PUTRAJAYA (July 21): The Federal Court has rescheduled to October the hearing for the Malaysia Competition Commission’s bid to appeal against lower court decisions that quashed an RM86.77 million fine imposed on Grab Holdings Inc.
The hearing has been set for Oct 14 following case management last week before Federal Court deputy registrar Husna Dzulkifly. Initially, the hearing was to start on July 29. The commission’s counsel Datuk V Sithambaram confirmed the new hearing date when contacted by The Edge.
It remains uncertain whether the case would be vacated, as the apex court had recently been inundated with vacancies following the retirement of the 16th chief justice, Tun Tengku Maimun Tuan Mat, and President of Court of Appeal Tan Sri Abang Iskandar Abang Hashim.
Further, Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli is also expected to retire this week having served his six-month extension.
The commission, also known as MyCC, had filed a notice of appeal on April 17 to seek leave to appeal the whole of the Court of Appeal’s decision in March, which upheld the High Court decision on the fine. The commission is posing eight questions of law to be decided by the apex court.
In civil cases at the apex court, leave, or permission, has to be obtained from the bench before the merits of the appeal are heard based on unique questions of law.
In 2023, Datuk Wan Ahmad Farid Wan Salleh, then a judge at the Kuala Lumpur High Court, sided with Grab and its two subsidiaries in the 2023 judicial review over the imposition of the proposed fine.
He is now the newly appointed chief justice who will take his oath later this month.
The Court of Appeal upheld his decision, ruling that there should have been prior notification to Grab and others for request of information based on Section 18 of the Competition Act 2010 as the investigation must be predicated by a third-party complaint.
Reading the unanimous decision, Datuk Lim Chong Fong noted that the investigation had deprived the companies of the details of the complaint while the letter issued by the commission to the respondents was ambiguous.
Sections 35 to 40 of the Competition Act, meanwhile, do not provide a mechanism to challenge a proposed decision to impose a fine, and the respondents “were right in filing the judicial remedy, as there is no internal remedy available for them to challenge the proposed decision”, Lim said.
“Hence, this court finds the High Court judge did not make any appealable error that warrants appellate intervention,” Lim added.
The eight questions
The commission is now asking the Federal Court to determine eight questions of law:
- Whether a proposed decision under Section 36 of the Competition Act is a ‘decision’ reviewable under Order 53 Rule 2(4) of the Rules of Court
- Whether the established principle of law that investigative powers of the authorities are not susceptible to judicial review, applies to the investigative powers exercised by MyCC under the provisions of the Act, as the Court of Appeal has held otherwise
- Whether the finding of the Court of Appeal that the proposed decision under Section 36 of the Act is amenable to judicial review is against the legislative scheme of the Act
- Whether an enterprise being investigated for an infringement of any prohibition under the Act should be afforded the right to be heard during the investigative process and before the delivery of the proposed decision
- Whether the absence of the right to be heard during the investigative process conducted by MyCC in respect of an infringement by an enterprise of any prohibition under the Act is a denial of the right to be heard and therefore in breach of natural justice
- Is the right to be heard by an enterprise being investigated for an infringement of any prohibition under the Act available before the proposed decision or after the proposed decision but before the final decision
- Whether a challenge to the proposed decision delivered under Section 36 of the Act can amount to a challenge of the investigative process/powers of MyCC under the Act
- Whether the Court of Appeal finding that the investigation by MyCC must be predicated on a third-party complaint is contrary to Section 14(1) and or other provisions of the Act and/or common law.