CDPP v Kawasaki Kisen Kaisha Ltd

Judgment

CDPP v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170

The conduct

Justice Wigney noted the guilty plea and ran through the details of the offending (relating to cartel conduct)

Maximum penalty

His Honour identified the maximum penalty (from para 186-190) as $100 million, based on an agreed relevant turnover of AU$1 billion.

Cooperation and leniency

His Honour then set out agreed facts relating to cooperation (from 191), observing - in part - that (para 193):

While the statement of agreed facts concerning K-Line’s cooperation was lengthy and detailed, the rather general and anodyne nature of some of the facts recited in it made it difficult to assess the real value of the assistance provided. … The difficulties in that regard were exacerbated by the fact that there was no evidence from an officer of the ACCC concerning his or her assessment of the value of the assistance and cooperation provided by K-Line. This issue will be addressed in more detail later.

His Honour also observed that the leniency application by K-Line ‘did not identify or include any of the instances of cartel conduct which ended up being the subject of the indictment.’ (para 198)

His Honour also noted that K-Line had provided some, but not all, waivers requested by the ACCC’s to facilitate information exchanges with other competition regulators.

His Honour then detailed certain provision of information, admissions and documents.

Guilty plea

The guilty plea was discussed from 232, noting that criminal proceedings were commenced on 31 October 2016 and a guilty plea was entered for a single ‘rolled up’ charge under s 44ZZRG (originally 39 separate counts) on 5 April 2018 (para 240).

Penalties in other jurisdictions

His Honour ran through penalties (and relevance of penalties) imposed in Japan, the USA, the EU, South Korea, Chile, China, South Africa and Mexico.

Evidence from K-Line

His Honour briefly outlined witness evidence given by K-Line (from 252)

The appropriate sentence

Justice Wigney discussed the appropriate sentence from para 263, repeating much of what was discussed in CDPP v NYK regarding applicable sentencing principles, concluding that a fine of $34.5 million would be an appropriate penalty (para 412). That incorporated a global discount of just over 28% for early guilty plea, assistance and cooperation (but for these it would have been $48million) (para 412).