1. Lee LI Wun v 1. Lee Yong Wun ("Pauline") (BA-24NCVC-253-02/2020)

LEE LI WUN

LEE MEE WUN

LEE BOON KAN @ MUHAMMAD BADRUL AMIN LEE BIN ABDULLAH (NO. K/P: 640904-06-5321) ....PLAINTIF-PLAINTIF 2

LEE YONG WUN ("PAULINE")

LEE YUNG-WAI, JOSHUA ("JOSHUA") (NO. K/P:950303-06-5223) ....DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (LAMPIRAN 1, 7 & 18]

On 7 September 2020, this Court made decisions on 9 enclosures filed in this suit by the respective parties. Of the nine (9) decisions the Defendants have appealed against this Court's decision on Enclosure 1 (the Originating Summon), Enclosure 7. (Defendants’ application to set aside ex parte Order) and Enclosure 18 (Defendants’ application under O. r. 19 to strike out the Plaintiff’s suit).

In the Originating Summons in Enclosure 1, the Plaintiffs claim for the following orders:

that the full care and custody of Lee Kok Chan, NRIC No. 340612- 71-5041 ("Father") and Mak Chee Yook, NRIC No: 330108-71-5158 ("Mother") be given to the 1st and 3rd Plaintiffs pending the hearing and final determination of all issues relating to the Health & Wellbeing and the Property & Financial affairs of Father and Mother ("said Issues"), which the Plaintiff's intends to file shortly. 3

that the 1st Defendant be restrained and/or an injunction be granted to restrain the 1st Defendant from exercising any of the powers conferred on her under or by virtue of the Power of Attorney dated 20.07.2017, registered is the High Court at Shah Alam on 16.08.2017 under PA 8204/2017 or any other subsequent instrument conferring powers on the 1st Defendant pending the hearing and final determination of the said Issues;

that the 1st Defendant be restrained and/or an injunction be granted to restrain the 1st Defendant from utilising or spending any further of Father and Mother’s money held under trust pending the hearing and final determination of the said Issues; and

that within seven (7) days from the dated of this Order the 1st Defendant will cause to be transferred all balance of funds held by her under trust and belonging to Father and Mother into an account nominated by the 1st Plaintiff to be held on trust and that the 1st Plaintiff is permitted to utilise the said funds for the benefit of Father and Mother pending the hearing and final determination of the said Issues.

Costs of this Originating Summons be paid by the Defendants to the Plaintiffs;

That the Plaintiffs be at liberty to apply; and 4

Such further or other reliefs that this Honourable Curt may deem fit and proper.

The nine (9) decisions made by this Court on 7 September 2020 were as summarised below: Item Enclosure Decisions / Orders made

3.1 1 Plaintiffs’ Originating Summon: The Plaintiffs and the 1st Defendant shall share the custody of the father Lee Kok Chan in the proportion of 8 months in a year for the Plaintiffs and 4 months in a year for the 1st Defendant. While the father is under custody of one party, all other children and grandchildren of his have rights to visit him provided at least 1 clear day’s notice is given prior to the visit. In order to provide for the wellbeing, care and maintenance of the father Lee Kok Chan, the Court also orders that the assets and properties of the father be recouped, realised and kept in a joint stakeholder account to be jointly operated and managed by the Plaintiff’s solicitors and the 1st Defendant’s solicitor, including these ancillary or incidental orders : 5 Item Enclosure Decisions / Orders made

Within 21 days from to-date, the 1st Defendant shall transfer and remit RM 602,260.15 into the joint stakeholder account;

Within 21 days from to-date, the 2nd Defendant shall transfer and remit RM 100,000.00/= into the joint stakeholder’s account;

Within 14 days from to-date, the 1st Defendant shall provide a Statement of Account in respect of judgment sum received in the Kuantan High Court Suit, the costs and expenses spent on the parents, the amounts of monies and the bank accounts details of the father and mother (whether held by either of them alone or jointly with the 1st Defendant) for the period between 21.01.2019 and the date hereof;

the joint stakeholders shall faithfully and diligently operate and manage the joint stakeholder account by disbursing from the said account the proper and reasonable amounts for the care, maintenance and well-being of the father; 6 Item Enclosure Decisions / Orders made

The proper and reasonable amount of such monthly expenses may be mutually agreed in writing between the parties, failing which either party is at liberty to apply to this Court for an assessment of the amount;

Any deficit or shortfall in the money in the joint account for the care, maintenance and wellbeing of the father can be covered by sale or disposal of the father’s balance assets and/or properties, and either party may apply to the Court for such sale, if not mutually agreed upon;

All other issues and matters are to be dealt with and decided in Writ Summons No. BA- 21NCC-2-03/2020;

After the full trial and/or hearing of NCC Suit BA-21NCC-2-03/2020, the Court may, where just and appropriate, make amendments or adjustments to the above mentioned orders; and

Liberty to apply is given to either to apply for ancillary or consequential orders to give effect to the above mentioned orders. Cost in the cause of NCC Suit. 7 Item Enclosure Decisions / Orders made Assessment of damages for setting aside ex-parte injunctions, if any, to be dealt with in the NCC Suit.

3.2 7 The injunctive orders in items 2 & 3 of the ex-parte order dated 28.02.2020 are set aside because the Plaintiffs did not even make any feeble attempt to comply with O.29 r.2A. The other items of the ex-parte order dated 29.02.2020 are not affected by this setting aside. No failure to disclose material fact.

3.3 14 As the court will make decision on the O/S (Enclosure 1) today, there is no necessity to decide on other interim relief/orders prayed for in Enclosure 14 (Defendants’ applications for interlocutory orders pending disposal of the

3.4 18 Enclosure 18 (Defendants’ application under O. 18 r. 19 to strike out the Plaintiff’s suit) is dismissed. This is not a clear and obvious case of unsustainable claim.

3.5 21 Enclosure 21 (Defendants’ application for RM1 million as security for costs) is dismissed. 8 Item Enclosure Decisions / Orders made

3.6 32 Enclosure 32 (Plaintiffs’ application for extension of interim custody of parents until disposal of OS): No necessity to decide on Enclosure 32, as the Court would today decide on custody under Enclosure 1 (the OS).

3.7 41 No necessity to decide on Enclosure 32 (Plaintiff’s application for ad interim injunction in terms of Order dated 28.2.2020 until disposal of the OS), as the Court would today decide on custody and injunction under Enclosure 1 (the

3.8 58 Plaintiff’s application for leave for commital against the Defendant : Enclosure 58 is inter-related with Enclosure 78 (Defendants’ application to set aside Enclosure 66 ex-parte order dated 29.07.2020 which restrained the 1st Defendant from dealing with or disposing of the 36 properties previously under the Father’s name). As there was not even any feeble attempt in Enclosure 58 to comply with O.29 r. 1(2A) of ROC 2012, the ex parte injunction in Enclosure 66 is set aside. Liberty is given to Plaintiffs to file afresh in the Shah Alam High Court Writ Saman No. BA-21NCC-2- 9 Item Enclosure Decisions / Orders made 03/2020 (''the NCC Suit'') by way of inter partes application. The Enclosure 58 inter partes application in this OS is accordingly dismissed with such liberty.

3.9 78 Enclosure 78 (Defendants’ application to set aside Enclosure 66 ex-parte order dated 29.07.2020 which restrained the 1st Defendant from dealing with or disposing of the 36 properties previously under the Father’s name) is allowed. Enclosure 58 is inter-related with Enclosure 78 (Defendants’ application to set aside Enclosure 66 ex-parte order dated 29.07.2020 which restrained the 1st Defendant from dealing with or disposing of the 36 properties previously under the Father’s name). As there was not even any feeble attempt in Enclosure 58 to comply with O.29 r. 1(2A) of ROC 2012, the ex parte injunction in Enclosure 66 is set aside. Liberty is given to Plaintiffs to file afresh in the Shah Alam High Court Writ Saman No. BA-21NCC-2-03/2020 (''the NCC Suit'') by way of inter partes application. 10

The facts and parties’s contentions in the present suit in connection with Enclosure 1 are as summarised below.

The Plaintiffs and the 1st Defendant are siblings whose parents are Mr Lee Kok Chan (Father) and whilst the 2nd Defendant is the son of the 2nd brother: paragraph 3 of the Plaintiff’s Affidavit-in-Support.

The hierarchy of siblings to the immediate family of the elderly couple are as follows:- a) Ms. Lee Yong Wun - resides mainly in Angola, South Central Africa (1st Defendant); b) Ms. Lee Mee Wun - resides in Australia (2nd Plaintiff); c) Mr. Lee Boon Chong - resides in the United States of America; d) Ms. Lee Li Wun - resides in Millenium Place, Petaling Jaya (1st Plaintiff); e) Mr. Lee Boon Leng - whose son is Joshua (2nd Defendant); (deceased) f) Mr. Lee Boon Jang - resides in Hong Kong; and g) Mr. Lee Boon Kan - resides in Kuantan (3rd Plaintiff). [see paragraph 4 of the Plaintiff’s Affidavit-in-Support.

The father (Lee Kok Chan, aged 86 now) was a hotelier with some interest in land brokerage who had at least 50 land titles to his name with his land/property portfolio estimated by the Plaintiffs to be worth 11 in the region of RM7 million: paragraph 5 of the Plaintiff’s Affidavit-in-Support.

On 22.01.2016, the Father was diagnosed to have a stroke; then on 29.01.2016 the Father suffered a major stroke which paralysed the entire right side of his body; since then, the Father has been unable to speak: paragraph 6 of the Plaintiff’s Affidavit-in-Support.

Not long after 29.01.2016, the Father’s 3rd son Lee Boon Jang misappropriated the Father’s monies totalling RM6,326,512.85. In 2019 an amount of RM3.23 million was returned by the 3rd son into a bank account jointly held by the eldest son and the mother (Mother). Eventually, the whole amount of the said RM3,233,596.02 was remitted into the joint account held under the names of the Mother and the 1st Defendant, a daughter. [paragraph 7 of the Plaintiff’s Affidavit-in-Support].

In early 2017, the Mother was diagnosed as suffering from early stage of dementia: paragraph 7 of the Plaintiff’s Affidavit-in-Support.

