Silvery Dragon Prestressed Materials Co., Ltd. Tianjin. v Kerajaan Malaysia (W-01(A)-407-06/2024)

MENTERI KANAN PERDAGANGAN ANTARABANGSA DAN INDUSTRI …RESPONDEN-RESPONDEN [Dalam Perkara Mahkamah Tinggi Malaya di Kuala Lumpur (Bahagian Kuasa-Kuasa Khas) Permohonan Semakan Kehakiman No: WA-25-155-03/2022 Dalam perkara mengenai keputusan Menteri Kewangan seperti dinyatakan dalam Perintah Kastam (Duti Anti-Lambakan) (No.2) 2021 (P.U.(A) 469) yang diterbitkan dalam Warta Kerajaan Persekutuan pada 23.12.2021; Dan perkara-perkara lain. Antara Silvery Dragon Prestressed Materials Co., Ltd. Tianjin. (No. Pendaftaran China: 120000000015247) …Pemohon Dan 27/02/2026 15:06:00 W-01(A)-407-06/2024 Kand. 37

Kerajaan Malaysia

Menteri Kewangan

Menteri Kanan Perdagangan Antarabangsan dan Industri …Responden-Responden] CORAM: WONG KIAN KHEONG, JCA. CHOO KAH SING, JCA. ONG CHEE KWAN, JCA. JUDGMENT OF THE COURT Introduction

This appeal concerns a judicial review challenge of an anti-dumping determination on grounds of inadequate disclosure and computational errors. The Court is required to determine whether the Respondents’ failure to disclose the detailed methodology and figures underpinning the dumping margin prior to the Final Determination was lawful, and whether the use of erroneous figures in the margin calculation renders the determination invalid. The issues go to the transparency and due-process standards governing trade remedy investigations.

The subject merchandise in this case is the stranded steel wires for prestressing concrete, commonly known as the PC strands. Each strand typically consists of seven steel wires stranded together, with a diameter ranging from 9.30 mm to 15.70 mm. These PC strands are primarily used in the post-tension process for the construction of beams, building slabs, cable bridges, and segmental bridges, and pre-casting process for the construction of beams, hollow core slabs, piles, and plank (“the Subject Merchandise”).

The Appellant, Silvery Dragon Pre-stressed Materials Co., Ltd. Tianjin (“Silvery Dragon”), is a producer of the Subject Merchandise in the People's Republic of China (“PRC”). It exports the Subject Merchandise to Malaysia through its subsidiary in the PRC, Silvery Dragon Group Technology and Trading Co., Ltd. Tianjin (“SDTT”).

On 22.12.2021, the Minister of Finance had signed off on the decision of the Government of Malaysia as per the Customs (Anti-Dumping Duties) (No. 2) Order 2021, which was published as Gazette No. P.U. (A) 469/2021 on 23.12.2021 imposing an anti-dumping duty at the rate of 9.47% on the merchandise originating from or exported by Silvery Dragon from the PRC from 25.12.2021 to 24.12.2026.

Being dissatisfied, Silvery Dragon filed a judicial review application under Order 53 of the Rules of Courts 2012 (“ROC 2012”) at the High Court to quash the decision. This is Silvery Dragon’s appeal against the learned High Court Judge’s decision dismissing the judicial review application. The Background Facts

The 1st, 2nd, and 3rd Respondents are the Government of Malaysia, the Minister of Finance, and the Minister of the Ministry of International Trade and Industries (“MITI”), respectively.

On 1.3.2021, a Malaysian company presented a petition to the Minister of MITI for anti-dumping duties to be imposed on the Subject Merchandise.

On 31.3.2021, the Investigation Authority (‘IA’) commenced an investigation into the matter concerning the Appellant, Silvery Dragon.

On 6.4.2021, Silvery Dragon requested an extension of time to submit its response to the questionnaire provided by the IA. The request was allowed.

On 2.7.2021, the Minister issued a notice extending the period for making the preliminary determination from 30.7.2021 to 28.8.2021.

On 16.07.2021, information was sought from Silvery Dragon's legal advisors in China, and the information was duly provided.

Thereafter, a Notice of Affirmative Preliminary Determination dated 12.8.2021 was published in the Gazette on 27.08.2021. This was followed by the Notice of Affirmative Final Determination of an Anti-Dumping Duty Investigation concerning the Imports of Stranded Steel Wires for Prestressing Concrete Originating or Exported from the People's Republic of China (P.U.(B) 682) (“the Impugned Notice”), which was published in the Gazette on 23.12.2021.

The Impugned Notice recommended the imposition of an anti-dumping duty at the rate of 9.47% on Silvery Dragon. The dumping margin calculation is set out in Appendix 1 of the Final Determination Report, dated 6 December 2021.

On 22.12.2021, the Minister of Finance signed off on the decision of the Government of Malaysia as per the Customs (Anti-Dumping Duties) (No. 2) Order 2021, which was published as Gazette No. P.U. (A) 469/2021 on 23.12.2021 (“the Impugned Order") imposing an anti-dumping duty at the rate of 9.47% on the Subject Merchandise originating or exported by Silvery Dragon from the PRC from 25.12.2021 to 24.12.2026.

On 23.12.2021, the Minister of MITI sent an email communicating to and informing Silvery Dragon of the Government of Malaysia's decision to impose the anti-dumping duties for the Subject Merchandise. Enclosed in the email were the Impugned Notice, the Final Determination Report, and the Impugned Order (collectively, “the Impugned Decisions”)

The method adopted in the Final Determination Report is by comparing the weighted average normal value of the merchandise sold in the domestic market of the exporting country with the corresponding weighted average export price to the Malaysian market. The comparisons were made at the same level of trade, at the ex-factory level, with respect to sales reported by the cooperating producers/exporters.

The IA calculated the normal value and the export price in the relevant currencies where appropriate. The IA adopted the exchange rate based on the actual exchange rate submitted by the exporters and not the exchange rate provided by Bank Negara.

On the gathering of information, the requirements of sub-regulation 9(1) of the Countervailing and Anti-Dumping Duties Regulations 1994 ("CADDR 1994") were complied with. Of importance is the sub-regulation 9(4) of the CADDR 1994, which provides that any reply to the questionnaire after the due date shall not be considered by the Government.

