(A) Introduction
The First Conduct Rule (the “FCR”) in Section 6(1) of the Competition Ordinance (Cap. 619) (the “Ordinance”) prohibits undertakings from making or giving effect to agreements that have an anti-competitive object or effect. [1] However, can an undertaking which is not a party to such an agreement and is not a participant in the market on which the contravention is alleged to have occurred be liable under Section 6 of the Ordinance merely on the ground of facilitation?
Competition Commission v. Gray Line Tours of Hong Kong Ltd and others [2026] HKCT 1 (date of judgment: 4 March 2026) [2] is the first competition case in Hong Kong which the Competition Commission (the “Commission”) commenced proceedings against alleged cartel facilitators. In this case, the Competition Tribunal (the “Tribunal”) addressed the above question. The Commission argued that two hotel operators facilitated a price-fixing arrangement between two competing ticket sellers by relaying pricing information and mediating between them and that such facilitation alone constitutes a contravention of the FCR under Section 6 of the Ordinance.
The Tribunal answered “No”. It held that Section 6 of the Ordinance does not extend to facilitation and that such a complaint in Hong Kong must be brought under Section 91 of the Ordinance, which specifically deals with persons “involved in a contravention” and requires proof of both knowledge and intent. Given that the Commission accepted that it had not advanced an alternative case under Section 91 of the Ordinance, the Tribunal dismissed the Commission’s application.
(B) Facts
The Commission’s case concerns the alleged facilitation of a price-fixing arrangement by two hotel operators, Harbour Plaza 8 Degrees Limited (“HP8”) and Harbour Plaza Hotel Management Limited (“HPM”) (collectively, the “Respondents”), at the Harbour Plaza 8 Degrees hotel (the “Hotel”), which was owned by HP8 and managed by HPM. [3]
The underlying arrangement was between two competing ticket sellers, Gray Line Tours of Hong Kong Limited (“Gray Line”) and Tink Labs Limited (“Tink Labs”). Gray Line operated a tour counter at the Hotel selling attraction tickets at published prices, while Tink Labs provided “handy devices” in hotel rooms through which guests could purchase the same tickets, often at discounted rates. [4]
Gray Line and Tink Labs had no direct contact. All communications regarding the price-matching arrangement were channelled through the Hotel’s staff. By relaying pricing information and mediating between the parties, the Respondents allegedly facilitated the price-fixing arrangement, which contravened the FCR under Section 6 of the Ordinance. [5]
(C) Decision
The Standard of Proof
The Commission accepted that the Tribunal proceeded on the basis that the criminal standard of proof applies. [6] Accordingly, the Tribunal must be satisfied beyond all reasonable doubt that each element of the alleged contravention has been proved. The Respondents do not have to prove anything and are entitled to the benefit of any doubt. [7]
The Tribunal also explained that the existence of an anti-competitive agreement may be inferred from a combination of coincidences and indicia which, taken together and in the absence of any plausible alternative explanation, constitute evidence of an infringement. [8]
Where the criminal standard applies, three conditions must be satisfied for an inference to be drawn: [9]
(1) the inference must be grounded on clear findings of primary facts;
(2) it must be a logical consequence of those facts; and
(3) it must be irresistible, in other words the only inference that can reasonably be drawn.
It is sufficient if the body of evidence, viewed as a whole, satisfies the burden, even if each individual item does not. Common sense inferences, including adverse inferences, may be drawn under the criminal standard. [10]
Further, the Tribunal noted that even under the civil standard, a disciplined approach is required when drawing inferences. Serious misconduct is less likely than lesser misconduct, and therefore requires evidence of commensurate cogency. In practice, the above three conditions must be satisfied regardless of the applicable standard. [11]
Section 6 and Section 91 of the Ordinance
The Tribunal held that Section 6 of the Ordinance does not extend to facilitation of an anti-competitive agreement by an undertaking that is not a party to that agreement on the following grounds:[12]
(1) The language of Section 6 prohibits undertakings from making or giving effect to an agreement or engaging in a concerted practice that has an anti-competitive object or effect. By its terms, it does not cover the conduct of an undertaking that merely facilitates such an agreement without being a party to it.
(2) Section 91 is the relevant provision for facilitators. It requires proof of knowledge and intent. It also defines when a person (including an undertaking) is “involved in a contravention” and includes:
(a) aiding, abetting, counselling or procuring a contravention (Section 91(b)); and
(b) being in any way, directly or indirectly, knowingly concerned in or a party to the contravention (Section 91(d)).
(3) It would be anomalous for the Commission to proceed under Section 6 in respect of involvement that constitutes aiding and abetting, thereby avoiding the need to prove knowledge and intent to the criminal standard, which are the requirements under Sections 92(1)(b) and 91(b).
