PUTRAJAYA (Nov 18): The Court of Appeal (COA) has granted the government a stay from paying RM1.1 million in damages to the mother of the late Dutch model Ivana Smit. 

In a unanimous decision on Tuesday, a three-member bench led by COA judge Datuk Mohamed Zaini Mazlan found there were special circumstances to allow a stay, as an order otherwise may result in consequences that "can't be undone". 

"While any failures to comply with court orders is not to be condoned, we are satisfied that there is a real risk that the appellants would be compromised if [they] are compelled to perform the [mandatory] orders [by the High Court]," the judge said. 

The panel also directed the court registrar to expedite the appeal. 

Tuesday's decision is with regard to the suit brought against the government and three others by the mother of the 18-year-old model who passed away in December 2017. 

Smit’s mother, Christina Carolina Gerarda Johanna Verstappen, had filed the suit in November 2020, alleging a breach of statutory duty and negligence in the investigation into the cause of her daughter's death.

Earlier in July this year, High Court judge Roz Mawar Rozain had 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 Verstappen. 

Besides the quantum to be paid, the court also made several orders which the police had to comply with. This includes that investigations into the model's death have to continue, that the police must furnish the Attorney General's Chambers (AGC) with progress reports every three months, and for the investigating officer, Assistant Superintendant Faizal Abdullah (the second defendant in this suit), to be removed from the task force probing the death. 

The government filed for a stay, which was dismissed by Roz Mawar last Thursday (Nov 13), where she had ruled for the government to deposit the amount, along with accrued interests, into a trust account immediately. This decision prompted the AGC's appeal to be filed the following day, and heard on Tuesday.

Zaini said that while the principles that govern a stay application are settled, the court also had to also consider "the overall balance of justice".

Along with panel members COA judges Datuk Ismail Brahim and Datuk Dr Lim Hock Leng, Zaini noted that there is no risk of non-payment by the government, as opposed to, for example, some corporate entities.

The court also concurred that there is post-judgement interest which is accruing.

Earlier, Senior Federal Counsel Liew Horng Bin argued that in a record extending 60 years, the government had never once failed to adhere to court-ordered payments.

He added that such payments are subject to the disbursement payment by the Ministry of Finance, which typically takes about one to four months.

Liew said that they are ready for an early hearing of the full appeal.

Appearing for Verstappen, lawyer Datuk Sankara Nair said that as government disbursement would take some time, he was not opposed to a conditional stay, where the payment is made to the solicitor's stakeholder's account.  

However, the senior lawyer stood firm in the authorities fulfilling the other court orders.

"They want justice. They want to know what is happening [with the investigations]. Have the two other parties been located? Is there an Interpol notice?

"All the [court] order is saying [is to convey] the state of the investigations. How wrong or prejudicial is it for the police to carry out their statutory duties?" he argued.

Sankara added that he would suggest that part of the conditional stay is for the authorities to update the status of the probe to the AGC within 10 days.

However, Liew countered that in the affidavit in support for the stay application, it is already stated that the investigations were ongoing.

Speaking to the press following Tuesday's decision, Sankara said that although it was regrettable, they had to accept the COA's decision and would seek further instructions from his clients on their next course of action.

Smit was found dead on the sixth floor of CapSquare Residences on Dec 7, 2017, after falling from the 20th floor of a condominium unit owned by US citizens Alex Johnson and Luna Almazkyzy.

The Coroner's Court ruled in March 2019 that Smit's death was due to misadventure (accidental death).

Verstappen appealed against the decision and then-High Court judge Datuk Collin Lawrence Sequerah overturned the Coroner's Court's decision in November 2019, replacing it with "death caused by an individual or several unknown individuals", and ordered the attorney general to instruct the police to initiate an investigation.

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