Silvery Dragon provided the information as requested under Table D-4.2: Sales to Malaysia - Sales Listing (“Table D-4.2”) to the IA. Silvery Dragon, in their submission, claimed that their domestic sales of the like product in PRC were at the 'delivery ex factory' term and requested due allowances for freight costs and credit costs.

The IA calculated the normal value based on the price actually paid or payable for the like product in the ordinary course of trade in PRC pursuant to the requirements of subsection 16(1) of the Countervailing and Anti-Dumping Duties Act 1993 (“CADDA 1993”). In arriving at the normal value, the IA also deducted all allowances requested by Silvery Dragon and established the ex-factory normal value of CNY4,537.95.

In the questionnaire responses, Silvery Dragon stated that it was the producer of the Subject Merchandise exported to Malaysia through its subsidiary, SDTT. Silvery Dragon confirmed the following during verification: i) SDTT handled export sales of the Subject Merchandise to Malaysia, and ii) The price negotiation was undertaken by Silvery Dragon and the customer in Malaysia.

In determining the export price, the IA examined the information provided by Silvery Dragon on the export sales for the Subject Merchandise into Malaysia. The investigation reveals that on 8.4.2021, Silvery Dragon Malaysia Sdn Bhd ("SDMSB") was incorporated and became the sole importer of the merchandise into Malaysia. Sales to unrelated customers and the same merchandise sold by Silvery Dragon in the PRC were selected. The list of export sales consists of 4,004.74 MT of the merchandise, valued at CNY17,904,452.69.

The export price determination by the IA was based on the export sale listing made available by Silvery Dragon after making due allowances for freight in the exporting country, ocean freight, handling charges, credit costs, and insurance requested by Silvery Dragon. Apart from this, the IA also deducted unrefunded VAT and all other allowances requested by Silvery Dragon to establish the ex-factory export price of CNY4,113.95 under subsections 17(1) and 18(3) of the

Thus, based on the information made available to the IA, the weighted average margin dumping established and expressed as a percentage of the export price is 9.47%.

On 24.12.2021, Silvery Dragon immediately responded to MITI, claiming clerical or ministerial errors in the calculation of the anti-dumping margin by the IA and subsequently, on 28.12.2021, submitted its comments on the Final Determination Report and its view on what ought to be the correct calculation. Issues concerning the methodology adopted, conclusions made, and certain information contained in the Final Determination Report were raised.

Silvery Dragon essentially informed MITI that but for the errors mentioned below, there was no dumping by Silvery Dragon:

(i) calculation errors were made by deducting the ocean freight and insurance twice and using the FOB value in calculating the dumping margin;

When MITI did not respond, Silvery Dragon filed the instant judicial review proceedings seeking the following orders (“the JR Application”): i) An order of Certiorari to quash the decision of the 2nd Respondent, the Minister of Finance, that anti-dumping duties shall be levied on and paid by Silvery Dragon in respect of the merchandise (i.e. Stranded Steel Wires for Prestressing Concrete) and at the rates specified as set out in the Customs (Anti-Dumping Duties) (No. 2) Order 2021 (P.U.(A) 469) ("the Impugned Order"); ii) An order of Certiorari to quash the decision of the 3rd Respondent, the Senior Minister of International Trade and Industry ("the Minister of MITI"), made in the Notice of Affirmative Final Determination of an Anti-Dumping Duty Investigation with regard to The Imports of Stranded Steel Wires for Prestressing Concrete Originating or Exported from The People's Republic of China (P.U.(B) 682) ("the Impugned Notice) that: a) A dumping margin exists with regard to the imports of stranded steel wires for prestressing concrete classified under the Harmonised System Code (H.S. Code) and ASEAN Harmonised Tariff Nomenclature

7312.10.9100 ("the product") originating or exported from the People's Republic of China ("PRC"); and b) An injury is found to exist because the domestic industry in Malaysia producing the like product has suffered material injury by reason of the importation of the merchandise into Malaysia. The Grounds for Judicial Review

In support of the JR Application, Silvery Dragon raised the following grounds: a) the IA committed an error of calculation by using the wrong value when determining the export price of the Subject Merchandise in the Final Determination Report. This led to the calculating of the anti-dumping duty at the wrong rate of 9.47% (“the Gross Value Error”); b) the IA committed an error of calculation by using the wrong value in determining the Weighted Average Export Price in the Final Determination Report. The weighted average export price error is the result of the error in calculating the export price as described above (“the Weightage Average Export Price Error”); c) the IA committed an error by failing to make allowance for Silvery Dragon's three steel strand merchandise that comes in three different diameters. The failure affected the price comparability. The IA ought to have calculated three different normal values separately for the three different steel strands and then compared each of the corresponding types of merchandise export price and quantity transactions into Malaysia. This is to arrive at the appropriate "comparison" of "comparable export transactions" (“the Different Steel Strands Error”); d) the IA committed an error in calculating the normal value by taking into account items that ought to have been excluded. The error resulted in an artificial inflation of the dumping margin (“the Normal Value Error”); e) the IA acted unreasonably in its finding of material injury. In the Final Determination Report, the IA made conflicting remarks regarding whether the domestic industry suffered material injury in respect of cash flow. There was no evidence shown that the domestic industry had suffered material injury (“the Material Injury Error”).

Significantly, in the JR Application, the Respondents disclosed for the first time the IA’s Detailed Dumping Margin Calculation Sheet, to justify the dumping margin established by the IA.

This led Silvery Dragon to further contend that the IA’s Detailed Dumping Margin Calculation Sheet is a material and essential document that ought to be disclosed to Silvery Dragon when the Impugned Decisions were communicated. Silvery Dragon has been deprived of a fair opportunity to scrutinise the IA’s detailed calculation before initiating the JR Application. In fact, Silvery Dragon contends that the Respondents were under a legal duty to disclose the Detailed Dumping Margin Calculation Sheet to them prior to the Final Determination.

More specifically, Silvery Dragon argued that the Respondents had violated the principles of procedural fairness and natural justice by not disclosing the IA’s Detailed Dumping Margin Calculation Sheet to Silvery Dragon at the time when the Impugned Decisions were communicated.

On 4.6.2024, the learned HCJ dismissed Silvery Dragon’s JR Application with costs of RM5,000.00 payable to the Respondents, hence, the appeal before us. Court’s Consideration

Anti-dumping duty is a form of trade measure that is designed to increase the selling price of the merchandise that is dumped in the importing country (e.g. Malaysia) so that it aligns with the selling price of like products in the exporter’s home market (e.g. the PRC). The intent for imposing such an anti-dumping duty is to ensure fair trade and to prevent injury to the domestic industries in the importing country.

