Chan Siew Chui v Koo Bon Kil (BA-33-804-10/2022)

Enclosure 8 being the application filed by the Petitioner Wife 15 (PW) for an Interim Injunction against the Respondent 16 Husband (RH) and Co-Respondent to prevent the disposal of 17 property/assets; and 18

Encl 20 which was the PW’s application for ancillary relief for 19 herself and the children of the marriage pending the full 20 disposal of the Judicial Separation Petition which has yet to 21 be fixed for trial. 22 23 [2] After giving due consideration to the affidavit evidence and the oral 24 and written submissions of the parties I had allowed Encls 8 and 20 with 25 some modification and gave broad grounds for my decision. 26 27 [3] Dissatisfied, the respective Respondent and Co-Respondent have 28 filed three separate appeals against the above decisions. The RH’s 29 appeals are in respect of the decisions in Encl 8 and 20 while the Co- 1 Respondent appealed against the decision in Encl 8 only. 2 3 [4] Since the 2 applications relate to the same petition and arose from 4 the same factual matrix I have prepared a single grounds of judgement to 5 cover the reasoning for my decisions on the 2 applications. 6 7 Enclosure 8 – The Interim Injunction 8 [5] The PW has prayed for the following reliefs in Encl 8: 9 a) that the Respondent, his employees, his agents and/or his 10 representatives be prohibited from closing accounts, 11 depreciating, disposing, transferring, dealing with or directing 12 any third party to roll up, close accounts, depreciate, dispose 13 of, transfer, deal with the following assets: 14 15 Shares in the Company 16 i. Elquor International Pte Ltd (Company No: 17 201736655G); 18 ii. Elquor International Sdn Bhd (Company No: 1282740- 19 W); 20 iii. Zosmo International Sdn Bhd (Company No.: 1419204- 21 H); 22 iv. ITTO Food Sdn Bhd (Company No: 202001021627 23 (1377947-U)) (held by the Joint Respondent on trust for 24 the benefit of the Respondent); 25 v. 82 DRYPOT Recipe (Company No: 002926864-M) (held 26 by the Joint Respondent on trust for the benefit of the 27 Respondent); 28 vi. Toms Motorsport (Company No.: 00391028-A) (held by 1 the Joint Respondent on trust for the benefit of the 2 Respondent); 3 vii. Tipsy Tap Enterprise (Company No.: 003358118-W) 4 (held by the Joint Respondent on trust for the benefit of 5 the Respondent); 6 7 Crypto Currency 8 viii. TriumphFX; 9 ix. Cocoobot; 10 x. Binance; 11 12 Respondent's personal account 13 xi. Personal account HSBC no: 316-335694-108 (MYR); 14 xii. Personal account HSBC no: 316-335694-888 (USD); 15 xiii. Personal account MAYBANK no: 1148 7913 0002 ; 16 xiv. Personal account CIMB: 80-0849993-2; 17 18 Company Account 19 xv. HSBC Elquor International Sdn. Bhd. Account: 316- 20 327642-725 (USD); 21 xvi. HSBC Elquor International Sdn. Bhd. Account: 316- 22 327642-101 (MYR); 23 xvii. HSBC Zosmo International Sdn. Bhd. Account: 343- 24 174330-101 (MYR); 25 xviii. HSBC Zosmo International Sdn. Bhd. Account: 343- 26 174330-725 (USD); 27 xix. OCBC Elquor International Pte Account. Ltd.: 28 712521368001 (SGD); 29 xx. OCBC Elquor International Pte Account. Ltd.: 1 503410649301 (USD); 2 xxi. CIMB Toms Motorsport CIMB Account: 8605160324 3 (held by the Joint Respondent on trust for the benefit of 4 the Respondent); 5 6 Vehicle/Bicycle 7 xxii. BMW / M4 Competition Package (Reg. No.: VGX1881); 8 xxiii. Chevrolet / Impala (Reg. No.: NDS1881); 9 xxiv. Audi / Audi Q7 (Reg. No.: VCT1881); 10 xxv. Mercedez Benz / A170 (A) (Reg No.: WNS9961); 11 xxvi. Ford/ Mustang Fastback (Reg No.: VHS 1881); 12 xxvii. Porsche / Cayenne 3.6 V6 (Reg no.: VHD1881); 13 xxviii. BMW / R1250GS Adventure (Reg. No.: BQC1881); 14 xxix. Husqvarna / TE 3001i (Reg. No.: VEH191); 15 xxx. Husqvarna / FX450 (Reg. No.: VGG8183); 16 xxxi. Yamaha / YZF-R25 (Reg. No.: BPX6445); 17 xxxii. KTM / 450 SX-F; 18 xxxiii. KTM / 450 SMR; 19 xxxiv. KTM / 450 EXC-F; 20 xxxv. KTM / 350 EXC-F; 21 xxxvi. Kawasaki Ninja / ZX-10R; 22 xxxvii. VESPA / 150 (Reg no.: PQ8927); 23 xxxviii. Bicycle Trek / Marlin 5; 24 xxxix. Bicycle Trek / Marlin 6; 25 xl. Specialised Bicycle; 26 xli. Bicycle Pinarello / Dogma F10 Disc (Red); dan 27 xlii. Bicycle Trek; 28 29 Any disposition during that period is set aside immediately; 1 b) That the petitioner is permitted from the date of order herein 2 to use the Range Rover VGW1881 car where all loan 3 installments, maintenance costs, driver-related costs for this 4 car, insurance, and road tax are borne by the Respondent 5 pending the full and final decision of the Court in the principal 6 proceedings hereof; 7 c) That the petitioner is allowed to continue using the HSBC 8 5498 5400 0060 4630 supplementary credit card provided by 9 the Respondent; 10 d) That the cost of this application is borne by the Respondent; 11 and 12 e) Such further or other order or relief as this Honorable Court 13 may deem fit and proper. 