On 20.7.2017, the Power of Attorney dated 20.7.2017 [pg 1-22] was executed by the Father in favour of the 1st Defendant in order to pursue the recovery of the monies misappropriated by the 3rd son: paragraph 8 of the Plaintiff’s Affidavit-in-Support.

Sometime on or about 16.10.2017 many properties (i.e housing plots of about 3,000 sq ft each plot) of the Father were transferred to the 1st Defendant purportedly on basis of “natural love and affection” using father’s thumbprint, 1 housing plot of about 3,000 sq ft from Motel 12 Tanjung Gelang Sdn Bhd was transferred to the 1st Defendant on 26.11.2019, a piece of land of 0.4 hectare was transferred from the Father to the 1st Defendant on 26.6.2019, a piece of lad of 1.129 hectare was transferred from the Father to the 1st Defendant on 9.12.2019 : pages 44 – 121. A total of 36 properties of the Father were transferred to the 1st Defendant.

In March 2018 : Kuantan High Court Suit No. CA-22NCVC-16-03/2018 was filed by the 1st Defendant Pauline Lee Yong Wun as attorney for the Father to sue for recovery of the monies from the 3rd son : paragraph 9 the Plaintiff’s Affidavit-in-Support; page 23-28.

From 30.01.2016 to 23.7.2018, the 1st Plaintiff Lee Li Wun was caretaker of both parents. Between 24.7.2018 and 5.11.2018, the youngest son Lee Boon Kan was the main caretaker of both parents in Kuantan. From 5.11.2018 to 6.1.2019, the 1st Plaintiff Lee Li Wun continued as caretaker of both parents at Tropicana Grande until the 2nd Defendant (a grandson) moved in at the 1st Defendant’s invitation [paragraph 10 the Plaintiff’s Affidavit-in-Support]. In the 1st Defendant’s Afidavit in Enclosure 9 paragraph 20, the 1st Defendant alleged the 1st Plaintiff 1 abandoned the parents; during the period when the 1st Plaintiff took care of parents, the 1st Defendant paid her salary of RM8,000/month. In paragraph 20.6 of the 1st Defendant’s Afidavit in Enclosure 9, the 1st Defendant alleged that the 2nd Defendant was called in because the 1st Plaintiff abandoned the parents, and the 1st Defendant has 2 independent witnesses to prove it. 13

The Plaintiffs said that all this while, relationship between siblings (including Plaintiffs and the Defendants) was fine until 21.01.2019, when the Kuantan Suit was settled: paragraph 12 the Plaintiffs’ Affidavit-in-Support.

On 21.01.2019 the Consent Judgment was recorded in the Kuantan Suit whereby RM1.1 million was initially returned by the 3rd son into a bank account in the 1st Defendant’s name, and subsequently the monies collected in the bank in the name of the 1st Defendant and/or under control of the 1st Defendant totalled RM4.3 million: paragraph 9 the Plaintiffs’ Affidavit-in-Support; pg 29-33.

During the period 31.10.2019 – 15.2.2020, Marailyn (Lyn) was the domestic help who assisted in taking care of parents;

From 5.10.2017 the date of filing this Suit in February 2020, Millete G Cruz (“Jenny”) : was the domestic help who assisted in taking care of parents : paragraph 11 the Plaintiffs’ Affidavit-in-Support.

The Plaintiff alleged that since 21.01.2019 (the date when consent judgment was recorded in the Kuantan Suit), the 1st Defendant and the 2nd Defendant have been crude and rude from time to time and they virtually prevented all other siblings, family friends and relatives from meeting the parents except under the tight supervision of the 1st Defendant and the 2nd Defendant, including the following allegations:

(a)

5.2.2019 : the 1st Plaintiff was limited to 1 hour visit to parents although many messages and requests were sent to the Defendants for the Chinese New Year; 14

(b)

24.3.2019 – 30.3.2019 : the 1st Plaintif was only allowed to visit parents for 1 hour 5 minutes; 2nd elder sister was only allowed to visit parents for 1 hour 15 minutes. During the visit, they noticed there was a big lump to the Mother’s left temple and blue-black bruising from the lump down to her neck. When inquired, the Mother explained that she had fallen whilst the 1st Defendant explained, simultaneously, that it was the Mother’s allergic reaction to seafood: paragraph 13 the Plaintiffs’ Affidavit-in-Support. These allegations were denied by the 1st Defendant: paragraph 21.1 of the 1st Defendant’s Affidavit in Enclosure 9.

According to a medical report dated 3.4.2019 by Assunta Hospital, the Father had a permanent neurological deficit, was unable to talk and express himself but he was alert, able to understand instructions, was rational and of sound mind. He was unable to use the right side of his body [page 19 of exhibit to the 1st Defendant’s Affidavit in Enclosure 9].

Subsequently, the Defendants did not entertain the 1st Plaintiff’s requests for visits to parents, and even visits during their medical appointments at Assunta Hospital on 8.2.2019 and 7.5.2019 was restricted by the 1st Defendant to limited interaction: paragraph 14 the Plaintiffs’ Affidavit-in-Support.

The Plaintiffs said the 1st Defendant has been living in luxury, having bought a Volvo V90T5 on 21.02.2019 and a Mercedes Benz E300 Sport AMG Premium on 01.07.2019 with special number plate [page 142 – 145]. This was denied by the 1st Defendant. 15

During the period 19.6.2019 – 16.7.2019, the eldest brother Lee Boon Chong and his wife came from USA for vacation but were given very limited access to parents: paragraph 15 the Plaintiffs’ Affidavit-in-Support. This was denied by the 1st Defendant who said that this is a lie and that during the eldest brother’s trip from USA to Malaysia he met with the parents, and his lodging in Malaysia was paid by the 1st Defendant personally: paragraph 23.4 of 1st Defendant’s Affidavit in Enclosure 9.

The 1st Plaintiff asserts that from 16.7.2019 to 4.11.2019, the 1st Plaintiff sent desperate Whatsapp messages to the 1st Defendant and from 12.8.2019 to 31.10.2019 the 1st Plaintiff sent Whatsapp messages to the 2nd Defendant, asked for visits but there was no reply: paragraph 16 the Plaintiffs’ Affidavit-in-Support.

The 1st Defendant has denied mistreatment of the parents and she said that throughout 2019 the 1st Defendant brought parents to tour China, Bukit Tinggi, Cameron Highlands, Port Dickson, Penang and 5 or 6 times to Kuantan: paragraph 23.3 of the 1st Defendant’s Affidavit in Enclosure 9.

One (1) housing plot of about 3,000 sq ft from Motel Tanjung Gelang Sdn Bhd was transferred to the 1st Defendant on 26.11.2019, a piece of land of 0.4 hectare was transferred from the Father to the 1st Defendant on 26.6.2019, a piece of land of 1.129 hectare was transferred from the Father to the 1st Defendant on 9.12.2019 : pages 44 – 121. A total of 36 properties of the father were transferred to the 1st Defendant. 16

27.

The 1st Plaintiff further asserts that during 20.12.2019 –

12.2019, the eldest sister Lee Mee Wun and family from Australia visited Malaysia again, but was not even allowed to visit parents for 1 minute: paragraph 17 the Plaintiffs’ Affidavit-in-Support. This was denied by the 1st Defendant who said the 2nd Plaintiff’s child came and stayed with the Defendants and also went for overseas tour with them for 1 week: paragraph 23.2 of the 1st Defendant’s Affidavit in Enclosure 9.

According to the 1st Plaintiff, during the January 2020 Chinese New Year only 1 grand daughter was allowed to talk to and wish happy Chinese New Year to the Father and the Mother : paragraph 18 the Plaintiffs’ Affidavit-in-Support. This was denied by the 1st Defendant, who said the 1st Plaintiff herself refused to follow parents and the 1st Defendant to a 5-star hotel for the Chinese New Year dinner: paragraph 23.1 of 1st Defendant’s Affidavit in Enclosure 9.

The maid Jenny said the 1st Defendant purposely hid handphone from parents to prevent parents from communications with Plaintiffs and others and also restricted visits by Plaintiffs and relatives and friends: paragraph 19 the Plaintiffs’ Affidavit-in-Support. This was denied by the 1st Defendant: paragraph 24 of the 1st Defendant’s Affidavit in Enclosure 9.

The 1st Defendant now resides in Angola, South Africa and flies between these 2 countries every alternate month since the settlement of Kuantan case. For the past 12 months, the 1st Defendant was overseas for about 6 months, the 2nd Defendant, who took direct 17 instructions from the 1st Defendant, was directly in charge of the Father and Mother with assistance by a maid: paragraph 20 the Plaintiffs’ Affidavit-in-Support.

The maids Jenny and Lyn informed the 1st Plaintiff that the 2nd Defendant (the grandson) mistreated the parents and was very rude towards them, and they saw father and mother cries as a result of mistreatment by the 2nd Defendant. The maid’s Statutory Declaration of Jenny affirmed on 28.2.2020 can be found at page 38 – 43 of exhibits to the 1st Defendant’s Affidavit-in-Support. Photographs showing bruises and swelling on parents’ bodies are at page 34 -37. The contents of the maid Jenny’s Statutory Declaration are as follows: “ STATUTORY DECLARATION I, MILLETE GARCIA CRUZ, Passport No P6324493A whose address is at THE MILLENIUM PLACE, B-15-11 DATARAN MILLENIUM PJ, 98 JALAN 14/1, 46100 PETALING JAYA, SELANGOR sincerely affirm as follows:-

I first started work with the Lee household on 5th October 2017 as domestic helper at C-93A Tropicana Grande, Petaling Jaya. In the household was Mr. Lee Kok Chan (Uncle, who was suffering from stroke since Jan 2016. The stroke had affected his right side of the body. He was not able to walk unaided ad he couldn’t talk. He is 86 years old), Mdm Mak Chee Yook (Aunty, 87 years old) and their youngest daughter, Ms. Lee Li Wun (Che). 18

My duties included cooking, cleaning the house and taking care of uncle and aunty with the help of Che. Uncle had therapies which included house visits by physiotherapist, masseur, speech therapist and music therapist. I was happy working here and interacted well with Che. Uncle and Aunty enjoyed the company of friends, relatives and Uncle’s music students.