Dumping occurs when a product is sold in the importing country (e.g. Malaysia) at a lower price than the selling price of the like products in the exporter’s home market (e.g. the PRC).

Before imposing an anti-dumping duty, the Government must demonstrate that the subject merchandise has been dumped into the importing country.

To find out whether dumping took place, the law requires a comparison between two important values: (i) the “normal value” and (ii) the “export price” of the subject merchandise [see sections 2, 16(1), and 17(1) of CADDA 1993. In short: a) normal value means “the comparable price actually paid or payable in the ordinary course of trade for the like product sold for consumption in the domestic market of the exporting country. This refers to the price actually paid for the like products sold in the exporting country’s own domestic market (e.g. the PRC). This is the PRC domestic selling price. b) export price means “the price actually paid or payable for the subject merchandise”. This refers to the price actually paid for the subject merchandise when it is sold for export from the PRC to Malaysia. This is the Malaysian import selling price.

Once both the normal value and the export price have been ascertained, the dumping margin can be calculated. Dumping margin generally refers to the difference between these two values [see: section 2 of the CADDA 1993]. Whilst there are other alternative methods to determine the dumping margin, there is no dispute that in this instance, the IA under MITI led by the 3rd Respondent, utilised the method under limb (a) in Regulation 31(1) of CADDR 1994 to establish the dumping margin, i.e., by comparing the weighted average normal value with the weighted average export price. The formula is expressed as follows: Dumping Margin = (Weighted Average Normal Value - Weighted Average Export Price) x 100% Weighted Average Export Price

In the instant case, to appreciate the contentions of the parties, it is instructive to set out the key steps in the determination of the dumping margin by the Respondents.

The key steps involved in determining the dumping margin are as follows: Step 1: Determine the Weighted Average Normal Value (WANV) and make necessary adjustments. Weighted Average Normal Value (WANV) = Normal Value Gross Value - Adjustments Sales Quantity or Sales Quantity Step 2: Determine the Weighted Average Export Price (WAEP) and make necessary adjustments. Weighted Average Export Price (WAEP) = Export Price Gross Value - Adjustments Export Sales Quantity or Export Sales Quantity Step 3: Calculate the dumping margin using the method under Regulation 31(1)(a) of the CADDR 1994 Dumping Margin = ( WANV - WAEP ) x 100% WAEP Step 4: Impose anti-dumping duty (usually corresponds to the dumping margin) The anti-dumping duty investigation procedure as provided under the CADDA 1993 and CADDR 1994

It is also useful to set out the investigation process involved in a typical anti-dumping duty case. The key anti-dumping duty investigation procedure can be broken down into 8 stages. Each of these stages and what happened at each of these stages in respect of the present case will now be set out below. Initiation of Anti-Dumping Duty Investigation

An anti-dumping duty investigation is typically initiated upon the submission of a written petition by a representative of the domestic industry [section 20 of the CADDA 1993].

Upon receipt of the written petition, the Government is required to review the petition and other available information and evidence before determining on whether to initiate an anti-dumping duty investigation [section 20 of the CADDA 1993 and regulation 5 of the CADDR 1994].

If there is sufficient evidence to support the petition and an investigation would be in the public interest, the Government may initiate an investigation: section 20 of the CADDA 1993 and regulation 7 of the CADDR 1994.

Once the Government decides to initiate an investigation, it shall notify the appropriate interested parties and publish a notice of initiation of investigation [section 20(8) of the CADDA 1993 and regulation 8 of the CADDR 1994].

In this case, a written petition was presented on 1.3.2021 by Southern PC Steel Sdn. Bhd. (“Southern PC”) on behalf of the domestic industry. In the petition, Southern PC requested the Government to initiate an anti-dumping duty investigation on the imports of Subject Merchandise originating or exported from the PRC. Silvery Dragon was one of the affected exporters.

On 31.3.2021, MITI, under the leadership of the 3rd Respondent, decided to initiate an anti-dumping duty investigation. It published the notice of initiation of anti-dumping investigation in the Federal Government Gazette No:

The transactions to be investigated were between the period from 1.9.2019 to 31.8.2020.7 Gathering of Information from Interested Parties

Following the initiation of investigation, regulation 9(1) of the CADDR 1994 requires the Government to gather information from the appropriate interested parties. The Government may prepare and distribute questionnaires to any party relevant to the anti-dumping duty investigation to obtain information that it deems necessary for making a determination.

If any of the information provided is insufficient or lacks clarity, the Government may issue a supplementary questionnaire or request clarification or additional information [regulation 9(6) of the CADDR 1994].

In this case, the IA prepared and distributed a questionnaire to Silvery Dragon (“the Questionnaire”). As part of the Questionnaire, the IA requested Silvery Dragon to list all the sales of the Subject Merchandise it had made to unrelated and related customers in Malaysia on a transaction-by-transaction basis in an Excel spreadsheet titled as Table D-4.2: Sales to Malaysia – Sales Listing (MY-SALE) (“Table D-4.2”).

Table D-4.2 is important as it contains all the information that is necessary for the IA to establish the export price and the weighted average export price.

On 10.5.2021, Silvery Dragon submitted its responses to the Questionnaire, including Table D-4.2, based on the structure and format prescribed by the IA.

Apart from requesting clarification on Silvery Dragon’s mill certificate and mill test report, the IA did not issue any supplementary questionnaire to Silvery Dragon or request any further clarification or information from Silvery Dragon. This indicates that Silvery Dragon had provided all information necessary for the IA to make its determination of the alleged dumping margin. Preliminary Determination

Under regulation 10 of the CADDR 1994, the Government shall make a preliminary determination within 120 days from the publication of the notice of initiation of investigation, unless the deadline is extended by another 30 days under certain special circumstances.

In this case, the deadline for making the preliminary determination was extended to 28.8.2021.

On 12.8.2021, the IA issued its Preliminary Determination Report. It was stated in the report, among others, that: a) Silvery Dragon had fully cooperated and responded to the Questionnaire completely; b) The weighted average dumping margin established for Silvery Dragon, expressed as a percentage of the export price, is 4.46%; and c) A provisional anti-dumping duty at the rate of 4.46% is to be imposed on Silvery Dragon for a maximum of 120 days from the publication of the notice of affirmative preliminary determination.

