CGj shares some practical tips for responding to a dawn raid in the context of competition law enforcement in Hong Kong, derived from the latest guidance note issued by the Competition Law Interest Group of The Hong Kong Chartered Governance Institute (the Institute).
In light of the recent Competition Tribunal proceedings brought by the Hong Kong Competition Commission (the Commission) against two companies, as well as certain ‘relevant’ individuals, and the concomitant referral for the first time ever by the Commission to the Police for criminal investigation in the obstruction of its investigative powers (see this month’s Case Note), the seventh guidance note issued in December 2021 by the Institute’s Competition Law Interest Group could not have been more timely.
The Commission’s powers of investigation
The Commission has wide investigative powers in connection with a suspected breach of the Competition Ordinance, including the right to physically search your company premises without prior notice; to search, copy or confiscate pertinent documents and equipment, including mobile phones, computers and personal devices; and to demand explanations from employees about any documents they consider apposite to their investigation.
These raids are known as ‘dawn raids’ because they most frequently occur during the hours of early morning. Any obstruction of a Commission’s search, or of its requests for documents or information, during such a raid can constitute a criminal offence for the individuals concerned – yet there are limits to what the Commission can seize or copy, as well as certain restrictions on the scope of their investigation.
It is therefore vital that everyone in a company, from frontline staff or receptionists all the way up to senior management, is aware of the steps to take in the event of a dawn raid, as well as having a clear and accurate understanding of what the Commission’s officers can and cannot do.
What to expect in the event of a dawn raid
Handling a dawn raid is rarely easy. The effects of such a potentially intimidating experience can be mitigated only if a company is properly prepared, knows what can be expected and is familiar with what steps to take.
If a team of the Commission’s officers enters your premises, it will usually be at the beginning of office hours. They will produce a warrant giving them the right to search your offices immediately, although they can usually agree to wait up to 30 minutes for you to contact your internal or external lawyers.
First and foremost, remain calm. Immediately seek help from your internal and/or external lawyers or legal counsel, while remaining cooperative and polite. In practical terms, the first responder should undertake the following:
Ask to see and scan or copy the officers’ search warrant, official authorisation from the Commission proving their status as ‘authorised officers’ and proof of their individual identities (IDs).
- While waiting for verification of the above, ask the officers to wait in a meeting room away from the main office.
- Immediately telephone your company’s designated person, who could be in-house counsel or senior management.
- Immediately email the designated person with copies of the search warrant, official authorisation and individual IDs, which should then be forwarded to external lawyers.
- Return all documents to the Commission’s officers and let them know your in-house or external lawyers are on their way.
If the officers have agreed to wait for your internal/external lawyers before formally beginning their search, hand over to the lawyers as soon as they arrive, with support if needed from relevant staff such as your IT team. If the officers insist on starting their search prior to this, they should be allowed to do so, but should also be ‘shadowed’ by a member of staff.
How to handle a dawn raid
The guidance note offers a number of key tips that will help steer your company and colleagues through the raid (also see ‘Practical tips’), including:
- cooperate, be respectful and comply with requests from the Commission’s officers, as far as is practicable
- ascertain the exact scope of the investigation as described in the search warrant, as officers are not permitted to enter or search premises that are not strictly specified in the warrant, nor are they entitled to inspect documents that are subject to legal professional privilege
- ensure your lawyers accompany each officer throughout their search, taking note of everything that happens and any document that is looked at
- colleagues should seek legal advice from your lawyers prior to answering any questions
- do not destroy or delete any documents, and
- do not compromise your position in any way, including by informing any third party about the raid.
After a dawn raid
A raid by the Commission can last several hours or days. If they wish to continue their investigation in the following day(s), your lawyers should agree on the protocol for sealing your premises with the officers, a protocol that must be complied with.
Once the search has been completed, your lawyers should retain a comprehensive log of all documents physically or electronically copied or seized, as well as copies of all such documents.
A post-raid briefing with your lawyers is very helpful as a means of reflecting on matters that arose during the raid, which could then extend to discussions on a defence strategy and immediate next steps.
The guidance note reviewed in this article is available under the Thought Leadership section of the Institute’s website: www.hkcgi.org.hk.
The Institute would like to thank the members of its Competition Law Interest Group: David Simmonds FCG HKFCG (Chairman), Adelaide Luke, Alastair Mordaunt, Brian Kennelly QC, Mike Thomas and Neil Carabine. Gratitude is expressed to Natalie Yeung, Partner, Slaughter and May, as the author of the guidance note reviewed in this article.
Institute Deputy Chief Executive, Mohan Datwani FCG HKFCG(PE), serves as Secretary to the Institute’s Interest Groups. If you have any comments and/or suggestions relating to the Institute’s Interest Groups, he can be contacted at: firstname.lastname@example.org.