PUTRAJAYA (March 19): The Court of Appeal (COA) on Wednesday upheld the Kuala Lumpur High Court's decision that quashed the proposed fine of RM86.77 million imposed by the Malaysia Competition Commission (MyCC) on Grab Holdings Inc, together with its subsidiaries GrabCar Sdn Bhd and MyTeksi Sdn Bhd, in 2019.

A three-member panel led by COA judge Datuk ES Nantha Balan, which also consists of Datuk Dr Lim Chong Fong and Datuk Ahmad Kamal Md Shahid, also ordered MyCC to pay RM50,000 costs to Grab.

Lim, who read the unanimous decision, said the appellate bench found that MyCC may have been “cavalier” when conducting the investigations on the three entities, which the court found there had been procedural impropriety and warranted the judicial review.

He said there should have been prior notification to the respondent (Grab and others) for request of information based on Section 18 of the Competitions Act 2010 (for power to require provision of information), as the investigation must be predicated by a third-party complaint.

The judge said this since the investigation had deprived the respondents of knowing the details of the complaint, resulting in the companies' request for the information.

Lim added that the appellate court had also found the letter issued by MyCC to the respondents to be ambiguous.

“This court also found Section 35 of the Competitions Act (with regards to interim measures) up to Section 40 (finding of an infringement) do not provide a mechanism to challenge a proposed decision.

“The court found there is no appeal process to the proposed decision made based on Sections 35 to 40, and the respondents (Grab and others) were right in filing the judicial remedy, as there is no internal remedy available for them to challenge the proposed decision.

“Hence, this court finds that the High Court judge did not make any appealable error that warrants appellate intervention in dismissing MyCC’s appeal,” Lim said.

Lim further said that the COA had initially overturned an earlier High Court decision that had refused to grant leave for a judicial review.

He further cited a decision by then-COA judge Datuk Hanipah Farikullah (now a Federal Court judge) that granted leave for the merits to be heard, where Hanipah had said that although the proposed fine was not considered a final decision, leave (permission) for merits of a judicial review should be allowed if there was initial evidence of procedural impropriety.

Here, Lim said Hanipah had also noticed that there were no provisions in the Competitions Act that provide for an automatic avenue for challenge on the proposed decision, and hence the merits of the judicial review were rightly heard.

In judicial review proceedings, leave (permission) has to be gained first before the full merits of the case are heard.

MyCC was represented by Tan Sri Tommy Thomas and Mervyn Lai, while Datuk Malik Imtiaz Sarwar, Yvonne Lim, and Shanthi Kandiah appeared for Grab and the other respondents.

The High Court on July 6, 2023, had allowed Grab’s judicial review, when judge Datuk Wan Ahmad Farid Wan Salleh (now a 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 had said.

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.

As a result, Grab filed the judicial review application in early 2020 to challenge the proposed decision to impose the fine.

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 COA. The decision was subsequently upheld by the Federal Court on Dec 5, 2022, resulting in the merits of the case being heard.

On Nov 18 last year, Nantha Balan and the bench had heard MyCC’s appeal but had reserved in delivering its decision until Wednesday.

Read also:
High Court quashes MyCC's proposed RM86.77 mil fine on Grab
Appellate court reserves judgment in MyCC's appeal against Grab on quashing RM86.77 mil proposed decision