KUALA LUMPUR: The mother of Dutch model Ivana Smit (pic) has been awarded RM1.1mil in damages by the High Court over the mishandling of the investigation into her daughter’s death, while the police have been ordered to recommence their probe into the case.
In her findings, Justice Roz Mawar Rozain said there were breaches of statutory duty by the defendants, holding them liable to varying degrees of responsibility for the failures in the investigation.
“This case represents a profound failure of Malaysia’s law enforcement system,” she said in her judgment yesterday.
The court noted multiple lapses, including premature classification, crime scene management errors, failure to preserve evidence, inadequate handling of witnesses and suspects, neglect of foreign evidence and the dismissal of expert testimony.
“These are simple and clear elements that support my finding of breaches in the duty of care,” she added.
Smit, 18, 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 an American couple, Alex Johnson and Luna Almazkyzy.
On Nov 20, 2020, Smit’s mother, Christina Carolina Gerarda Johanna Verstappen, filed a civil suit against the Inspector-General of Police, Dang Wangi investigating officer Asst Supt Faizal Abdullah, the Home Minister and the government, alleging negligence in handling the investigation.
Justice Roz Mawar found that ASP Faizal had committed multiple breaches of duty during the investigation.
The court was presented with evidence that Johnson’s DNA was found under Smit’s fingernails in a DNA report dated Feb 8, 2018.
Despite this, both Johnson and Almazkyzy were allowed to leave Malaysia on March 29, 2018.
Justice Roz Mawar said ASP Faizal had arbitrarily classified the case as a suicide on the very day the investigation began as a suspected homicide.
Despite a 2019 High Court order to reopen the case, ASP Faizal was retained as the investigating officer in the special task force that was formed.
“The same compromised officer was retained. Ineffective measures were taken.
“Though the case continued, the defendants failed to present any evidence supporting their continued investigative methods,” she said, noting that the case had made no significant progress since 2019.
This, she said, constituted non-compliance with the High Court order issued in November 2019.
“The 2019 High Court order was clear and unambiguous. It directed that the case be reclassified as a death caused by a person or persons unknown and compelled the Attorney General’s Chambers (AGC) to instruct the police to reopen the investigation as a murder case,” she said.
Justice Roz Mawar described Verstappen as a “direct victim” who had endured prolonged emotional and psychological trauma due to the defendants’ negligence.
The court awarded the plaintiff RM500,000 in general damages for emotional distress, mental anguish and loss of closure; RM300,000 in aggravated damages for the defendants’ high-handed and oppressive conduct; and RM300,000 in exemplary damages to punish gross misconduct in public office and deter future breaches.
Interest on the judgment sum was set at 5% per annum from the date of the judgment until full settlement, with the court also ordering the defendants to pay RM100,000 in costs to the plaintiff.
A mandamus order was issued as well, requiring the police to reopen the investigation into Smit’s death.
The judge also instructed the IGP, named as the first defendant, to remove ASP Faizal from the current task force.
“The police are directed to brief the AGC every three months from the date of this judgment on the progress of the investigation.
“The AGC is to evaluate the sufficiency of evidence and determine the next steps,” she added.
Justice Roz Mawar said while the case highlighted significant investigative failures, her findings should not be viewed as a criticism of the police force.
She said the evidence pointed to multiple departures from accepted investigative standards, which resulted in a denial of justice to the plaintiff.
The findings, she said, should be treated as identification of areas needing correction.
In November 2019, the High Court overturned a coroner’s ruling that classified Smit’s death as a “misadventure”.
Justice Collin Lawrence Sequerah (now a Court of Appeal judge) had allowed the family’s application to review the ruling in March that year.
In his findings, Justice Sequerah concluded that Smit’s death was caused by “persons known or unknown” and said there had been insufficient investigation into the possibility of homicide.
