For the first time since the inception of the competition regime almost a decade ago, a person was charged for failing to attend an interview before the Competition Commission (Commission) (ESCC 1373/2025).
Statutory Investigation Power and Offence
The Commission is empowered under section 42 of the Competition Ordinance (Cap. 619) (Ordinance) to require any person to attend before it to answer questions relating to any matter it reasonably believes to be relevant to its investigation by way of a written notice.
It is mandatory for a person who receives such notice to attend an interview with the Commission. A person who, without reasonable excuse, fails to attend before the Commission pursuant to a section 42 notice would commit an offence under section 52 of the Ordinance, and would be liable to a maximum fine of HK$200,000 and to imprisonment for a maximum of 1 year.
Such offence and its maximum sentence are similar to the corresponding offence under section 184 of the Securities and Futures Ordinance (Cap. 571) which provides that a person who, without reasonable excuse, fails to attend before the Securities and Futures Commission pursuant to a section 183 notice for an interview would commit an offence.
Background and Procedural Timeline
The Commission has been conducting an investigation codenamed “White Whale” since late 2022 for potential anti-competitive conduct involving market sharing, output limitation and group boycott in the Aberdeen Wholesale Fish Market (in contravention of the First Conduct Rule under the Ordinance). No enforcement proceedings have been instituted so far.
In the course of its investigation, the Commission issued a section 42 notice requiring the defendant to attend an interview. He failed to attend the interview with the Commission on 21 November 2024 without any reasonable excuse.
The Commission subsequently referred the case to the Hong Kong Police Force for criminal investigation. The defendant was brought before the Eastern Magistrates’ Courts for mention on 27 May 2025 and the case was adjourned to 8 July 2025. The defendant was released on bail.
Commentary
This is the first criminal case for failing to attend an interview before the Commission and the second criminal case for non-compliance with the Commission’s investigation powers. In February 2025, an individual was convicted and sentenced to imprisonment for two months for attempting to delete documents from computers during the Commission’s execution of search warrants at an office.
These two cases underscore the importance of complying with all requirements and prohibitions imposed by the Commission when it exercises its statutory investigation powers. Anyone who fails to comply with or commits a breach of such requirements and prohibitions could face serious consequences, including criminal conviction and even imprisonment.
For further information, please contact:
Peter So, Partner, Deacons
peter.so@deacons.com
