PUTRAJAYA (Oct 14): The Federal Court on Tuesday quashed the Malaysia Competition Commission’s (MyCC) bid to appeal against lower court decisions that overturned an RM86.77 million fine imposed on Grab Holdings Inc — in 2019 — effectively allowing Grab to avoid the penalty.
The three-judge panel chaired by Datuk Abu Bakar Jais denied MyCC leave to appeal against the Court of Appeal’s decision.
Abu Bakar said that MyCC did not meet the threshold for an appeal at the country’s apex court as stipulated under Section 96 of the Courts of Judicature Act.
Agreeing with Abu Bakar unanimously on the bench were Datuk Lee Swee Seng and Tan Sri Ahmad Terrirudin Mohd Salleh.
In reading the judgement, Abu Bakar stressed that the decision at the High Court and Court of Appeal was substantive and amenable for the judiciary.
"It may be labelled as a proposed decision, but from the facts of it, we accept and understand it to be a substantive decision that must be complied with, and because of that it is amenable for the judiciary.
"So that is essentially how we understand the matter that is in a way factual, because although we can say nothing is final, we think there is a substantive decision made which needs compliance even at that stage.
"I would not think that the counsel, with respect, has satisfied Section 96, therefore dismissing the application with a cost of RM50,000 for the respondent," he said.
The 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 had posed 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, current Chief Justice 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.
The Court of Appeal upheld his decision, ruling that there should have been prior notification to Grab and others for requests 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.
Lim said Sections 35 to 40 of the Competition Act also 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”.
Datuk Malik Imtiaz Sarwar, Yvonne Lim, Shanthi Kandiah, Angela Hii and Azyan Ibrahim acted for Grab, while Datuk V Sithambaram acted for the commission.
MyCC proposed a RM86.77 million fine on Grab in 2019, saying its investigation found the company had likely abused its dominant position by restricting drivers from advertising for competitors in the transit media market.
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