Following the Preliminary Determination Report, the Government imposed a provisional anti-dumping duty at the rate of 4.46% on the Subject Merchandise originating or exported by Silvery Dragon from the PRC between the period from 29.8.2021 to 26.12.2021.

As a result of this provisional anti-dumping duty, Silvery Dragon’s importer had to pay an extra RM224,370.70 for the Subject Merchandise imported into Malaysia during that period. Verification of Information Submitted

Regulation 38 of the CADDR 1994 enables the Government to carry out verification visits to verify the accuracy of the information submitted during the investigation. The Government is required to advise the interested party concerned of the nature of the information to be verified during the verification visit and of any further information that may need to be provided during the visit.

In this case, the IA conducted a virtual verification visit of Silvery Dragon’s head office and factory via Zoom application between 20.10.2021 and 22.10.2021.

During the verification visit, the IA verified the information provided by Silvery Dragon in the Questionnaire and uplifted documents such as company structure, product brochures, and transactional documents from Silvery Dragon. Issuance of Notice of Essential Facts

After the verification visit and before the making of a final determination, the Government is required under section 25(2) of the CADDA 1993 to inform all interested parties of the essential facts under consideration that would form the basis for the decision whether to apply definitive measures.

In this case, the IA issued the Notice of Essential Facts (“NOEF”) on 19.11.2021. The IA found that the weighted average dumping margin established for Silvery Dragon, expressed as a percentage of the export price, was 14.00%.

After receiving the NOEF, on 25.11.2021, Silvery Dragon submitted its comments and raised issues with the IA’s calculation methodology, conclusions, and some information contained in the NOEF. Silvery Dragon’s comments were, among others, as follows: a) the IA had made several erroneous factual findings; b) the IA erred in adopting the internal price between Silvery Dragon and SDTT as the export price for the purpose of dumping margin calculation. The correct export price should be calculated based on SDTT’s selling price; c) the IA erred in using the same weighted average normal value for all types of Subject Merchandise imported by Silvery Dragon. Instead, a fair comparison should have been made between the export price and the normal value with the different product types considered; and d) the cost of sales of Silvery Dragon should not be double-counted when calculating the weighted average total cost.

In view of the issues raised, Silvery Dragon requested the IA to recalculate the dumping margin for the final determination based on the points it raised in its comment on the NOEF. There was no further consultation between the IA and Silvery Dragon. Final Determination

The final step of an anti-dumping duty investigation is the final determination of dumping margin.

67.

On 6.12.2021, the IA issued its Final Determination Report. In this report, the IA determined, among others, that the weighted average dumping margin established for Silvery Dragon, expressed as a percentage of the export price, was 9.47%.

The IA’s dumping margin calculation can be found in Appendix 1 of the Final Determination Report, as follows:

Following the Final Determination Report, the 3rd Respondent issued its Notice of Affirmative Final Determination on 13.12.2021. This notice was published in Federal Government Gazette No: P.U. (B) 682/2021 on 23.12.2021 (“the Final Determination”). In this notice, the 3rd Respondent recommended imposing an anti-dumping duty at the rate of 9.47% on the Subject Merchandise originating or exported by Silvery Dragon from the PRC.

On 23.12.2021, the 2nd Respondent published the Customs (Anti-Dumping Duties) (No. 2) Order 2021 in the Federal Government Gazette No: P.U. (A) 469/2021. This Customs Order imposed an anti-dumping duty at the rate of 9.47% on the Subject Merchandise originating or exported by Silvery Dragon from the PRC between the period from 25.12.2021 to 24.12.2026. Communication of The Final Determination

On 23.12.2021, the IA notified Silvery Dragon of the outcome of the anti-dumping duty investigation. The IA forwarded the following documents to Silvery Dragon: a) the Notice of Affirmative Final Determination [P.U. (B) 682/2021 dated 23.12.2021]; b) the Customs (Anti-Dumping Duties) (No. 2) Order 2021 [P.U.(A) 469/2021 dated 23.12.2021];24 and c) the Final Determination Report dated 6.12.2021. Challenge on The Final Determination

Under regulation 16 of the CADDR 1994, any interested party may submit comments regarding administrative errors within 10 days from the date of the publication of the notice of final determination. If it is satisfied that administrative errors do exist, the final determination shall be amended within 30 days from the date of the publication of the notice of final determination.

In this case, Silvery Dragon informed the IA on 24.12.2021 (within the 10-days period) that there was a clerical or ministerial error in the IA’s calculation of the export price.

Specifically, Silvery Dragon highlighted that the value selected by the IA was the Free-on-Board (FOB) export price, which had already excluded ocean freight and insurance costs. By further deducting ocean freight and insurance costs from the FOB export price, the IA committed a double-counting error, and this has further resulted in an inflated dumping margin. A screenshot extracted from Silvery Dragon’s email to the IA, highlighting the error, is reproduced as follows:

Further, on 28.12.2021 (also, within the 10-day period), Silvery Dragon’s solicitors in PRC (Dentons) submitted a formal memorandum setting out Silvery Dragon’s comments on the Final Determination together with an Excel spreadsheet setting out Silvery Dragon’s simulated calculation.

However, Silvery Dragon did not receive any further response from the IA at all.

Before this Court, Silvery Dragon contends that the Impugned Decisions ought to be quashed, premised on the following 4 main grounds: a) Procedural Impropriety – Failure to Provide Detailed Dumping Margin Calculation Sheet / Adequate Reasons b) Irrationality and/or Wednesbury Unreasonableness – The IA Committed Errors When Calculating the Export Price and the Weighted Average Export Price (WAEP) c) Wednesbury Unreasonableness, Irrationality and/or Illegality – The IA Failed To Take Into Account the Difference in “Price Comparability” d) Wednesbury Unreasonableness – The IA Made Contradictory Findings on Material Injury Based on Same Data

Each of these contentions shall now be considered. Duty to Disclose Detailed Dumping Margin Calculation Sheet – Procedural Impropriety

Anti-dumping investigations are quasi-judicial in nature. Although they are conducted by an administrative authority, they involve the adjudicative determination of whether the legal conditions prescribed by statute are satisfied. More specifically, whether dumping exists, whether the domestic industry suffers material injury or threat of injury, and whether there is a causal link between the dumping and the injury. If these elements are established, legal consequences automatically follow, typically in the form of the imposition of anti-dumping duties.