14 15 Background Facts 16 [6] The background facts relevant to this application has been gathered 17 from the cause papers filed by the parties. 18 19 [7] The PW and RH were married on 2.5.2001 and have three children. 20 The elder two are aged 18 and above while the youngest is 13 years old. 21 22 [8] The RH is a Korean citizen with permanent residence in Malaysia 23 and has numerous businesses registered here in this country and 24 overseas. The PW is a housewife and has no other source of income other 25 than from the businesses and investments owned by the RH. She and the 26 children are solely dependent on the RH for their living expenses and all 27 their other financial needs. 28 29 [9] The marriage between the parties has broken down and on 1 25.10.2022 the PW filed a Judicial Separation Petition against the RH and 2 the Co-Respondent on the ground that the RH has committed adultery 3 with the Co-Respondent thus causing the breakdown of their marriage. 4 5 [10] The RH has responded with the filing of a Divorce Petition under 6 Divorce Petition No. BA33-76-01/2023 claiming that the marriage has 7 irretrievably broken down as a result of the PW’s unreasonable behaviour 8 and conduct rendering it impossible for the RH to be expected to live 9 together with the PW. Both said petitions are currently pending and are 10 yet to be heard and disposed of before this Court. 11 12 [11] On 16.11.2022 the PW filed the application in Encl 8 for an interim 13 injunction to preserve the status quo between the parties pending the 14 disposal of the Petition for Judicial Separation. 15 16 [12] The PW followed that with the filing of the application for interim 17 relief on 4.3.2023. 18 19 [13] Prior to the filing of the Judicial Separation Petition (JSP), the PW 20 and the children were provided with a Range Rover vehicle bearing 21 registration number VGB 1881 and a driver for their everyday use and 22 transportation to school and other activities. 23 24 [14] Apart from that the PW was given a monthly allowance of 25 RM5000.00 and provided with a credit card with a spending credit limit of 26 RM10,000.00. 27 28 [15] After the filing of the JSP, the RH cancelled the supplementary credit 1 card given to the PW and ceased providing monthly maintenance. The RH 2 took away the Range Rover resulting in the PW and the children having 3 to use Grab as their primary mode of transportation including for the 4 children to go to school and back. It was alleged that the RH ceased to 5 provide maintenance knowing fully well that the PW is unemployed and 6 completely dependent on his financial support of her and the 3 children. 7 To compound matters the RH did not offer any financial assistance even 8 after the PW’s cancer diagnosis in early 2019 and ongoing medical 9 treatment. 10 11 The PW’s Case in Supporting Encl 8 12 [16] The PW in her affidavit in support averred that there is an utmost 13 urgency to obtain an injunction to prevent the RH from dissipating the joint 14 matrimonial assets and to ensure that the PW’s rights to the funds and 15 assets from being removed and disposed off to third parties beyond the 16 reach of the PW and/or the jurisdiction of this Court and in the interest of 17 justice from causing irreparable damage to the PW. This is because the 18 RH has openly threatened to engage in any means necessary to dispose 19 of his assets and not give a single cent to her. 20 21 [17] The RH has communicated these intentions to the PW via 22 WhatsApp messages and by conduct his refusal to financially support her 23 and their children. Through his messages the RH has stated the following 24 conversations: 25 26 “Respondent : SAY WHAT U WILL 27 IT COMES TO THIS STAGE ALREADY 28 Petitioner : ok 29 Respondent : U DO WHAT U NEED TO DO 1 I’LL DO WHAT I NEED TO DO 2 THE MIN U RISK KIDS SAFETY BECOS OF YOUE 3 GREED! NOTHING ELSE MATTERS! 4 Petitioner : Ok. 5 … 6 Respondent : I will sell the range 7 I will send kids to school 8 Petitioner : You babe so many cars, why have to pick Range 9 Rover to sell which is using by me and the kids? 10 Just because I am filing divorce 11 Respondent : I NEED MONEY FOR LAWYER FEE! 12 I WILL SELL EVERYTHING 13 GIVE ME BACK ALL THE BAGS AND WATCH 14 I NEED ALOT MONEY FOR LAWYER 15 … 16 Petitioner : Yourself having double life and now being 17 delusional????? 