PUTRAJAYA, Nov 18 — The Malaysian government will not have to pay RM1.1 million at the moment to the late Dutch model Ivana Smit’s family over the police’s alleged negligence in investigations on her 2017 death, as it won a stay order at the Court of Appeal.

The Court of Appeal today allowed the government to not pay the RM1.1 million compensation now, as the government is still appealing against the High Court decision which ordered it to make the payment and to restart investigations.

Court of Appeal judge Datuk Mohamed Zaini Mazlan, who chaired a three-judge panel, delivered the panel’s unanimous decision to grant the stay or temporary pause of the order.

“We are therefore satisfied there are special circumstances that warrant a stay. We allow the application and make no order as to costs. The execution of the High Court judgment dated July 29 is stayed pending disposal of the appeal,” he said.

The judge also directed for the scheduling of early hearing dates for the government’s appeal at the Court of Appeal.

The other two judges on the panel today are Datuk Ismail Brahim and Datuk Lim Hock Leng.

Today was the Court of Appeal’s hearing of the government’s application to stay the High Court’s decision on July 29 this year. That July decision included the order to pay the RM1.1 million.

The Court of Appeal’s decision today means that the entire High Court decision in July will be paused until the appeal is decided on, which means the government and the police will not have to put in the RM1.1 million sum now or give investigation updates to the AGC for now.

Key events before today’s decision 

On December 7, 2017, 18-year-old Smit was found nude and dead on the sixth floor of CapSquare Residence, a condominium off Jalan Dang Wangi in Kuala Lumpur, after having fallen from a unit on the 20th floor.

The Coroner’s Court on March 18, 2019 initially found in an inquest that Smit’s death was caused by a “misadventure”.

But the High Court on November 22, 2019 replaced the inquest findings by saying that Smit’s death was caused by “a person or persons unknown”, and ordered the police to start investigations again.

In November 2020, Smit’s mother Christina Carolina Gerarda Johanna Verstappen filed a civil suit against the inspector-general of police, Dang Wangi investigating officer ASP Faizal Abdullah, the home minister, and the Malaysian government over alleged breach of duties and negligence in investigating the cause of her daughter’s 2017 death.

On July 29, High Court judge Roz Mawar Rozain ruled in favour of Smit’s mother, and ordered all those she had sued to pay the RM1.1 million compensation, and declared that the police had failed to carry out their duties to restart investigations as ordered in an 2019 High Court order.

Also on July 29, the High Court issued a court order known as a “mandamus order”, which included ordering the police to restart investigations on Smit’s death and to brief the Attorney General’s Chambers every three months with updates on the investigation.

On August 18, all those sued including the government filed an appeal against the High Court decision. No hearing date for the appeal has been fixed yet.

On November 13, the same High Court judge rejected the government’s application to stay the court orders to both pay RM1.1 million and to provide regular briefings on investigation updates. Today was the government’s second attempt at getting a stay, but at the Court of Appeal.

Why the Court of Appeal granted the stay today 

After the panel took nearly 30 minutes to discuss, Zaini delivered the brief grounds of their decision, noting that a stay can be granted when there are special circumstances, and that the court must also consider the overall balance of justice.

While the Court of Appeal panel today was not deciding on the government’s appeal, Zaini said this panel was of the view that there are arguable points that can be raised in the appeal, such as the High Court’s mandamus order.

“We are satisfied there is a real risk that the appeal will be compromised if the appellant is compelled to carry out the mandamus order,” the judge said, referring to the government and others sued as the appellant.

Earlier today, Attorney General’s Chambers’ (AGC) senior federal counsel Liew Horng Bin told the judges that the government will appeal against the High Court issuing of a mandamus order in Smit’s mother’s court case. Liew highlighted that the mandamus order was granted even though Smit’s mother had filed the case via a writ, instead of a judicial review.

As for the High Court’s order last week to pay the RM1.1 million compensation immediately, Zaini noted the AGC’s explanation that the payment process as a government agency is “not straightforward” and that there may be practical difficulties in complying with the order.

The judge also said there is no real risk that the government would not pay the RM1.1 million if it fails in its appeal, and said that granting a stay would not prejudice Smit’s mother.

But the judge indicated that the government could be prejudiced if a stay is not granted, noting that a “refusal of stay may result in consequences that cannot be undone.”

What the lawyers argued 

Earlier, Liew said the government has never failed to pay according to court orders, but also said it is practically impossible to make immediate payments due to the government’s financial procedures which could take up one to four months.

Liew said the government is ready for the appeal to be heard by early next year to address any concerns of delays, and also argued that even asking the government to expedite the payment of RM1.1 million at this stage could result in payments by January or February next year — which he said could also be when the appeal is ready to be heard.

Smit’s mother’s lawyer Datuk Sankara Nair confirmed that his client does not fear that the government would not be able to pay the RM1.1 million.

Saying he understood the government’s red tape and bureaucracy, Sankara said he hopes the government would concede to paying within three months, as he was concerned about delays with the “long and arduous process” for government payments.

Asking for the mandamus order to be carried out, Sankara said it is “very painful” for his clients as they want justice, and they want to know what is happening and if action has been taken to find the two individuals involved in Smit’s case.

Liew then told the Court of Appeal today that the police’s investigations in Smit’s case is ongoing.