I JUST recently learnt from an international arbitration news site that the Malaysian government had reached an amicable settlement with the estate of Boonsom Boonyanit, a Thai national, some time in October 2018.
This news hitherto is not known to the Malaysian public. Neither is there any information available to the public on the exact settlement sum and whether the same has been paid.
Be that as it may, the Malaysian taxpayers have obviously ended up once again having to fork out a sum probably in millions of ringgit to compensate for the criminal acts of the perpetrators who are still at large. There may be a requirement for confidentiality in the settlement agreement, hence the non-disclosure.
Apparently, the October 2018 settlement had been reached with the Pakatan government after the estate issued a notice on July 31,2017 addressed to the then Prime Minister, Foreign Affairs Minister and Attorney General, accusing Malaysia of contravening her treaty obligations under the 1987 Asean Agreement for the Promotion and Protection of Investments in not according fair and equitable treatment and providing full protection for Boonsom’s investments.
The treaty has been signed by Brunei, Indonesia, Malaysia, Philippines, Singapore and Thailand. Under the treaty, if any dispute cannot be settled within six months after its being raised, then the affected party can choose to submit the same for conciliation or arbitration.
But has justice been done or rather has justice been seen to be done to Boonsom? To quote the oft-repeated 100-year-old words of Lord Chief Justice Hewart in R v Sussex Justices, ex parte McCarthy  that “it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
Sadly, Boonsom had already passed away on May 23,2000. She was a victim of land scam in 1989. All in, three generations of her family had carried on with this fight for justice with sheer grit and tenacity. But this long and arduous journey has also taken them some 30 years.
It all started when Boonsom’s two beachfront lots in Tanjung Bungah, Penang (the said lands) were fraudulently transferred by an impostor claiming to be Boonsom to Adorna Properties Sdn Bhd, then known as Calget Sdn Bhd (‘Adorna”), on May 24,1989 for RM1,865,798.
The said lands were first purchased by Boonsom’s husband on Dec 12,1956 with the view of building their retirement home there. They were transferred to Boomson on Jan 18,1967. On Oct 7,2004, Adorna sold the said lands to Diamaward (M) Sdn Bhd, a subsidiary of Hunza Properties Berhad, for RM13,220,000. Today, what is on the said lands is a beachfront condominium. Further, strata titles have also been issued to the individual parcel owners.
This is a heart-rending story – a story that has shaken the very foundation of our torrens system of registration on indefeasibility of title to our properties. Every law student is taught and is assumed to know everything about this case, fully.
Of course, Boonsom sued for the return of the said lands but the Penang High Court ruled in favour of Adorna on April 28,1995. On appeal, the Court of Appeal reversed the High Court’s decision on March 17,1997. Adorna then appealed, and the Federal Court allowed Adorna’s appeal on Dec 22,2000 (Adorna Judgment).
Boonsom’s second son, Kobchai Sosothikul, being the representative of her estate, then filed two separate motions to the Federal Court for review of the Adorna Judgment but failed on both occasions in 2001 and 2004.
It was not until January 2010 that a strong five-member bench of the Federal Court had finally decided in the case of Tan Yin Hong v Tan Sian Sang to restate the correct position of the law in that the error committed in the Adorna Judgment was, in the words of the then Chief Justice, Tun Zaki Tun Azmi, “so obvious and blatant”. But this does not provide any relief to the Boomsom family.
In fact, on March 15,2005, Kobchai had also sued the Penang land office for negligence and breach of statutory duty. On Jan 10,2011, then Judicial Commissioner Vazeer Alam Mydin found that the Penang land office was indeed negligent and in breach of statutory duty, but unfortunately the action had to be dismissed because it was time-barred as it was filed 36 months late under the Public Authorities Protection Act, 1948.
But the learned judge had made a very strong observation on police investigation. Vazeer said: “In the beginning, I alluded to the fact that this is the sequel to a sad saga, which is now part of the annals of the nation’s legal history. The helplessness of the plaintiff in the face of the fraud perpetrated leading to the loss of the said lands is very evident.
“The apparent negligence and breach of statutory duty by the defendant and the complete inaction of the police in bringing the forger and fraudster to book is very disturbing indeed. After all, the fraudster was represented by a firm of solicitors in Penang in the transfer of the said land to Adorna and there would have been sufficient leads for investigations.”
In fact, I echoed such views in “The stink of injustice” (The Sunday Star, June 9,2013) that this is one injustice that stinks to high heavens! I wish to reiterate that unless this stink is removed, it will indelibly remain a huge dent on foreign investors’ confidence in our land offices, police investigations and the administration of justice.
It must be stressed that two police reports were lodged and rather at an early stage too – on July 12,1989 by Boonsom’s lawyer from Messrs Lim Kean Siew & Co and on July 22,2002 by Kobchai. But to date, there has not been a whisper from the police or the Attorney General’s Chambers on this matter.
Incidentally, in July last year, the Inspector-General of Police Tan Sri Abdul Hamid Bador vowed to re-investigate thousands of “cold” cases. He reportedly said that he understood the frustration experienced by the public and admitted that thousands of ‘cold case’ files were not acted upon effectively. Last Sunday, Abdul Hamid said it again that all ‘cold cases’ which have not been resolved by the federal Police Commercial Criminal Investigation Department will be re-opened for investigation.
Of course, such assurance from the highest law enforcement officer will warm the cockles of many hearts. But with all due respect, unless it is translated into real action, the assurance is only illusory.
In my view, it is high time that a special task force be set up by the police to re-investigate this cold case to ensure that justice is not only done but seen to be done.
By doing so, a strong message will be sent out to the perpetrators that you can run, but you cannot hide forever for the long arm of the law will eventually catch up with you.
The writer, a senior lawyer, is former chairman of the Conveyancing Practice Committee of the Malaysian Bar Council. The views expressed here are the writer’s own.
The writer, a senior lawyer, is formerly a law lecturer and member of the Malaysian Bar Council.