Ts Global Network Sdn. Bhd. v 1. ) Tribunal Rayuan Komunikasi dan Multimedia (WA-25-170-06/2023)

The Applicant be given leave to file and thereafter serve on the Respondents a copy of the Further Affidavit as fresh and/or further evidence in the

All proceedings shall be stayed pending the hearing and determination of this Notice of Application, if deemed fit by this Honourable Court;

Parties be given leave to address the Further Evidence in written submissions to be filed before the hearing of Enclosure 1;

The costs of this current application are to be made in the cause.

Parties are at liberty to apply; and

Such further, ancillary, consequential and/or other relief be granted as this Honourable Court deems fit and/or proper.” [3] The Second Respondent (R2) contested this application, arguing that 90 the applicant had failed to provide any averment regarding the relevance of the said affidavit, and that the present application should be dismissed with costs on an indemnity basis. [4] I heard this application on 28.04.2025. After reviewing the cause 95 papers filed, the respective written submissions of the parties, and hearing both counsels, I find that this application has no merit and is dismissed with costs in the cause. [5] Dissatisfied, the applicant appealed, and my reasons are as follows: 100 BRIEF FACTS [6] The brief facts are as follows:

6.1

Holds two licenses issued by MCMC: Network Facilities Provider 105 (NFP) and Network Service Provider (NSP), valid until 07.05.2027.

Operated on the Extended C-Band (3.4–3.7 GHz) for satellite services until January 2022. 110 6.2 On 09.04.2021:

MCMC decided to allocate the Extended C-Band for 5G services starting 01.01.2022.

Satellite operators like TSGN were allowed to operate on the Extended C-Band under a non-protection basis or migrate to 115 other frequency bands, such as the Standard C-Band. MCMC explicitly stated it would not compensate operators for costs arising from this migration.

6.3 TSGN claims:

This decision disrupted its long-term investments and business plans, which relied on uninterrupted use of the Extended C-Band.

They appealed the MCMC’s decision to the Appeal Tribunal, but on 21.03.2023 the said Tribunal dismissed the appeal, ruling that 125 TSGN failed to prove entitlement to compensation.

On 19.06.2023, TSGN filed for judicial review of the Appeal Tribunal’s decision, claiming compensation of USD 4,171,500 for leasing new satellite bandwidth:

TSGN seeks to adduce two further evidence:

A Notice issued by MCMC on 01.06.2024, cancelling the Class Assignment for the Extended C-Band effective 01.06.2025.

(ii) The Appeal Tribunal’s Grounds of Decision on costs dated 26.01.2024.

TSGN argued that the Notice undermines MCMC’s original position and supports its claim of breached legitimate expectations and argued that the new evidence is material, credible, and relevant to the Judicial Review (JR) application (L1).

It further argued that MCMC’s decision was not genuine and failed to consider TSGN’s legitimate expectations and financial losses adequately.

TSGN is applying to admit further evidence to strengthen its case. 145 SUBMISSION BY THE PARTIES In a nutshell, are as follows: 150 [7]

SUBMISSION BY THE APPLICANT 1 TSGN believes the above documents are critical to its JR application against decisions made by the MCMC and the Communications and Multimedia Commission Appeal Tribunal. The document highlights several legal and factual issues:

TSGN argued that MCMC’s decision to allow the use of the Extended C-Band on a non-protection basis was not genuine and breached its legitimate expectations to use the band until its licenses expire in 2027.

TSGN claims it incurred substantial costs (USD 8.5 million) due 160 to the forced migration to the Standard C-Band, which it believes should be compensated.

TSGN contends that MCMC failed to adequately consult with it before implementing the decision, further undermining the fairness of the process.

7.2 RC 2012 provides that the court has discretionary power to admit further evidence before the hearing. In the case of Ladd v Marshall [1954] 3 AER 745, CA(UK) laid out the conditions to be met before fresh/further evidence can be allowed:

It must be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing/trial;

The evidence must be such that, it would probably have an important influence on the result of the case; and

The evidence must be such as is presumably to be believed, or 175 In other words, it must be apparently credible, although it needs not be incontrovertible.

