Overview of MyCC’s Investigative Powers in Malaysia

The Malaysia Competition Commission (MyCC) is vested with broad investigative powers under the Competition Act 2010 (“Competition Act”). These powers are comparable to those of a police officer under the Criminal Procedure Code when investigating seizable offences. The MyCC can initiate investigations based on three primary triggers:

1. Initiation of Investigations

The MyCC can commence an investigation under the following circumstances:

• Own Initiative: If MyCC has reasonable suspicion that an enterprise has violated the Competition Act.
• Ministerial Directive: Upon instructions from the Minister of Domestic Trade and Cost of Living to probe a suspected infringement.
  • Example: In 2019, MyCC was directed to investigate cartel activities in the roll-on/roll-off (RoRo) vehicle transportation services in Langkawi.
• Public Complaints: If a person or entity lodges a complaint regarding anti-competitive conduct, agreements, or an enterprise.

2. Key Investigative Powers of MyCC

The Competition Act confers extensive enforcement powers to MyCC, enabling it to gather evidence, inspect premises, and enforce compliance. These include:

i) Power to Order the Production of Documents and Information

• MyCC can issue written requests for documents, records, or information relevant to an investigation.
• Individuals may also be required to submit written statements explaining the contents of any document or information.
• Non-compliance (failure to disclose information, providing false or misleading statements, or omitting material facts) constitutes an offence under the Competition Act.

ii) Power to Search and Seize with a Warrant

• MyCC may obtain a warrant from the court to enter, search, and seize:
  • Physical records, books, accounts, or documents;
  • Computerized data and electronic records;
  • Any other relevant material that could serve as evidence of an infringement.
• MyCC also has the authority to seal premises or containers that contain crucial evidence.
• Tampering with or removing MyCC’s seal is an offence under the Competition Act.

iii) Power to Conduct Unannounced Raids (Search Without a Warrant)

• MyCC can enter premises without a warrant if it believes that:
  • Delays in obtaining a warrant would jeopardize the investigation;
  • Evidence is at risk of being tampered with, destroyed, or removed.
• Refusal to grant MyCC access, or any attempt to obstruct, delay, or hinder the investigation, is considered an offence.

iv) Power to Access Computerized Data

• MyCC can demand access to electronic and digital records, regardless of whether they are stored:
  • On a physical device (e.g., computer, hard drive, USB);
  • On cloud storage or remote servers.

v) Power to Retain Original Documents

• MyCC has the authority to take and retain original copies of documents for as long as necessary for investigation and legal proceedings.

3. Legal Privilege and Protection

• Legal professional privilege applies to communications between external legal advisors and their clients.
• However, privilege does not extend to in-house counsel, meaning that legal advice provided internally within a company may still be subject to MyCC’s investigation.

4. Upcoming Amendments to MyCC’s Investigative Powers

Proposed amendments to the Competition Act, expected to be tabled in 2024, are set to expand MyCC’s enforcement powers, including:

• Issuance of Warning Letters: MyCC may soon have the statutory authority to issue official warnings before initiating enforcement action.
• Disclosure of Confidential Information: The amendments may allow MyCC to share confidential case information with foreign regulators under international agreements that Malaysia is a party to.

Conclusion

MyCC’s investigative authority under the Competition Act 2010 plays a critical role in detecting, preventing, and penalizing anti-competitive behavior in Malaysia. Businesses should ensure full compliance with competition laws to avoid legal risks, as failure to cooperate with MyCC’s investigations may lead to significant penalties.

With upcoming legislative amendments, MyCC’s enforcement scope is expected to grow, making it essential for companies to implement robust compliance frameworks to align with Malaysia’s evolving competition law regime.