Lau Choon Yeun v Mak Chow Yon @ Ha Chai (JA-24NCvC-1391-12/2023)

the 4th Defendant (f); and [4] The 1st Defendant is currently 88 years old and the Plaintiffs aver that the former is incapable of managing himself and his own affairs due to his mental incapacitated. S/N OVmpzFUvokCDdu38S/nriA [5] Hence, on 7.12.2023 the Plaintiffs took out the present OS pursuant to the Mental Health Act 2000 (“MHA”) seeking for the following prayers, inter alia:

that the Plaintiffs be appointed as the committee of estate of the 1st Defendant pursuant to s. 58 of the MHA and shall have powers as may be necessary, reasonable and expedient to carry out the management of the estate of the 1st Defendant comprising all movable and immovable assets, tangible and intangible assets including but not limited to a company incorporated under the laws of Malaysia namely, Tai Yip Sdn Bhd (“TYSB”) and the said powers shall include the following:

to accept all notices relating to the shareholders’ and directors’ meetings of TYSB to attend the same on behalf of the 1st Defendant and to exercise shareholders’ and directors’ powers vested in the 1st Defendant in the said meetings;

(ii) to appoint proxy to attend shareholders’ meeting on behalf of the 1st Defendant and to exercise powers vested in him in the said meetings; S/N OVmpzFUvokCDdu38S/nriA

(iii) to appoint or engage persons with the necessary and relevant expertise and knowledge to assist the Plaintiffs in their decision making affecting the rights and interests of the 1st Defendant;

(iv) to authorise any one or more member(s) of the committee of estate to sign or execute all documents on behalf of the 1st Defendant including banking instruments, land instruments, cheques as may be required for the purpose of the management and operation of the TYSB;

to sell or charge or otherwise dispose of any assets, moveable or immovable, and whether in possession, reversion, remainder, contingency or expectancy of the 1st Defendant as they deem expedient and necessary pursuant to s. 63 of the MHA;

(vi) all powers as provided under s. 64 of the MHA, wherein they shall, in the 1st Defendant’s name and on his behalf, to execute all such conveyances and instruments of transfer in relation to any sale, charge or other disposition of the estate of the 1st Defendant and shall exercise all powers vested in the 1st Defendant, whether the powers are vested in him for his own benefit or in his capacity as a trustee or guardian; and S/N OVmpzFUvokCDdu38S/nriA

(vii) to manage and operate all bank accounts belonging to the 1st Defendant; Plaintiffs pursuant to s. 73(2) of the MHA; and [6] On 2.5.2024, the 2nd, 3rd and 4th Defendants filed an application in Enclosure 14 seeking for this OS be converted into a writ action based on the following grounds, among others:

the Plaintiffs are relying heavily on two medical reports which the 2nd, 3rd and 4th Defendants aver are severely lacking. The 2nd, 3rd and 4th Defendants must be given the opportunity to cross-examine the makers of the medical reports through a trial. S/N OVmpzFUvokCDdu38S/nriA [7] The Plaintiffs in refuting the application raise the following two objections: Defendant’s mental condition. Hence there is no need for oral evidence. The law on conversion of an origination summons into a writ action [8] The conversion of an origination summons into a writ action is provided in O. 28, r. 8(1) of the Rules of Court 2012 (“ROC”) which reads– Continuation of proceedings as if cause or matter begun by writ (O. 28, r. 8)

8.

Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that pleadings shall be delivered or that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof. [9] O. 28, r. 8(1) of the ROC vests the Court a discretion to convert an action filed by way of originating summons to a writ action on the basis of disputes of facts and factual discrepancies (see Ting Ling Kiew & S/N OVmpzFUvokCDdu38S/nriA Anor v. Tang Eng Iron Works Co Ltd [1992] 1 CLJ Rep 33; Lim Pey Lin v. Chia Foon Tau & Anor [2002] 1 CLJ 420; ISM Sendirian Berhad v. Queensway Nominees (Tempatan) Sdn Bhd & Ors [2016] 2 CLJ 294; Tan Chew Hua and Anor v. Ang Kim Chen @ Ang Teng Tok [2017] 1 LNS 1507 and Datuk Kasi KL Palaniappan v. Menara Embun Sdn Bhd & Ors [2018] 1 LNS 1857). [10] It is incumbent upon the 2nd, 3rd and 4th Defendants to justify that the OS should be continued with a writ action rather than affidavits evidence as decided in The Summit Subang USJ Management Corporation v. Ho Phoy Kwang & Anor [2023] CLJU 2649; [2023] 1 LNS 2649, where the Court of Appeal speaking through Azmi Ariffin JCA held that – [29] In an application to convert the Originating Summons to a Writ action, the principle is that he who asserts must prove and here, the Appellant carries a legal burden to show circumstances and documentary evidence to justify the grant of a conversion and all the reasons must be deposed in the affidavit filed in support of the application. Whether this application would delay the proceeding [11] The Plaintiffs aver that the primary objective of the OS is to appoint a committee of estate of the 1st Defendant and this appointment must be speedily executed due to the fact that 1st Defendant’s health is deterorating. By having this matter be decided by a full trial as suggested by the 2nd, 3rd and 4th Defendants, it would take a longer time and defeat the purpose of the OS. [12] On this issue, I agree with the Plaintiffs’ argument that any application for a commitee of estate must be dealt swiftly. Nevertheless, S/N OVmpzFUvokCDdu38S/nriA I find that 7 months after the filing of the OS and 2 months after the 2nd, 3rd and 4th Defendants’s application to covert the OS into a writ, the Plaintiffs filed an application in Enclosure 31 to amend the OS, reason being “memperkemas perintah-perintah yang dipohon, mengkhususkan isu-isu yang relevan dan matan serta membantu Mahkamah yang Mulia ini untuk menentukan isu-isu sebenar dalam kontroversi”. [13] Here, it is my considered view that with the filing of Enclosure 31 by the Plaintiffs, there is no longer any basis for the 2nd, 3rd and 4th Defendants’ conversion application would delay the proceeding since the OS itself has been delayed by the Plaintiffs’ amendment application. [14] Further, with the conversion application, it would render the Plaintiffs’ amendment application unnecessary as parties would start afresh and have the opportunity to put in proper pleadings in a writ action as well as taking care of the Plaintiffs’ need to amend the OS. [15] Hence, the Plaintiffs’ argument that the conversion application would delay the proceeding, is untenable. Whether the OS only involves the appointment of a committee of estate [16] The Plaintiffs aver the OS only involves the appointment of a committee of estate of the 1st Defendant and the process of the appointment is inquisitorial in nature. Thus, there is no need for oral evidence. In short in the event the Court is uncertain or doubtful about the 1st Defendant’s mental condition, the Court is clothed with the power to examine the 1st Defendant under s. 54 of the MHA with the assistance of a psychiatrist. S/N OVmpzFUvokCDdu38S/nriA [17] On this issue, based on the reliefs sought by the Plaintiffs (see paragraph [5] above), it is axiomatic that the Plaintiffs do not only seek for them to be appointed to the committee of estate of the 1st Defendant, but they also impede the 2nd, 3rd and 4th Defendants who are also the 1st Defendant’s biological children from being the members of the committee. It is undeniable that the Court would first decide on the 1st Defendant’s mental status. It goes without saying that the 1st Defendant’s mental status can only be determined based on a valid medical report. Thus, without the valid medical report, the Plaintiff’s application for the establishment of the committee of estate of the 1st Defendant has no leg to stand on. [18] I find that the Plaintiffs produced two medical reports to bolster up their application. Nevertheless, the medical experts who examined and revealed the 1st Defendant’s mental incapacitated did not file any affidavit in the OS. Instead, their reports were attached in the Plaintiffs’ affidavit in support. I find that the 2nd, 3rd and 4th Defendants strenuously refute the medical reports and aver that the reports are lacking of details on how the examinations and tests or what methodology was conducted on the 1st Defendant. As such, I find that it is fair that the medical experts who wrote the reports must be called to be cross-examined for veracity. [19] Additionally, the 2nd, 3rd and 4th Defendants also contend that the two medical experts were discreetly engaged by the Plaintiffs without any consultation with the former. The 2nd, 3rd and 4th Defendants submit that for the sake of justice, they should be allowed to bring another independent medical expert to verify the findings in the medical reports brought by the Plaintiffs. On this note, I agree with this contention that S/N OVmpzFUvokCDdu38S/nriA parties are allowed to call their medical experts and to cross-examine the respective expert as to assist the Court to dispense justice to all especially to the 1st Defendant. [20] Further, I find that the Plaintiffs allege that there are elements of fraud and suspicious conducts on the part of the 2nd, 3rd and 4th Defendants which suggest that they should be deprived from being part of the committee. Amongst the examples are – Defendant’s assets. This was done in front of the 1st Defendant’s sisters; Defendant’s documents which relate to the former’s assets; and

