PUTRAJAYA (Nov 18): A three-member Court of Appeal bench had reserve its judgment in giving a decision over the appeal by Malaysia Competition Commission (MyCC) over a High Court’s decision last year that quashes its “proposed decision” on imposing a propose fine of RM86.77 million against Grab Holdings Inc, together with its subsidiaries GrabCar Sdn Bhd and MyTeksi Sdn Bhd.
The proposed fine on Grab, which was imposed on Oct 3, 2019, is for allegedly abusing its dominant position to restrict its drivers from promoting other e-hailing platforms.
Judge Datuk S Nantha Balan, who led the bench on Monday, said the panel required some time after hearing heavy arguments on the matter from MyCC and Grab in the morning and afternoon.
The other members of the bench were Datuk Dr Lim Chong Fong and Datuk Ahmad Kamal Md Shahid.
Earlier senior counsel Tan Sri Tommy Thomas, who appeared with Mervyn Lai, said MyCC’s action on Oct 3, 2019, was a proposed decision and not a final or conclusive decision, and hence the High Court was wrong last year, to allow the judicial review to quash a proposed decision by MyCC.
Going into the administrative law of judicial review, Thomas said a review against a government authority is normally made once a decision is finalised.
“Here it is a proposed decision on the imposition of a fine. MyCC has not made a final or conclusive decision on whether there was an infringement or non-infringement of the Competition Act 2010 (CA 2010) or competition law,” said Thomas.
Furthermore, he added the matter has yet to come to a final determination as MyCC had only finished its probe.
Action by Grab premature
He further went into the various provisions in the CA 2010, citing that Grab’s action was premature as under Section 36 of the CA under proposed decision, whatever is stated is not amenable to judicial review.
In the proposed decision, Thomas said it was like issuing a show cause to Grab on wanting to seek answers over the possible action to be taken.
“There are cases when there was a proposed decision but, in the end, after further consideration and investigation, MyCC finds there was no infringement, while in some [cases] after that we find there is infringement, and a penalty is imposed.
“Once a decision is made whether there is an infringement [under Section 40] or no infringement [Section 39] then there is still an avenue for the aggrieved party to go to the Consumer Appeal Tribunal (CAT). If they felt aggrieved, they could then file a judicial review to court. However, it should not be done before that at the proposed decision stage,” Thomas added.
“Until a Final Decision is issued, a party is not affected in any way by a proposed decision, as it cannot be enforced by MyCC. The High Court has failed to appreciate this,” he added.
Thomas further submitted that a party has no right to be heard in court, during the investigative process where the proposed decision is made.
He added that Grab’s complaint in filing the review was that their right to be heard was violated as they were not told over the Radzwan’s complaint which was investigated along with other complaints.
“By right this is the investigative process and during this stage, Grab do not have a right to be heard. They only can respond after the proposed decision is made,” he added.
Grab says there was invalid investigation and hence court right to quash
Datuk Malik Imtiaz Sarwar for Grab in reply said the High Court decision was right to quash the proposed decision, and this follows a warning after the proposed decision that a penalty of RM15,000 can be imposed daily on the initial fine of RM86.72 million.
He said the decision to issue the proposed decision was made not in accordance with the law and that was why his client filed the judicial review to challenge the decision.
“While MyCC had investigated the complaints made in 2018, it had also touched on the Radzwan complaint which Grab was not asked to give any feedback on.
“Under Section 36 of the Competition Act, the proposed decision can be made after it had duly completed the investigation process. It is plain that such an investigation must be valid in law, and that the fact of a valid investigation is a condition to MyCC’s jurisdiction to issue a proposed decision. If such a condition, or if the investigation is not considered valid, then it runs foul to the proposed decision which is considered ultra vires,” Malik added.
He further pointed to the daily penalty of RM15,000 should the RM86.72 million not be paid as another ground for his client to seek a review. If the penalty is not challenged, Malik argued that his client is likely to face a heavy financial loss.
Malik said when Grab was not granted leave initially in the judicial review, and appealed to the Court of Appeal, the appellate court in granting leave (permission) for the merits to be heard held that the CA does not provide for any internal remedy aimed at reviewing a decision by MyCC to issue a “proposed decision” under Section 36(1) of the CA.
For these reasons, he added when the Federal Court also denied MyCC leave to appeal, the matter was reverted to the High Court for determination, where it found there was this violation with regards to the investigations.
In allowing Grab’s judicial review, then High Court judge Datuk Wan Ahmad Farid Wan Salleh (now COA judge) 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,” Wan Ahmad Farid added.
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.
Following the end of submissions on Monday, Nantha Balan fixed Tuesday as case management for it to fix a date to deliver its decision.