KUALA LUMPUR (Nov 20): The Court of Appeal (COA) has fixed Feb 28, 2025, to deliver its decision on the Malaysia Competition Commission’s (MyCC) appeal against the High Court's decision to quash MyCC’s proposed decision to impose a fine of RM86.77 million on Grab Inc, for allegedly abusing its dominant position to restrict its drivers from promoting other e-hailing platforms.
The date was fixed on Tuesday (Nov 19) following case management, after the full hearing of the appeal on Monday.
Counsel Mervyn Lai confirmed the date of the decision when contacted by The Edge.
On Monday, a three-member bench — led by judge Datuk S Nantha Balan, who sat with Datuk Dr Lim Chong Fong and Datuk Ahmad Kamal Md Shahid — had reserved judgement in MyCC’s appeal against the High Court’s decision to quash the commission’s proposed decision.
MyCC’s lead counsel Tan Sri Tommy Thomas told the appellate bench that the High Court had erred, as it could not quash a proposed decision as it was not considered a final decision.
Thomas said only final decisions are amenable for judicial review, since anything prior to that was not determined finally yet, on whether there has been an infringement or otherwise.
The action filed by Grab was premature, said Thomas.
“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,” said Thomas.
“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.
On the other hand, Datuk Malik Imtiaz Sarwar, acting for Grab and its subsidiaries MyTeksi Sdn Bhd and GrabCar Sdn Bhd, argued that the High Court decision was right, as it had taken into account MyCC’s invalid investigation that Grab was not asked to reply on what is referred to as the Radzwan complaint.
“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 (beyond the powers of MyCC),” Malik added.
He further pointed out that a daily penalty of RM15,000 should the RM86.72 million fine not be paid would be an additional financial burden if it was not challenged.