We moved back to PJ on 5th November 2018. Che stayed with us and helped take care of Aunty and Uncle. At the end of December, Lee Yung Wai Joshua (Josh), Aunty and Uncle’s grandson (Josh’s father was the 5th child and 2nd eldest son) came back from overseas to take care of Aunty and Uncle.

Things began to change after 21st January 2019. Che said that mum Pauline did not want to talk to her and wouldn’t take her calls. She tried many times to call Aunty but she couldn’t get through because mum Pauline had kept her phone away from Aunty. Mum Pauline said she knew that Che was calling Aunty’s phone and told me that if anybody called tell them she took Aunty’s phone away.

I was told by Che that Sir Boon Chong (Aunty & Uncle’s 3rd child and eldest son) also tried calling Aunty but could not get to talk to her because mum P was giving excuses about Aunty being busy with therapies, etc…

Che came to the house on first day of Chinese New Year on 5th February 2019. She had told me earlier that she had texted 19 mum Pauline 3 times and even begged her before told her she could come. She spent one hour talking to Aunty and Uncle.

On 8th February, Mum Pauline and Josh took Aunty to Assunta Hospital for her check up and met Che there but Mum Pauline was not happy seeing her and she told Che not to push Aunty in her wheelchair into the doctor’s room.

I was told by Che that her son, Shane, had tried calling Josh to speak to Aunty but was unsuccessful, scolded by Mum Pauline saying Aunty has a lot of therapies (which is not true). Mum Pauline said that he is welcome to meet up with her but not his mum whom she despises. Che could see that Shane was very sad and angry as she was just beside him when this conversation took place.

Once Uncle was taken out in the afternoon to do acupuncture. Since we were coming back later and I knew Uncle would be very tired, I called the speech therapist to cancel the class that evening. When Mum Pauline found out I did that, she raised her voice at me and told me Uncle has to do speech therapy and he must not be lazy and she wants him to be able to talk. So I quickly called the teacher and put him back on schedule. However, later Uncle was not co-operative and was not paying attention to what was being taught.

Around early March, I was very stressed with whatever was happening in the house. Josh was not treating me well and had many clashes with me. I didn’t feel happy working there but I 20 don’t want to go because of Aunty and Uncle. Josh kept arguing with Aunty a lot and raise his voice very loud and non-stop like the whole Grande building can hear.

A few days before Mum Pauline came back on 21st March, Aunty was crying as she had phobia of Josh’s treatment on her. Around that time she also fell down from the lazy chair they had bought and had a very bad blue black bruise from the top of her left temple till her neck area.

There was a daily schedule of Uncle’s therapy put up on the fridge door. This was taken down and a new one done for the one week that Mum Mee Wun would be here. It was all changed to show Uncle and Aunty having a lot of therapies.

Mum Mee Wun came back to Malaysia on 24th March till March 31st. In that time she only had a total of 1 hour 15 minutes to see Aunty & Uncle.

On 1st April Mum Pauline bought a white puppy (Pomeranian). Aunty was vey happy to have the puppy around. However, as time went by, Josh was very abusive towards the puppy.

On 4th April, in the middle of the night at 3 am, Aunty woke to say she had pain in her head. She was crying and called out Che’s name. I told this to Josh in the morning and he said, really? I put cream and cold pack on her head until she fell asleep. I also sent a photo of the bump on Aunty’s left forehead that had become very big. 21

Mum Mee Wun’s son, Kwan came to visit Aunty and Uncle from April 20th till 28th. On a holiday to The Chateau Resort in Bukit Tinggi, Kwan called Shane (Che’s son) and passed the call to Aunty for them to talk. Josh came into the room and when he realized that Aunty was using the phone, he went up to her and snatched the phone away from Aunty.

Around the 8th of June, Aunty became very distressed about the dog, Xandy. She and Josh is always arguing about it because the dog barks and Josh gets stressed out and keeps hitting the dog. This stresses Aunty a lot and she cries everyday. I became very stressed and Uncle is also very angry with the situation.

On 23rd Sept, I informed Che that Josh had been pestering Uncle. Every time he sees Uncle using his left hand to support his right hand because he can’t move his right hand, he pushes the right hand down. I told him he should not do that and he asked me why cannot? He also raises his voice at Uncle and I argue with him about handling Uncle. Che said that the last time she saw Uncle she said that he looked depressed. She had also told me that Uncle has lost a lot of weight. So has Aunty.

On 25th Sept I passed a letter to Aunty from Che because she managed to see Uncle on 23rd Sept. After reading the letter, Aunty cries because Che told her that she misses her and Mum Pauline and Josh are keeping her away from Che. She said she wants to see her but is unable. 22

Che met up with Uncle on 1st Oct. She passed a letter to me for Aunty. Aunty read the letter and again she cried.

Che met up with Uncle at Bioniva on 10th October. I had told her to see the bruise on Uncle’s arm. She later told me that she asked Uncle if Josh beat his hand. Initially he refused to say anything. But Che reassured him she would not scold Josh. He nodded his head after that. Che said she had taken photo of the bruise.

On 8th Nov, Che came to Tropicana and managed to see Aunty. Che cried when she saw Aunty. She had not seen her for 6 months. Aunty also cried. They spoke and Che told Aunty she was not allowed to see Aunty and Uncle but she had managed to see Uncle. Che said she told Aunty about the family house incident and how Malah said Aunty had made the offer. Aunty said she did not know anything about it.

During this meeting, Che told me that Aunty had mentioned how Josh mistreating her three times in the entire meeting. She told Che that Josh had very roughly manhandled her when she was not sitting straight on the sofa. She said that after a long time sitting on the sofa, her back was aching and she slouched. When Josh saw this he would raise his voice at her and pushed her to sit straight. Che said Aunty also told her how Josh was manhandling Uncle when he used his left good arm to support his right weak arm. Che said it was consistent with what she saw on Uncle’s arm earlier – the bruise. 23

On 15th Nov, Che saw Aunty again for one more time before I leave for Philippines. Aunty was very happy to see Che. Aunty knew that I was going back and would come back after 20 days and told Che that. Che told me she asked how Mum Pauline was taking care of her and Aunty said that she hardly saw Mum Pauline. She said she was away at work in Kuantan. Che asked Aunty if Mum Pauline told her that and she said yes. Che said she then asked what about Josh and she said she was not happy and mentioned again the manhandling of her and Uncle by Josh. Che saw the bruise on Aunty’s hand and she asked Aunty about it.

She was told that Josh had pressed her hand very hard and pushed her to sit up straight on the sofa. Che said she told Aunty to be patient but tell Josh not to do it. Che said that she asked Aunty who does she think is the best person to take care of her and Uncle. Aunty then said..’you lah” (i.e. Che). This meeting was a very short one.

Initially when I started work in the Lee household, I was very happy and had no problems with Che. She was very good in taking care of Aunty, Uncle and even me. When I took my days off, sometimes 1 day in a month, sometimes two days, she would take care of Uncle and Aunty all by herself, cooking, cleaning, bathing Uncle, getting him in and out of bed, seeing to their food and medication, etc.. doing all the things that I was doing. She would help me cook sometimes, bake cakes, make desserts etc… She would take all of us out once a week to eat different foods and to give me some rest from cooking. I could see that 24 Aunty and Uncle were very happy having her to take care of them.

However, things changed after 21st January this year when Josh came to stay and took care of Aunty and Uncle and the household. Mum Pauline would be coming and going, in and out of Malaysia. Everything changed and I became unhappy over time and became very stressed up most of the time.

In about the first two months of him staying in the house from early January, things were bearable but over time, he became very disrespectful of his grandparents, me, Susan the cleaner (part time) and lately Lyn, the replacement maid (she worked from 30th Oct 219 till 15th Feb 2020. He was always arguing and raising his voice at Aunty, manhandling Aunty and Uncle and stressing them up.

Che told me that even Aunty Leong (family friend) told her that when she was at the dinner on 22nd Oct, Josh had told Aunty off in a raised voice not to eat and talk at the same time. Aunty Leong said that he could have been more respectful in saying it.

Aunty had many times told Josh to go find work outside. I also suggested to Josh to take Fridays till Sundays off every week so that he himself will not be so stressed. I think he is not very suited to take care of old folks. Che told me that Aunty had asked why Josh to take care of them – two old people, when he has his career to look into. This was just as Josh came back late 25 2018 and Che had informed Aunty that Josh might take over the taking care of his grandparents.

I become very sad every time I see both Aunty and Josh arguing and Josh being very disrespectful towards Aunty and Uncle.

Josh would always complain about the condition of the house – on the smallest and slightest things eg. even when a drop of soup fell down on the floor, he asked why…

Lyn and I were very unhappy because Josh is rude and always treat us like we are stupid.

It was very sad to see that Josh did not allow Aunty and Uncle to sit next to each other at the dining table every time. Uncle would sit at the head of the table and Aunty two seats away at the side. When Aunty speaks to Uncle, Josh would scold her.

When it was time for Uncle to go to bed, Aunty would go and hold Uncle’s hand and talk to him but Josh would tell Lyn to take Uncle into the room, telling Aunty there was no need to touch Uncle’s hand.

Lyn would ask me why she didn’t see any of Uncle & Aunty’s other children during her tenure. I told her its because they are not allowed to see Uncle and Aunty. 26

The only thing that kept me going was the fact that I really care for Aunty and Uncle and see them as my parents because my parents are no longer around.

I would like to see Aunty and Uncle happy again because at their old age of eighties, they should deserve a happy life, being able to see all their children, grandchildren and great grandchildren without any problems at all.

I would also like to see Che happy. She has been trying so hard to be able to see Aunty and Uncle. I communicate with her very often, like nearly every day or once in two or three days especially Josh took over taking care of Aunty and Uncle in January last year.

She told me that she had been texting Mum Pauline every day since 16th July and only stopped early this month of November, asking to be able to see Aunty and Uncle. She also texted Josh from middle of Aug till end Oct. asking the same. Both of them did not reply at all to her, not even once.

Whenever I can, I also call her on the phone line to talk with her. I am very lucky to have Che for me to talk to and pour my problems and anxieties to her, otherwise I wouldn’t know how I could go on in this situation. However, I feel it is too much for someone to go on like this. I don’t know why Mum Pauline doesn’t allow Che and Mum Mee Wun and Sir Bk to see Aunty and Uncle and why she can’t see that Aunty and Uncle needs friends and family around them at this old age. I hope that there 27 is still time for Aunty and Uncle to have this happy time before its too late.

