Wan Ahmad Farid's decision, delivered online, may result in MyCC having to complete all its investigations first and announce only its final decision from now on — as opposed to a preliminary investigation and a proposed decision first, which may now be subject to challenge.
KUALA LUMPUR (July 6): The High Court on Thursday (July 6) has allowed an application filed by Grab Holdings Inc, together with its subsidiaries GrabCar Sdn Bhd and MyTeksi Sdn Bhd, to quash a decision by Malaysia Competition Commission (MyCC) to impose a proposed fine of RM86.77 million on its Malaysian business, for allegedly abusing its dominant position to restrict its drivers from promoting other e-hailing platforms.
Judge Datuk Wan Ahmad Farid Wan Salleh ruled that MyCC's decision in announcing the proposed fine was filled with procedural impropriety, and had breached natural justice.
“Hence, this court is allowing the certiorari application [to quash] the proposed decision. However, the court is not awarding the damages as there is no proof of mala fide (bad faith) by MyCC in making the proposed decision,” the judge said.
He also ordered MyCC to pay RM20,000 costs to Grab.
It was reported on Oct 3, 2019 that MyCC had proposed the RM86.77 million fine against Grab after its investigations provisionally found that the electronic-based ride-hailing (e-hailing) company had abused its dominant position by imposing restrictive clauses on its drivers that prevent them from using their vehicles to promote and advertise other e-hailing platforms.
The judge said in his decision that the rule of natural justice stipulates that no man may be condemned until he has been heard, and that the correct investigation process on the allegation infringement was necessary in order for Grab to defend the allegation against them.
No evidence MyCC took steps to investigate Radzwan complaint
Wan Ahmad Farid said Grab's grievance is that the proposed decision was made basically on what is called the Radzwan complaint made in 2019, while the investigation was actually focused on a series of complaints it received in 2018 about alleged discrimination that favoured Grab car drivers as opposed to Grab taxi drivers.
In essence, Grab claimed it was never given the right to be heard in the Radzwan case, and so alleged no proper investigation took place for the proposed fine to be made, and the judge agreed.
“There was no evidence before me (the court) that MyCC had taken the investigative steps in the Radzwan complaint in the said manner that it had taken in (dealing with) the 2018 complaints," said Wan Ahmad Farid.
“One can be forgiven in concluding that there was no proper investigation made into the Radzwan complaint, only a proposed decision. I am therefore of the view that it is impossible for MyCC to make a fair proposed decision on the Radzwan complaint and holds that there is a prima facie case of infringement of Section 36(1) of the Competition Act 2010 (CA), when the applicant (Grab) was asked on the issue of the 2018 complaint during the investigation process [and not the Radzwan complaint]," the judge said.
According to Section 36(1), MyCC has to give written notice of its proposed decision to each enterprise that may be directly affected by the decision on completion of its investigation.
“The proposed decision is connected to the final decision made by MyCC, while there is no final decision made in the other investigation under (different sections of CA) that would have prejudiced the applicant,” the judge said.
In arriving at the decision, the judge said the court also found there was nothing wrong with MyCC announcing the proposed decision but noted it was more appropriate for the announcement to be made on the final decision.
Wan Ahmad Farid, however, found there was nothing wrong with MyCC’s role of being the investigator, prosecutor and adjudicator in matters concerning competition laws and regulations.
Wan Ahmad Farid's decision, delivered online, may result in MyCC having to complete all its investigations first and announce only its final decision from now on — as opposed to a preliminary investigation and a proposed decision first, which may now be subject to challenge.
Grab and its subsidiaries were represented by Datuk Malik Imtiaz Sarwar, Shanti Kandiah and Yvonne Lim; Kwan Will Sen and Muayaad Khairulmaini appeared for MyCC.
Grab and its subsidiaries had initially failed in obtaining leave for a judicial review over MyCC's proposed decision at the High Court, but later succeeded in appealing the matter at the Court of Appeal. The decision was subsequently upheld by the Federal Court last Dec 5.