JUDGMENT

Jamhirah Ali J:

Introduction

[1] This is the Applicants' application for Judicial Review seeking an order of certiorari to quash the decision of the Competition Appeal Tribunal (CAT) dated 24 February 2023 and the Final Decision issued by MyCC dated 26 July 2021.

[2] Upon perusal of the cause papers and careful consideration of the parties' written and oral submissions, I dismissed the Applicants' application. These are the reasons for my decision.

Background Facts

[3] In June 2017, the Malaysian Competition Commission (MyCC) received a complaint that a group of warehouse operators at Port Klang, namely SAL Agencies Sdn Bhd (SAL), WCS Warehousing Sdn Bhd (WCS), Regional Synergy Sdn Bhd (Regional Synergy), Intrexim Sdn Bhd (Intrexim), Pioneerpac Sdn Bhd (Pioneerpac), Prima Warehousing Sdn Bhd (Prima), and Interocean Warehousing Sdn Bhd (Interocean) (collectively referred to as "the Warehouses"), had signed a "Heavy Lift Surcharge Acknowledgement Memorandum" dated 22 May 2017 (Surcharge Memorandum).

[4] The Surcharge Memorandum allegedly fixed new surcharges for handling long-length and heavy-lift import and export cargoes at Northport and Westport.

[5] Believing there were reasonable grounds to suspect a breach of s 4 of the Competition Act 2010 (CA 2010), MyCC initiated a formal investigation in October 2018. Pursuant to s 25 of the CA 2010, MyCC obtained search and seizure warrants and conducted unannounced inspections at the Warehouses' premises on 10 and 11 October 2018.

[6] MyCC issued ten (10) statutory notices under s 18(1)(a) and (b) of the CA 2010 for documents and information. It also interviewed representatives of the Warehouses, as well as officers of the Port Klang Authority (PKA) and Maltaco M.S. Sdn Bhd.

[7] On 9 January 2020, MyCC issued a Proposed Decision stating its preliminary view that the Warehouses had infringed s 4 of the CA 2010 by engaging in a price-fixing agreement. It detailed its reasons, suggested financial penalties, and invited written and, if requested, oral representations.

[8] Written representations were subsequently submitted, and the Applicants opted not to request an oral hearing, although Interocean did and others were invited to observe. Among other points, the Applicants argued that MyCC lacked authority over operators in the Port Free Zone, that the Warehouses operated under the instruction and approval of PKA, that the penalty calculation was flawed, and that they qualified for relief under s 5 of the CA 2010.

[9] After considering the representations, MyCC delivered its Final Decision on 26 July 2021. The nine-member Commission found that the Warehouses had infringed s 4 of the CA 2010 by participating in an agreement aimed at preventing, restricting, or distorting competition in the market for handling long-length and heavy-lift cargo at Port Klang between 22 May 2017 and 9 January 2020. It ordered them to cease implementing the agreed surcharges and to set any future charges independently. Financial penalties were imposed on each operator as follows:

a. SAL - RM144,609.35

b. WCS - RM207,733.24

c. Regional Synergy - RM336,369.13

d. Intrexim - RM36,316.46

e. Pioneerpac - RM206,773.40

f. Prima - RM26,363.03

g. Interocean - RM84,848.21

[10] The Applicants (except Prima and Interocean) appealed to the CAT on 25 August 2021. After a seven-day hearing, the CAT dismissed the appeals on 24 February 2023. The CAT agreed that there had been an infringement of s 4 of the CA 2010, rejected the claim for relief of liability under s 5 of the said Act, confirmed MyCC's jurisdiction over activities in the Port Free Zone, and found no error in the Commission's factual findings. As no specific grounds of appeal were taken against the quantum of penalties, the CAT did not revisit that issue.

[11] Nearly two years after the Final Decision, on 23 May 2023, the Applicants filed this Judicial Review application to challenge both the MyCC Final Decision and the CAT's decision. Leave to proceed was granted by this Co