18 Respondent : i’ll plan the final move 19 Petitioner : I can tell you I don’t’ have 20 Respondent : worst case, i’ll just leave malaysia 21 Since business is already bad here 22 Petitioner : If can ask the kids 23 Respondent : i don’t have to feel worst living in malaysia 24 Respondent : But I wont live in this country.” 25 26 [18] Furthermore the RH has actually told the PW that he will make 27 himself bankrupt and sell all of the assets and leave Malaysia. 28 29 [19] Another reason for the urgency for an interim injunction to restrain 30 him from doing so is because the PW has discovered that the RH has 31 withdrawn large amounts of money from his personal and companies 32 account to third parties as well as to the Co-Respondent. The PW 1 contends that these are matrimonial assets and have not yet been 2 decided by this Court regarding its division. The PW fears that if the RH 3 were allowed to carry on disposing off these monies it might defeat the 4 PW’s claim for maintenance and a share of the matrimonial assets. The 5 PW is alarmed and believes that those withdrawals are with the purpose 6 of concealing his means to pay maintenance to her and the children and 7 to deprive her of any rights to the matrimonial assets. 8 9 [20] Learned counsel for the PW has contended that an interim injunction 10 order is sorely needed as the RH does not own any immovable property 11 in Malaysia but frequently travels abroad causing the PW to believe his 12 threat to leave the country at any time and abandon her and the children. 13 To make matters worse the RH has refused to disclose his full assets and 14 income even after written request by the PW’s solicitors pursuant to Rule 15 64(5) of the Divorce and Matrimonial Proceeding Rules 1980 sent to the 16 RH’s solicitors to require the RH to disclose bank statements and income. 17 18 [21] In her Affidavit in Support the PW exhibited corroborative evidence 19 of the RH spending lavishly such as buying quite a number of vehicles for 20 himself and the Co-Respondent. They have gone on vacations to various 21 holiday destinations, stayed together in 5-star hotels, boarded business 22 class airlines and luxury yachts, fine dining in expensive restaurants not 23 to mention buying gifts of luxurious items such as expensive branded 24 handbags and a Porshe Cayenne car for the Co-Respondent. Despite this 25 the RH has not been timely in providing maintenance for her and the 26 children. He has gone on to take back the Range Rover car, delayed 27 payment of overtime allowance, salary and EPF of the driver thus forcing 28 the driver to resign. The PW claims that the RH deliberately did so to 1 cause hardship to the family. 2 3 [22] The PW has averred that she and the RH do not have any joint bank 4 accounts. All accounts are held solely by the RH and he has sole access 5 with unilateral control and power over it. The PW is therefore fearful of the 6 RH’s actions of withdrawing large amounts of money from his own 7 account and also from the company’s bank account as this will certainly 8 dissipate the funds from the accounts pending the determination of the 9 JSP. 10 11 RH’s Contentions for Opposing Encl 8 12 [23] Unsurprisingly learned counsel for the RH submitted that the PW’s 13 reasons for the application are baseless and without any shred of 14 evidence that the assets and monies are in danger of being dissipated by 15 the RH. 16 17 [24] It was contended that the Court should refuse the application as 18 there is no cogent evidence shown to support the PW’s claim that the RH 19 is attempting to shift his business out of the country. 20 21 [25] As to the conversations in the WhatsApp, the RH averred that it 22 merely showed that the RH was considering the idea of shifting business 23 operations overseas in order to cut down costs of the day to day 24 operations only. 25 26 [26] It was further contended that there is no danger of the RH being a 27 flight risk and dodging making maintenance payments to the PW and 28 children even though he is a foreigner with no immovable assets to 1 prevent him from fleeing the country. 2 [27] As for his threat to go bankrupt and leave the country it was 3 explained as simply and purely an emotional outburst on his part due to 4 the PW’s conduct. 5 6 [28] The money taken out from the bank accounts were for repayment 7 of loans taken from a friend. 8 9 Co-Respondent’s Contentions for Opposing Encl 8 10 [29] The Co-Respondent has asserted that the PW had wrongfully 11 included her assets in the list of assets to be injuncted. The properties in 12 question are the following:

