By decision dated 3 November 2020 ( HKCT 10), the Tribunal approved a consent order made between the Commission and the 1st and 2nd respondents. The order provides, inter alia, that: –
- the 1st respondent has contravened the first conduct rule;
- the 2nd respondent is a person involved in the 1st respondent’s contravention;
- The 1st respondent do pay to the Government a pecuniary penalty in the amount of HK$37,702.26;
- Further proceedings be stayed upon, in gist, (1) actions being taken by the 1st respondent to ensure that all its current and future staff will have sufficient knowledge of, and will comply with, the competition law in future; and (2) the obligations of the 2nd respondent to guarantee and oversee the 1st respondent’s implementation of the same.
The contravention of the first conduct rule involved the 1st respondent (acting by the 2nd respondent) engaged in communications with, and eventually made and given effect to an agreement or engaged in concerted practice with another company (“X”) whereby they exchanged details of their respective quotations (including price sensitive information) and coordinated their return bids pursuant to a request for quotation exercise undertaken by Ocean Park Corporation (“Ocean Park”) to carry out a workflow automation project through a Nintex software (“Project”). The agreement and concerted practice between the 1st respondent and X had the object of preventing, restricting, or distorting competition in relation to the quotation exercise undertaken by Ocean Park and constituted price fixing, which is one of the “serious anti-competitive conducts” as defined in section 2(1) of the Ordinance.
The Tribunal is of the view that the proposed pecuniary penalty of HK$37,702.26 is appropriate and proportionate to the contravention by the 1st respondent, taking into account the following facts and matters: –
- The value of sales directly related to the contravention was less than HK$150,000 and the contravention took place within a few months.
- The 1st respondent has agreed to undertake steps to ensure genuine compliance with the Ordinance in future.
- The amount of pecuniary penalty is less than 10% of the turnover of the 1st respondent in the year of infringement.
- The 1st respondent has been cooperative with the Commission and has admitted the facts stated in the statement of agreed facts shortly after the commencement of the proceedings.