PUTRAJAYA (July 29): The Court of Appeal has upheld a High Court decision to stay the RM37 million cumulative payment awarded to the family of abducted pastor Raymond Koh, who disappeared nearly nine years ago.
A three-member panel, led by Datuk Alwi Abdul Wahab, on Wednesday upheld the stay that had been granted on Jan 26, ruling that the High Court judge had correctly applied the principles governing applications for a stay of execution.
“The appellate intervention is only warranted if the decision is shown to be plainly wrong,” Alwi said in his grounds of decision.
On Jan 26, High Court judge Mahazan Mat Taib had allowed the government’s application to stay the payment, pending the disposal of its appeal at the Court of Appeal.
She held that the government faced financial risk if the stay was not granted.
The stay arose from a High Court ruling which had found the Malaysian government and police liable for Koh’s 2017 abduction, with the court finding that key elements of the case pointed towards state involvement, including the involvement of at least one police officer.
Koh’s wife, Susanna Liew, together with Norhayati Mohd Ariffin — the wife of missing activist Amri Che Mat, had sued 13 defendants over the abduction and disappearance of their husbands.
The defendants include the Malaysian government, police leadership, serving and former police officers, as well as an alleged former Special Branch contract worker whose vehicle was linked to one of the disappearances.
High Court judge Datuk Su Tiang Joo, in delivering his judgement on Nov 5 last year, had ordered the government to pay RM10,000 per day to Koh’s family from the date of his disappearance on Feb 13, 2017, until he is found.
The judge also awarded RM6 million in general damages and RM250,000 in legal costs to Koh’s family.
Together with the daily payment accumulated to date, the total award amounts to about RM37 million.
The daily award alone had exceeded RM31.8 million at the time of the judgement, based on the RM10,000 per day calculation from Feb 13, 2017, until the date of judgement, and continues to accrue until Koh’s whereabouts are established.
In Wednesday’s decision, Alwi, who sat with judges Datuk Dr Shahnaz Sulaiman and Datuk Amarjeet Singh, said the stay was necessary to preserve the status quo, pending the disposal of the main appeal against the High Court’s decision.
“The High Court decision represents a rational exercise of discretion to preserve the status quo, pending the final determination of all the issues in the appeal proper,” he said.
Before the decision, lawyer Steven Thiru, representing Liew, argued that the award was made through a consent order, and therefore could not be stayed.
However, he acknowledged that there was no legal authority expressly stating that a consent order could not be stayed.
Steven argued that a consent judgement was binding on the parties and must be honoured.
He warned that the court would become a “laughing stock” if parties failed to comply with consent judgements.
“When you enter a consent judgement recognised by the court, you cannot blow hot and cold,” he said.
Senior federal counsel Zetty Zurina Kamarudin, appearing for the government and the Royal Malaysian Police, argued that the consent order was only related to the appointment of a trustee account to hold, safeguard, and administer the funds according to the court order.
She said the government did not own the money or determine who would receive it.
“We chose Amanah Raya, and we entered consent with the plaintiff. We are only complying with the order to choose the trustee,” she said.
In its decision, the panel agreed with Zetty’s submissions and held that a consent order did not waive the right to seek a stay.
“We are of the view, and in agreement with the respondents (government and police), that the trustee mechanism does not bar a stay of execution,” Alwi said.
“Objectively construed, the consent order was a neutral procedure to perfect the order of the High Court by identifying the trustee, Amanah Raya Bhd. It was never intended as an absolute undertaking to waive the statutory right to seek a stay or as an admission of liability.”
Alwi said the stay did not disturb the consent order, but merely suspended its enforcement to ensure the appeal process was not rendered nugatory.
He agreed with the government that immediate payment of the award, which involved public funds and a continuing daily sum of RM10,000, would be structurally impractical.
“We also acknowledge that the High Court judgement involves a substantial and continuing daily sum of RM10,000. Refusing a stay would force the immediate disbursement of public funds. Even with the trust mechanism, we agree with the respondent that immediate execution of recurring payments from public funds is structurally impractical,” he said.
The panel also upheld the stay on the High Court’s order requiring the investigation into Koh’s disappearance to recommence under certain conditions.
Alwi said the conditions imposed on the investigation formed part of the appeal, and that granting a stay was necessary to prevent the appeal from being rendered nugatory.
“After hearing the parties, the disagreement primarily concerns the conditions as to how the investigations are to be carried out. We are of the view that the conditions are part of the appeal against the decision of the trial judge and, if a stay is not granted, this part of the appeal will be rendered nugatory,” he said.
The panel dismissed the appeal with no order as to costs.
Datuk Jerald Gomez and Michelle Wong from Jerald Gomez and Associates also represented Liew.
Separately, in Amri’s appeal brought by his wife, the same panel unanimously held that the stay granted to the government would not jeopardise the plaintiffs’ efforts to seek justice.
The panel said the stay merely temporarily delayed enforcement of the High Court judgement pending the government’s appeal.
Surendra Ananth represented Amri and his wife.
Liew had filed the suit against the police and government over her husband’s disappearance and the authorities’ handling of the investigation.
Koh was reported to have been abducted by a group of masked men while driving in Kelana Jaya on Feb 13, 2017.
The founder of non-governmental organisation Harapan Komuniti, Koh was known for his community work, particularly assisting single mothers, people struggling with addiction, and those living with HIV/AIDS.
Before his disappearance, Koh had been investigated by local Islamic authorities over allegations of proselytising Muslims. His family had also received a death threat and a box containing two bullets.