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CTEA 1/2017 B

IN THE COMPETITION TRIBUNAL OF THE C

HONG KONG SPECIAL ADMINISTRATIVE REGION

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COMPETITION TRIBUNAL ENFORCEMENT ACTION NO 1 OF 2017
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BETWEEN F

COMPETITION COMMISSION Applicant G

and H

NUTANIX HONG KONG LIMITED 1st Respondent

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BT HONG KONG LIMITED 2nd Respondent

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rd
SIS INTERNATIONAL LIMITED 3 Respondent

INNOVIX DISTRIBUTION LIMITED 4th Respondent

(trading as INNOVIX DISTRIBUTION)
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TECH-21 SYSTEMS LIMITED 5 Respondent
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____________
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Before: Hon G Lam J, President of the Competition Tribunal in Chambers
Date of Hearing: 26 May 2017 O

Date of Decision: 26 May 2017

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Date of Reasons for Decision: 12 June 2017
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___________________________________
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R EAS O N S FO R D E C I SI O N
___________________________________ S

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Case management conference B

1. This is the first case management conference in these C

proceedings. As stated in 92 of the Tribunals Practice Direction No 1,

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the object of the first CMC is to identify as far as possible the necessary
directions to enable the matter to proceed to a substantive hearing fairly, E

expeditiously and economically. A number of procedural issues have

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been canvassed. There has been a large measure of agreement on some
of these issues between the Applicant and at least some of the G

Respondents as a result of the commendable efforts of the parties legal H

representatives in trying to narrow down their differences.
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2. First, the parties have proposed a confidentiality protocol for

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this tribunal to sanction by order. Broadly speaking, the protocol
recognises that particular information in the documents to be produced in
connection with these proceedings may be confidential. Each party will
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nominate a number of individuals (being the partys counsel, solicitors
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and trainee solicitors and other external lawyers, and the partys in-house
representative). Together, the parties nominated persons constitute what N
is called the confidentiality ring. Each member of this ring has to give
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an undertaking essentially to use the documents in question only for the
purpose of these proceedings (and of any appeals) and not to disclose P
them to anyone outside the ring. Members of this ring will have access to
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the documents produced in these proceedings without redaction. Where
the documents are to be provided to everyone else, only copies with any R

confidential information redacted will be provided.

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3. The only issue that arose was whether the order (and the T
corresponding undertaking by members of the confidentiality ring) should
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direct that all documents produced in the context of these proceedings B

must only be used in connection with these proceedings (as the 1 st and
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2 Respondents submitted) or only those parts of the Produced
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Documents which have been validly redacted should be subject to this
restriction (as the 3rd Respondent proposed). The Applicant was neutral E
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on this question. I adopted the 1 and 2 Respondents proposed wording
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because issues may arise in relation to the collateral use by one
respondent of documents containing non-public information compulsorily G
acquired by the Applicant from another respondent. The precise manner
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in which the confidentiality order interacts with any implied undertaking
at common law is also not wholly clear. It may be that the practice can be I
developed but at this stage I consider that a form of wording offering
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wider protection of confidentiality should be adopted, leaving collateral
use subject to the parties consent or the direction of the Tribunal.

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4. As regards discovery, the Applicant takes the position that it
will disclose both used and unused materials in its possession to the M
Respondents, following the approach the Court of First Instance has
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recently held to apply in disqualification proceedings under s 214 of the
Securities and Futures Ordinance (Cap 571): Securities and Futures O

Commission v Wong Yuen Yee [2017] 1 HKLRD 788. There is no dispute

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in principle regarding the scope of disclosure by the Applicant.
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5. The parties were able in the end to agree a timetable for the
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Applicant to supply a list or lists of documents, for inspection and for
copies to be provided upon request. There was also agreement for an S

affidavit to be made by the Applicant to verify the lists. I am not sure an

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affidavit is ordinarily called for in the absence of some special reason but B

by agreement I gave a direction in this case.

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6. The sixth direction concerns the deadline for taking out any D

application for discovery from third parties. I considered that 14 days

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after the provision of Lists of Documents by the Applicant (as proposed
by the Applicant) was too short a time, but 14 days before the next CMC F

(as proposed by the Respondents) was too late on the basis that the next
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CMC will be in December this year. I adopted the suggestion from the
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4th Respondents counsel of 12 weeks from the date of the Applicants
Lists of Documents. I

7. By the seventh direction, the Applicant proposed a deadline J

for applications to strike out any part of the Originating Notice of

Application or for determination of admissibility of statements under s 45
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of the Competition Ordinance (Cap 619) (on the issue of
self-incrimination). Since the 2nd Respondent has in fact issued such an M
application by summons which I fixed to be heard on 18 September 2017,
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I directed that any further application to strike out any part of the
Originating Notice of Application and any application for determination O
of admissibility of statements in connection with s 45 of the Ordinance by
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other respondents should be made at least 28 days before that date. If
such other respondents wish the Tribunal to consider hearing their Q
applications at the same time as the 2 nd Respondents, it may well be
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necessary for their applications to be made substantially before that
deadline (at any rate if evidence is involved). S

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8. The eighth direction concerns expert evidence. No party has B

said that expert evidence will definitely be required. It does not appear to
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be a case where the parties will obviously seek to adduce expert evidence,
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or that any relevant expert evidence will be wide-ranging. To allow time
for a properly considered approach, I directed that any application for E
directions on expert evidence has to be made within 12 weeks from the
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date of the Applicants lists of documents. I consider this to be a much
more than generous timetable. G

