Altantuya murder: High Court says Razak Baginda’s silence in court implies complicity

“If not for Razak, Azliah and Sirul would not have taken the deceased in their car from the former’s residence and ultimately kill her. The circumstantial evidence of conspiracy is overwhelming”

(NST) – The High Court drew an adverse inference against political analyst Abdul Razak Baginda when he refused to testify under oath in the high-profile murder case of Mongolian model Altantuya Shariibuu in 2006.

Judge Datuk Vazeer Alam Mydin Meera, now a Court of Appeal judge, said there was a case against Razak in relation to both causes of action — the unlawful causing of death of the deceased and the tort of conspiracy to kill the deceased.

“Despite the opportunity to explain all this away by taking the stand, Razak chose not to.

“There is clear oblique motive on the part of Razak in electing to submit that there is no case to answer and thereby not testifying under oath or calling witnesses in his behalf.

“The court is entitled to invoke adverse inference under Section 114(g) of the Evidence Act 1950,” he stated in his full judgment on Altantuya’s family civil lawsuit against the government which was posted on the Judiciary Department’s website last week.

Section 114(g) allows the court to presume the likelihood of any fact based on common natural events, human behavior, and public and private activities, as they relate to the specific facts of the case.

Altantuya’s family filed a RM100 million civil suit in 2007 over her death by naming former policemen Azilah Hadri and Sirul Azhar Umar, political analyst Razak and the government as defendants.

On Dec 16, 2022, the court awarded RM5 million in damages to the plaintiffs, namely Altantuya’s parents, Dr Shaariibuu Setev and Altantsetseg Sanjaa, as well as their two grandsons Mungunshagai Bayarjargal and Altanshagai Munkhtulga.

The Federal Court in January 2015 found Azilah and Sirul guilty of murdering Altantuya and sentenced them to death by hanging.

Vazeer said the only link between Azilah and Sirul and the deceased was Razak, who wanted the harassment and embarrassment by the deceased to stop.

“When Azilah met Razak for the first time in his office, the former had told the latter that he can finish off the deceased, and that he has done it a few times before.

“Even though Razak in his statement said that he purportedly told Azilah not to think of such things, he nevertheless continued to seek the latter’s assistance by giving the details of the deceased’s identity and the hotel where she was staying.

“When the deceased showed up outside his residence on the fateful night, he once again enlisted the assistance of Azilah, a self-confessed murderer, to take care of the deceased,” he said.

Meanwhile, the judge also ruled that the government was held vicariously liable for the murder as it was carried out by serving policemen using government resources.

He said the heinous murder committed by Azilah and Sirul, who were then part of the police force’s Special Action Unit (UTK), was carried out using resources provided by the government.

“The fourth defendant (government) as employer of the first and second defendants (Azilah and Sirul) as policemen owed a duty of care, under both common law and statute, to ensure that the detainee is not harmed by the police.

“The evidence also showed that Azilah and Sirul had access to the type of military grade explosives that were used by them to blow up the deceased’s body.

“The government’s witnesses confirmed that the UTK used military-grade explosives in their work and training, with strict control mechanisms in place and the movement of these explosives recorded in the Explosives Register.

“However, the government failed to produce the said Explosives Register as evidence,” he said.

Vazeer said that for vicarious liability to apply to the government as the employer of Azilah and Sirul, the wrongful acts need not be authorised by the former, but they must be sufficiently connected to the employment relationship.

“In this regard, the evidence showed that the wrongful acts were indeed closely connected to their duties as policemen (as) Azilah and Sirul had used their authority as policemen to take the deceased away from outside Razak’s residence on the pretext that she was causing a disturbance to the peace.

“Then, whilst in the car, they assured the deceased that they were policemen when she asked who they were, thus getting her confidence to be with them.

“They then drove her to the secluded spot and killed her, all the while having her in their custody as policemen, and they committed the tortious act intentionally in their capacity as policemen using resources provided by the police force.

“However, rather than protecting the life of a person under their custody, Azilah and Sirul proceeded to brutally kill the deceased in an execution style intentional killing and dispose of her body in the most brutal and barbaric manner.

“In this regard, it is pertinent to note that Azilah and Sirul first took the deceased to Bukit Aman (federal) police headquarters and stopped there for a while before heading to Puncak Niaga to kill her by first shooting her with a firearm and then blowing her (body) up with military grade explosives,” he said.

He said the plaintiffs had successfully proved on a balance of probabilities that Razak had a culpable role in the death of the deceased.

“If not for Razak, Azliah and Sirul would not have taken the deceased in their car from the former’s residence and ultimately kill her.

“The circumstantial evidence of conspiracy is overwhelming,” he added.