the 3rd Defendant being the appointed director of TYSB, had caused a cheque in the sum of RM100,000.00 (the 1st Defendant’s dividends pay-out) to be drawn in the 1st Defendant’s name or the 3rd Defendant’s name. the 1st Plaintiff believes that the 3rd Defendant’s intention was to have the 1st Defendant’s dividends of RM100,000.00 to be paid to the 3rd Defendant. [21] Perusing the cause papers in the OS, I find that the allegation of suspicious conducts not only by the Plaintiffs against the 2nd, 3rd and 4th Defendants but vice versa. The 2nd, 3rd and 4th Defendants allege that a S/N OVmpzFUvokCDdu38S/nriA few incidents manifests that the Plaintiffs are flagrantly incompetence to be appointed to the committee of estate of the 1st Defendant, among others:

the 1st Plaintiff denied the 2nd, 3rd and 4th Defendants from any access to the 1st Defendant. [22] Again, I find that these allegations of fraud and suspicious conducts could be best decided by oral evidence instead of sworn affidavits. [23] In short, I find the issues involved in the OS are not straightforward as claimed by the Plaintiffs. There are disputes to the facts which require a full trial to be conducted. Parties either the Plaintiffs or the 2nd, 3rd and 4th Defendants must be given the opportunity to prove whether their allegations are justified or at least true and whether they have acted reasonably and in good faith. Hence, there is a necessity to call witnesses to testify. It is no doubt that parties can always apply under O. 38, r. 2 of the ROC to cross-examine the deponents of the affidavits as to extract more facts and particulars but the conflicts in the evidence can only be properly and satisfactorily resolved if oral evidence is adduced and witnesses are cross examined on their evidence. S/N OVmpzFUvokCDdu38S/nriA Conclusion [24] It is pertinent to note that O. 5, r. 2 ROC requires that where there are disputes of facts, a writ action is the more suitable mode of commencement. The Order reads – Proceedings which shall be begun by writ (O. 5, r. 2)

Proceedings in which a substantial dispute of fact is likely to arise shall be begun by writ". [25]

4.

Proceedings -

in which the sole or principal question at issue is or is likely to be one of the construction of any written law or of any instrument made under any written law, or of any deed, will, contract or other document, or any other question of law; or

in which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply for judgment under Order 14 or Order 81 or for any other reason considers the proceedings are more appropriate to be begun by writ." [26] Back to the present action, needless to say that there are factual disputes and conflicting evidence that are pivotal in determining or adjudicating the reliefs sought by the Plaintiffs. It appears to me that as S/N OVmpzFUvokCDdu38S/nriA the issues are more appropriate to be ventilated in a full trial by way of viva voce evidence, the OS should be continued as if the cause or matter had been begun by writ. Hence, I allow Enclosure 14 with costs in the cause. Dated: 22.3.2025 -SIGNED- (SHAMSULBAHRI BIN HAJI IBRAHIM) Judge, Johor Bahru High Court Counsels: For the Plaintiffs – Lim Choon Khim (Damien Chan Kay Ding and Jeff Ng Qin Liang with him); Messrs. Damien Chan, Hannibal & Ng Chambers For the 2nd, 3rd and 4th Defendants - Ong Yu Jian (Nurul Hanani binti Azamuddin with him); Messrs. Raj, Ong & Yudistra