By decision dated 31 December 2020 ( HKCT 12), the Tribunal held that in enforcement proceedings, witness statements should be simultaneously, instead of sequentially, exchanged.
In this action, the Commission alleges agreements or concerted practices between principally the 1st and 2nd respondents which limited the level of discounts to be offered in tenders for textbooks for primary and secondary schools which were already served by another retailer. The 3rd respondent is said to be the parent company in control of the 2nd respondent and the 4th respondent is alleged to be the 1st respondent’s general manager involved in its contravention of the first conduct rule.
The 1st and 4th respondents contends that the Commission should file and serve all its witness statements first, before the respondents decide what to file. They submit that art 11 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“BORO”) applies to these proceedings because pecuniary penalties are being sought. They submit that the right to a fair trial entails adequate knowledge of the case to be made by the applicant. The right to adequate facilities for preparation of the defence includes access to all materials and evidence that the applicant intends to offer against a respondent. A respondent enjoys a right of silence and the privilege against self incrimination. There is also at common law a privilege against exposure to penalties. The effect of these safeguards is, they submit, that the 1st and 4th respondents should not be ordered to file evidence before they have had sight of all the materials and evidence which the applicant will adduce against them.
The Tribunal held:-
- The submissions were rejected.
- Whilst the Commission accepts that an enforcement action in the Tribunal seeking a pecuniary penalty involves the determination of a criminal charge within the meaning of art 11 of the BORO, and the Tribunal has on that basis held that the criminal standard of proof beyond reasonable doubt applies in such an action, it does not follow that such an action is for all purposes to be treated as a criminal prosecution on indictment or that every feature of criminal proceedings in the High Court is to be imported into an enforcement action.
- There is no principle of law mandating the conclusion that the procedure hitherto adopted in relation to the exchange of witness statements in all enforcement actions was unfair or violated the BORO. The content of procedural fairness is ‘infinitely flexible’ and variable, and must depend on matters such as the character of the decision making body, the nature of the inquiry, the subject matter under consideration, the kind of decision it has to make and the statutory or other framework in which it operates.
- The right of silence, privilege against self incrimination and privilege against exposure to penalties prayed in aid by the 1st and 4th respondents do not preclude directions for the advance disclosure and exchange of the evidence to be relied on. The privilege against self incrimination protects a person against compulsion on pain of punishment to give answers which may incriminate him. The privilege against exposure to penalty is likewise a protection against compulsory interrogatories or discovery. The direction under consideration does not compel the respondents to give evidence, but only require them, if they wish to adduce evidence from any witness, to disclose it in written form in advance of the trial at a specified time. Under O38 r2A(6) of the Rules of the High Court (Cap 4A), where the party serving a witness statement does not in the end call the witness, no other party may put the statement in evidence at the trial. Nor does the direction itself have the effect of enabling adverse inferences to be drawn against the 1st and 4th respondents should they decide not to call any witness to give evidence after all.