ITTO Food Sdn Bhd (No. Syarikat: 202001021627 (1377947- 14 U);

82 DRYPOT Recipe (No. Syarikat: 002926864-M);

Toms Motorsport (No. Syarikat: 00391028-A);

Toms Motorsport CIMB Account: 8605160324;

Tipsy Tap Enterprise (No. Syarikat: 003358118-W); and 19

Porsche / Cayenne 3.6 V6 (No. Reg: VHD1881). 20 21 [30] The Co-Respondent refutes the PW’s claim that the Co-Respondent 22 is holding these properties on trust for the RH. On the contrary it was 23 contended that the PW has failed to show that the RH and/or the Co- 24 Respondent have disposed or have the intention to dispose of the assets 25 in question. 26 27 [31] It was further contended that the terms of the injunction sought was 28 too wide and unreasonable, with the aim of punishing the Co-Respondent 29 for her alleged misdeeds as well as to prevent her from generating income 1 from those assets apart from severely affecting her daily life and business. 2 It was also seen as a method to pressure the RH and/or Co-Respondent 3 into settling the matter with the PW. 4 5 Decision of this Court on Encl 8 6 [32] In this application the PW applied to this Court for inter alia an 7 interlocutory injunction to restrain the RH, his servants, or agents from 8 disposing of all his assets/property until final disposal of her JSP. This 9 application was pursuant to s. 102 of the Law Reform (Marriage and 10 Divorce) Act 1976 which reads as follows: 11 12 This Court has the power under section 76 of the Law Reform (Marriage 13 and Divorce) Act 1976 (LRA 1976) to order the division of matrimonial 14 assets. Section 76 of the LRA 1976 provides as follows: 15 "102. Power for court to set aside and prevent dispositions 16 intended to defeat claims to maintenance 17

Where:

any matrimonial proceeding is pending;

an order has been made under section 76 and has not been 20 complied with;

an order for maintenance has been made under section 77 or 93 and 22 has not been rescinded; or 23

maintenance is payable under any agreement to or for the benefit of 24 a spouse or former spouse or child, 25 The court shall have power on application - 26

If it is satisfied that any disposition of property has been made by the 27 spouse or former spouse or parent of the person by or on whose behalf 28 the application is made, within the preceding three years, with the object 29 on the part of the person making the disposition of reducing his or her 30 means to pay maintenance or of depriving his or her spouse of any rights 31 in relation to that property, to set aside the disposition; and 32

(ii) If it is satisfied that any disposition of property is intended to be made 1 with any such object, to grant an injunction preventing that disposition.

