SHAH ALAM (Sept 11): The High Court on Wednesday dismissed a judicial review application filed by five warehouse operators to quash the decision by the Malaysian Competitions Commission (MyCC) and that of the Competition Appeal Tribunal (CAT) to impose penalties totalling more than RM1 million on them in 2021.
Judicial Commissioner Jamhirah Ali ruled there was no irrationality, illegality and/or procedural impropriety in either the MyCC and CAT’s decision that warranted the court’s intervention to quash their decision on the imposition of the penalties.
Jamhirah said the court also agreed with MyCC and CAT’s findings that the warehouses had committed an infringement of Section 4 of the Competition Act 2010 — which prohibits any horizontal or vertical agreement between enterprises that could prevent, restrict or distort competition in any market for goods and services — and hence, were not entitled to a relief to challenge liability under Section 5 of the same Act.
Section 5 provides that an enterprise involved in such an agreement may be relieved of its liability for the infringement of the prohibition if: i) there are significant technological, efficiency or social benefits that arise from the agreement; ii) the benefits could not reasonably have been provided without the effects of preventing, restricting or distorting competition; iii) the detrimental effects of the agreement on competition is proportionate to the benefits it provides; and iv) the agreement does not allow the enterprise concerned to eliminate competition completely over a substantial part of the goods or services involved.
MyCC was represented by Kwan Will Sen and Muayyad Khairulmaini in the proceedings that were conducted online.
Kwan, who confirmed the court's decision when contacted by The Edge, said Jamhirah also imposed total costs of RM5,000 to be paid by the five warehouses.
The five warehouses were SAL Agencies Sdn Bhd, WCS Warehousing Sdn Bhd, Regional Synergy (M) Sdn Bhd, Intrexim Sdn Bhd and Pioneerpac Sdn Bhd.
In 2021, it was reported that MyCC had imposed a total penalty of RM1.04 million on seven warehouses for price-fixing offences in the handling of cargoes in Port Klang between May 2017 and December 2019. The penalties ranged between RM26,363.03 to RM336,369.13 for each company.
The operators were found to have engaged in a price-fixing cartel in relation to the handling of services for import and export cargoes, which constituted an infringement under Section 4 of the Competition Act 2010, MyCC said in a 2021 statement.