7.3 It was claimed that the impugned evidence became available only after the main written submissions were filed, and there is no unreasonable delay in applying.

7.4 The Appeal Tribunal:

Has already ruled that TSGN failed to prove entitlement to compensation, which may weaken its case unless the new evidence significantly alters the court’s perspective.

If the court allows further evidence, it could strengthen TSGN’s case by highlighting inconsistencies in MCMC’s decisions and supporting its compensation claim.

If the application is denied, TSGN may face challenges in proving its case, as the existing evidence may not sufficiently address the 190 issues of compensation and legitimate expectations.

7.5 In its submission in reply, TSGN submitted that it is seeking to introduce further evidence, including a decision by MCMC dated 01.06.2024 and the Appeal Tribunal’s Grounds of Decision (on costs) 195 dated 26.01.2024. TSGN argues this evidence is relevant and satisfies the conditions for admissibility under the Ladd v Marshall test. [8]

SUBMISSION BY THE SECOND RESPONDENT (R2) 1 Briefly, the facts are as follows:

TSGN previously held apparatus assignments (AAs) for the frequency band 3.4 GHz to 3.7 GHz for Fixed Satellite System (FSS) services.

R2 decided that this frequency band would be reallocated for 5G deployment starting 01.01.2022, ending the applicant’s AAs in 205 this band.

The applicant migrated its operations to other frequency bands and filed an appeal seeking compensation for alleged losses due to the decision.

The applicant filed a JR application challenging the Appeal 210 Tribunal’s decision to dismiss its compensation appeal.

8.2 In this application, TSGN seeks to adduce the further affidavit of Joyrama Appusamy, affirmed on 26.09.2024, which consists of the following documents:

Notice titled “Usage of Fixed-Satellite Service Earth Station(s) 215 and Ultra-Wideband Communication Device(s) (3400 MHz to 3700 MHz)” dated 01.06.2024 (CA Cancellation Notice) issued by R2 under Regulation 28 of the Communications and

(ii) R1’s Grounds of Decision dated 26.01.2024 on the issue of 220 costs (encl 56: pp. 18 – 21], which determined that TSGN shall pay R2 costs of RM300,000.00. This decision is not challenged.

8.3 R2 argues that the applicant’s application to adduce further evidence fails to meet the legal tests for admissibility under the principles of 225 Ladd v. Marshall, which sets out three cumulative conditions for admitting further evidence (refer to para 7.2 above). R2 argues that TSGN has failed to meet these conditions, particularly the test of relevancy.

CA Cancellation Notice: 230 R2 argues that this notice is irrelevant because TSGN has already migrated to other frequency bands and accepted the decision to reallocate the original frequency band for 5G deployment, did not challenge the decision on its merits, and chose not to operate under the CA option. If TSGN is dissatisfied with the CA 235 Cancellation Notice, it should exercise its recourse by challenging the notice via proper channels as provided under the CMA 1998.

(ii) Grounds of Decision on Costs: R2 asserts that this decision is separate and distinct from the 240 judicial review application. TSGC failed to challenge the costs decision within the mandatory 3-month deadline and had paid the costs without protest, making it irrelevant to the current JR application. TSGN did not file a judicial review application to challenge the costs decision within the prescribed timeframe. The 245 attempt to introduce further evidence is seen as a backdoor method to challenge decisions that are not part of the JR application, which is an abuse of the court process.

