PUTRAJAYA, Jan 20 — The Court of Appeal today reduced the damages awarded to the family of Altantuya Shaariibuu from RM5 million to RM1.38 million in their lawsuit against former political analyst Abdul Razak Baginda and two former policemen over her 2006 death.

A three-member bench of the Court of Appeal, chaired by Chief Judge of Malaya Datuk Hashim Hamzah, alongside Justices Datuk Azman Abdullah and K. Muniandy set aside the RM5 million previously awarded by the High Court.

“As the global sum of RM5 million was awarded primarily on a vindicatory basis rather than a calculation of dependency loss, it cannot stand,” Muniandy said in the court’s unanimous decision.

The appellate court also held that the Malaysian government is not vicariously liable for the wrongful acts of former police officers Azilah Hadri and Sirul Azhar Umar, because they were not performing their official duties during the material time.

“The global award of RM5 million previously entered by the High Court is set aside.

“A sum of RM384,000 is awarded to the plaintiff, calculated based on a proven monthly dependency of RM2,000 and a multiplier of 16 years that adds up to 192 months.

“A sum of RM1 million is awarded to the plaintiffs, reflecting the high-handed, outrageous and barbaric nature of the killing,” Muniandy said.

The court also awarded bereavement damages of RM10,000 and funeral expenses of RM15,000 to Altantuya’s family.

Lawyer Sangeet Kaur Deo, alongside Altantuya’s father Shaariibuu Setev, appeared for the family, while senior federal counsel Nik Mohd Noor Nik Kar appeared for the government.

Lawyers Gurdial Singh Nijar and Abraham Au appeared for Abdul Razak.

What the Court of Appeal ruled

On the question of whether the Malaysian government could be held vicariously liable for the police officers’ criminal acts, Muniandy said the High Court had erred in law in awarding the original RM5 million in damages, as the acts were carried out entirely outside the scope of their employment.

He said both defendants were not acting in the course of their police duties when they took the deceased to a remote location and killed her, as the act was carried out pursuant to a private arrangement initiated by Abdul Razak.

“The use of government-issued explosives and firearms 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 police’s special action unit (UTK) officers,” he said, describing the act as a frolic of their own.

Muniandy said the evidence clearly showed that Abdul Razak had contacted another senior police officer — deputy superintendent Musa Safri — for assistance in dealing with issues involving Altantuya, after which Azilah was introduced and explicitly instructed to help manage the situation.

“There is no iota of evidence to suggest and demonstrate that he (Musa) was acting on the instruction of the fourth defendant (Malaysian government).

“He may have instructed Azilah to assist Abdul Razak on his own account, which does not bind the Malaysian government in any manner whatsoever.

“Murder is the antithesis of the duty to protect life and maintain peace. It is an act so far removed from the authorised duties of a police officer that it severs the connection between the employer and the employee,” he said.

Muniandy later ordered that the Malaysian government be fully discharged from liability and dismissed the claim filed by Altantuya’s family against it, with liability for Altantuya’s wrongful death remaining solely with the first to third defendants, who were held jointly and severally liable.

On Abdul Razak’s appeal against the High Court’s finding that he was liable in the tort of conspiracy and complicity over Altantuya’s death — on the grounds that he had no intent to cause physical harm and that his involvement was limited to seeking police assistance to manage a harassment issue — Muniandy said the court found the argument untenable.

“The appellant contends 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.

“It is an undisputed fact both 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 Abdul Razak’s house was entirely facilitated by information provided by the third defendant,” he said.

Most tellingly, Muniandy said when Altantuya went missing and Abdul Razak lodged a police report, the latter intentionally withheld the crucial fact that he had seen the deceased 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,” he said.

Under the law of conspiracy, Muniandy said it was not necessary to prove that Abdul Razak pulled the trigger or handled the explosive, as it was sufficient to show that he had combined with the other defendants to carry out an unlawful act, or a lawful act by unlawful means.

“By providing the deceased’s location and luring her to his home for the officers to apprehend her, the third defendant was an essential link in the chain of events that led to her death.”

On the revised aggravated damages of RM1 million, Muniandy said damages assessed were strictly limited to loss of dependency provided under Section 7(A) of the Civil Law Act as well as funeral expenses as per Section 7(3B) of the CLA.

“Section 7 does not provide for vindicatory damages intended to punish the wrongdoer or vindicate constitutional rights in a civil suit or dependency,” he said.

Nevertheless, Muniandy said the court made a distinction in the present case based on the sheer barbarity and the unique period of mental anguish suffered by the deceased prior to the fatal act.

“Where the conduct is so brutal and barbaric, the court’s conscience requires an award that reflects the magnitude of the wrong.

In awarding the revised damage sum, Muniandy said the court considered several factors, including the motive and conduct of the defendants, as well as the deceased’s final condition.

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 December 16, 2022, allowed the lawsuit filed by Altantuya’s family and ordered former police officers Azilah Hadri and Sirul Azhar Umar, former political analyst Abdul Razak Baginda and the Malaysian government to jointly pay RM5 million in damages.

The government and Abdul Razak subsequently appealed against the High Court’s decision.

Azilah and Sirul were convicted in 2009 of murdering Altantuya in Shah Alam between October 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.

Sirul has been in Australia for years, as Australia’s policy is that it cannot extradite or deport individuals if they will face death in that country.