PUTRAJAYA, Oct 14 — The Court of Appeal has 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.
A three-member panel of Justices Datuk Mohamed Zaini Mazlan, Datuk Ong Chee Kwan, and K. Muniandy delivered the unanimous decision.
Justice Muniandy, delivering the court's decision, set aside the High Court judgment and orders dated July 29, 2025, including all awards of damages, interest and mandatory orders.
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.
The High Court further ordered the Inspector-General of Police to remove ASP Faizal Abdullah from the current task force and directed the Royal Malaysia Police (PDRM) to reopen the investigation into Ivana's death, as previously mandated by the High Court in 2019, thereby setting aside the Coroner's Court decision.
The PDRM was also instructed to provide progress briefings to the Attorney General's Chambers (AGC) at three-month intervals. The AGC is tasked with assessing whether sufficient evidence has been obtained and determining any subsequent legal action.
Verstappen had filed proceedings against the IGP, Dang Wangi investigating officer ASP Faizal Abdullah, the Home Minister, and the government of Malaysia, alleging negligence and breach of statutory duties in the investigation of her daughter's death.
In delivering the broad grounds of judgment, he 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).
An inquest under Chapter 32 of the Criminal Procedure Code (CPC) is an inquisitorial process to establish the identity of the deceased and the cause of death.
"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," Justice Muniandy said.
He added that the trial judge had impermissibly preferred and adopted foreign pathologist Dr Frank van der Goot's documentary findings, without calling him to testify and be cross-examined during the civil trial, while concurrently rejecting the contemporaneous evidence of the local government pathologists.
"This deprived the appellants of their basic procedural right to test scientific assertions regarding the fall mechanics, toxicology, and time of death," Justice Muniandy said.
The trial 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 how a criminal investigation is managed.
He noted 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.
"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," 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 said.
The trial judge had failed to properly weigh evidence that the investigation was in fact ongoing, that a task force and an expert pathology committee had been convened pursuant to the 2019 Order, that an INTERPOL Blue Notice had been issued, and that briefings had been provided to the Netherlands Embassy.
"While the investigative steps were marked by delays and procedural frailties, decisions regarding whether to seek an INTERPOL Red Notice, how to allocate personnel, and what forensic inferences to draw from DNA traces fall squarely within the realm of investigative discretion. The trial judge was plainly wrong to convert these operational matters into actionable tortious conduct," Justice Muniandy said.
As such, the trial judge had acted in excess of jurisdiction by ordering the removal of the second appellant from the investigative task force and requiring PDRM to report to the AGC every three months.
"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.
Nonetheless, Justice Muniandy expressed his profound respect and appreciation for the trial judge, commending her comprehensive judgment, which was guided by an admirable commitment to the sanctity of human life, deep moral empathy for a mother seeking answers about her daughter’s tragic death, and commendable vigilance against institutional complacency.
“The judge rightly highlighted deeply concerning lapses in the initial handling of the scene, the hasty inclination to classify the death as suicide, and the serious failure in communication with the deceased’s family.
“Her grounds of judgment serve as a vital reminder to law enforcement agencies of the high standards of diligence expected of them by the public. However, judicial empathy, however noble, cannot override established legal principles governing civil liability, statutory interpretation, and the law of evidence,” he said.
Justice Muniandy also issued a stern reminder to the appellants that the decision to allow the appeal must not, under any circumstances, be construed as absolving them of past shortcomings or as a licence for complacency.
“The death of Ivana on Malaysian soil remains an unresolved tragedy, and the police are still bound by their continuing statutory duty to pursue every viable lead in the reclassified murder investigation,” he said.
The deceased’s grieving parents had an undeniable right and legitimate expectation to know the full truth about what happened to their daughter, and that the police were duty-bound to conduct the investigation with unwavering diligence and provide the family with regular and transparent updates.
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 a costs order.
In the suit filed on November 20, 2020, Verstappen claimed that her daughter was found dead on the sixth floor of CapSquare Residence on December 7, 2017, after falling from the 20th floor of a condominium unit owned by American couple Alex Johnson and Luna Almazkyzy.
She contended that the police were negligent in failing to cordon off the crime scene, conduct a proper investigation against Johnson and Almazkyzy, and secure their attendance as key witnesses during the inquest, including through detention or extradition if necessary.
After the proceedings, Verstappen’s counsel Datuk Sankara Nair said he and his client were profoundly disappointed with the decision but respectfully accepted the Court’s ruling, adding that they had pursued every available avenue in their quest for justice and would seek advice on whether to appeal to the Federal Court.
Senior federal counsel Liew Horng Bin represented the appellants. The Kingdom of the Netherlands' deputy ambassador Pieter Blussé was also present during the proceedings.
