Justice Harmindar Singh Dhaliwal said that the evidence adduced established that Ja’afar Halid had shot part-time RTM cameraman Amirul Amin Amer at close range, resulting in his victim suffering serious physical and psychological injuries.
The judge said it had also been proven that Ja’afar had committed the act in the course of his employment with GMP Kaisar Security Sdn Bhd.
“Ja’afar used a Glock automatic pistol that was owned and provided to him by the appellant,” the judge said when dismissing GMP Kaisar’s appeal during an online proceeding.
He said both the High Court and the Court of Appeal had applied the correct test to determine whether the employer was vicariously liable based on the UK House of Lords’ case of Lister vs Hesley Hall Ltd.
Harmindar said the test involved determining whether the wrongful act committed by an employee was closely connected to the nature of his employment.
The appellant company’s business involved providing the service of armed bodyguards under the Private Agencies Act 1971, said Harmindar.
“Ja’afar was an armed bodyguard equipped with a firearm and the nature of his work exposed members of the public to high risk,” he added.
Harmindar said the appeal related to an important question of law, namely whether an employer can be held vicariously liable for the wrongful actions of an employee.
“The appellant cannot deny liability since Ja’afar was under their employment and armed by them,” he added.
Sitting with Harmindar were Court of Appeal president, Justice Rohana Yusuf, and Justice Rhodzariah Bujang.
Lawyer K Simon Murali appeared for Amirul while Nor Azam Rashid and Sam Masry represented the company.
The apex court also awarded costs of RM30,000 to Amirul.
Amirul had filed a civil suit against Ja’afar and GMP Kaisar asking the court to hold the company vicariously responsible for Ja’afar’s wrongful actions.
In 2019, the High Court awarded RM114,470 in damages and costs to Amirul, one of eight people shot by Ja’afar along the Tun Dr Lim Chong Eu Expressway, in Penang, on Dec 1, 2016.
Three of the eight were killed in the incident.
In her decision, High Court justice Hadhariah Syed Ismail said GMP Kaisar should have known the foreseeable danger of an employee holding a firearm, especially as the weapon was owned by the company itself.
She said GMP Kaisar had “clearly lost track” of Ja’afar despite standing orders by the home ministry that companies whose personnel were armed must be constantly monitored.
Hadhariah’s decision was affirmed as correct both factually and in law by a 2-1 majority in the Court of Appeal last year.
In separate proceedings, Ja’afar was also charged, convicted and sentenced to death by the High Court in 2020 after he was found guilty on three counts of murder and the attempted murder of five others. It is unclear if his appeal process had been exhausted.
In those proceedings, the court was told that he had shot dead his boss, Ong Teik Kwong, and fired randomly at motorists and motorcyclists on the expressway near the Penang bridge in a six-hour stand-off.