Ang Hua Keong v Loh Poh Yee (P) (JA-33-44-02/2017)

This case concerns a unilateral divorce petition filed by the petitioner wife, Loh Poh Yee (hereinafter ‘the petitioner’), to dissolve the marriage between her and the estranged husband, Ang Hua Keong (hereinafter ‘the respondent’).

The parties have gone through a full trial. On 9.8.2018, this Court delivered its decision. Dissatisfied with the decision, the respondent filed an appeal to the Court of Appeal. The reasons for the decision are set down as below.

The parties were married on 26.12.2008 at the JPN Negeri Johor, Malaysia, in accordance with the Law Reform (Marriage and Divorce) Act 1976 (hereinafter ‘the Act’). They were blessed with a son on 8.3.2010. The boy was aged 8 at the time of the proceedings.

The facts pleaded which caused or led to the irretrievable breakdown of the marriage are: (i) that the respondent had behaved in such a way that the petitioner could not reasonably be expected to live with the respondent, (ii) that the respondent had deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition, and (iii) that the parties had lived apart for a continuous period of at least 2 years (since December 2014) immediately preceding the presentation of the petition in February 2017 (see ss. 54(1)(b), (c) and (d) of the Act).

The petitioner sought the sole custody, care and control of her only child. Among other things, she claimed from the respondent RM4,500.00 per month to be paid to her as child maintenance and RM500,000.00 for herself as a lump sum compensation (clean break) for causing the breakdown of the marriage. Further, she sought for the respondent’s undivided half share in an apartment known as Parcel No. C-32-01, No. Tingkat 32, Bangunan C Maxim Citylights (hereinafter ‘the Citylights apartment) to be transferred to her. Lastly, the petitioner also requested from the respondent a motor vehicle (not more than a year old) to be registered in her name and to be used for ferrying the son.

The respondent denied he was to blame for the irretrievable breakdown of the marriage. In fact, it was the petitioner who had caused the irretrievable breakdown of the marriage, so claimed the respondent. The petitioner and respondent had blamed each other for the cause of the breakdown of the marriage. The details of the facts which caused or led to the breakdown of the marriage will be discussed along with the reasoning of this judgment below.

The respondent sought the sole custody, care and control of his son. The respondent also sought the three immovable matrimonial assets, namely, (i) the Citylights apartment, (ii) #08-08, Block C, Danga View Apartment, Jalan Persiaran Danga, Danga Bay, Johor Bahru (hereinafter ‘the Danga View apartment’), and (iii) No. 11, Jalan Perdana 2/1, Taman Sri Pulai Perdana 2, 81300 Johor (hereinafter ‘the Perdana house) which were registered in both names (undivided half shares each) be divided in the portion of ¼ to the petitioner and ¾ to the respondent, and that all three immovable assets to be disposed, and the Page 4 of 21 nett proceeds to be distributed to the petitioner and respondent according to the entitlement as pleaded by the respondent.

In December 2008, the petitioner, at the age of 27, married the respondent who was three years older. At that material time, she was employed as a property negotiator, and the respondent was working as a project manager in China.

As far as the facts revealed, the respondent was working in China in 2006 before the marriage. In December 2008, after the marriage, the petitioner gave up her job and career as a property negotiator in Malaysia and went to live with the respondent in China.

In China, the petitioner felt lonely staying at home as a housewife. She was not familiar with the new environment and hardly knew anyone. She travelled back to Malaysia occasionally. In 2010, the petitioner gave birth to a son. They came back to Malaysia in September 2013 for good.

According to the petitioner’s testimony, she said that after her son was born, the respondent had withdrawn himself from any intimate relationship with the petitioner. The petitioner felt emotionally disturbed by the respondent’s behaviour. The marriage relationship between petitioner and respondent became more distant and colder day by day. The petitioner felt that the respondent no longer cared and loved her like a normal husband would.

In 2014, the respondent stopped giving the household allowance of RM500.00 to the petitioner. The respondent was upset with the petitioner for things that she did or did not do, including not pleasing the petitioner’s mother while his mother was staying with them.

