PUTRAJAYA: The Court of Appeal has reserved its judgment in an appeal filed by the government in a lawsuit brought by the family of deceased Dutch model Ivana Smit, who was awarded RM1.1mil in damages over negligence in the investigation of her death.
A three-judge panel, chaired by Justice Mohamed Zaini Mazlan, fixed April 21 for case management after hearing lengthy submissions from parties.
"My colleagues and I would like to sit down and discuss this further.
"We will adjourn for case management," he said here on Thursday (April 2).
Other judges on the panel were Justices Ong Chee Kwan and K. Muniandy.
Earlier, Senior Federal Counsel Liew Horng Bin submitted that the High Court had plainly erred in imposing a duty of care on the police in relation to the alleged negligent investigation against the deceased.
He said that the police’s duty to preserve the peace was owed to the public at large and did not give rise to private-law duties of care owed to individual members of the public.
"In a claim based on 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.
SFC Liew further submitted that the High Court's finding that there was “a fundamental failure to investigate” and ”a complete abdication of investigative responsibility” was wrong and unsupported by evidence during the trial.
Meanwhile, counsel Datuk Sankara Nair, who represented Smit's mother, submitted that the High Court was correct in holding the government vicariously liable for the tortious acts committed by its servants in the course of employment.
He said the High Court judge correctly held that the appellants owed a duty of care in conducting 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 added.
On Nov 20, 2020, the model's mother, Christina Carolina Gerarda Johanna Verstappen, filed the lawsuit against the Inspector-General of Police (IGP), Dang Wangi investigating officer Asst Supt Faizal Abdullah, the Home Minister and the Malaysian government as defendants, alleging a breach of statutory duty and negligence in the investigation into the cause of her daughter's death.
Verstappen claimed 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 US citizens Alex Johnson and Luna Almazkyzy.
She claimed the police were negligent in failing to cordon off the crime scene, seize the victim's personal belongings, collect evidence, conduct a proper investigation into Johnson and Almazkyzy, and in failing to arrest, extradite and ensure their presence at the inquest as key witnesses.
On July 29, 2025, High Court judge Justice Roz Mawar Rozain allowed Verstappen's lawsuit and ordered the government to pay RM500,000 in general damages, RM300,000 in aggravated damages and RM300,000 in exemplary damages, in addition to RM100,000 in costs to the plaintiff.
Justice Roz Mawar also directed the IGP (the first defendant) to remove ASP Faizal (the second defendant) from the task force and ordered the police to reopen the investigation as ordered by the High Court in 2019 against the Coroner's Court's decision.
The government is appealing the High Court's decision.
On March 18, 2019, the Coroner's Court ruled that Smit's death was due to misadventure (accidental death).
Dissatisfied with the Coroner's Court decision, Verstappen appealed to the High Court here and on Nov 22, 2019, then-High Court Justice Collin Lawrence Sequerah (now a Federal Court judge) overturned the Coroner's Court's decision.
He replaced it with "death caused by an individual or several unknown individuals" and ordered the Attorney General to instruct the police to initiate an investigation.
