PUTRAJAYA (Jan 20): The government is not vicariously liable for the death of Mongolian interpreter Altantuya Shaariibuu, as the Court of Appeal allowed its appeal against a lower court's ruling and ruled that the police commandos acted outside their working hours, absolving the government of liability. Altantuya was murdered more than 19 years ago, on Oct 18, 2006.
However, a three-member bench led by Chief Judge of Malaya Datuk Hashim Hamzah upheld the High Court’s decision that former chief inspector Azilah Hadri, former corporal Sirul Azhar Umar and political analyst Abdul Razak Baginda are held liable for Altantuya’s death.
Following that, the appellate court also allowed a reduction in the damages awarded to Altantuya’s family from a global sum of RM5 million to RM1.409 million to be borne jointly by Azilah, Sirul and Abdul Razak.
The bench, which also included judges Datuk Azman Abdullah and K Muniandy, awarded RM1 million in aggravated damages and allowed only the dependency claim of RM384,000, bereavement expenses of RM10,000, and funeral expenses of RM15,000 to Altantuya’s family.
Muniandy, who read the unanimous decision, said then High Court judge Datuk Seri Vazeer Alam Mydin Meera (now a Federal Court judge) had erred in his decision to decide that the government be held vicariously liable.
“The trial judge had erred in applying the close connection test, and this alone is the reasoning for setting aside liability on the government, as the police officers acted outside the scope of employment.
“This follows that the two police officers had acted outside their working hours and acted remotely as this was a private arrangement. The police officers had gone on a frolic of their own to do such horrendous things,” the judge said.
Azilah and Sirul were convicted in 2009 of murdering Altantuya in Shah Alam between Oct 19 and 20, 2006. The Federal Court, in 2015, upheld their convictions and death sentences after overturning a prior acquittal by the Court of Appeal.
In October 2023, the Federal Court allowed Azilah’s review application and commuted his death sentence to 40 years’ imprisonment.
For the government to be vicariously liable, Muniandy said the police officers must have committed the act during their employment, as required under Section 5 of the Government Proceedings Act 1956.
The use of government-issued explosives and firearms, the judge said, does not by itself bring a criminal act within the scope of employment.
“These were tools used for an unauthorised illegal enterprise entirely independent of their duties as Special Action Unit officers,” he said.
On the involvement of Deputy Superintendent Musa Safri, whom Abdul Razak had contacted for assistance in managing problems caused by Altantuya, the court found that Musa had introduced Azilah to Abdul Razak and explicitly instructed him to help manage the problems caused by Altantuya.
“There is no iota of evidence to suggest and demonstrate that he (Musa) was acting on the instruction of the government.
“He (Musa) may have instructed Azilah to assist Abdul Razak on his own account, which does not bind the government in any manner whatsoever,” Muniandy said.
Why Azilah, Sirul and Abdul Razak are liable
On finding Azilah, Sirul and Abdul Razak liable for the death, Muniandy said the evidence against them is overwhelming and uncontroverted.
“As for Azilah and Sirul, their liability is established by their direct involvement in the unlawful killing. They led police to the scene of the crime and were in possession of the deceased's personal effects. Their actions constitute a clear thought of assault and battery resulting in death.
“As for Abdul Razak, his liability is grounded in the thought of conspiracy. He set the chain of events in motion by engaging Azilah to deal with the deceased, providing the location and ensuring she was detained at his residence until Azilah and Sirul arrived. Accordingly, the judgement against Azilah, Sirul and Abdul Razak is upheld,” Muniandy said.
On Abdul Razak’s appeal, the court rejected his claim that he wasn’t liable for conspiracy and complicity, saying his argument that he only sought professional police assistance and didn’t intend to cause physical harm was untenable.
“It is an undisputed fact that Azilah and Sirul had no prior knowledge of or relationship with the deceased. They were strangers to her. Their presence at her hotel and their eventual interception of her at Abdul Razak’s house [were] entirely facilitated by information provided by him (Abdul Razak).
“He admitted to engaging Azilah to deal with the matter. On the night of the incident, Abdul Razak’s private investigator, acting on his instructions, detained the deceased outside Abdul Razak’s residence until Azilah and Sirul arrived to take her away. This sequence of events demonstrates a common design to deprive the deceased of her liberty,” the judge said.
Abdul Razak, Muniandy said, was in constant communication with Azilah on the night of the murder.
Most tellingly, he added, when the deceased went missing and Abdul Razak subsequently lodged a police report, he intentionally withheld the crucial fact that he had seen Altantuya being taken away by Azilah.
“Such conduct is inconsistent with that of an innocent party and points towards a shared intent to ensure the deceased disappeared. In the law of conspiracy, it is not necessary to prove that Abdul Razak pulled the trigger or handled the explosive.
“It is sufficient to prove that it combined with the other defendants to perform an unlawful act or a lawful act by unlawful means. By providing the deceased's location and luring her to his home for Azilah and Sirul to apprehend her, Abdul Razak was an essential link in the chain of events that led to her death,” the Court of Appeal said.
Awarding aggravated damages, and not global sum
On the award of aggravated damages, the appellate court held that where a wrongful act is committed with exceptional malice or results in profound pre-death suffering, aggravated damages may be awarded to reflect the intangible injury to the deceased person's personality and dignity.
Muniandy said although Altantuya family’s claim is anchored on Section 7 of the Civil Law Act 1956, the wrongful act complaint is not a simple case of negligence.
“It involves a high-level conspiracy to lure, abduct and execute a defenceless individual. The evidence shows the deceased was aware she was in danger, having lodged a police report expressing fear for her life just hours before her abduction.
“The journey from Abdul Razak's house to the jungle clearing while in the custody of armed officers would have induced a state of extreme terror and prolonged mental anguish. While Section 7 primarily compensates dependants, it does not expressly forbid the court from recognising the aggravating features of the tort itself.
“Where the conduct is so brutal and barbaric, the court's conscience requires an award that reflects the magnitude of the wrong. Unlike exemplary damages which seek to punish the defendants, these aggravated damages are [compensatory] in nature. They compensate for the horrifying state Altantuya was in, a loss of dignity, fiction of mental torture, which is recognisable of damages in a civilised society,” he said.
In exercising discretion to award aggravated damages against the trio, the court applies the following criteria.
“The motive and conduct of Azilah and Sirul [who] used military-grade explosives and firearms to carry out a planned and deliberate killing. Abdul Razak provided the means and the motive. The deceased was taken to a dark, remote area, likely aware of an impending fate.”
As a result, Muniandy said the court awarded RM1 million in aggravated damages, to be paid jointly and severally by the trio.
“This sum is distinct from the dependency claim (based on Altantuya’s last known salary multiplied by the lost months of her life),” the judge said.
Hashim also ordered Abdul Razak to pay RM30,000 in costs to Altantuya’s family, while the deceased's family is required to pay costs of RM35,000 to the government for its successful appeal.
Altantuya died between 10pm on Oct 18 and 1am on Oct 19, 2006. The suit was filed by her father Shaariibuu Setev, his wife and Altantuya’s children in 2007 following her death.
The High Court had awarded the RM5 million in damages following a hearing that culminated in a decision in December 2022. Shaariibuu is expected to hold a press conference over Tuesday’s decision shortly.
Shaariibuu is represented by counsel Sangeet Kaur Deo, while senior federal counsel Nik Mohd Noor Nik Kar appeared for the government.
Counsels Datuk Dr Gurdial Singh Nijar, Mithran Poobalan, Avtaran Singh, Abraham Au, Van Shir Mooi and Doris Lee Pui See appeared for Abdul Razak.