I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declaration Act, 1960. “ Subscribed and Solemnly ) Declared by the abovementioned ) on this day of 28 Feb 2020 ) ………………………………… Before me, …………………………………….. (Commissioner of Oaths) “ ” In the context of the Statutory Declaration, “Che” refers to the 1st Plaintiff Lee Li Wun, “Pauline” refers to the 1st Defendant, Lee Yong Wun and “Josh” refers to the grandson, the 2nd Defendant. In the 1st Defendant’s Affidavit in Enclosure 9, the 1st Defendant alleged that the 1st Plaintiff coached Jenny to give false statement.

Until this stage, all the monies, properties and assets of the parents have been controlled and administered by the 1st Defendant, and the 28 1st Defendant still has not provided an account on the transaction to anyone: paragraph 23 the Plaintiff’s Affidavit-in-Support.

Recently in early 2020, the 1st Plaintiff discovered that 36 of the 50 properties of the father F were transferred to and registered in the 1st Defendant’s name purportedly on basis of “natural love and affection” by affixing the thumbprint of the Father : paragraph 24; page 44 – 121 of the 1st Plaintiff’s Affidavit-in-Support. According to the Plaintiffs, all these circumstances are highly suspect and doubtful and show the Defendants have ulterior motive to hide : paragraph 24 the Plaintiff’s Affidavit-in Support.

The Plaintiffs asserts that due to old age and medical condition of the parents, they are exposed to risks. the 1st Plaintiff believes that since Feb 2019, the parents have been betrayed systematically and are tortured physically and mentally with intention of preventing them from communicating with children, grandchildren, friends and relatives: paragraph 26 the Plaintiff’s Affidavit-in Support. The 1st Defendant alleged that the Plaintiffs plotted a false action and that medical examination showed the parents were healthy and could be brought back to the 1st Defendant’s house: paragraph 21.3 of the 1st Defendant’s Affidavit in Enclosure 9 affirmed on 6.3.2020.

CIMB joint account of the Father and the 1st Defendant: Statement of Account as at 20.2.2020 shows closing balance of about RM2,220.05 (or about RM7,000): page 22 of exhibit to the 1st Defendant’s Affidavit in Enclosure 9. The 1st Defendant’s joint account with the Mother: RM58.68 balance: page 23 – 31 of exhibit of Enclosure 9. 29

In paragraph 25 of the 1st Defendant’s Affidavit in Enclosure 9, the 1st Defendant said the Plaintiffs are not qualified and capable of taking care of the parents because:

the 1st and 3rd Plaintiffs have abandoned the parents since 2018, and the 2nd Plaintiff resides overseas;

the parents disbelieved the 1st Plaintiff and have told 3rd party that the 1st Plaintiff was easily cheated by men and her previous husbands have used her as tool to take monies from the parents.

the 3rd Plaintiff is unreliable and has defied court order to pay alimony to his 1st wife and also has refused to take care of the parents; the 3rd Plaintiff has chased out his young children from home and has also helped Lee Boon Jang in previously cheating the father.

the 1st Plaintiff is financially unable to take care of the parents;

parents’ financial position has been not good because of the high costs of activities and costs of care.

Due to the 1st Defendant’s past success in her career, all siblings knew the 1st Defendant did not depend on the parents’ monies and is capable of taking care of them well.

the 1st Plaintiff herself said the 1st Defendant was most qualified to take care of the parents; and 30

the 1st Defendant has a condominium unit of 2,700 sq ft floor area equipped with all equipment necessary to take care of parents.

In paragraph 27 of the 1st Defendant’s Affidavit in Enclosure 9, the 1st Defendant said that the Plaintiffs are people who cannot be trusted and are capable of taking dirty tactics and using gangsters to seize monies. Photographs in LYW-1.

Whatsapp messages from 2018 to early 2020 have been enclosed at pages 36-91 of exhibits to the 1st Defendant’s Affidavit in Enclosure 9.

On 26.02.2020 the 1st Plaintiff lodged police report: paragraph 27 the Plaintiffs’ Affidavit-in Support, page 122-125. Pursuant to the police intervention, the Plaintiffs took physical custody of the parents.

On 28.2.2020, Ex parte Order was granted by this Court: items 1, 4 & 5 are non-injunctive orders; items 2 & 3 are interim injunction orders. See Enclosure 4.

bahawa hak penjagaan penuh Lee Kok Chan, No K/P: 340612- 71-5041 (“Bapa”) dan Mak Chee Yook, No K/P: 330108-71-5158 (“Ibu”) diberikan kepada Plaintif Pertama dan Plaintif Ketiga sementara menunggu pendengaran dan penentuan muktamad mengenai semua isu-isu yang berkaitan dengan Kesihatan & Kesejahteraan dan juga Harta & Urusan Kewangan Ayah dan Ibu (“Isu-Isu berkenaan”), di mana Plaintif-Plaintif berniat untuk menfailkan secepat mungkin; 31

bahawa Defendan Pertama perlu dihalang dan/atau suatu diinjuksi perlu diberikan untuk menahan Defendan Pertama dari menjalankan mana-mana kuasa yang diberikan kepada beliau di bawah atau menurut Surat Kuasa Wakil yang bertarikh 20.07.2017, yang telah didaftarkan di MahkamahTinggi Shah Alam pada 16.08.2017 di bawah PA 8204/2017 atau mana-mana instrument berikutnya yang memberi kuasa kepada Defendan Pertama sementara menunggu pendengaran dan penentuan muktamad mengenai Isu berkenaan;

Bahawa, kecuali jumlah sebanyak RM200,000.00 yang dinyatakan di perintah (4), Defendan Pertama hendaklah dihalang dan/atau suatu injuksi perlu diberikan untuk menahan Defendan Pertama daripada mengunakan atau membelanjakan selanjutnya sebarang wang Bapa dan Ibu yang dipegang di bawah amanah sementara menunggu pendengaran dan penentuan muktamad mengenai Isu-Isu berkenaan;

bahawa dalam tempoh tujuh (7) hari dari tarikh penyerahan Perintah ini, Defendan Pertama hendaklah memindah RM200,000.00 wang Bapa dan Ibu kepada suatu Akaun Amanah dalam nama Plaintif Pertama bagi maksud perbelanjaan-perbelanjaan Bapa dan Ibu untuk tempoh interim ini;

bahawa kesemua anak-anak dan cucu-cucu Bapa dan Ibu berhak untuk berjumpa dan bertemu dengan Bapa dan Ibu dengan memberi notis munasabah tiga (3) hari terlebih dahulu; 32

kos dalam kausa; dan

Pendengaran inter-parte injunksi ditetapkan pada 19 haribulan Mac 2020, jam 9.00 pagi.

On 3.3.2020 the Plaintiff’s solicitors served Originating Summons and ex parte Order dated 28.2.2020 on the Defendants personally: see pages 10-13 of Exhibit to Enclosure 59, the Plaintiff’s Affidavit-in-Support.

On 6.3.2020 via Enclosure 7 the Defendants applied to set aside the Ex parte Order dated 28.2.2020 the 1st Defendant’s Affidavit dated 6.3.2020 in Enclosure 9 stated that all monies of the parents had been spent on their care and maintenance: paragraphs 22.3 and 22.4.

On 9.3.2020 the 1st Defendant caused several transfers of monies totalling RM702,260.15 from the Father’s FD account and another account to the joint account of the Father and the 1st Defendant [page 124 – 140] and then re-transferred RM100,000 to the 2nd Defendant’s CIMB account [page 136] and RM400,000.00 to the 1st Defendant’s personal account [page 136].

On 11.3.2020 the 1st Defendant transferred a further RM202,245.15 to her personal account : page 137 to the 1st Plaintiff’s Affidavit in Enclosure 59 affirmed on 24.7.2020. 33

In addition, the 1st Plaintiff avers that between February 2019 and March 2020 (14 months), a total amount of RM3.2 million was transferred out from the father’s account : paragraph 8 of the 1st Plaintiff’s Affidavit in Enclosure 59; Another RM3.2 million was also transferred out from the mother’s account, leaving a balance of RM58.68 : paragraph 8 of the 1st Plaintiff’s Affidavit in Enclosure 59. The Plaintiff said the 1st Defendant has been living in luxury, having bought a Volvo V90T5 on 21.02.2019 and a Mercedez Benz E300 Sport AMG Premium on 01.07.2019 with special personal number plate [page 142 – 145].

On 16.3.2020 the Defendants made an application in Enclosure 14 for 12 orders, including custody of parents, court’s interview of parents, medical examination of parents, etc. In the 1st Defendant’s Affidavit dated 16.3.2020 in Enclosure 15, she stated that all monies of the parents had been spent on their care and maintenance : paragraphs 38 and 39.

On 16.3.2020, the Defendants also made an application for variation of the interim order to facilitate medical examination of the parents as part of Enclosure 14.

On 17.3.2020 the Defendants made an application via Enclosure 18 under O.18 r. 19 to strike out the Plaintiff’s Originating Summons herein.

On 17.3.2020 the Defendants made an application via Enclosure 21 for RM1 million as security for cost against the Plaintiffs. 34

50.

18.3.2020 was the start of MCO lockdown due to Covid 19. The MCO lockdown ended on 13.5.2020, replaced with Conditional MCO. On 26.3.2020, the Plaintiffs jointly with the mother filed SAHC Writ of Summons No. BA-21NCC-2-03/2020 (the 2nd NCC Suit).

During the MCO Period, the mother passed away.

52.

13.5.2020 : end of MCO period; replaced with Conditional MCO.

On 29.5.2020 (Enclosure 32): P’s application for extension of custody of parents until the disposal of this Suit.

On 25.6.2020 (Enclosure 41): the Plaintiffs via Enclosure 41 filed an application for ad interim injunction in terms of Order dated 28.2.2020 until disposal of this Suit.

55.