For the purposes of this section: 3 "disposition" 4 includes a sale, gift, lease, mortgage or any other transaction whereby 5 ownership or possession of the property is transferred or encumbered 6 but does not include a disposition made for money or money's worth to 7 or in favour of a person acting in good faith and in ignorance of the object 8 with which the disposition is made; 9 "property" 10 means property of any nature, movable or immovable, and includes 11 money." 12 13 [33] It will therefore be seen that s. 102 of the LRA 1976 gives a spouse 14 a remedy to protect his or her interest should there be any disposition of 15 matrimonial assets. In Ng Li Lin v Ting Tian Hwa [2017] 4 CLJ 522, in a 16 case similar to the instant case, the learned High Court Judge had this to 17 say when granting the restraining order: 18 19 “[25] Section 102 of the Law Reform (Marriage and Divorce) Act 1976, 20 gives the court power to grant an injunction preventing such disposition, 21 or if any disposition has been made within the preceding three years, 22 with such an object on the part of the spouse making the disposition, to 23 set aside that disposition. A spouse, therefore, has a remedy in family 24 law to protect their interest in assets acquired during their marriage. 25 … 26 [30] In family law, it is trite that a spousal claim to a share in the 27 matrimonial home is indeterminate until the Court makes an order for 28 division of the matrimonial assets and properties, and the time to do so 29 is when the Court makes a decree of divorce or judicial separation. The 30 Federal Court in interpreting s.76(1) and (3) of the Law Reform 31 (Marriage and Divorce) Act 1976 confirmed this in Manokaram 1 Subramaniam v Ranjit Kaur Nata Singh [2008] 6 CLJ 209… 2 3 [22] The unilateral action of RW in making the aforesaid withdrawals, 4 retaining the said money in her own personal account, and holding it out 5 as ransom for the transfer of the matrimonial property to her by PH can 6 be seen as an act of depriving PH of any rights concerning the said 7 money in this matrimonial proceeding. Consequently, such disposition 8 by RW can be set aside and order is granted that all money withdrawn 9 from the said accounts to be returned to their respective accounts, which 10 are now protected by the ad-interim injunction granted on the 26th of 11 December 2017, pending the final determination of this petition for 12 judicial separation.” 13 14 [34] My attention was drawn to s. 76 of the LRA 1976 which empowers 15 the Court to order for division of property involving the husband and wife. 16 The section reads as follows: 17 18 “76. Power for court to order division of matrimonial assets 19

The court shall have power, when granting a decree of divorce or 20 judicial separation, to order the division between the parties of any 21 assets acquired by them during the marriage by their joint efforts or the 22 sale of any such assets and the division between the parties of the 23 proceeds of sale.

In exercising the power conferred by subsection (1) the court shall 25 have regard to:

The extent of the contributions made by each party in money, 27 property or work towards the acquiring of the assets;

Any debts owing by either party which were contracted for their 29 joint benefit;

The needs of the minor children, if any, of the marriage, 31 and subject to those considerations, the court shall incline towards 32 equality of division. 33

The court shall have power, when granting a decree of divorce or 1 judicial separation, to order the division between the parties of any 2 assets acquired during the marriage by the sole effort of one party to the 3 marriage or the sale of any such assets and the division between the 4 parties of the proceeds of sale.

In exercising the power conferred by subsection (3) the court shall 6 have regard to:

The extent of the contributions made by the other party who did 8 not acquire the assets to the welfare of the family by looking after the 9 home or caring the family; 10 11 and subject to those considerations, the court may divide the assets or 12 the proceeds of sale in such proportions as the court thinks reasonable; 13 but in any case the party by whose effort the assets were acquired shall 14 receive a greater proportion.