A big quarrel erupted between the parties in November 2014 while they were travelling in a car, and the respondent dumped the petitioner along the highway. The petitioner suffered bruises caused by the respondent during a scuffle in the incident.

On 1.12.2014, the petitioner, no longer able to withstand the respondent’s unreasonable behaviour, left the respondent and brought the son along with her. She was suffering from mental and emotional breakdown at that time and was at the verge of committing suicide.

The petitioner took refuge at her parents’ house in Bahau, Negeri Sembilan. She tried to pull herself together after what she had gone through with the respondent, and the agony and mental torture she had faced all those years. With the support, comfort and help given by the petitioner’s parents and siblings, she was able to move on with her life. She decided to move to Kuala Lumpur for a change and sought to be independent. She found herself a job working as a building executive for a residential building which she currently resides in Petaling Jaya, Selangor.

The son stayed with the petitioner all the time. The son has gotten familiar with the lifestyle and schooling environment in the city. After having separated for more than two years from the respondent, the petitioner was finally able to stand on her own and move on with her life. Page 6 of 21 However, she appears to be tormented by her past experience with the respondent, and this could be felt and seen during the course of the proceedings.

The respondent denied the irretrievable breakdown of the marriage was caused by him. The respondent averted that he had made many attempts to patch back or reconcile his relationship with the petitioner, but the petitioner refused to accept.

During the trial, the respondent tried to paint a sordid picture of the petitioner, accusing her as a lesbian, but this testimony and accusation were expunged by the Court as it was not pleaded.

The respondent admitted he had stopped paying the monthly allowance to the petitioner, but argued that he continued to pay for her credit card expenses.

The respondent claimed that the petitioner did not take good care of the son because she was suffering from mental depression. For that reason, the respondent stated that he refused to have sexual intercourse with the petitioner. He was not ready to have another child with the petitioner. The respondent also claimed that although he and the petitioner did not have sexual intercourse (penetration), they did occasionally have other forms of intimacy.

The respondent had called his mother to testify in court as to how the petitioner did not respect his mother. The respondent’s mother (RW1) told the court that the petitioner had arguments with her until she had to move back to her own dwelling place, instead of staying together Page 7 of 21 with the petitioner and respondent in their house. RW1 repeatedly claimed that the petitioner did not respect her as her mother-in-law. She claimed that the petitioner did not welcome her to stay with the family at the Perdana house.

There were also other incidents that transpired between the petitioner and the respondent, and both had given their versions of the narratives which this Court does not intend to dwell into. Both gave contradictory facts accusing each other that the other party was wrong. It is inevitable for a family court to be confronted with conflicting statements from both sides, because no party would want to admit that he/she was wrong. Both have their stories to tell. There is no one right answer as to who was right and who was wrong at the end of the day. The duty of the court is to look at the facts in their entirety not just based on an isolated incident to find who is to blame for the breakdown of the marriage.

Arguments between two married persons are common affairs. It is not the Court’s duty to decide who was right or wrong during all those bickering. This Court will confine its examination to the alleged unreasonable behaviour of the petitioner.

Firstly, it is an unreasonable excuse given by the respondent to refuse sexual intercourse because he felt he was not ready to have a second child. The respondent stated that the petitioner was not taking care of their son well, therefore, he was not ready to have another child. The respondent’s excuse has no basis and there was no evidence to support his allegation that the petitioner did not take care of the son well during the trial.

An intimate relationship is an important part of a marriage, it is not merely to have progeny. From a woman’s perspective, having a sexual relationship with her husband, other than to bear children, is an act of assurance of his love and affection for her, and also a feeling of faithfulness and security.

