in a nutshell
Regulators and courts in common law jurisdictions around the world have been given significant and growing powers to impose financial penalties without the protection of traditional criminal law. Competition law is particularly susceptible to arguments that traditional safeguards should be abandoned to help regulators win convictions. Competition courts have ruled that in competition actions seeking monetary penalties, authorities have the burden of proving their claims beyond a reasonable doubt.This article1 We consider the approaches taken in other common law jurisdictions and the extent to which we discuss strengthening protections and human rights protections for clients facing financial penalties.
In light of the Court of Final Appeals (CFA) ruling, it would be erroneous to argue in Hong Kong that civil standards must apply to competition law litigation, referring to examples of administrative fines and civil penalties abroad. coonThe CFA has clearly decided that criminal standards should apply. The issue is still subject to objection in Australia and the United Kingdom, but may be beyond the scope of objection in New Zealand. Canadian courts are clearly fundamentally different from Hong Kong’s CFA, British courts, and ECHR, rejecting the notion that proceedings seeking such financial penalties constitute criminal liability.
In Hong Kong, core constitutional principles have been clarified by the CFA. This raises the question of how other jurisdictions approach competition laws and other economic cases that call for financial penalties, and how such jurisdictions approach such cases without the traditional criminal law and human rights protections that underpin hostile systems. It is hoped that the government will reconsider whether it is justifiable to prosecute the case.
For attorneys in controversial jurisdictions in the courts, there is a fertile basis for advocating increased criminal protection and human rights protection for clients facing financial penalties. Elsewhere, continued debate and lobbying with legislatures and governments may be the only recourse. Time will tell whether the desire for expediency trumps the moral argument for due process.
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1 This brief overview is drawn from a detailed review of these issues published in the Hong Kong Law Journal. Readers interested in exploring this subject further are directed to that article for full case citations, references, and his 50-page analysis of the problem.