Anti-dumping investigations are conducted under the domestic statutory frameworks that adopt and ratify the WTO Anti-Dumping Agreement, which requires investigations to comply with due process obligations. The determinations by the authority, being quasi-judicial and not mere policy decisions, are therefore amenable to judicial review on grounds such as error of law, procedural impropriety or unfairness, irrationality, and or illegality.

The gravamen of Silvery Dragon’s complaint is procedural in that the Final Determination Report was made without disclosure of the Detailed Dumping Margin Calculation Sheet, which sets out the methodology, the benchmarks, and the adjustments, if any, to the information provided before or, at the very least, at the time the Final Determination Report was communicated to Silvery Dragon. It is contended that this failure amounts to a breach of natural justice, procedural impropriety, and illegality, rendering the Final Determination unlawful.

In this case, the Final Determination Report did not explain the benchmark used for the profitable sales, did not particularise which of the requested adjustments were accepted or rejected, and did not disclose the methodology or formula used to derive the normal value and export value.

The aforesaid essential information and data, contained in the Detailed Dumping Margin Calculation Sheet was only produced during the hearing of the JR Application.

This brings into issue whether the Respondent had a legal duty to disclose the essential facts and reasoning, including the Detailed Dumping Margin Calculation Sheet, before the Final Determination Report to Silvery Dragon, and if so, whether the disclosure of such information only during the judicial review proceedings to justify its decision cures any procedural defects.

This question has, in fact, been answered by Lee Swee Seng JCA (as his Lordship then was) in the anti-dumping case of Diler Miler Celik Endustru Ve Ticaret As vMenteri Kewangan & Ors [2025] 1 CLJ 681 (CA) (“Diler Miler”), where His Lordship opined as follows: “[99] Appreciating that civil law and common law jurisdictions may have differing thresholds on the need to give reasons for decisions and to disclose the materials that the decision-making body relied on in arriving at its decision, the WTO AD agreement had specifically addressed and anchored in the need for thorough and timely disclosure of all relevant data and information used in its determination of the dumping margin so that there is no room for doubt nor space for the seed of suspicion to sprout. [100] Article 12 of the WTO AD agreement provides the safeguards against any suspicion in the calculation of the dumping margin by subjecting it to public scrutiny of all interested parties including the applicant. Disclosure promotes transparency and accountability especially when there is a natural tendency of all member countries to protect their own turfs. Article 12 where relevant reads as follows: “12.2 Public notice shall be given of any preliminary or final determination, whether affirmative or negative, of any decision to accept an undertaking pursuant to Article 8, of the termination of such an undertaking, and of the termination of a definitive anti-dumping duty. Each such notice shall set forth, or otherwise make available through a separate report, in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities. All such notices and reports shall be forwarded to the Member or Members the products of which are subject to such determination or undertaking and to other interested parties known to have an interest therein.

12.2.1 A public notice of the imposition of provisional measures shall set forth, or otherwise make available through a separate report, sufficiently detailed explanations for the preliminary determinations on dumping and injury and shall refer to the matters of fact and law which have led to arguments being accepted or rejected. Such a notice or report shall, due regard being paid to the requirement for the protection of confidential information, contain in particular:

(i) the names of the suppliers, or when this is impracticable, the supplying countries involved;

(v) the main reasons leading to the determination.

12.2.2 A public notice of conclusion or suspension of an investigation in the case of an affirmative determination providing for the imposition of a definitive duty or the acceptance of a price undertaking shall contain, or otherwise make available through a separate report, all relevant information on the matters of fact and law and reasons which have led to the imposition of final measures or the acceptance of a price undertaking, due regard being paid to the requirement for the protection of confidential information. In particular, the notice or report shall contain the information described in subparagraph 2.1, as well as the reasons for the acceptance or rejection of relevant arguments or claims made by the exporters and importers, and the basis for any decision made under subparagraph 10.2 of Article 6. [101] Our statutory commitment to what is contained in art. 12 is found in s. 38 of the Act and in particular s. 38(4) which reads … [102] It is said of mathematics that it is a very logical and objective exercise such that if the same variables and values in the methodology or formula are used, then the left-hand side of the equation would be equal to the right-hand side. If it does not, then one would be able to find out where the errors lie. Therefore, there is no need for the IA to keep close to its chest the calculation sheet throughout the AD investigation. It is, after all, a collaborative and civil exercise where cooperation is prized and not a clandestine or covert one where craftiness and concealment may cloud the calculation of the dumping margin.” [emphasis added]

Apart from section 38(4) of the CADDA 1993 and Article 12 of the WTO Anti-Dumping Agreement, the Court of Appeal in Diler Miler also followed two WTO authorities, which consistently held that it was insufficient for an investigating authority to merely provide a minimalist narrative of the data used. Instead, the investigating authority ought to have disclosed all the data and information that was used in the calculation of dumping margin to the interested parties.

Similarly, in the High Court case of Hoa Sen Group v Menteri Kewangan & 4 Others [2023] 1 LNS 325 (HC) (“Hoa Sen”), the issue of whether the IA had a duty to provide reasons, including the Detailed Dumping Margin Calculation Sheet, was deliberated.

Ahmad Kamal J (as his Lordship then was) held that the IA had violated the principles of natural justice by failing to provide the Detailed Dumping Margin Calculation Sheet or the breakdown of how the dumping margin was calculated. Therefore, the impugned decision to impose an anti-dumping duty was quashed.

In the judgment, his Lordship underscored the significance of providing such information and further opined that the Detailed Dumping Margin Calculation Sheet is a material and essential document that should be provided to interested parties: “[52] … the detailed dumping margin calculation sheet or any document containing the details, breakdown, and computation of how normal value, export price, and dumping margin were calculated is a material and essential document which goes to the root of the matter. … [55] It is my view that the Investigation Authority has a duty to provide reasons for its decision and in the context of this case: -

(a) the data used to calculate the normal value, in particular, how the ordinary course of trade test was carried out;

(b) information on whether, in carrying out the ordinary course of trade test, a simple average or a weighted average was used;

(c) if a weighted average was used, what was it weighted against;

(d) the determination of export price;

(e) particularisation on any adjustments for differences that affect price comparability;

(f) the detailed calculation of the dumping margin methodology; and

(g) reasons for the methodology used in the establishment and comparison of the export price and the normal value.” [emphasis added]

The essential information and data aforesaid are not matters of peripheral detail. They go to the heart of the determination. Without them, the exporter is left with a bare numerical outcome that cannot be tested, verified, or meaningfully challenged. A mere regurgitation of the exporter’s own data, without explanation of how that data was analysed or modified, does not amount to a valid and adequate disclosure.