The petitioner’s refusal to have sexual intercourse with the petitioner had caused the petitioner to feel emotionally disturbed. She had lost her confidence in the relationship with the respondent when she felt there was no more affection, love and sense of security. Her emotions became worse when the respondent picked on her over trivial issues. Her tense relationship with the mother-in-law had simply added fuel to the fire. Her emotion escalated and transformed into depression and mental torture when the husband treated her coldly. The petitioner tried to express and explain her feelings to the respondent, but it was futile. The respondent did not respond or show sympathy to the respondent’s feelings and emotions. The petitioner was compelled to seek medical help from a psychiatrist.

Secondly, the respondent was a meticulous and calculative person. He required the petitioner to show the receipts for each and every item she had spent in order to reimburse the petitioner. The petitioner was not earning after her marriage to the respondent, and had to depend on the respondent for financial support. The respondent treated the petitioner with distrust and wanted the petitioner to justify each and every cent she spent. The respondent’s behaviour hurt the petitioner’s feelings and dignity as if she were untrustworthy or a wasteful person. The manner in which the respondent treated the petitioner had caused the petitioner to lose her self-esteem. The behaviour of the respondent Page 9 of 21 towards the petitioner was a form of mental torture for the petitioner as well.

Thirdly, the respondent claimed he had tried to reconcile with the petitioner by inviting her to come back to stay with him after she had left, but the respondent’s actions spoke otherwise. He had changed the house lock and transferred the vehicle that was previously used by the petitioner to his mother. The respondent defended his actions by saying that the petitioner could have used the back door to enter the house and denied that he intentionally changed the lock to prevent the petitioner from entering the house. The respondent also claimed that his mother needed to use the vehicle and it was a family vehicle, therefore, he transferred the ownership of the vehicle to the mother.

The respondent’s actions clearly contradicted his claim that he had intention to reconcile with the petitioner.

From this Court’s observation of the respondent, his demeanour, actions, conduct and the way he defended himself, shows he is chauvinistic, self-centred, and highly egoistic. He wanted to have control over the petitioner, including taking charge of the petitioner’s money. He told the petitioner to deposit all her savings with him amounting to RM10,000.00, so that he can give her more interest than placing her money in a bank. The respondent admitted that until today he has not paid the petitioner back her RM10,000.00, not to mention any interest.

The respondent treated the petitioner with no respect by telling her that for every child she gives birth to, he will reward her with RM10,000.00, but at his pleasure as and when he would want to have Page 10 of 21 children. When he was not ready to have one, he refused to have sexual intercourse with the petitioner. The respondent claimed that the petitioner had minor surgery during the delivery of the baby, therefore, he would not want to impregnate the petitioner, in addition to the excuse that he was not ready to have another child. All the respondent’s excuses were red herrings which were intended to deflect the court’s attention to his unreasonable behaviour.

Fourthly, it is ironical that on one hand he wanted to petitioner to return to him as a family unit, on the other hand the respondent had shut the doors to the petitioner for everything, including financial support, a dwelling place and transport, not to mention care and love to the petitioner. All the respondent actually wanted was to have the right of the custody, care and control of his son. He insisted that he did no wrong to the petitioner, despite the facts pointing otherwise.

Lastly, this Court is of the considered view that the petitioner was put to a position of having no say in relation to finances of the family because the petitioner had a tight control of the household finances. The petitioner became a person with low self-esteem after she married the respondent. The petitioner had shown to the Court that she could not withstand the intimidating attitude of the respondent.

Having considered the entirety of the factual matrix of the case, and having examined the petitioner’s and respondent’s behaviours, characters and personalities, this Court is satisfied that the petitioner had on a balance of probabilities established that the respondent had behaved in such a way that the petitioner could no longer reasonably be expected to live with the respondent. This Court is also satisfied that a Page 11 of 21 right thinking person would consider the behaviours of the respondent as having led and caused the irretrievable breakdown of the marriage (see Joseph Jeganathan v Rosaline Joseph [1989] 3 MLJ 106).

On a final note, the respondent claimed that it was the petitioner who had deserted him. The petitioner would not have deserted the respondent but for the unreasonable behaviours of the respondent. The respondent could not show that it was the petitioner who had caused the irretrievable breakdown of their marriage.

