement made by that person or company under compulsion against the person or company that made the statement. The statement is only admissible if it is adduced by, or a question relating to it is asked by, that person (or company) or on their behalf. This will give the person or company making the statement an opportunity to use the evidence in their favour for mitigation purposes.

The Ordinance leaves open the question of whether an incriminating statement made by a person, such as an employee, can be used against his or her employer (and vice-versa).

Legal Professional Privilege 

Legal professional privilege (LPP) applies to confidential communications that are created for the dominant purpose of a lawyer providing legal advice or legal services in relation to litigation proceedings. A claim of LLP protects the communication from being disclosed to government bodies or the Court. 

The Commission's compulsory information gathering powers do not affect a person's right to claim LLP. A person does not have to provide information to the Commission if he or she can validly claim legal advice privilege or litigation privilege (or both).

If you have received a notice from the Commission under section 41 or 42 of the Ordinance, you should seek legal advice to ensure that your response does not unnecessarily provide the Commission with legally privileged information.

Similarly, during a dawn raid, the Commission may seek to seize or copy information that is privileged. Where the privileged nature of the information can be easily determined it will be readily separated from any non-privileged materials and not copied or seized by the Commission. If there is a dispute over privilege or the information cannot be readily separated from non-privileged materials (for example, the document contains both privileged and non-privileged information or the information is stored on computers or other electronic devices), the document or material (as a whole) will be taken away and securely stored pending resolution of the dispute. The documents, electronic devices or materials will be placed in an opaque bag or container, which is then sealed, and removed by the Commission from the premises pending review and resolution of the matter at a later date.

Process to claim that LLP applies

A privilege claim must be substantiated within 7 days of the dawn raid (unless extended). This involves the claimant searching, inspecting and indexing the material and identifying the type of privilege being claimed (legal advice privilege, litigation privilege, or both) and providing a supporting statement for the claim which sets out the basis and factual context for each item. If a claimant needs to access the documents and materials seized by the Commission to resolve the LLP, the Commission will provide the claimant with access. The Commission might request a statutory declaration to verify the truth of the supporting statement.

After considering the list and supporting statement the Commission will inform the person of those claims it has accepted and will return the information, or where the information cannot be separated, will only review redacted versions of the information. If a dispute remains an independent third party lawyer or the court may be asked to make a determination.

Do you have a dawn raid policy in place?

You should ensure your company has in place a 'dawn raid' policy to guide staff on how to manage an unexpected from the Commission and to ensure that staff cooperate appropriately but also protect the company's position to the maximum extent possible.

Authors

Kathryn Edghill

Partner
Australia

Call me on: +61 2 9226 9888
Cicely Sylow

Cicely Sylow

Associate
Australia

Call me on: +61 2 9226 9888
Keady-Richard

Richard Keady

Partner
China and Hong Kong

Call me on: +852 2248 6000