In our judgment, because the purpose of the disclosure is participatory and not forensic, the disclosure of this essential information or data must occur before the Final Determination is made or at the very least at a stage where the affected party still has an opportunity to respond. In this regard, a disclosure after the decision is made defeats this purpose.

Accordingly, we agree with learned counsel for Silvery Dragon that in the present case, the Respondents’ failure to provide the IA’s detailed calculation and the underlying data used in the investigation is a clear violation of procedural fairness and natural justice. Being in the nature of a quasi-judicial investigation, participation by the exporter is only possible if the exporter can understand why its sales were treated as “profitable” or “unprofitable” in arriving at the “normal value”, afforded the opportunity to challenge the logic and consistency of the benchmarks applied, and to provide alternative calculations or explanation.

In this case, Silvery Dragon had been deprived of the opportunity to challenge the benchmarks, to correct errors, and to influence the outcome before the Final Determination was crystallised. The Respondent was under a legal duty to disclose the essential facts and reasoning, including the detailed dumping margin calculation methodology, before the Final Determination. This failure constitutes a procedural impropriety rendering the Final Determination unlawful.

We find that the learned High Court Judge (“the learned HCJ”) erred in holding that the nature and character of the decision-making in this case did not give rise to a need to imply the duty to disclose and to give reasons.

We also respectfully disagree with the learned HCJ’s rejection of this issue on the ground that these issues were not pleaded in the Order 53 Statement and therefore could not be raised. In this regard, we find that the grounds stated in the Order 53 Statement expressly refer to “all other grounds raised in the affidavits filed in the proceedings”. This is sufficiently wide to cover the issue relating to the non-disclosure of the Detailed Dumping Margin Calculation Sheet that was exhibited in the Respondents’ 3rd Affidavit in Reply.

In any case, Silvery Dragon was unaware of the existence of the Detailed Dumping Margin Calculation Sheet until it unexpectedly emerged 1 year and 8 months after the Impugned Decisions were communicated. It would be unreasonable to expect Silvery Dragon to address matters outside its knowledge within the Order 53 Statement. Further, having placed the document before the Court in the JR Application, Silvery Dragon must be permitted to rely on the same. Irrationality and/or Wednesbury Unreasonableness – The IA Committed Errors When Calculating the Export Price and the Weighted Average Export Price (WAEP)

It is contended that the Respondents’ determination of the dumping margin was based on a mistaken understanding of the “gross value,” and this had led to a flawed calculation of the dumping margin.

In the instant case, Silvery Dragon had supplied the Respondents with both the gross value and the net value in Table D-4.2, which was annexed to the Questionnaires submitted. However, the Respondents had wrongly treated the “net value” as the “gross value” and further compounded the error by deducting insurance and freight from the net value to derive the gross value.

In particular, to calculate the export price or WAEP at the ex-factory level, the starting point is to ascertain the total gross value of the sales transactions that were made to Malaysia. This information was presented under the data field ‘Gross value (USD)’ in Table D-4.2

However, when the Detailed Dumping Margin Calculation Sheet was furnished to Silvery Dragon during the proceedings, it was revealed that the IA had calculated the export price by using the purported gross value of RMB/CNY17,904,452.69 and subtracting the adjustments (such as inland freight cost, ocean freight, insurance, handling charges, credit cost, and 3% non-refundable VAT):

The IA committed two fundamental errors in this calculation. The first fundamental error is that the IA used the incorrect value i.e., RMB/CNY17,904,452.69, as the gross value. Based on the Respondents’ Affidavit in Reply (4), the value of RMB/CNY17,904,452.69, in fact, refers to the ‘Net value in accounting (RMB)’ in Table D-4.2:

The data field ‘Net value in accounting (RMB)’ was defined in the Questionnaire as the “Net value of the transaction after sales discount in the currency as it entered in your accounting records”. It is not the “gross value”.

The correct data that the IA should select ought to be the data field labelled as ‘Gross value (USD)’ in Table D-4.2. Based on the explanatory note in the Questionnaire, the data field ‘Gross value’ was defined as the “Gross invoice value of the transaction net of taxes in the currency of sale (specify currency)”.

As reported under the data field ‘Gross value’ in Table D-4.2, the total gross value for all sales transactions made to Malaysia was USD2,611,596.78.

More importantly, before the IA made the Final Determination, Silvery Dragon had informed the IA of the correct ‘gross value’. In its comments on the NOEF, Silvery Dragon stated that the correct ‘gross value’ should be USD 2,611,596.78:

However, the IA did not give any consideration to Silvery Dragon’s comments and went on to use a different value (i.e. the ‘Net value in accounting (RMB)’ – RMB/CNY17,904,452.69) as the ‘gross value’ at the Final Determination. In this regard, although the ‘gross value’ in Table D-4.2 was reported in the USD currency, this should not hinder the IA from determining the corresponding value in the RMB/CNY currency. This is because Silvery Dragon had provided the respective currency exchange rates for each transaction in Table D-4.2. All that the IA had to do was convert the currency from USD to RMB/CNY. This can be done by multiplying the ‘Gross value (USD)’ by the corresponding ‘Rate of exchange’ for each transaction. This approach is consistent with the existing anti-dumping laws, as can be found in Regulation 31(2) of the CADDR 1994: “(2) If the comparison under this regulation requires a conversion of currencies, such conversion shall be made using the rate of exchange on the date of sale, except that when a sale of foreign currency on forward markets is directly linked to the export sale involved, the rate of exchange in the forward sale shall be used.”

