The Court of Appeal has reserved judgment on the government’s appeal against a RM1.1 million award to the mother of late Dutch model Ivana Smit
PUTRAJAYA: The Court of Appeal has reserved its judgment in the government’s and three others’ appeal against the High Court ruling that awarded RM1.1 million in damages to the mother of the late Dutch model, Ivana Esther Robert Smit.
A three-member bench, led by Judge Datuk Mohamed Zaini Mazlan, deferred its decision after hearing submissions from senior federal counsel Liew Horng Bin for the respondents and Datuk S N Nair, representing Christina Carolina Gerarda Johanna Verstappen.
“We can’t be giving our decision today. My colleagues and I would like to sit down and discuss this further. We have fixed April 21 for case management,” said Justice Mohamed Zaini, who sat with judges Datuk Ong Chee Kwan and Muniandy Kannyappan.
Verstappen had filed proceedings against the Inspector-General of Police (IGP), Dang Wangi investigating officer ASP Faizal Abdullah, the Home Minister, and the Government of Malaysia, alleging negligence and breach of statutory duties in the investigation of her daughter’s death.
On July 29, 2025, the Kuala Lumpur High Court allowed Verstappen’s suit, ordering the defendants to pay her RM500,000 in general damages, RM300,000 in aggravated damages, RM300,000 in exemplary damages, and RM100,000 in costs.
The High Court further ordered the IGP to remove ASP Faizal Abdullah from the current task force and directed the Royal Malaysia Police (PDRM) to reopen the investigation into Ivana Smit’s death, as previously mandated by the High Court in 2019, thereby setting aside the Coroner’s Court decision.
The PDRM was also instructed to provide progress briefings to the Attorney General’s Chambers (AGC) at three-month intervals.
The AGC is tasked with assessing whether sufficient evidence has been obtained and determining any subsequent legal action.
In the suit filed on Nov 20, 2020, Verstappen claimed that her daughter was found dead on the sixth floor of CapSquare Residence on Dec 7, 2017, after falling from the 20th floor of a condominium unit owned by American couple Alex Johnson and Luna Almazkyzy.
She contended that the police were negligent in failing to cordon off the crime scene, conduct a proper investigation against Johnson and Almazkyzy, and secure their attendance as key witnesses during the inquest, including through detention or extradition if necessary.
On March 18, 2019, the Coroner’s Court ruled that Ivana’s death was the result of a ‘misadventure’. Dissatisfied with the coroner’s finding, Verstappen appealed to the Kuala Lumpur High Court.
On Nov 22, 2019, Judge Datuk Collin Lawrence Sequerah (now a Federal Court judge) set aside the coroner’s verdict and substituted it with a verdict of ‘Death by a person or persons unknown’.
Earlier, Liew submitted that the High Court had plainly erred in imposing a duty of care on the police in relation to the alleged negligent investigation.
He argued that, under established common law principles of tort, the police owe a duty to preserve the peace for the public at large, which does not give rise to private law duties of care owed to individual members of the public.
“In a claim based on an omission to investigate or prevent crime, the police do not generally owe a duty of care to the victim for injury caused to the victim by a third party, except where the police are in a position of control over the third party or where the defendant has responsibility to safeguard the claimant.
“On the facts of this case, both the exception of control over the conduct of the third-party and assumption of responsibility do not arise,” he said.
On the claim of breach of statutory duty, Liew submitted that the alleged “statutory duty” identified by the High Court in its judgment was not specifically pleaded by the plaintiff in the ‘Particulars’ section of the statement of claim.
“The finding by the High Court that there was ‘fundamental failure to investigate at all’ and ‘a complete abdication of investigative responsibility’ is plainly wrong and unsupported by evidence of the second defendant (Faizal) during the trial.
“The IGP’s Standard Operating Procedure (SOP) was not even adduced or tendered in evidence by the plaintiff during the trial. The second defendant was also not referred to this SOP or any provision in this SOP during cross-examination,” he added.
Meanwhile, Nair submitted that the High Court was correct in holding the Malaysian government vicariously liable for the tortious acts committed by its servants in the course of their employment.
He added that the High Court judge had rightly determined that the appellants owed a duty of care in the conduct of the investigation.
“These elements are clearly satisfied in the present case. The respondent, as the mother of the deceased, was the individual most directly affected by the investigation,” he submitted.