Competition Commission v. Gray Line Tours of Hong Kong Ltd and Others

CTEA 1/2022

[2022] HKCT 3

IN THE COMPETITION TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COMPETITION TRIBUNAL ENFORCEMENT ACTION NO 1 OF 2022

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Before:  Hon Harris J, President of the Competition Tribunal in Chambers

Date of Hearing:  21 July 2022

Date of Decision:  21 July 2022

Date of Reasons for Decision:  4 August 2022

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R E A S O N S  F O R  D E C I S I O N

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1.I have heard today a case management conference attended by the Commission and Counsel for the 2^nd and 3^rd Respondents and Mr Francis for the 4^th Respondent. The case against the 1^st, 5^th and 6^th Respondents were determined on 12 July 2022 by the Kam Kwong procedure. The reasons for the decision against the 1^st, 5^th and 6^th Respondents will be handed down following a further case management conference to take place on 2 September 2022 to consider what information in the Statement of Agreed Facts should be redacted on the grounds of confidentiality and more generally the principles that guide the Tribunal when determining applications for information to be kept confidential.

2.At the hearing today I made directions by agreement for the further conduct of the case against the 2^nd and 3^rd Respondents, who contest liability. I made no directions in respect of the further conduct of the case against the 4^th Respondent. Its position requires separate comment.

3.The 4^th Respondent does not dispute that it has contravened the First Conduct Rule. However, it has not proved possible to agree that the case against the 4^th Respondent be disposed of using the Kam Kwong procedure. The reason for this is that there are a number of factual matters, which the Commission says are material, but which the 4^th Respondent is not prepared to agree, because it believes them to be wrong. However, it takes the view that the matters it has admitted in its Response and an affirmation confirming the correctness of the Response are sufficient to establish that there has been a contravention of the First Conduct Rule. The principle matters that the Commission and the 4^th Respondent cannot agree are:

(1)  The 4^th Respondent’s Response in [14] does not admit that: (1) the 4^th Respondent actively procured Tink Labs to agree to and act in accordance with the material anti-competitive arrangement, and actively provided Tink Labs with information from the 1^st Respondent as to prices to enable, and with the intention that, Tink Labs implement the arrangement[1]; or (2) as a result, Tink Labs did, to the knowledge of the 1^st and 4^th Respondents, increase the prices of the tickets sold at the 4^th Respondent from May 2016 until May 2017[2].

(2)  The 4^th Respondent’s Response in [14] also claims that the 4^th Respondent had no interest, financial or otherwise, in actively procuring the arrangement, which is denied by the Commission in its reply in [5.2]–[5.3].

4.It is desirable that the case on liability against the 4^th Respondent is determined by agreement if possible. However, it is necessary for either the Commission or the 4^th Respondent to make an application to the Tribunal that would have this result. It is not something that the Tribunal can initiate. If the Commission and the 4^th Respondent cannot agree a method between themselves for bringing the case against the 4^th Respondent to an end, directions will need to be made for the progress of the case against the 4^th Respondent otherwise there is a risk that it will cause a delay to the case against the 2^nd and 3^rd Respondents’ proceeding to trial. I will consider further at the case management conference to take place on 2 September 2022 what directions are to be made if it has not by then proved possible for the Commission and the 4^th Respondent to agree a procedure for determining liability or one of them has issued an application that would have, if successful, that result.

Mr Julian Lam, instructed by Pinsent Masons, for the applicant

Mr Timothy Parker, instructed by Norton Rose Fulbright Hong Kong, for the 2^nd and 3^rd respondents

Mr Nigel Francis, of YTL LLP, for the 4^th respondent

Attendance of Johnny K K Leung & Co, for the 1^st and 6^th respondents, was excused

Attendance of Deacons, for the 5^th respondent, was excused