Had the IA selected the correct value (i.e. the ‘gross value (USD)’ in Table D-4.2) and converted it to RMB/CNY currency, the correct gross value would have been

Assuming all other variables remain unchanged, a higher gross value would result in a higher export price and lower dumping margin. This can be illustrated from the simulated calculation below: Description IA’s Calculation Simulated Calculation Gross Value (a) 17,904,452.69 18,358,214.18 Less: Adjustments Inland freight cost 322,661.74 322,661.74 Ocean freight 445,788.41 445,788.41 Insurance 7,744.92 7,744.92 Handling charges 197,308.00 197,308.00 Credit cost 128,029.10 128,029.10 3% Non-refundable VAT 327,624.02 327,624.02 Total Expenses 1,429,156.19 1,429,156.19 Adjustment (b) Ex-factory Export 16,475,296.50 16,930,057.99 Price (c = a - b)

The second fundamental error is that the IA should not have deducted insurance and ocean freight costs from the value of RMB/CNY17,904,452.69 because that value represents the value of the goods at the board (or commonly known as the Free on Board (FOB) value), which had already excluded insurance and ocean freight costs.

This can be verified by taking the ‘gross value (USD)’ and subtracting both ‘Ocean Freight (USD)’ and ‘Insurance (USD)’, and then multiplying the resultant value by the ‘Rate of Exchange’. Using this formula to calculate each line item in Table D-4.2 and adding them together would yield the result of

Since the value of RMB/CNY17,904,452.69 had already excluded insurance and ocean freight costs, it was unreasonable and or irrational for the IA to further deduct them from the said value. This amounts to a double deduction, which further lowers the perceived export price. The resultant impact of this error is that it creates a larger gap between the normal value and export price, and inaccurately increases the dumping margin.

The IA’s error in the determination of export price has further led to an error in the determination of WAEP. As illustrated before, WAEP is calculated by dividing the export price by the export sales quantity: WAEP = Export Price Export Sales Quantity

Based on the Final Determination Report, the WAEP established was RMB/CNY4,470.82 per MT. Upon examining the IA’s detailed dumping margin calculation sheet, it shows that the “gross value” was based on RMB/CNY17,904,452.69, and the Export Sales Quantity was 4,004.74. However, as explained above, the correct ‘gross value’ should be RMB/CNY18,358,214.18, and if the correct ‘gross value’ was used, the WAEP would have been RMB/CNY4,584.12 per MT, which is higher than the IA’s finding of RMB/CNY4,470.82 per

We agree that the aforesaid constitutes material methodological errors (i.e., selecting FOB price as the starting point to reach ex-factory price and deducting freight and insurance again) and the wrong application of the figures (i.e., treating the “net value” as “gross value”) in calculating the export price. These errors resulted in artificially depressed export prices, distorting the weighted average export price and inflating the dumping margin.

Anti-dumping margins are arithmetically sensitive, and an error at the price selection or adjustment stage will propagate throughout the calculation and taint the legality of the outcome. Accordingly, a determination based on a flawed method is irrational and illegal, liable to be quashed.

The Respondents had sought to rely on section 41 of the CADDA 1993 to justify their Final Determination, blaming Silvery Dragon’s failure to make their case absolutely clear on their raw data, as well as the "formula" of how they derived the figure of "Net value in accounting (RMB)" in Table D-4.2. In other words, the Respondents contend that the errors in their calculation were, in a sense, self-induced and that the Final Determination was based on the facts made available by the Appellant. Section 41of the CADDA provides: “Use of facts available Where any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes an investigation or review, including refusal to allow verification of its information, preliminary and final determinations in investigations or reviews under this Act may be made on the basis of the facts available, including the facts contained in the petition received under subsection 4(1) or 20(1), as the case may be” [emphasis mine]

With respect, section 41 CADDA has no application in this instance. The section allows the use of facts available only if the necessary information is not supplied, or information is withheld, or not verifiable. This was not the case here. Silvery Dragon had supplied both the gross and net values. The data was in Table D-4.2 annexed to the Questionnaire. The discrepancy, if any, was one of currency denomination (USD v. RMB) and not the absence of data. The conversion rate was also supplied.

Additionally, the reliance by the Respondents on Regulation 9(4) of the CADDR 1994 is also misplaced. The said sub-regulation provides: “Regulation 9. Gathering of information and questionnaires.

Sub-regulation 9(4) CADDR 1994 does not assist the Respondents at all. The sub-regulation, which restricts late submissions post-Final Determination, is aimed at preventing endless reopening of submissions and discouraging tactical withholding of information. It cannot be used to shield an unlawful decision or to justify reliance on erroneous calculations and methodology at all.

In fact, the errors could have been rectified had the Respondent furnished its Detailed Dumping Margin Calculation Sheet to Silvery Dragon before the Final Determination Report. This failure to disclose had denied Silvery Dragon the opportunity to correct the currency confusion, clarify the gross and net values, and prevent the double deductions. The prejudice against Silvery Dragon has been clearly established, rendering the determination unlawful.

Quite apart from the foregoing, the Respondents had also incorrectly applied the ‘3% Non-refundable VAT’ value in their calculation of the anti-dumping figure. The Respondents acknowledged that the value of ‘3% Non-refundable VAT’ used by Silvery Dragon in its simulated calculation was incorrect, and that the correct value should be RMB/CNY335,784.86. Yet, the correct value was not used. This means that the anti-dumping duty of 9.47% cannot be justified.

We also find that the learned HCJ erred in concluding that Silvery Dragon’s purported failure to make its case absolutely clear was self-induced due to the non-cooperation by Silvery Dragon Malaysia Sdn Bhd (“SDMSB”). This is because SDMSB was not the local importer of Silvery Dragon during the period of investigation. In the Final Determination Report, the IA accepted that Silvery Dragon exported the Subject Merchandise to Malaysia through its subsidiary, SDTT, during this period. Silvery Dragon only invested in and became a majority shareholder of SDMSB on 8.4.2021, which occurred approximately six months after the period of investigation had ended. In fact, the Respondents acknowledged in their Affidavit in Reply that “Silvery Dragon Malaysia Sdn Bhd bukan merupakan pihak berkepentingan dalam siasatan yang telah dimulakan pada 31 Mac 2021”. Therefore, SDMSB does not fall within the definition of an “interested party” under section 2 of the CADDA 1993 for the purposes of the investigation carried out on Silvery Dragon. Wednesbury Unreasonableness, Irrationality and/or Illegality – The IA Failed To Take Into Account the Difference in “Price Comparability”

The steel strands produced by Silvery Dragon come in three different diameters: 12.70 mm, 15.20 mm, and 15.70 mm. Different diameters would affect the key specifications, such as the strength, malleability, load, resistance, and hardness of the end products. This, in turn, limits the applicability of different products for different applications and end-users.

