PUTRAJAYA: A court order compelling the government and few others to pay RM1.1mil in damages to the family of Dutch model Ivana Esther Robert Smit, who was found dead at a condominium building nine years ago, has been set aside.
In a unanimous decision, the Court of Appeal set aside the order by the High Court after allowing the appeal of the government, the Inspector-General of Police, the Dang Wangi investigating officer Asst Supt Faizal Abdullah and the Home Minister.
The appellate court panel was chaired by Justice Mohamed Zaini Mazlan. Other judges on the panel were Justices Ong Chee Kwan and K. Muniandy.
In reading out the judgment yesterday, Justice Muniandy said that the trial judge “fell into a fundamental legal error” by creating a private common law duty of care owed by police officers to complainants or next-of-kin on how a criminal investigation was managed.
“The public policy rationale is clear – law enforcement cannot be subjected to the threat of private civil litigation by dissatisfied parties, which would compromise the independent deployment of resources and paralyse criminal investigations,” he said in setting aside the damages awarded to the model’s mother, Christina Carolina Gerarda Johanna Verstappen in July 2025.
Verstappen filed the suit against the appellants on Nov 20, 2020 for breach of statutory duty and negligence in the investigation into her daughter’s death.
On the High Court’s order to remove the second appellant from the investigative task force and the requirement for the police to report every three months to the Attorney General’s Chambers, the panel found that the learned judge had acted beyond her jurisdiction.
Justice Muniandy said the supervision, management and direction of criminal investigations reside exclusively within the domain of the Executive and the Public Prosecutor under the Constitutional framework.
“It is a violation of the doctrine of separation of powers for a civil court, in a private action for damages, to assume supervisory control over police personnel or direct the day-to-day conduct of an ongoing criminal investigation,” he said.
The appellate court, despite its disagreement on the points of law, however, commended the High Court’s judgment.
“This court issues a stern and solemn reminder to the appellants. The allowing of this appeal must not, under any circumstances, be interpreted as an exoneration of past shortcomings, nor as licence to rest on your laurels,” Justice Muniandy added.
The court did not make an order as to costs, citing that it would be contrary to the interests of justice and basic humanity to saddle Verstappen with costs order.
Smit was found dead on Dec 7, 2017, after falling from the 20th floor of a condominium unit owned by US citizens Alex Johnson and Luna Almazkyzy.
