KUALA LUMPUR – The Court of Appeal today allowed appeals by the government and three others to set aside a High Court ruling that awarded RM1.1 million in damages to the mother of the late Dutch model, Ivana Esther Robert Smit over alleged negligence in the investigation into her daughter’s death.
The unanimous decision was delivered by a three-member panel comprising Justices Datuk Mohamed Zaini Mazlan, Datuk Ong Chee Kwan and K. Muniandy.
In delivering the broad grounds of judgment, Justice Muniandy said the court found that the trial judge had erred in evaluating 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 de novo (from the beginning).
He said an inquest under Chapter 32 of the Criminal Procedure Code (CPC) was an inquisitorial process to establish the identity of the deceased and the cause of death, Bernama reported.
“The 2019 Criminal High Court order substituting a finding of ‘death by person or persons unknown’ was a judicial threshold determination requiring the case to be investigated under Section 302 of the Penal Code. It was not an inter partes civil adjudication establishing actionable tortious fault or civil liability against the investigating officers,” he said.
The judge said 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.
“The trial judge’s reliance on Kent v Griffiths was completely misplaced, as that case concerned operational negligence by an emergency ambulance service and has no application to the discretionary conduct of detectives in criminal investigations,” he said.
Justice Muniandy said the trial judge had further erred in holding that Section 20 of the Police Act 1967 and Sections 107A and 112 of the CPC gave rise to a private right of action for damages.
“Section 20 of the Police Act sets out the broad duties of the police force to preserve public order, while Section 107A of the CPC provides an internal administrative mechanism for reporting the status of an investigation.
“Neither provision was intended by Parliament to create a private cause of action for damages. Moreover, the second appellant was not the officer in charge of a police station (OCS) under Section 107A,” he said.
Justice Muniandy also found that the High Court committed a clear error of law by treating “malfeasance” and “non-feasance” as independent, freestanding causes of action in tort.
“Under Malaysian tort jurisprudence, they are descriptive categories of conduct, not actionable nominate torts. The lawsuit does not meet the high threshold of bad faith for the tort of misfeasance in public office,” he added.
On July 29, 2025, the Kuala Lumpur High Court allowed Christina Carolina Gerarda Johanna 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.
On Nov 20, 2020, the model’s mother filed a lawsuit against the Inspector-General of Police, Dang Wangi investigating officer ASP Faizal Abdullah, the Home Minister and the Malaysian government, alleging a breach of statutory duty and negligence in the investigation into the cause of her daughter’s death.
In the lawsuit, 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 United States citizens Alex Johnson and Luna Almazkyzy.
She alleged that the police were negligent in failing to cordon off the crime scene, seize the victim’s personal belongings and collect evidence, as well as failing to conduct a proper investigation into Johnson and Almazkyzy and to arrest and extradite them to ensure their presence at the inquest as key witnesses.
On March 18, 2019, the Coroner’s Court ruled that Ivana Smit’s death was caused by misadventure.
Dissatisfied with the ruling, Verstappen appealed to the High Court. On Nov 22, 2019, Judge Collin Lawrence Sequerah (now a Court of Appeal judge) set aside the Coroner’s Court ruling and replaced it with a finding that the death was caused by “an act or acts of persons unknown”, and ordered the Attorney-General to direct the police to reopen the investigation. – October 14, 2026