Appellate Court reduces damages award to Altantuya's family to RM1.4 million

PUTRAJAYA - The Court of Appeal here today reduced the quantum of damages awarded to the family of murdered Mongolian model Altantuya Shaariibuu from RM5 million to RM1.4 million in a civil suit over her death in 2006.

The unanimous decision was made by Chief Judge of Malaya Datuk Hashim Hamzah, together with Court of Appeal Judges Datuk Azman Abdullah and K. Muniandy.

Justice Muniandy, in reading out the decision, said in the present case, the global sum of RM5 million was awarded primarily on a vindicatory basis, rather than through a proper calculation of loss of dependency.

"Such an award cannot stand. Accordingly, the award of RM5 million is set aside. The damages assessable are strictly limited to loss of dependency, calculated based on the deceased’s proven income using the multiplier-multiplicand method, and subject to the statutory limits prescribed under Section 7(3)(a) of the Civil Law Act (CLA), together with funeral expenses under Section 7(3)(b) of the CLA.” he said.

The appellate court also held that the government was not vicariously liable for Altantuya’s death, as the acts of the two former police officers, Sirul Azhar Umar and Azilah Hadri, were committed outside the scope of their duty.

The bench 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.

Meanwhile, Justice Muniandy said Sirul Azhar and Azilah were not performing any police duty when they took the disease to a remote location and executed Altantuya.

"This was a private arrangement initiated by Abdul Razak (political analyst Abdul Razak Baginda). The use of government-issued explosives and firearms does not by itself being a criminal act 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 Actions Unit (UTK) police officers. There is no iota of evidence to suggest and demonstrate that they were acting on the instruction of the government," he said.

Therefore, the court ruled that the government of Malaysia is fully discharged from liability and dismissed the claim against the government. The global sum of RM1.4 million is to be borne jointly by Abdul Razak, Azilah and Sirul Azhar.

The court also affirmed the High Court ruling on Abdul Razak for conspiracy and complicity in the death of Altantuya.

Justice Muniandy said the court found Abdul Razak's arguments that he had no intent to cause physical harm and that his involvement was limited to seeking professional police assistance to manage a harassment issue were untenable after a thorough review of the record of appeal.

"It is an undisputed fact that Azilah and Sirul Azhar (D1 and D2 - defendants) 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 D3's house (Abdul Razak) was entirely facilitated by information provided by him. By providing the deceased's location and luring her to his home for D1 and D2 to apprehend her, D3 was an essential link in the chain of events that led to her death," he added.

Furthermore, the judge said Abdul Razak admitted to engaging Azilah to deal with the matter and was in constant communication with Azilah on the night of the murder.

He said 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.

The judge noted that this sequence of events demonstrates a common design to deprive the deceased of her liberty.

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 judge said.

Justice Muniandy further said the trial judge was correct in concluding that both Sirul Azhar and Azilah had no independent motive to kill the disease.

"Their actions were a direct result of D3's solicitation and assistance," he said when dismissing D3's appeal against a finding of liability.

Altantuya's parents and grandson had filed a RM100 million lawsuit on June 4, 2007, claiming that her death caused them mental shock and psychological trauma.

The Shah Alam High Court, on Dec 16, 2022, allowed the lawsuit filed by Altantuya's family and ordered Azilah, Sirul Azhar, Abdul Razak, and the government to jointly pay RM5 million in damages. The government and Abdul Razak subsequently appealed against the High Court's decision.

Azilah and Sirul Azhar 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. - BERNAMA