(iii) Bad Faith: 250 R2 further submitted that TSGC is acting in bad faith (mala fide) by filing this application after the deadline to challenge the costs decision that had expired. This is presented as an attempt to circumvent proper legal channels and undermine procedural rules. 255 8.4 In paragraphs 15 – 21 of the affidavit in support, where TSGN sets out the purported ‘Grounds in Support of Application’, no reason whatsoever was given as to how the Grounds of Decision on Costs are relevant to the JR Application. 260 8.5 By referring to paragraph 18 of the affidavit in support, TSGN avers that the ‘new facts and evidence’ will accord TSGN with a just and fair hearing is insufficient to satisfy the relevancy test as TSGN has failed to explain how the Grounds of Decision on Costs would deprive TSGN a just and fair hearing. 265 8.6 Hence, the lack of averments on the relevancy of the Grounds of Decision on Costs speaks volumes and supports R2’s position that the Grounds of Decision on Costs have no relevance to the subject matter of the JR Application, i.e. R1’s decision dated 21.03.2023. 270

8.7 Based on the above:

R2 submitted that the JR application can be disposed of based on the existing evidence without the need for further evidence 275 because the CA Cancellation Notices are irrelevant as TSGN has already migrated to another frequency.

The decision of R1, which is the subject matter of this JR Application, was pronounced on 21.3.2023.

It does not decide on the issue of costs because R1 directed 280 parties to file submissions on the issue of costs, and the ground of decision on costs was only made available on 25.06.2024, which does not affect the JR application.

R2 prays that this application be dismissed with costs on an indemnity basis. 285 THE LAW [9] The law on fresh evidence in a nutshell:

9.1 Appeals from Registrar of the High Court to a Judge in Chambers Order 56 rule 1 (3A) Rules of Court 2012, provides for fresh evidence: 290 “(3A) At the hearing of the appeal, fresh evidence shall not be admitted unless the Judge is satisfied that-

at the hearing before the Registrar, the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and 295

The fresh evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of the Registrar.”

9.2 Restriction on fresh evidence: O55, r.7 RC 2012 300 At the hearing of any appeal, fresh evidence shall not be admitted unless the Judge is satisfied that—

at the hearing in the Subordinate Court, the new evidence was not available to the party seeking to use it or that reasonable diligence would not have made it so available; and 305

The fresh evidence, if true, would have had or would have been likely to have a determining influence upon the decision of the Subordinate Court.

9.3 In Dato’ Sri Mohd Najib Tun Hj Abd Razak v Menteri Dalam Negeri 310 & Ors [2025] CLJU 1378, the Court of Appeal held: “The application to introduce new evidence [20] The principles applicable in an application to adduce new evidence at the appeal stage can be found in Order 55 Rule 7 ROC 2012 as reproduced below: 315 Order 55 Rule 7 of the ROC 2012 ……….. [21] The above rule incorporates the principles applicable in adducing fresh evidence at the appeal stage as propounded in the case of Ladd v. Marshall [1954] 3 All ER 745. 320 [22] The Federal Court in Lau Foo Sun v. Government of Malaysia [1970] CLJU 56; [1970] 2 MLJ 70 prescribed the following three (3) conditions that must be fulfilled by the appellant for fresh evidence to be admissible at the appeal:

It must be shown that the evidence could not have been obtained with 325 reasonable diligence for use at the trial;

(ii) the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and

(iii) the evidence must be such as is presumably to be believed or, in other 330 words, it must be apparently credible, although it need not be incontrovertible.” [23] In Maju Holdings Sdn Bhd v. Fortune Wealth (H-K) Ltd and other appeals [2004] 4 CLJ 282; [2004] 4 MLJ 105, Abdul Kadir Sulaiman JCA held that all three (3) conditions as stated above must be fulfilled in order 335 for fresh evidence to be admissible at the hearing of an appeal”