For the purposes of this section, references to assets acquired 16 during a marriage include assets owned before the marriage by one 17 party which have been substantially improved during the marriage by 18 the other party or by their joint efforts."

For the purposes of this section, references to assets acquired 20 during a marriage include assets owned before the marriage by one 21 party which have been substantially improved during the marriage by 22 the other party or by their joint efforts." 23 24 [35] It will therefore be clear that the Court is empowered to grant 25 injunctive reliefs to address any purported dispositions of assets whether 26 movable or immovable. The protection given in this form is essential to 27 ensure that the future orders of the court will not be an exercise in futility. 28 29 [36] In the Court of Appeal case of Keet Gerald Francis Noel John v 30 Mohd Noor @ Harun b Abdullah & 2 Ors [1995] 1 CLJ 293 it was held 31 that a judge hearing an application for interlocutory injunction should 1 undertake an inquiry along the following lines:- 2

firstly, he must ask himself whether the totality of the facts 3 presented before him discloses a bona fide serious issue to 4 be tried?

(ii) having found there is a bona fide serious issue to be tried, he 6 must consider where does the justice of the case lies?

(iii) whether damages are an adequate remedy? 8 9 [37] It is not necessary for the court to make any final decision on any 10 questions of fact in the matter. What is relevant and required at this stage 11 is for the court to decide on the affidavits available before it that the claim 12 is not frivolous or vexatious but rather it is a serious question to be tried. 13 14 Whether there is a bona fide serious issue to be tried 15 [38] The matter at hand involves a judicial separation petition and a cross 16 divorce petition by the PW and RH respectively. It has not been disputed 17 that the PW and the children are solely dependent on the RH for all their 18 financial needs. The RH also provided the family with a Range Rover 19 vehicle and a driver for their means of transportation. They did not own 20 any landed property but the RH paid the rental for the home where the 21 family lived and he paid for all the utilities. In effect it is undisputed that 22 the PW and the children wanted for nothing, with all material and financial 23 needs having been provided to them by the RH. The PW had no particular 24 need to work as the income of the RH was more than sufficient to permit 25 her to be a stay at home wife and mother. 26 27 [39] It is prudent to remember that when a man and a woman enter into 28 a legal matrimonial relationship, all assets acquired during their marriage 29 will come under the purview of section 76 of the LRA 1976 which gives 1 the court the power when granting a decree of divorce or judicial 2 separation to order the division between the parties of assets acquired 3 during the marriage, whether by their joint efforts or the sole effort of either 4 party. Until the court exercises that power, those assets remain 5 matrimonial assets, belonging to them until such time as their respective 6 rights thereto are determined by the court (see Ng Li Lin v Ting Tian Hwa 7 [2017] 4 CLJ 522). 8 9 [40] Hence if one of the spouses decides to unilaterally dispose of the 10 properties with the intent of depriving the other spouse of any rights in 11 relation to that property, an action may be taken by the other spouse to 12 apply for injunctive reliefs pursuant to section 102 of the LRA 1976. 13 14 [41] The RH has argued that the PW had not pleaded the particular 15 provision in section 102 of the LRA 1976 nor placed any reliance upon it 16 in the notice of application or throughout the extensive affidavits filed by 17 the PW. This argument is fallacious because even a cursorial perusal of 18 the NOA and the affidavits would sufficiently reveal the PW’s total reliance 19 on that provision. 20 21 [42] In order to decide whether there is any serious bona fide issue to be 22 tried, this court will have to see whether there has been any disposition of 23 or any attempt to dissipate matrimonial assets by the RH. It will be 24 reiterated that this Court shall refrain from deciding on the merits of the 25 case. 26 27 [43] First, I find some substance in the submission of counsel for the PW 28 that there is a very real risk of the RH disposing of or dissipating the 29 matrimonial assets to deprive the PW of her rightful share of the 1 matrimonial assets. 2 [44] The PW has shown documentary proof on a balance of probabilities 3 that the RH upon receipt of the notice from the PW’s solicitors that the PW 4 intended to divorce the RH and upon being served with the Petition for 5 Judicial Separation had gradually petered out the monthly allowance for 6 the PW and the children. 