KUALA LUMPUR (Sept 29): The High Court on Tuesday has granted a stay of execution on a RM367 million penalty that had been imposed on four major feedmill companies by the Malaysia Competition Commission (MyCC) in 2023 and upheld by the Competition Appeal Tribunal (CAT) this year.
The stay is granted pending the hearing and outcome of the merits of the feedmillers’ judicial review application over the penalty imposed on them.
The RM367 million penalty is the highest imposed in Malaysian history over purported price-fixing.
The four feedmillers are Leong Hup Feedmill Malaysia Sdn Bhd, Dindings Poultry Development Centre Sdn Bhd, FFM Bhd, and Gold Coin Feedmills (M) Sdn Bhd.
Their appeals to the CAT had been dismissed in February.
Following the dismissal of their appeal by CAT, Leong Hup was slapped with a RM157.47 million penalty, Gold Coin with RM97.51 million, Dindings with RM70.02 million, and FFM with RM42.69 million.
The trial judge for the stay hearing, Alice Loke Yee Ching, in her broad grounds, said the balance of convenience and balance of justice tilts on the four companies should their judicial review be successful.
“The four companies have produced credible evidence that irreparable harm would be incurred on them, if they have to pay the penalty before the hearing, should they be successful in their challenge.
“Following this, the court is granting the stay [on] them [having] to pay the penalty, pending the disposal of their judicial review,” the newly elevated Court of Appeal judge said in her broad grounds.
Loke said the companies, represented by their counsel, have argued the potential effect of if they are required to pay the penalty, as this would result in increased borrowings, expenses, affect the liquidity of the company, and may disrupt the business operations of the parties.
“The payment of the penalty will have an effect on the liquidity of their business and operations. MyCC as a statutory party [is] required to maintain the status quo until the merits of [the feedmillers’] challenge are determined.
“If the penalty is imposed, it may deprive them of a successful litigation to challenge the finding of the tribunal in the judicial review proceedings,” the judge added in delivering her decision in online proceedings.
Seeking to suspend penalty following challenge
Besides the four named feedmillers, another feedmiller, PK Agro Industrial Products, has not opposed its financial penalty.
The four feedmillers had asked the court to suspend the penalty while they challenge it in court.
The High Court had granted them permission in March to proceed with their judicial review. In judicial review proceedings, leave (permission) is sought first to make sure the challenge is not frivolous, vexatious, or an abuse of the court process.
On Feb 11, it was reported that CAT had dismissed the four feedmillers' appeal over the penalty which was imposed by MyCC in December 2023.
In Tuesday's proceedings, FFM was represented by Tan Sri Cecil Abraham, Datuk Sunil Abraham, Nicole Leong Wen Ni, Heng Jia, Nicole Lee Sin Yee, Chia Eng Yi, Sea Jia Wei, and Chai Zi Yan.
Counsels Shanti Mogan, Lilien Wong, and Ooi Ji Shan appeared for Dindings Poultry.
Gold Coin was represented by Manshan Singh, Tan Shi Wen, Ho Pui Yan, and Chong Zheng Yang, while Eolanda Yeo Jin Huay appeared for Leong Hup.
MyCC was represented by Tan Sri Tommy Thomas, Jason Teoh, Mervyn Lai, Nicholas Lai Weng Keong, Ahmad Azhad, Wong Ying Ying, and Ng Wei.