9.4 This issue on the codification of Ladd v Marshall and O.55, r.7 RC 2012 & R.7(3A) Rules of the Court of Appeal is now pending ventilation and determination by the Federal Court after leave was granted in: 340 In the Federal Court of Malaysia (Appellate Jurisdiction) Civil Applications NO:08(i)-38-02/2025(W) & 08(i)-39-02/2025(W) Peguam Negara Malaysia v Dato’ Sri Mohd Najib bin Tun Hj Abd Razak. 345 [10] The court assesses the relevance of further evidence by determining whether it would likely have a determining influence on the outcome of the case. The court evaluates whether the evidence could materially affect the decision-making process. 350 FINDINGS OF THIS COURT [11] Before I proceed further, I take cognisance:

That TSGN relied solely on Ladd v Marshall [1954] 3 All ER 745, CA (UK) instead of the local legal provisions in the RC 2012, which had 355 codified Ladd v Marshall with modifications, regarding fresh evidence.

In L.56, TSGN attempted to move the Court using O.1A (Court to have regard to justice in its determination), O.3, r.5 (Abridgement of time), and O.92, r.4 (Inherent jurisdiction of the Court).

The relevant provision and legal literature for fresh evidence can be 360 found in O.55, r.7 RC 2012 (Restriction on fresh evidence). TSGN never cited this provision, which renders L.56 materially defective.

There is a significant difference in the required threshold between Ladd v Marshall in contrast to O.55, r.7:

Under Ladd v Marshall, the evidence must be such that, if 365 given, it would probably have an important influence on the result of the case, although it need not be decisive (lower threshold required).

(ii) Under O.55, r.7 RC 2012 the new evidence shall not be admitted unless “the new evidence, if true, would have had or would have 370 been likely to have had a determining influence upon the decision of” the High Court or the subordinate court, as the case may be (higher threshold required).

(iii) O.7(3A) of the Rules of the Court of Appeal provides that further evidence shall not be admitted unless the Court is satisfied that: 375

At the hearing before the High Court or the subordinate court, as the case may be, the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and

The new evidence, if true, would have had or would have 380 been likely to have had a determining influence upon the decision of the High Court or the subordinate court, as the case may be.

Specific domestic legislation on fresh evidence takes precedence over the common law position. This issue is 385 now pending ventilation and determination by the Federal Court after leave was granted (refer para 9.4 above): Amongst the legal questions to be decided are:

Whether the principles established in Ladd v Marshall [1954] 3 All ER 390 745 (‘Ladd v Marshall’) have been codified or merely reflected in Rules 7(3A) of the Rules of Court of Appeal 1994 (“RCA 1994”).

Whether Rule 7(3A) of the RCA 1994 renders the principles in Ladd v Marshall concerning the admission of fresh or additional evidence in the Court of Appeal no longer applicable.

Whether Rule 7(3A) of the RCA 1994 imposes a higher threshold on parties seeking to introduce fresh or additional evidence by requiring proof of a “determining influence, “which exceeds the “important influence” threshold established in Ladd v Marshall. 400 [12] The applicant (TSGN) at enclosure 1 filed a JR application against the Communications and Multimedia Appeal Tribunal (R1) and the Malaysian Communications and Multimedia Commission (MCMC-R2) seeking orders of mandamus, certiorari, and declaration under various legal provisions, including the Communications and Multimedia Act 405 1998 (CMA 1998) and the Courts of Judicature Act 1964 (CJA 1964), to quash the decision of R1 dated 21.03.2023 and other reliefs. [13] At enclosure 56:

TSGN applies for leave to file an additional affidavit and further 410 evidence, including a notice issued by MCMC dated 01.06.2024, and the Tribunal's grounds of decision on costs dated 26.01.2024.

It argues that the new evidence is crucial to its case, as the cancellation of the frequency band impacts its ability to provide 415 its VSAT services. TSGN asserts that its application is bona fide and does not prejudice the respondents' rights. [14] I had examined the affidavit in support of this application, specifically at paragraphs 15, 16,17, and 18:

It sets out the supposed grounds that serve as the basis for this application.

TSGN asserts that the ‘Further Evidence’ (the Notice issued by MCMC on 01.06.2024 and the Appeal Tribunal's Grounds of 425 Decision on costs dated 26.01.2024) was only made available after the parties had filed their written submissions on 03.05.2024.