The respondent kept harping on the fact that the petitioner did not respect the respondent’s mother. This is not a ground provided in law as a fact for the irretrievable breakdown of a marriage. The petitioner married the respondent, not the mother-in-law. The respondent may be a filial son, but the respondent owed legal as well as moral duties to take care of his wife, including not to use his mother against his wife.

Marriage is an affair between a husband and a wife, although the wife has to respect the husband; she has no duty to please the mother-in-law to keep the husband happy. Marriage is about two persons living in harmony as a family unit; marriage is not an affair between the entire family members from two sides.

Based on the above findings, this Court ordered a decree for the dissolution of the marriage between the parties as it was fully satisfied it is just and reasonable to do so.

The boy’s welfare is the paramount consideration of this Court (see Mahabir Prasad v Mahabir Prasad [1982] 1 MLJ 189). After taking into consideration the child’s welfare and the facts of the case, this Court is of the considered view that it is for the best interest of the child that custody, care and control ought to be given to the petitioner for the following reasons.

First, for the last two years, the child was with the mother. The petitioner has been taking good care of the boy. The boy is currently schooling in Kuala Lumpur, and is used to the schooling environment, and he has made new friends there. He is happy where he is. During an interview conducted on 20.3.2018 by the Court (in chambers) with the boy, he told the Court that he occasionally missed his father, and that he loves both the parents, but he would prefer to stay with the mother.

Secondly, the petitioner has provided living conditions that are comfortable enough for the child to grow up with. The child meets with his cousins during the weekends and have leisure times together.

Thirdly, the petitioner is able to spend most of her free time with the boy. She works in the building where she and the son are staying. When the son comes back from school, she is close by to keep an eye on the son. It is a conducive arrangement for a single parent to take care of a child of such young age.

Fourthly, it is not suitable to uproot the child from his present condition and environment, because he has adapted and settled in Page 13 of 21 where he is now. This Court is of the considered view that it should let the child to complete his primary education first in the current school before uprooting him, if necessary, to a private international school in Johor Bahru, as suggested by the respondent who said he was willing to bear all the educational expenses.

It would be prudent for the time being to let the child complete his primary education in Kuala Lumpur before moving him to Johor Bahru, if need be. By then, the boy will be older and more mature to decide whether he would want to come and stay with the respondent in Johor Bahru. The respondent insisted that the boy follow him, but the respondent failed to consider the child’s wishes and interest. The respondent was of the opinion that he would be in a better position to bring up the child which this Court did not agree. The child would be left with the grandmother during the day and would not be able to see the mother often if custody, care and control were given to the respondent.

After having considered the above, and also after having interviewed the child, where the child had demonstrated to the Court that he was of sufficient intelligence to know what the parents were going through, and he was able to tell the court his wish as to who he wanted to stay with, i.e. the mother, therefore, this Court opined that it was for the best interest and welfare of the child to be placed with the petitioner for the time being until such time there is a need to uproot the child to be with the respondent.

This Court also ordered that reasonable access to the son be given to the respondent with one (1) day prior notice to the petitioner, and the access includes during school holidays. The respondent is also allowed Page 14 of 21 to have overnight access to the child provided that the child is willing to be with the respondent, and the petitioner could not unreasonably withhold her consent when the respondent seeks access to the child.

With regard to the petitioner’s claim for maintenance of a lump sum payment, this Court is of the considered view that this is not a case suitable for lump sum payment (clean break principle). There is nothing to justify a lump sum payment from the facts of this case (see Hii Chan Seng v Aida Balingan Baron [2011] 1 LNS 12, cited by the respondent’s counsel which this Court is fully in agreement).

In assessing the amount of maintenance to be paid to the petitioner, this Court had taken into consideration the means and needs of both parties, the duration of the marriage which was approximately 6 years, the age of the parties, the financial position of the parties during the subsisting of the marriage and their earning capacities (see Koay Cheng Eng v Linda Herawati Santoso [2008] 4 MLJ 863).