14.7.2020 : At request of the Court, the Father was brought in wheelchair to the courtroom; he evidently suffered from stroke and was unable to talk. Both the Plaintiffs and the Defendants objected to the Court’s proposal to interview the Father although a Chinese interpreter from the Court was in the courtroom ready to interpret plus illustration with sign language and written words. As both parties took the common stand of objecting to such proposal for interview of the Father and the nature of litigation proceedings being adversarial in character, the Court had no choice but to refrain from interviewing the Father. In the courtroom, the Father had a video conference viewing and/or visit with the 1st Defendant who was then overseas. 35

56.

24.7.2020 The Plaintiffs via Enclosure 58 filed an application for leave for committal [the 1st Defendant’s transfer of hundreds of thousands of ringgit from alleged trust account to personal accounts of the 1st Defendants and the 2nd Defendant several days after receipt and service of Order dated 28.2.2020 (Enclosure 4)] and for order preventing disposal of 36 properties (purported registered in the 1st Defendant’s name), prohibition against the 1st Defendant from disposing of her won other properties, etc.

On 29.7.2020 an ex parte Order was granted by this Court in Enclosure 66 to prevent the 1st Defendant from selling or disposing of the 36 properties which were previously under the Father’s name.

On 6.8.2020 an ad interim order as per terms of L66 dated 29.7.2020 was granted pending the disposal of this Suit.

On 6.8.2020, both parties also mutually agreed that all the court enclosures be heard and disposed of on the same day on 7 September 2020.

On 21.8.2020 the Defendants via Enclosure 78 filed their application to set aside Enclosure 66 ex parte Order dated 29.7.2020.

On 7.9.2020 this Court delivered decisions on Court Enclosures 1, 7, 14, 18, 21, 32, 41, 58 and 78 as summarised in paragraph 3 above.

It is also pertinent to note that on 26.3.2020 the Plaintiffs and the mother filed a Writ of Summons and Statement of Claim in SAHC Suit No. BA-21NCC-2-03/2020 (“the 2nd Suit”) against Lee Yong Wun (the 36 1st Defendant herein), Maneemalah A/P P.V. Ganesan T/A Tetuan G.M. Mala & Partners, and Pentadbir Tanah Daerah Kuantan for alleged breach of trust, alleged unjust enrichment, alleged conspiracy to defraud/injure, alleged negligence and/or breach of statutory duties and claim for the following reliefs and remedies: As against the 1st Defendant (Lee Yong Wun): a) A declaration that all the memorandum of transfer of the properties as listed in Annexure 1, transferring the said properties to the 1st Defendant, was illegal null and void and is of no effect and that Lee Kok Chan (NRIC No: 340612-71-5041) be reinstated as the registered and lawful owner of the said properties; b) An order that the Power of Attorney dated 20.07.2017 and registered at the Shah Alam High Court as PA 8204/17 on 16.08.2017 be set aside; c) An order that the true and full account be taken of all profits made by the 1st Defendant to date in respect of the usage of, and dealings with all trust monies belonging to Lee Kok Chan (NRIC No: 340612-71-5041) and the 4th Plaintiff/Mother; d) An order that the 1st Defendant do pay into a Trust Account in the name of the 1st Plaintiff all sums found to be due from the 1st Defendant on the taking of the account under sub-paragraph

above; 37 e) Damages for breach of trust and/or breach of fiduciary duties and/or conspiracy to defraud/injure to be assessed, payable by the 1st Defendant into a Trust Account in the name of the 1st Plaintiff; As against 2nd Defendant (Maneemalah A/P V. Ganesan T/A Tetuan G.M. Mala & Partners): f) Damages for conspiracy to defraud/injure to be assessed, payable by the 2nd Defendant into a Trust Account in the name of the 1st Plaintiff; As against the 3rd Defendant g) An order for rectification be given to the 3rd Defendant pursuant to s. 417 of the NLC that the 1st Defendant be removed from the respective title of the properties as listed in Annexure 1 and Lee Kok Chan (NRIC No: 340612-71-5041) be registered as the registered proprietor of the said properties; h) Damages for negligence and/or breach of statutory duty to be assessed, payable by the 3rd Defendant into a Trust Account in the name of the 1st Plaintiff; General i) An order that the full care and custody of Lee Kok Chan (NRIC No: 340612-71-5041) and the 4th Plaintiff be given to the 1st and 3rd Plaintiffs. 38 j) Interest at the rate of 5% per annum on all sums found to be due to Lee Kok Chan (NRIC No: 340612-71-5041) and the 4th Plaintiff/Mother from the date of Judgment till full realisation, payable into a Trust Account in the name of the 1st Plaintiff; k) Costs; l) Such further or other relief as this Honourable Court deems appropriate.

In this Suit, the Defendants have via Notice of Appeal dated 21.9.2020 appealed against this Court’s decisions dated 7.9.2020 in Enclosures 1, 7 and 18. None of the parties has appealed against the other decisions which were delivered on 7.9.2020. COURT ORDER DATED 7.9.2020 ON ENCLOSURE 1

In respect of Enclosure 1 (Originating Summons), this Court made the following order on 7.9.2020; “1.1 Bahawa kustodi LEE KOK CHAN (No. K/P : 340612-71-5041) (“Bapa”) diberikan kepada Plaintif-Plaintif dan Defendan Pertama secara bersesama (shared custody) dalam nisbah lapan (8) bulan dalam setahun untuk Plaintif-Plaintif dan empat

bulan dalam setahun untuk Defendan Pertama; 39

1.2 Bahawa Defendan Pertama diberi peluang pertama menerima kustodi Bapa setelah Defendan Pertama pulang dari luar negara;

Semasa Bapa berada dalam kustodi suatu pihak, semua anak yang lain dan cucu Bapa mempunyai hak untuk berjumpa/bertemu dengan Bapa dengan memberikan notis satu

hari jelas (one clear day’s notice) terlebih dahulu;

Bahawa aset-aset dan harta-harta Bapa dikumpul (recouped), direalisasi (realised) dan disimpan dalam sesuatu “Joint Stakeholders Account” (Akaun Stakeholder Bersama tersebut”) untuk dioperasi dan diurus secara bersama oleh peguamcara Plaintif dan peguamcara Defendan (“Pertama joint stakeholders”);

Bahawa dalam tempoh masa dua puluh satu (21) hari dari tarikh perintah ini Defendan Pertama dikehendaki memindah sejumlah RM602,260.15 kepada Akaun Stakeholder Bersama tersebut;

Bahawa dalam tempoh masa dua puluh satu (21) hari dari tarikh perintah ini Defendan Kedua dikehendaki memindah sejumlah RM100,000.00 kepada Akaun Stakeholder tersebut;

Bahawa dalam tempoh masa empat belas (14) hari dari tarikh peintiah ini Defendan Pertama dikehendaki menyediakan sesuatu Penyata Akaun mengenai aset-aset dan harta-harta Lee Kok Chan (Bapa) dan Mak Chee Yook (Ibu) termasuk julah penghakiman yang diterima dalam guaman Mahkamah Tinggi 40 Kuantan No. 22NCvC-16-03/2018, kos-kos dan perbelanjaan berkaitan dengan jagaan dan kustodi dan penyaraan bapa dan ibu, dan jumlah wang dan butiran akaun bank bapa dan Mak Chee Yok (No. KP:330108-71-5158), sama ada dipegang oleh mereka secara bersendirian atau secara bersesama dan/atau dengan defendan Pertama, kesemua di atas untuk tempoh masa antara 21.1.2019 dan tarikh perintah ini;

Bahawa ‘joint stakeholders akan mengendalikan dan mengurus Akaun Stakeholder Bersama tersebut secara ikhlas dan tekun dengan membelanjakan daripada Akaun Stakeholder Bersama tersebut jumlah yang wajar dan munasabah untuk jagaan, saran dan kesejahteraan Bapa;

Jumlah yang wajar dan munasabah untuk perbelanjaan bulanan untuk Bapa boleh dipersetujui saling (mutually agreed) secara bertulis antara pihak-pihak, dan sekiranya persetujuan saling gagal dicapai, pihak-pihak diberi kebebasan untuk memohon kepada Mahkamah Yang Mulia ini untuk penilaian jumlah tersebut;

Apa-apa defisit atau kekurangan wang dalam Akuan Stakeholder Bersama tersebut untuk jagaan, penyaraan dan kesejahteraan Bapa boleh diperolehi melalui jualan dan pelupusan baki aset-aset dan/atau baki harta-harta Bapa, dan mana-mana pihak di sini harus memohon kepada Mahkamah untuk jualan tersebut; 41

Bahawa segala isu dan perkara yang lain akan dibicarakan dan diputuskan dalam perbicaraan writ saman guaman no. ba- 21ncc-2-03/2020;

Bahawa selepas perbicaraan penuh dan/atau pendengaran Writ Saman Guaman No. BA-21NCC-2-03/2020, Mahkamah Yang Mulia ini boleh, membuat pindaan atau penyelarasan (adjustment) kepada perintah-perintah di atas;

Bahawa kebebasan diberikan kepada mana-mana pihak di sini untuk memohon perintah-perintah sampingan atau seterusnya kepada Mahkamah Yang Mulia ini untuk memberi efek kepada niat dan tujuan perintah-perintah di atas;

Segala tuntutan gantirugi Defendan-Defendan diputuskan dalam tindakan Writ Saman Guaman No. BA-21NCC-2- 03/2020.

Kos permohonan ini adalah kos dalam kausa tindakan Writ

On 21.9.2020, upon the Defendants’ application, this Court varied the Order dated 7.9.2020 as follows: “ ATAS PERMOHONAN Defendan-Defendan, DAN SETELAH MENDENGAR Edwin Lewis, peguamcara untuk Plaintif-Plaintif dan Kumaresan a/l Thurairaju (Mark Rohan Mahadevan bersamanya), peguamcara untuk Defendan-Defendan MAKA ADALAH DENGAN INI DIPERINTKAN bahawa Perintah untuk Lampiran 1 yang diberikan 42 oleh Mahkamah Yang Mulia ini pada 7.9.2020 (“Perintah tersebut”) dipinda seperti berikut:- “1. Bagi memenuhi obligasi Defendan-Defendan untuk memindahkan wang ke dalam sesuatu “Joint Stakeholder Account” (Akaun Stakeholder Bersama tersebut) menurut Perintah tersebut, Defendan-Defendan secara kolektif dikehendaki

memindah sejumlah RM150,000.00 sahaja kepada Akaun Stakeholder Bersama tersebut pada atau sebelum 28.9.2020; dan

memindah baki jumlah yang perlu dipindah oleh Defendan-Defendan kepada Akaun Stakeholder Bersama tersebut menurut Perintah tersebut pada atau sebelum 15.11.2020.