(4) The inclusion of Section 91 in the Ordinance is a material difference between the Hong Kong and the EU statutory regimes. The Tribunal rejected the Commission’s submission to follow EC case law, where facilitators have been held liable under Article 101 Treaty on the Functioning of the EU. This is because the Hong Kong legislature chose to include a specific provision for involvement in a contravention. It would be wrong to interpret Section 6 in a way that allowed the Commission to bypass the requirements of Section 91. As such, EU case law is of limited assistance in construing Sections 6 and 91.
Given that the Commission accepted that it had not advanced an alternative case under Section 91 of the Ordinance, the Tribunal dismissed the Commission’s application. [13]
The Court’s Findings
On the assumption that facilitation constitutes a contravention of the FCR, had Section 6 applied, the Tribunal would have found the contravention proved beyond all reasonable doubt and held the Respondents liable from 1 August 2016 to 7 March 2017. Its reasonings are as follows:
(1) The Tribunal found that Mr. Kenneth Chan Kai Chiu (“Mr. Chan”), acting on behalf of HP8, played a central role in facilitating the price-matching arrangement. [14]
(2) Gray Line and Tink Labs had no direct contact. All communications were channelled through the Hotel’s staff, with Mr. Chan acting as intermediary. [15]
(3) In May 2016, Gray Line first raised its concerns with Mr. Chan requesting that the ticketing function on the handy devices be removed. Mr. Chan knew that Gray Line's complaint stemmed from the fact that Tink Labs was offering tickets at lower prices, which Gray Line considered unfair. He also understood that an alternative solution was to have Tink Labs adjust its prices to match Gray Line's published prices. [16]
(4) On or about 1 August 2016, Ms. Agnes Poon of Tink Labs informed Mr. Chan that Tink Labs’ management agreed to adjust its prices to match Gray Line’s and requested Gray Line's price list. Mr. Chan confirmed HP8’s acceptance of the price-matching proposal. [17] Following the call, Mr. Chan personally verified Gray Line’s prices at the Hotel’s tour counter and emailed Ms. Poon with a price list copied from an earlier Gray Line email. [18]
(6) On 12 August 2016, Mr. Eddie Wu (“Mr. Wu”) of Gray Line reported that at HP8, “theme park ticket is selling original price”, which was a compelling inference that Mr. Chan had informed him of this. [19]
(7) On 29 September 2016, after being alerted by Mr. Wu that handy devices at some hotels had reverted to discounted rates, Mr. Chan personally checked a handy device at the Hotel and confirmed the prices remained matched. Mr. Chan reported back to Gray Line, and Mr. Wu replied: “Many thanks for your help again, great[ly] appreciated.” [20]
(D) Key Takeaways
This case is significant on the following grounds:
(1) Liability of facilitator falls under Section 91, not Section 6:
The Tribunal held that Section 6 of the Ordinance does not extend to facilitation. Any complaint against an alleged facilitator must be brought under Section 91 of the Ordinance, which specifically defines when a person is “involved in a contravention”. This includes aiding, abetting, counselling or procuring a contravention. To establish liability under Section 91 of the Ordinance, the Commission must prove that the facilitator:
(a) knew the essential facts constituting the contravention; and
(b) intended to contribute to the anti-competitive objective.
(2) Standard of Proof:
This case reaffirmed the application of the criminal standard of proof, namely, beyond all reasonable doubt, to competition proceedings before the Tribunal. The Commission must prove all the elements of the alleged contravention to this high standard and respondents are entitled to the benefit of any doubt.
(3) Facilitators Remain at Risk
Although the Commission failed in this case on procedural grounds, this case confirms that facilitators can still be liable under Section 91 of the Ordinance. Undertakings that assist competitors in reaching anti-competitive arrangements, for example, by passing pricing information and mediating between parties, will be exposed to enforcement action, provided the requisite knowledge and intent can be proved.
[1] https://hkiac.org/arbitration/what-is-arbitration/
[2] https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=177994
[3] Competition Commission v. Gray Line Tours of Hong Kong Ltd and others [2026] HKCT 1 (date of judgment: 4 March 2026), §1
[4] Ibid
[5] Competition Commission v. Gray Line Tours of Hong Kong Ltd and others [2026] HKCT 1 (date of judgment: 4 March 2026), §7
[6] Ibid, §29
[7] Ibid, §30
[8] Ibid, §31
[9] Ibid, §32
[10] Ibid
[11] Competition Commission v. Gray Line Tours of Hong Kong Ltd and others [2026] HKCT 1 (date of judgment: 4 March 2026), §33
[12] Ibid, §73-§74
[13] Ibid, §75
[14] Ibid, §112
[15] Ibid, §114
[16] Ibid, §115
[17] Ibid, §120
[18] Ibid, §121
[19] Ibid, §128
[20] Ibid, §130
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