Currently, the petitioner is gainfully employed, but that could not preclude her from claiming maintenance from the respondent. During all those years the parties were together, it was the respondent who supported the petitioner.

The respondent submitted that the petitioner did not ask money from him since she had left, therefore, she was financially capable to stand on her own. This submission is a fallacy. The petitioner was pushed to a corner taking refuge in her parents’ home. She has to Page 15 of 21 continue to survive and take care of the son, obviously she has to find a job to sustain herself.

She could not be constantly depending on her parents or siblings for financial support. She could not ask money from the petitioner after she had left because it was so difficult to ask money from the respondent even when she was staying with the respondent during the subsisting of the marriage.

After leaving the respondent, she has to rent a place and support herself and the son with the little income she earned, therefore, it is reasonable that a sum of RM2,000.00 be ordered to be paid to the petitioner by the respondent as an appropriate amount for maintaining her lifestyle. The amount could not enrich her, it is just sufficient to support her financially in addition to the income she is getting currently.

As she is still young, only 37, if she ever remarries, the maintenance will cease in accordance with the law. With regard to the respondent, he is only 40, he is still young and capable of earning higher income in the years to come.

With regard to the child maintenance, this Court ordered a sum of RM2,000.00 to be paid by the respondent to the petitioner, excluding educational expenses. The boy is currently studying in a Chinese school in Kuala Lumpur. There will be expenses such as extra-curricular activities in school, including transport expenses, private tuition and etcetera. The costs of living and maintaining a child in a city like Kuala Lumpur is costly. The amount of RM2,000.00 is a reasonable amount. It would ease the financial burden of the petitioner in taking care of the Page 16 of 21 child. Any extra amount could be used for the child’s entertainment and recreational expenses, so that the child could have a well-balanced lifestyle.

This Court had also considered the means and needs of the respondent. The respondent is currently supporting his mother. He has to pay the monthly housing instalments (which is only for an interim period of time until the properties [two properties] are disposed), his own expenses and monthly payments of insurance policies.

The monthly income that the respondent had revealed to the Court, i.e. RM5,000.00, is unrealistic and could not match the assets that he had acquired all these years. The respondent admitted that he has to pay about RM4,520.00 for the loan instalments for the three immovable matrimonial properties.

This Court could not believe the respondent’s financial standing which was revealed to this Court because he had recently bought for himself a luxury car (model ‘Audi’ which cost approximately RM200,000.00 as informed by the respondent) for his own use which he claimed is required by his job nature.

The respondent did not disclose his current bank statement, despite being asked to produce by the petitioner’s counsel. There was no full and frank disclosure of the respondent’s financial status and income to this Court.

The respondent has been working in high positions in several companies all these years, therefore, it could not be that he has no Page 17 of 21 savings or is merely making ends meet. He would not have been able to acquire three immovable assets if he was just earning sufficient to make ends meet. He could not be earning far lesser than his previous pay, i.e. approximately RM9,000.00. The respondent, being such a meticulous person when it comes to money, would not have taken up a job that paid less than before.

The evidence before this Court shows that the respondent was extremely meticulous when handling money, he even had a record showing that he paid the petitioner for her reward of giving birth to their son and the records of the petitioner’s expenditure. The respondent must have selectively revealed his financial records, and only disclosed those which were favourable to him in the proceedings.

The petitioner declared that he was ready to enrol his son in an international private school if custody, care and control were given to him which evidently shows that he has the financial capability to maintain a ‘well-to-do’ lifestyle for himself and the son, and perhaps including his mother.

This Court is of the considered view that the amounts ordered to be paid by the respondent are reasonable maintenance for the petitioner and son. In addition, the Court has also considered the facts and evidence in that the respondent was to be blamed for the irretrievable breakdown of the marriage (see s.78 of the Act). But for the unreasonable behaviours of the respondent, the petitioner and son would not have to change their living environment and readjust their lifestyles.

With regards to the division of the three immovable properties, this Court ordered that the Citylights apartment be given to the petitioner;