Bagi memenuhi obligasi Defendan Pertama untuk menyediakan Penyata Akaun menurut Perintah tersebut, Defendan Pertama dikehendaki menyediakan butiran akaun-akaun tersebut dalam dua bahagian (“tranche”) seperti berikut:-

Tranche pertama, yang merangkumi butiran akaun-akaun yang tersedia ada (available) kepada Defendan Pertama pada masa itu sahaja hendak disediakan oleh Defendan Pertama pada atau sebelum 7.10.2020; 43

Tranche kedua, yang merangkumi baki butiran akaun-akaun yang sedia ada dengan Defendan Pertama menurut Perintah tersebut, hendak disediakan oleh Defendan Pertama pada atau sebleum 30.10.2020.

Sekiranya didapati dalam perbicaraan Writ Saman Guaman No. BA-21NCC-2-03/2020 bahawa wang yang dipindahkan kepada Akaun Bersama tersebut adalah sebenarnya wang Defendan Pertama, maka Plaintif-Plaintif dikehendaki mengembalikan segala wang yang telah digunakan kepada Defendan Pertama.

Tiada perintah mengenai kos. ”

In essence, this Court on 7.9.2020 made orders only two (2) matters in connection with Enclosure 1 (Originating Summons), namely –

custody of the Father; and

financing provision for the needs and well-being of the Father. CUSTODY OF THE FATHER

One of the Defendants objections against the Plaintiff’s Originating Summons is the contention that only the parents themselves can sue for their personal liberty but none of the parent’s children (including the Plaintiffs) had the locus standi or legal standing to sue for custody of the parents.

This Court has rejected the Defendants’ said argument on the following grounds:- 44

going by the Defendants’ said argument, the constitutional right of person liberty of a person under Article 5 (1) of the Federal Constitution would be rendered useless or meaningless when a subject is being falsely imprisoned or wrongfully detained by other persons because no other person can apply to the Court for any relief or remedy for the subject, and the subject himself being unable to instruct solicitors or affirm any affidavit while under such false imprisonment or wrongful detention;

the Defendant’s said argument is contrary to the plethora of cases authorities on habeas corpus applied for by a relative or next-of-kin of the subject who has been falsely imprisoned or wrongfully detained; and

if the Defendants’ said argument were to be sustained, it would boomerang to hit back at the Defendants themselves in the present case because at the times material to this Court’s decision, the physical custody of the parents has reverted to the Plaintiff as a result of police intervention pursuant to the 1st Plaintiff’s police report and this Court would, according to the Defendants’ own argument, have to hold that the Defendants also lack locus standi to apply to the Court for any sharing or return of the custody of the parents.

In view of the averments of the Plaintiffs and Defendants in paragraphs 5 to 45 above including, but not limited to, the old age and conditions of physical and mental health of the parents this Court finds and holds that both the Plaintiffs and the 1st Defendants, as children of the parent, 45 have the locus standi to apply to the Court for reliefs pertaining to inter alia, their parents’ personal liberty, custody, well being, etc.

On 14.7.2020, at request of the Court, the Father was brought in wheelchair to the courtroom; the evidently suffered from stroke and was unable to talk. Both the Plaintiffs and the Defendants objected to the Court’s proposal to interview the Father although a Chinese interpreter from the Court was in the courtroom ready to interpret plus illustration with sign language and written words. As both parties took the common stand of objecting to such proposal for interview of the Father and the nature of litigation proceedings being adversarial in character, the Court had no choice but to refrain from interviewing the Father. In the courtroom, the Father had a video conference viewing and/or visit with the 1st Defendant who was then overseas.

As the Court, pursuant to the parties’ common objection, did not have the benefit of hearing or observing the personal wish of the surviving Father, the Court has to consider and decide on the custody of the Father objectively and sensibly in the context of the natural and ordinary wish and desire of an aged Father in a Malaysian Chinese family. Viewed and considered in such manner in light of the allegations and accusations which the Plaintiffs and the Defendants made against each other (as summarised in paragraph 5 to 45 above), this Court has found and concluded that no single child of the Father should have the sole and entire custody of the Father to the exclusion of other children. It is the conclusion of this Court that the Plaintiffs and the Defendants should have shared custody of the Father, while also allowing other children and grandchildren of the Father to have reasonable access to him. 46

Having regard to the fact that the Plaintiffs are three (3) of the children with grandchildren while the 1st Defendant is a single daughter and the 2nd Defendant a single grandson, this Court finds and concludes that the Plaintiffs should have custody of the Father for eight (8) months in a year and the Defendants should have custody of the Father for four

months in a year.

It is most probably grieving the heart of the aged father to see his children in the Court of Law, this Court cannot deprive the aged father of the solace of spending his balance few years with all his children and grandchildren without undue restriction or limitation.

In the circumstances, this Court has also made an ancillary order that whilst the Father is in the custody of a party, all his other children and grandchildren shall have the right to visit or meet with him by giving one clear day’s prior notice.

The Father is now about 86 years old. He lived through the hardship of the Second World War. During his younger days, he was a hotelier with some interest in land brokerage.

After many years of hard work, he had some cash savings of several millions of ringgit in addition to at least 50 land titles (said to be worth about RM7 million). 47

None of the Plaintiffs and Defendants has claimed or alleged that he or she actively helped the Father to accumulate his wealth.

At his old age now and being unable to walk or talk, the Father needs financial provisions for his medical care and treatment, well-being and living expenses.

In our Asian society, it would be normal for an aged parent, if he/she has no wealth or savings accumulated in the past, to look to a filial child of means to provide for the aged parent. In our present case, the cause papers before this Court does not show there is any child of the Father who offers to provide financially for the Father in the Father’s balance years.

Faced with such situation, this Court has to do some retracing for the purpose of gathering some funds to be placed in neutral hands so as to financially provide for the Father’s needs and well being for his balance years.

On 28.02.2020, this Court granted an ex parte Order inter alia the 1st Defendant be restrained from transferring money in the parents’ account or in account held jointly by a parent and the 1st Defendant.

Three (3) days after this ex parte Order was served on her, the 1st Defendant cause the following transfers of monies to be carried out :

On 9.3.2020 the 1st Defendant caused several transfers of monies totalling RM702,260.15 from the Father’s FD account and another account to the joint account of the Father and the 48 1st Defendant [page 124 – 140] and then re-transferred RM100,000 to the 2nd Defendant’s CIMB account [page 136] and RM400,000.00 to the 1st Defendant’s personal account [page 136].

On 11.3.2020 the 1st Defendant transferred a further RM202,245.15 to her personal account : page 137 to P1’s Affidavit in Enclosure 59 affirmed on 24.7.2020.

In addition, the 1st Plaintiff has averred that between February 2019 and March 2020 (14 months), a total amount of RM3.2 million was transferred out from the father’s account : paragraph 8 of P1’s Affidavit in Enclosure 59; Another RM3.2 million was also transferred out from the mother’s account, leaving a balance of RM58.68 : paragraph 8 of the 1st Plaintiff’s Affidavit in Enclosure 59. The Plaintiff said the first Defendant has been living in luxury, having bought a Volvo V90T5 on 21.02.2019 and a Mercedez Benz E300 Sport AMG Premium on 01.07.2019 with special personal number plate [page 142 – 145].

Such fund transfers contrary to the Ex parte Order was also in spite of the Plaintiff’s complaints that millions of ringgit recovered from the Kuantan High Court Suit have not been accounted for and that 36 items of the Father’s land titles were transferred to the 1st Defendant after the Father suffered stroke and/or while under care of the 1st Defendant : see allegations in paragraphs 16, 26, 33 above.

In the entire circumstances of the present case including paragraphs 81 to 83 above, this Court finds that the reasonable and fair way of 49 gathering some initial funds to financially provide for the Father is to order the 1st and 2nd Defendants to re-transfer the monies which were taken out in contravention of the Ex parte Order dated 28.02.2020, into the trust fund to be jointly operated by both parties’ solicitors, while giving the liberty for parties to apply for sale of the properties which remain in the Father’s name to raise any further funds which may be needed for the Father’s medical care, well being and living expenses. This is a form of reaping the fruits of the Father’s labour to provide for his old age and medical needs. The aforesaid re-transfer order directed against the Defendants is also necessary or expedient for preserving the sanctity of court orders, lest litigants might otherwise think that they can deliberately disobey court orders with impunity.

To a question posed by the Defendants’ counsel, this Court has also clarified that if the 1st Defendant can successfully prove to this Court in Suit No. BA-21NCC-2-03/2020 (the 2nd Suit) that the amount of RM702,260.15 from the joint account with the Father was in fact and in reality the 1st Defendant’s own money, then the 1st Defendant will be at liberty to apply to this Court for adjustment of rights by way of set off against the Father’s properties.