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9. The ninth direction deals with witness summonses (see r 36
of the Competition Tribunal Rules (Cap 619D) (CTR)). The parties are I
agreed that advance notice should be given for any application for the
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issue of witness summons. In the end I set the date of 4 December 2017
which on the timetable would be around 2 weeks after the exchange of
witness statements in reply. It seems to me that should provide ample
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time for the relevant decisions to be made by each of the parties, leaving
a sensible period before the next CMC which will enable everyone to M
have a better idea then of the scope of the final hearing.
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10. Finally, by consensus I fixed the next CMC on 13 December O

2017. There was an issue as to whether I should fix a range of dates for
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the final hearing. It may be impossible at this stage to attempt a very
accurate estimate of the length of the final hearing, but as Ms Lam who Q
appeared for the Applicant pointed out, this is a case primarily concerning
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events that took place over 11 days in July 2016 in relation to a single
tender, not an alleged cartel spanning 10 years. The Tribunal can form an S

impression of the shape of the final hearing. It seems to me there should

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be a target to work towards, consistently with the general approach set
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out in Practice Direction No 1 (in particular 92(8)). I directed that the B

period of 1 May to 30 June 2017 be targeted as the range of dates for the
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substantive hearing of the application and asked the parties to confer and
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propose the actual trial dates within a week.

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3 Respondents summons dated 23 May 2017
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11. As to the 3rd respondents summons of 23 May 2017,
paragraphs 1 to 4 are in my view unnecessary as they duplicate the G

directions on discovery and inspection that had been under discussion

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between the parties for some time in connection with this CMC. In fact,
in a letter on 26 April, Winston & Strawn for the Applicant had already I

set out its position with regard to the 3 specific items mentioned below.
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By 4 May, if not before, the Applicant indicated willingness to endeavour
to agree the scope of and approach to discovery generally and to dispose
of the issue by consent.
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12. As I saw it, paragraphs 1 to 4 of the summons were more in M

the nature of a springboard for the main point of the summons, namely, a
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further extension of time for the 3 Respondent to file its Response under
r 75 of the CTR. The summons sought an extension of 28 days but the 3rd O

Respondents skeleton argument asked for 49 days from the CMC.

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13. The supporting affirmation stated the 3rd Respondents Q

position that it was entitled to all documents relating to the matter in the
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possession of the Applicant but I did not think it was right to defer the
Response until after provision of all the documents including the unused S

materials.
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14. The position is that the documents referred to in the B

Originating Notice of Application had all been provided to the

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3 Respondent, including 28 documents on 19 April, redacted versions of
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the interview records of 4 employees or former employees of the 1st, 2nd,
4th and 5th Respondents respectively on 5 May, and the unredacted version E
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of the interview record of the employee from the 1 Respondent on
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18 May.

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15. The solicitors affirmation of the 3 Respondent asserted that
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the documents identified in a schedule, which basically covered all
documents including unused materials, were essential to the preparation I
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of its Response. I did not agree. The 1 , 2 and 4 Respondents had
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already filed their Response before the CMC and the 5th Respondent
would file it later that day. Based on the materials available to me I did
not think the position of the 3rd Respondent was so radically different
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from the others that it required fundamentally different treatment in terms
of the time for filing its Response. M

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16. There are 3 things that the 3rd Respondent says it needs in
particular. As to the personal iPhone of a member of its staff, it appears O
the data could not now be accessed without destroying the phone. The
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Applicant has not accessed it. As to the personal mobile phone and
Macbook of another member of its staff, the data will, I understand, be Q
disclosed to the 3rd Respondent in due course. As to the correspondence
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surrounding the interview of that latter staff member, it is said to be
relevant to the admissibility of his voluntary statement and to whether the S

3rd Respondent should make an application to strike out references to his

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statement in the Originating Notice of Application. I had considered the
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arguments raised but I was not persuaded that the 3rd Respondent could B

not without embarrassment plead its Response in the absence of copies of

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these electronic devices. Nor did I think the Response should be delayed
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by the 3rd Respondents consideration of whether to attack the
admissibility of the statement of the staff member. E

17. In fact, from the solicitors correspondence dated 21, 27 and F

28 April it can be seen that on 28 April the 3rd Respondent was prepared
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to agree to extend time for its Response to 26 May, provided the record of
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interviews of the 4 employees or former employees of the 1st, 2nd, 4th and
5th Respondents referred to above and of a staff member of the 3 rd I
Respondent were supplied by the Applicant by 5 May, which the
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Applicant did. There was no longer any mention in the 28 April letter of
the electronic devices.

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18. As his fall-back position Mr Wu on behalf of the
3rd Respondent asked for an extension of 14 days which the Applicant did M
not oppose and which I granted, indicating that it was final and that no
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more time should be expected.

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19. For these reasons I also ordered the 3 Respondent to pay
the costs of its summons to the Applicant. P

(Godfrey Lam) S
President of the Competition Tribunal
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Ms Catrina Lam, instructed by Winston & Strawn, for the Applicant B

Mr Matthew Gearing, Solicitor advocate, instructed by Latham & C

Watkins, for the 1st Respondent
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Mr Stephen Crosswell of Baker & McKenzie, for the 2nd Respondent
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Mr Alfred Wu of Norton Rose Fulbright Hong Kong, for the
3rd Respondent
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Ms Eva Sit, instructed by Linklaters, for the 4th Respondent

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Ms Cindy Kong, instructed by FONGS, for the 5 Respondent
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