1. ) WANA GOLD 2. ) FATHIN SYAZWANI BINTI MOHAMAD ZAKRI v 1. ) QALAM GOLD JEWELLERY (M) SDN BHD 2. ) QALAM GOLD JEWELLERY 3. ) MOHD ROZI BIN IBRAHIM

Case Significance

Illustrates the courts' condemnation of unlawful self-help to enforce a contract, and the award of exemplary damages against parties who resort to threats and seizure of property rather than to the proper legal channels.

This High Court decision in the Commercial Division at Kuala Lumpur, delivered by Ong Chee Kwan J after a full trial, concerns a dispute over gold and a striking case of unlawful self-help. The judgment frames the matter as a human tale in which a party that had suffered a genuine wrong chose to vent its grievance not against the true perpetrator but against an innocent party caught in the crossfire. The first and second plaintiffs — a gold-trading business and its proprietor — sued a group of defendants including a gold-jewellery company, a related business and an individual over the events at the plaintiffs' premises. The defendants' true grievance was said to arise under a Gold Sale and Purchase Agreement, but the plaintiffs were never parties to that agreement.

The Court found that, instead of pursuing their remedy against the parties actually liable under the Gold SPA — a distributor and an individual whose residential address had been provided to them — the defendants opted to force the plaintiffs to open the safe at the plaintiffs' premises and to help themselves to the gold kept there towards satisfaction of their losses. To that end they deployed a group of men to threaten the plaintiffs and secured the attendance of a witness to lend a veneer of legitimacy to their acts. The Court held that the documentary evidence and the defendants' own conduct showed the plaintiffs were never parties to the Gold SPA, and that enforcing a contract through such high-handed and unlawful self-help could not be condoned, since to permit it would send the message that "might is right".

The Court gave judgment for the plaintiffs. It ordered the defendants, within fourteen days, jointly and severally to pay the plaintiffs a sum equivalent to the prevailing market value of 382.70 grams and 224.70 grams of 916 gold, together with RM250,000 as exemplary damages to deter such conduct and to maintain public confidence in the legal system, interest at 5% per annum, and costs fixed at RM80,000. The judgment is a useful illustration of the courts' condemnation of unlawful self-help to enforce a contract, and of the award of exemplary damages against parties who resort to threats and seizure rather than to the proper legal channels.