By reason of the aforesaid, this Court made the following orders in respect of Enclosure 1 (the Plaintiff’s Originating Summons) : Item Enclosure Decisions / Orders made

3.1 1 Plaintiffs’ Originating Summon: 50 Item Enclosure Decisions / Orders made The Plaintiffs and the 1st Defendant shall share the custody of the father Lee Kok Chan in the proportion of 8 months in a year for the Plaintiffs and 4 months in a year for the 1st Defendant. While the father is under custody of one party, all other children and grandchildren of his have rights to visit him provided at least 1 clear day’s notice is given prior to the visit. In order to provide for the wellbeing, care and maintenance of the father Lee Kok Chan, the Court also orders that the assets and properties of the father be recouped, realised and kept in a joint stakeholder account to be jointly operated and managed by the Plaintiff’s solicitors and the 1st Defendant’s solicitor, including these ancillary or incidental orders :

Within 21 days from to-date, the 1st Defendant shall transfer and remit RM 602,260.15 into the joint stakeholder account;

Within 21 days from to-date, the 2nd Defendant shall transfer and remit RM 100,000.00/= into the joint stakeholder’s account; 51 Item Enclosure Decisions / Orders made

Within 14 days from to-date, the 1st Defendant shall provide a Statement of Account in respect of judgment sum received in the Kuantan High Court Suit, the costs and expenses spent on the parents, the amounts of monies and the bank accounts details of the father and mother (whether held by either of them alone or jointly with the 1st Defendant) for the period between 21.01.2019 and the date hereof;

the joint stakeholders shall faithfully and diligently operate and manage the joint stakeholder account by disbursing from the said account the proper and reasonable amounts for the care, maintenance and well-being of the father;

The proper and reasonable amount of such monthly expenses may be mutually agreed in writing between the parties, failing which either party is at liberty to apply to this Court for an assessment of the amount;

Any deficit or shortfall in the money in the joint account for the care, maintenance and wellbeing of the father can be covered by sale 52 Item Enclosure Decisions / Orders made or disposal of the father’s balance assets and/or properties, and either party may apply to the Court for such sale, if not mutually agreed upon;

All other issues and matters are to be dealt with and decided in Writ Summons No. BA- 21NCC-2-03/2020;

After the full trial and/or hearing of NCC Suit BA-21NCC-2-03/2020, the Court may, where just and appropriate, make amendments or adjustments to the above mentioned orders; and

Liberty to apply is given to either to apply for ancillary or consequential orders to give effect to the above mentioned orders. Cost in the cause of NCC Suit. Assessment of damages for setting aside ex-parte injunctions, if any, to be dealt with in the NCC Suit.

After hearing counsel’s submissions on costs, this Court ordered each party to bear his/her own costs of proceedings in this Suit because each party succeeds in part and fails in part. 53 ENCLOSURE 7 (DEFENDANTS’ APPLICATION TO SET ASIDE EX

By Enclosure 7, the Defendants applied to set aside the Ex Parte Order dated 28.02.2020 and to direct the Plaintiffs’ to return the custody of the parents within 24 hours.

In essence, the Defendant’s application in Enclosure 7 are based on the following grounds:

contention that the Plaintiffs’ ex parte application has failed to comply with the provisions of law in O. 29 r. 2A of ROC 2012 : see paragraphs 6.2 to 6.2.5 of the Defendants’ Affidavit Sokongan affirmed on 6.3.2020;

contention that the Plaintiff’s failed to give undertaking as to damages : paragraph 8 of the Defendants’ Affidavit Sokongan;

contention that the Plaintiff’s ex parte application by Originating Summons is defective because the said application seemed to be for perpetual orders, the Plaintiff’s themselves stated an originating process would be filed soon, but the Defendants do not know when the originating process would be filed or what the issues to be tried, and the Plaintiff’s failed to file the originating process forthwith : paragraphs 9 to 11, 13 of the Defendants’ Affidavit Sokongan;

contention that the inter parte application was fixed for hearing on a date more than 14 days after the date of the Ex Parte Order 54 dated 28.02.2020; paragraph 12 of the Defendants’ Affidavit Sokongan;

contention that the Plaintiffs merely empty or general allegations and failed to depose facts pertaining to balance of convenience : paragraphs 14 and 15 of the Defendants’ Affidavit Sokongan;

contention that the Plaintiffs obtained ex parte mandatory injunction without making disclosure of their knowledge of the parents’ finance : paragraphs 16 of the Defendants’ Affidavit Sokongan;

contention regarding the substantive merits and substantive factual disputes : paragraphs 18 to 27 of the Defendants Affidavit Sokongan (including disputes on the 1st Plaintiff’s alleged abandon merit of the parents, disputes on allegations of torture and mistreatment of parents and the contents of the police report, financial issues, issues on visits to parents, disputes on forcefully taking over the custody of the parents); allegations on deployment of gangsters).

Enclosure 47 is the Defendants’ combined Written Submissions on Enclosures 1, 7, 14, 18, 21 and 32. In Enclosure 47, the Defendants submitted that Enclosure 7 (Defendants’ application to set aside Ex Parte Order) and Enclosure 18 (Defendants’ application to strike out the Origination Summons) should be heard together. In Enclosure 47, the Defendants submitted their legal objections to the Ex Parte Order as follows: 55

failure to make full and frank disclosure by citing the cases of Keet Gerald Francis Noel John v. Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 (Court of Appeal); Kosma Palm Oil Mill Sdn Bhd v. Koperasi Serbausaha Makmur Sdn Bhd [2004] 1 MLJ 316 (Court of Appeal);

failure to comply with O.29 r.1 (2A)(c), (d), (e) & (f), r.1(2BA), r.1(3)(a) & (b) by citing Motor Sports International Ltd v. Delcont (M) Sdn Bhd [1996] 2 MLJ 608 (Court of Appeal) and Arthur Anderson & Co. v. Interfood Sdn Bhd [2005] 6 MLJ 239 (Court of Appeal);

no parent action, citing Malakordi A/P Subramaniam v. Amgeneral Insurance Berhad [2015] MLJU 913 (Che Mohd Ruzima JC); Nishimatsu Construction Co. Ltd v. Kecom Sdn Bhd [2009] 2 MLJ 404 (Court of Appeal) and PS Refson & Co. Ltd v. Saggers [1984] 3 All ER 111 (Chancery Division).

In Motor Sports International case the Court of Appeal held that where there was not even a feeble attempt to comply with the requirements of O.29 r.1(2A), the ex parte injunction should be set aside. Similarly, in Arthur Anderson & Co case the Court of Appeal set aside the ex parte injunction order on ground that there was a blatant failure to observe the provisions of O.29 r.1(2A) of Rules of High Court 1980.

In the circumstances of our present case, the Plaintiffs in their Affidavit-in-Support of the ex parte application did not even make a feeble attempt to comply with the requirements of O.29 r.1(2A) of 56 Rules of Courts 2012. On this ground, this Court on 7 September 2020 allowed in part the Defendants’ application in Enclosure 7 and set aside the injunctive orders in items (2) and (3) of the Ex Parte Order dated 28.02.2020, while leaving the other items of the Ex Parte Order unaffected thereby.

Items 1 and 5 of the Ex-Parte Order dated 28.02.2020 relate to the interim custody of the parents and the interim access of children and grandchildren to the parents. Item 4 of the Ex Parte Order dated 28.02.2020 relates to interim financial provision for the expenses of the parents for their interest and well being. These items 1, 4 and 5 are not injunctive orders, and are not affected by O.29 r.1 which governs injunctions.

As regards the contentions regarding full and frank disclosure, this Court has found and concluded that all the material facts necessary for this Court to make the Ex Parte Order dated 28.02.2020 have been disclosed by the Plaintiffs. In making the Ex Parte Order dated 28.02.2020 there was no other or additional material fact which, if disclosed, would make any difference to this Court’s making of the Ex Parte Order dated 28.2.2020. In any event, non-disclosure of material fact is only a factor to be considered in the exercise of discretion whether or not to grant inter partes order. This Court has considered the Defendants’ objections and found that any alleged non-disclosure did not justify the refusal of inter partes order in the present case. 57

In respect of the Defendants’ contention on parent action, this Court has rejected the Defendants’ contention that the Ex Parte Order or this Originating Summons should be set aside or dismissed on ground of alleged absence of parent action. The reasons for this Court’s said rejection are:

the need for a parent action to sustain an interlocutory injunction relates to a case where the very action is purely for an interlocutory injunction without more. The cases cited by the Defendants either can be distinguished on the facts as summarised below :

In Nishimatsu Construction case the plaintiff filed a suit in Johor for an injunction to restrain the defendant from commencing an arbitration in Singapore and for an anticipatory discovery order before filing of any action. The Court of Appeal held on the facts of that case held that the anti-arbitration injunction to restrain an arbitration could not be sustained, and as the matter did not fall within the exception in Norwhich Pharmacal case the court had no jurisdiction to grant any anticipatory injunction. It is noted that Nishimatsu Construction was decided on the previous law before the enactment of O.24 r.7A (pre-action discovery) of Rules of Courts 2012.

Malakordi’s case followed Nishimatsu Construction case, and the High Court held that an interlocutory injunction can be issued in an action for declaration: see paragraphs [15] and [16]; 58

In PS Refson case, Nourse. J held that in urgent cases the Court has jurisdiction to grant an interlocutory injunction before the filing of a writ based on the plaintiff’s undertaking to file the writ forthwith. “Nourse J. also stated that “There is nowadays nothing unusual in granting such reliefs in urgent cases”: page 112 line c. Nourse J. was talking about grant of interlocutory injunction in urgent cases before any originating process was filed.

In our present case, the Plaintiffs in fact filed the originating process vide an Originating Summons in Enclosure 1 before they were heard by Court and it was after the filing of the Enclosure 1 Originating Summons that the Plaintiffs were granted Ex Parte Order dated 28.2.2020.

From the facts and circumstances of the present case, apart from injunctive orders the Plaintiffs also sought Orders on custody of the parents and financial provisions for the parents. As such, the present case is not entirely confined by or constrained by the injunction principles decided in the decided cases cited by the Defendants;

In urgent case where there are arguable case or serious triable issues that the elderly parents’ personal liberty and safety are being threated or infringed by persons who are having physical custody of the parents, the Court has jurisdiction to make interim orders or reliefs to safeguard or preserve the liberty and safety 59 of the parents. Our present case falls with this category of cases.

In urgent cases where there are arguable case or serious triable issues that the elderly parents are being held in physical custody of a child, triable issue on mistreatment or injury to the elderly parents for the other children or grandchildren, the Court has jurisdiction to make an interim relief for the other children and grandchildren to have reasonable access to the elderly parents. Our present case falls within this category of cases.