This supposedly supports the argument that the evidence is new and material to the case.

TSGN argued that the Notice issued by MCMC contradicts its earlier position in that TSGN could continue operating its Fixed- Satellite Service (FSS) in the Extended C-Band (3.4 GHz to 3.7 GHz) alongside 5G services.

The Notice effectively forces TSGN to migrate to the Standard C-Band (3.8 GHz to 4.2 GHz) by 1.6.2025.

It undermines the legitimacy of MCMC's original decision and 440 highlights the operational challenges posed by interference from 5G signals. This evidence is critical to TSGN's argument that its legitimate expectations were not met and that compensation is warranted. 445

TSGN also contends that the new facts and evidence (particularly the Notice) are material and likely to have a significant impact on the court's determination of the JR application.

TSGN raises the issue of whether the Appeal Tribunal failed to 450 adequately consider its legitimate expectations to use the Extended C-Band until the expiry of its licenses in 2027.

TSGN reiterates its claim for compensation for the costs of migrating to the Standard C-Band and emphasises the 455 importance of the new evidence in ensuring a fair and just hearing. [15] I agree with the submission of the learned counsel for R2 that no reason whatsoever was given as to how the Grounds of Decision on 460 Costs are relevant to the JR Application. Just a bare averment that it provides TSGN with a just and fair hearing is insufficient to satisfy the relevancy test, as TSGN has failed to explain how the Grounds of Decision on Costs would deprive TSGN of a just and fair hearing. 465 [16] I also agree with the submission of R2:

That the decision of R1, which is the subject matter of this JR Application, was pronounced on 21.3.2023, where it did not decide on the issue of costs. 470

Therefore, the Grounds of Decision on Costs have no relevance to the present JR Application.

If TSGN is dissatisfied with R1’s decision on cost, TSGN ought to have filed a JR application to challenge the same within 3 months 475 from 25.06.2024, which they have failed to do. [17] It is my considered observation that the CA Cancellation Notice is wholly irrelevant and would not have a determining influence on the outcome of this JR proceeding as follows:

TSGN had accepted R2’s decision on its merits, and this is evidenced by TSGN’s Amended Notice of Appeal (encl. 3, pp. 172 – 175) filed with R1, whereby TSGN had limited the Appeal to the sole issue of whether the Applicant is entitled to compensation arising from R2’s decision, and 485

Not whether the said decision was justified and/or correct.

R2’s decision under challenge offered TSGN with the option to remain in the Chosen Frequency Band under a CA; however, 490 TSGN did not take up this option and instead chose to continue its FSS operations by migrating to other bands and operating through AA.

Consequently, whether the CA option in the Chosen Frequency 495 Band remains in effect has no impact since TSGN had already migrated out of its operation from the Chosen Frequency Band voluntarily and legally (as TSGN chose not to challenge R2’s decision on merits). And suppose TSGN is dissatisfied with the CA Cancellation Notice. In that case, TSGN should exercise its 500 recourse by challenging the CA Cancellation Notice through proper channels, as provided under the CMA 1998, which TSGN failed to do. CONCLUSION 505 [18] In the circumstances, I find this application to adduce fresh evidence to be an abuse of process. It is also a belated attempt to dispute the award of costs, as TSGN had settled the said costs without any protest or reservation of right. 510 [19] In light of the foregoing and after closely scrutinising the application, on the balance of probabilities, I find that the applicant (TSGN) has failed to establish its burden on L56. I therefore dismiss L56 with costs in the cause. 515 Dated 08.07.2025 HAYATUL AKMAL ABDUL AZIZ JUDGE 520 HIGH COURT OF MALAYA KUALA LUMPUR For the Applicant: Suhaib Ibrahim Messrs Skrine 525 For the Second Respondent: Nur Ainnabila Rosdi Messrs Firoz Julian