PUTRAJAYA: The Court of Appeal has set aside a High Court ruling ordering the government to pay RM1.1 million in damages to the mother of Dutch model Ivana Smit over alleged negligence in the investigation into her daughter's death.
In a unanimous decision, a three-member bench led by judge Datuk Mohamed Zaini Mazlan, who sat with Datuk Ong Chee Kwan and K. Muniandy, allowed the government's appeal.
Muniandy, who delivered the court's decision, said they set aside the Kuala Lumpur High Court's July 29, 2025 judgment, including all awards of damages, interest and mandatory orders directing the conduct of the ongoing criminal investigation.
Smit, who was 18 at the time, was found dead on the sixth floor of Cap Square Residences on Dec 7, 2017 after falling from the 20th floor.
She had been at the condominium unit of an American couple, Alexander William Johnson and Laura Almazkyzy.
High Court judge Roz Mawar Rozain had awarded RM500,000 in general damages, RM300,000 in aggravated damages and RM300,000 in exemplary damages, together with RM100,000 in costs and interest at five per cent a year.
The civil suit was filed by Ivana's mother, Christina Carolina Gerarda Johanna Verstappen, against the Inspector-General of Police, Assistant Superintendent Faizal Abdullah, the Home Minister and the government.
In its broad grounds, Muniandy said the High Court had plainly erred in its evaluation of the evidence by treating findings and notes of evidence from the earlier inquest and criminal revision proceedings as conclusive substantive proof in a civil trial.
The panel found that the lower court had erred in its assessment of the evidence and in finding that the police owed a private duty of care to the deceased's family in the conduct of a criminal investigation.
"The judge fell into fundamental legal error by creating a private common law duty of care owed by police officers to individual complainants or next-of-kin regarding the manner in which a criminal investigation is managed.
"It is established and binding law in Malaysia and across Commonwealth jurisprudence that law enforcement authorities owe a general public duty to the community at large to preserve peace and investigate crime, but no private law duty of care sounding in damages to individual victims or their relatives for investigative omissions, delays, or perceived failures.
"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.
Muniandy said the judge had further erred in ruling that Section 20 of the Police Act 1967 and Sections 107A and 112 of the Criminal Procedure Code gave rise to a private right of action for damages.
He said neither provision was intended by parliament to create a private cause of action for damages.
The panel also found that the suit did not meet the high threshold of bad faith or targeted malice required to establish the tort of misfeasance in public office.
Muniandy said the judge had failed to give proper weight to evidence that the investigation was ongoing.
The court held that the judge had acted in excess of jurisdiction by ordering the removal of the second appellant from the investigative task force and requiring the police to report every three months to the Attorney-General's Chambers.
"Under our constitutional framework, the supervision, management, and direction of criminal investigations reside exclusively within the domain of the executive and the public prosecutor.
"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 panel nevertheless expressed its respect and appreciation for Roz Mawar, saying her comprehensive judgment reflected an admirable commitment to the sanctity of human life, empathy for a mother seeking answers over her daughter's death, and vigilance against institutional complacency.
"The learned judge correctly highlighted deeply concerning lapses in the initial handling of the scene, the hasty inclination towards suicide and the profound communication failure with the deceased's family.
"Her grounds serve as a vital reminder to our law enforcement agencies of the highest standards of diligence expected of them by the public.
"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 a licence to rest on your laurels," he said.
Muniandy said Smit's death on Malaysian soil remained an unresolved tragedy and that police were still bound by their statutory duty to pursue every viable lead under the reclassified murder investigation.
"The grieving parents of the deceased have an undeniable right and legitimate expectation to know the full truth of what happened to their daughter.
"The police are duty-bound to conduct this investigation with unyielding
diligence and to provide transparent, regular updates to the family," he said.
Also present during the proceedings was the Netherlands Deputy Ambassador Pieter Blussé.
After the proceedings, lawyer Datuk Sankara Nair, who appeared alongside Wong Guo Jin, said he respected the decision but questioned where Verstappen could turn to seek justice.
"Justice has failed today. Where does Verstappen go? Who does she cry to? Which government?" he said.
He said he would seek further instructions from Verstappen, who was absent from court, before deciding on the next course of action.
The prosecution was represented by Senior Federal Counsel Liew Horng Bin.
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