Multijurisdictional: The burden of proof in competition cases

In brief

Regulators and courts in common law jurisdictions around the world are being given significant and increasing powers to impose financial penalties without traditional criminal law safeguards. Competition law has been particularly susceptible to arguments that traditional safeguards should be discarded to aid regulators in securing convictions. In the first competition case to go to trial in Hong Kong, the Competition Tribunal held in 2019 that in competition proceedings seeking financial penalties, the authority had the burden to prove its case beyond reasonable doubt. This article1 considers the approach taken in other common law jurisdictions and scope to argue for increased safeguards and human rights protections for clients facing financial penalties.

Key takeaways

It would be an error to argue in Hong Kong that the civil standard must apply to competition law cases by making reference to overseas examples of administrative fines and civil penalties, given the Court of Final Appeal’s (CFA) decision in Koon. The CFA has clearly decided the criminal standard should apply. The question remains susceptible to challenge in Australia and the United Kingdom but may be beyond the scope of challenge in New Zealand. The Canadian courts are clearly even more fundamentally diverging from Hong Kong’s CFA, the United Kingdom courts and the ECHR, rejecting the notion that proceedings seeking such financial penalties comprise a criminal charge.

In Hong Kong, the core constitutional principles have been made clear by the CFA. It is hoped that this will cause other jurisdictions to look afresh at how they approach competition law and other economic cases seeking financial penalties and whether there is justification in prosecuting such cases without the traditional criminal law safeguards and human rights protections that underpin our adversarial system.

For defence counsel in jurisdictions where the point remains open to contest in the courts, there is fertile ground to argue for increased criminal law safeguards and human rights protections for clients facing financial penalties. Elsewhere, the only available avenue may be continued debating and lobbying with legislatures and governments. Time will tell whether the desire for expediency will overcome the moral argument for due process.

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1 This brief synopsis is drawn from a detailed review of these issues published in the HK Law Journal: Competition Law: an Exception to Human Rights 52 HKLJ 513, available on Westlaw. Readers interested to explore this subject further are directed to that article for full case citations, references and a 50-page analysis of the issues

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