The differences between the steel strands were explained and illustrated in Silvery Dragon’s company brochures provided to the IA as part of the Questionnaire response on 1.5.2021 and, again, as part of the verification package submitted on 30.9.2021.

In this regard, we find that the IA should have made a fair comparison between the different steel strands and each strand's actual export quantity. This means that the IA should have calculated three different normal values for each steel strand, and then made a comparison with the corresponding export price and quantity.

Instead, the IA erroneously compared the weighted average normal value and aggregated all three types of steel strands in the PRC market with the weighted average export price for all three types of steel strands in the Malaysia market, without segregation by product type and weight, with the actual quantity exported. This is notwithstanding that Silvery Dragon had, in fact, brought to the IA’s attention in its memorandum on the NOEF (which was issued before the Final Determination) that the IA should have a fair comparison based on the respective diameter of the steel strands and to determine the corresponding normal value. For ease of reference, below is a screenshot of the relevant portion extracted from Silvery Dragon’s memorandum dated 25.11.2021.

Further, Silvery Dragon had informed the IA that the weighted average normal value for each type of steel strands varies:

(a)

12.70 mm steel strands – CNY4,018.39;

(b)

15.20 mm steel strands – CNY4,399.19; and

(c)

15.70 mm steel strands – CNY3,779.14.

In fact, the Government has a duty to ensure a fair comparison between the normal value and the export price of the merchandise by making the necessary adjustments. This is expressly provided under Regulation 32 of the CADDR 1994, which states that: “(1) The Government will make the following adjustments to ensure a fair comparison between the normal value and the export price of a merchandise:

(a) the Government will make reasonable allowances for transport expenses such as freight, shipping, insurance or other similar expenses to ensure the prices are comparable normally at an ex-factory level;

(b) the Government will make reasonable allowances for differences in the physical characteristics of merchandise compare if the Government is satisfied that the amount of any price difference is wholly or partly due to such physical differences;

(c) the Government will make reasonable allowances for a bona fide difference in the selling conditions of the sales compared if the Government is satisfied that the amount of any price difference is wholly or partly due to such differences in the selling conditions such as commissions, credit terms, guarantees, warranties, technical assistance and servicing;

(d) the Government will make reasonable allowances for differences in selling costs incurred by the producer or reseller but only to the extent that such costs are assumed by the producer or reseller on behalf of the purchaser;

(e) the Government will calculate normal value and export price based on comparable quantities of merchandise, but where the quantities are not comparable and the Government is satisfied that the amount of any price is wholly or partly due to such difference in quantities, the Government may make a reasonable allowance for the difference;

(f) the Government will calculate normal value and export price based on sales at the same commercial level of trade, but where the levels of trade are different and the Government is satisfied that the amount of any price difference is wholly or partly due to such difference, the Government may make a reasonable allowance for the difference;

(g) the Government will make any other adjustments it deems necessary to ensure a fair price comparison.” [emphasis added]

If a fair and rational comparison had been made based on the respective diameters of the steel strands, the result would show that there was no dumping by Silvery Dragon in Malaysia. The table below summarises the simulated calculation prepared and submitted on behalf of Silvery Dragon to the IA on 28.12.2021: Product Diameters Quantity Sold in Domestic Market Weighted Export Price (CNY) Weighted Average Normal Value (CNY) Dumping Margin 12.70 mm 1,115.72 4257.05 4,018.39 - 5.21%

15.20 mm 105,268.28 4,171.81 4,399.19 4.96%

15.70 mm 26.56 4,228.99 3,779.14 - 9.81% Total Dumping Margin - 3.52% As can be seen, if a comparison had been made based on the respective diameters of the steel strands, the result would yield a negative value, showing that the export price into Malaysia was indeed higher than the normal value. There was no dumping. Wednesbury Unreasonableness – The IA Made Contradictory Findings on Material Injury Based on the Same Data

In this case, we also find that the IA has made a contradictory finding as to whether the domestic industry had in fact suffered material injury in terms of cash flow due to the purported dumping of the Subject Merchandise.

The determination of material injury must be supported by objective evidence. The IA concluded in paragraph 131 of the Final Determination Report, among others, that the domestic industry did not suffer material injury in terms of cash flow. A screenshot of the IA’s conclusion is produced as follows:

Yet, in paragraph 137 of the Final Determination Report, the IA took a different and contradictory position, stating there was material injury to the domestic industry through, among others, cash flow. A screenshot of the IA’s contradictory position is produced as follows:

Similar instances can also be found in the Preliminary Determination Report prepared by the IA: a) in paragraph 98 of the Preliminary Determination Report, the IA concluded that the domestic industry did not suffer material injury in terms of cash flow; and b) on the other hand, in paragraph 104 of the Preliminary Determination Report, the IA became satisfied that the dumping of the Subject Merchandise had caused material injury in terms of cash flow to the domestic industry.

Based on the aforesaid, quite clearly, the IA had not acted reasonably or rationally in its finding on the issue of material injury. A reasonable investigating authority in a similar circumstance would not have arrived at a contradictory finding based on the same set of data obtained in the same investigation process. Conclusions

In view of the reasons above, the Respondents’ decisions in imposing an anti-dumping duty of 9.47% on the Subject Merchandise originating or exported by Silvery Dragon from the PRC to Malaysia within the period from 25.12.2021 to 24.12.2026 are clearly infirmed by illegality, irrationality, Wednesbury unreasonableness, and/or procedural impropriety.

Accordingly, this appeal is allowed, and the High Court order is set aside. The Impugned Decisions are to be quashed with the certiorari order granted, in terms of the prayers sought in the JR Application. We make no costs here and below based on the parties’ consent, and the Respondents are to refund all monies paid pursuant to the Impugned Decisions by 5 pm, Monday, 16.3.2026. DATE: 26TH FEBRUARY 2026 -sgd-ONG CHEE KWAN JUDGE COURT OF APPEAL For the Appellant :

Dato’ Lim Chee Wee; and

Kelvin Seah Khye Jie. (Messrs. Lim Chee Wee Partnership) For the Respondents :

SFC Rahazlan Affandi Abdul Rahim; and

SFC Fauziah Daud. (Jabatan Peguam Negara)