On 26.3.2020, the Plaintiffs herein and their mother filed a Writ of Summons and Statement of Claim in Shah Alam High Court Suit No. BA-21NCC-2-03/2020 (“the 2nd NCC Suit”). It is also pertinent to note that on 26.3.2020 the Plaintiffs and the mother filed a Writ of Summons and Statement of Claim in SAHC Suit No. BA-21NCC-2-03/2020 (“the 2nd Suit”) against Lee Yong Wun (the 1st Defendant herein), Maneemalah A/P P.V. Ganesan T/A Tetuan G.M. Mala & Partners, and Pentadbir Tanah Daerah Kuantan for alleged breach of trust, alleged unjust enrichment, alleged conspiracy to defraud/injure, alleged negligence and/or breach of statutory duties and claim for the following reliefs and remedies: As against the 1st Defendant (Lee Yong Wun): a) A declaration that all the memorandum of transfer of the properties as listed in Annexure 1, transferring the said properties to the 1st Defendant, was illegal null and void and is of no effect and that Lee Kok Chan (NRIC No: 60 340612-71-5041) be reinstated as the registered and lawful owner of the said properties; b) An order that the Power of Attorney dated 20.07.2017 and registered at the Shah Alam High Court as PA 8204/17 on 16.08.2017 be set aside; c) An order that the true and full account be taken of all profits made by the 1st Defendant to date in respect of the usage of, and dealings with all trust monies belonging to Lee Kok Chan (NRIC No: 340612-71-5041) and the 4th Plaintiff/Mother; d) An order that the 1st Defendant do pay into a Trust Account in the name of the 1st Plaintiff all sums found to be due from the 1st Defendant on the taking of the account under sub-paragraph (c) above; e) Damages for breach of trust and/or breach of fiduciary duties and/or conspiracy to defraud/injure to be assessed, payable by the 1st Defendant into a Trust Account in the name of the 1st Plaintiff; As against 2nd Defendant (Maneemalah A/P V. Ganesan T/A Tetuan G.M. Mala & Partners): f) Damages for conspiracy to defraud/injure to be assessed, payable by the 2nd Defendant into a Trust Account in the name of the 1st Plaintiff; 61 As against the 3rd Defendant g) An order for rectification be given to the 3rd Defendant pursuant to s. 417 of the NLC that the 1st Defendant be removed from the respective title of the properties as listed in Annexure 1 and Lee Kok Chan (NRIC No: 340612-71-5041) be registered as the registered proprietor of the said properties; h) Damages for negligence and/or breach of statutory duty to be assessed, payable by the 3rd Defendant into a Trust Account in the name of the 1st Plaintiff; General i) An order that the full care and custody of Lee Kok Chan (NRIC No: 340612-71-5041) and the 4th Plaintiff be given to the 1st and 3rd Plaintiffs. j) Interest at the rate of 5% per annum on all sums found to be due to Lee Kok Chan (NRIC No: 340612-71-5041) and the 4th Plaintiff/Mother from the date of Judgment till full realisation, payable into a Trust Account in the name of the 1st Plaintiff; k) Costs; l) Such further or other relief as this Honourable Court deems appropriate. In the considered view of this Court, this Writ No. BA-21NCC-2- 03/2020 filed on 26.3.2020 was commenced within reasonable time and without undue delay because: 62

the urgent and primary concern of the Plaintiffs, as disclosed in the affidavits, in early March 2020 was the custody of, access to and medical care of the aged parents;

(ii) after regaining custody of the parents, it was reasonable for the Plaintiffs to attend to the personal needs of the parents to check and verify further details before commencing the 2nd NCC Suit;

(iii) time was also needed by the Plaintiffs to peruse, study and respond to the Defendants’ application dated 6.3.2020 (Enclosure 7 : application for setting aside), the Defendants’ application dated 16.3.2020 (Enclosure 14 application for 12 Orders), the Defendants’ application dated 17.3.2020 (Enclosure 18 application under O.18 r.19), and the Defendants’ application dated 17.3.2020 (Enclosure 21 for RM1million as security for costs);

(iv) Covid 19 lockdown was announced on 16.3.2020 and the lockdown commenced on 18.3.2020 and ended on 13.5.2020; and

despite the Covid 19 lockdown the Plaintiffs managed to prepare the 2nd Suit Writ and Statement of Claim and the 2nd NCC Suit was filed on 26.3.2020 in the midst of Covid 19 lockdown.

In the entire circumstances of the present case, this Court has decided on 7 September 2020 that respect of Enclosure 7 and matters consequential thereto – 63

the injunctive orders in items 2 and 3 of the Ex Parte Order dated 28.2.2020 be set aside;

(b)

the other items of the Ex Parte Order dated 28.02.2020 shall remain and are not affected by the aforesaid setting aside. ENCLOSURE 18 (DEFENDANTS’ APPLICATION UNDER O.18 R.19 TO STRIKE OUT)

Enclosure 7 is the Defendants’ application under O.18 r. 19 to strike out the Plaintiff’s action.

The legal principles on striking out are well-settled. The principles of law in relation to striking out applications are clear. The authority to be followed for such applications is the case of Bandar Builders Sdn. Bhd. & Ors v United Malayan Banking Corporation Bhd. [1993] 3 MLJ 36 where Mohamed Dzaiddin bin Hj Abdullah SCJ (later CJ) held as follows: “The principles upon which the court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck v Wilkinson [1899] 1 QB 86, at p 91), and this summary 64 procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’ (Attorney-General of Duchy of Lancaster v L & NW Ry Co [1892] 3 Ch 274 (CA)). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871 (CA)) … … It has been said that so long as the pleadings disclose some cause of action or raise some question fit to be decided by the judge, the mere fact that the case is weak and not likely to succeed at the trial is no ground for the pleadings to be struck out (Moore v Lawson (1915) 31 TLR 418 (CA)); (Wenlock v Moloney).”

In the case of Metroplex Holdings Sdn. Bhd. v Commerce International Merchant Bankers Bhd. [2013] 4 MLJ 520, the Court of Appeal had held as below:- “[23] Striking out is only adopted when it is conspicuously clear that the claim is obviously unsustainable. The court must be guided by the root word ‘obviously’ because that word is the guiding light which shows that the claim must be plainly or evidently unsustainable in law before the claim is struck out (Pet Far Eastern (M) Sdn. Bhd. v Tay Young Huat & Ors [1999] 5 MLJ 558 (HC)). Such power should only be exercised by the court sparingly (Affin Bank Bhd. v Eye Bee Sdn. Bhd. [2005] 7 MLJ 1; Roslan bin Abdullah v New Zealand Insurance Co Ltd [1981] 2 MLJ 324 (FC); Datuk Ir Che Amran bin Mohd Yusoff v Yayasan Melaka & Others [2003] MLJU 7; Seng Huat Hang Sdn. Bhd. & Ors v Chee Seng & Co Sdn. Bhd. [1987] 1 MLJ 413 (HC); Mooney 65 & Ors v Peat, Marwick, Mitchell & Co & Anor [1967] 1 MLJ 87 (HC); Honan Plantations Sdn. Bhd. v Kerajaan Negeri Johor & Anor and another appeal [1998] 2 MLJ 498 (CA); Bandar Builder Sdn. Bhd. & Ors v United Malayan Banking Corporation Bhd. [1993] 3 MLJ 36 (SC); and S Manickam & Ors v Ismail bin Mohamad & Ors [1997] 2 MLJ 90). [24] If the pleadings disclose some cause of action or has raised some question fit to be decided, then it is appropriate that the case should be set down for trial, no matter how slight the chances are of succeeding (Saripah bte Manap & Ors v Emar Sdn. Bhd. (in dissolution) & Ors [1998] 1 MLJ 323 (HC)). And when there are issues to be determined by way of discovery or by way of cross-examination, then the summary process of striking out is not appropriate (Omega Holdings Bhd. v Dato’ Tiah Thee Kian & Ors [2002] 6 MLJ 20.)”

Further, in the case of Datuk Ir Che Amran Mohd Yusoff v. Yayasan Melaka & Ors [2003] 1 CLJ 767, the Court has held as below:- “It has been stated ever so often by our courts that it is only in absolutely plain and obvious cases that a plaintiff’s claim or action or a party’s pleadings would be struck out under any of the limbs of O.18 r. 19(1): See eg, Roslan Abdullah v. New Zealand Insurance Co Ltd [1981] 1 LNS 40; [1981] 2 MLJ 324 FC. In the instant case, there are serious conflicts or controversies in the multifarious affidavits filled by the parties herein. I am neither bound nor prepared to resolve these conflicts or controversies at this premature affidavit stage, but would only resolve them by way of mature consideration of viva voce evidence adduced at a full hearing of the action herein: Kantan Jaya Marine Services (Pg) Sdn. Bhd. v. 66 RHB Bank Bhd. [2001] 2 CLJ 738; Hii Heng Tuong Alphonsus v. Lok Min Wah & Ors [1995] 4 CLJ 350 HC.

It could also be said that as for limb (b), the test is the same consideration on the claim being obviously unsustainable and that for limb (d), it arises when the process of the Court is not used in a bona fide manner and has been abused (see the Court of Appeal’s decision in Harapan Permai Sdn. Bhd. v. Sabah Forest Industries Sdn. Bhd. [2010] 3 MLRA 37; [2011] 2 MLJ 192; [2011] 1 CLJ 285) and the said claim must also be proven to be obviously unsustainable (see another Court of Appeal decision of Zainal Abidin Hamid @ S Maniam v. Kerajaan Malaysia [2009] 2 MLRA 626; [2009] 6 MLJ 863; [2009] 6

Paragraphs 1 to 95 above are repeated here.

As it can be seen from paragraphs 1 to 86, the Plaintiffs have valid cause of action in seeking custody of the parents and for a statement of accounts to facilitate the financial provisions for the surviving old father, as well as serious triable issues regarding the remaining properties of the father and the other properties previously transferred to the 1st Defendant.

In the entire circumstances of the case, this is not a suitable case for summarily striking out the Plaintiffs’ Originating Summons or any part thereof.

In the premises, this Court on 7 September 2020 dismissed the Defendants’ application in Enclosure 18. 67

After hearing the counsel for the respective parties and having regard to the fact that the Plaintiffs succeed in part and the Defendants also succeed in part in connection with the nine (9) enclosures which came up for decisions together on 7 September 2020, this Court ordered that the costs shall be costs in the cause of the 2nd NCC Suit, and assessment of damages for setting aside the ex parte injunctions (if any) to be dealt with in the 2nd NCC Suit. Dated : 6th November, 2020. SIGNED ................................................... TEE GEOK HOCK JUDICIAL COMMISIONER HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) To the parties’ solicitors:

For The Plaintiffs :

For The Defendants :