7 8 [45] Secondly the WhatsApp messages showed the clear intention of the 9 RH. What can be gleaned from the WhatsApp communication between 10 the PW and RH is his willingness to engage in any means necessary to 11 deprive the PW from having a share of his earnings even if it meant that 12 he declare himself as bankrupt and leave the country. Counsel for the RH 13 has attempted to explain the conversations as that of a man merely 14 considering the idea of shifting his business operations only for the 15 purpose of cutting down costs and was by no means an act of disposing 16 or dissipating matrimonial assets. It was argued that the RH’s intentions 17 could not be ascertained clearly from what was described as an 18 “emotional outburst.” I am not persuaded that this is necessarily so. To my 19 mind the PW’s concerns regarding the RH’s threats are real and not 20 imaginary and counsel’s attempt to brush it off as an emotional outburst 21 is simplistic and untenable. From the tenor of the messages back and forth 22 between the parties it can be seen that the RH’s primal intention is to do 23 everything in his power to deprive the family, PW in particular from having 24 even a penny of his money. 25 26 [46] The RH has taken active steps to hide and/or dissipate his assets. 27 The PW has provided documentary evidence to show that a significant 28 amount of money had been transacted into the Zosmo International Bhd, 29 HSBC Bank Account and from the RH’s own personal account. Both of 1 these accounts are unless and until decided otherwise decided by this 2 Court regarding its division considered to be matrimonial assets to which 3 the PW is entitled to claim. 4 5 [47] As pointed out earlier the RH has been reluctant to disclose his full 6 assets and income upon request through the PW’s application for division 7 of matrimonial assets which is found in Encl 22 of this proceedings. The 8 RH still refused to divulge his assets even after a written request by the 9 PW’s solicitors under Rule 64(5) of the Divorce and Matrimonial 10 Proceeding Rule had been served on him. The court is inclined to agree 11 with counsel for the PW that the unwillingness to disclose his full assets 12 and income as requested by the PW leans towards dishonesty. The RH 13 frequently travels abroad but will not divulge details of the trips real fear 14 to the PW that he will flee the country and not return. 15 16 [48] The RH admits actively seeking to transfer business operations 17 outside of Malaysia, seeking something similar in Thailand. This indicates 18 that he has the actual intention and is in the process of moving his 19 business operations overseas rather than merely considering that option. 20 Nowhere in his affidavits did the RH allege that the transfer of business 21 overseas was to reduce the cost of day to day business operations as 22 alluded. All he claimed was that it was for cost efficiency instead. The 23 Court is of the view that the RH has been less than frank with his intentions 24 in this matter and the reasonable inference to be drawn would be that the 25 RH is having the actual intention to leave the country. 26 27 [49] It would be relevant to note that the PW and the RH do not have any 28 joint bank accounts and hence the source of income for the family comes 29 from the RH who has full unilateral control and power of financial matters. 1 That combined with the RH’s actions of withdrawing large amounts of 2 money from his own account and also from the company’s bank account 3 would be a ground to warrant the court to conclude that the application for 4 injunction ought to be allowed until this Court can address the division of 5 all the matrimonial assets and ensure that the PW’s rights are not 6 compromised on those assets. 7 8 [50] The screenshot exhibited showing monies transferred were 9 repayment of loans to his friend are bare denials, self-serving and cannot 10 at all demonstrate that the RH has borrowed money from his friend. There 11 is failure to produce any evidence that he did take a loan from his friend. 12 Merely exhibiting bits and pieces of conversations via WhatsApp cannot 13 be sufficient proof. On the contrary it does however serve to confirm the 14 admission that he had indeed withdrawn a significant amount of money 15 from his personal and companies’ account. 16 17 [51] In regard to the co-Respondent’s position, the learned counsel for 18 the PW has raised an interesting point which I find is with merits and this 19 pertains to the fact that even though the name of the Co-Respondent is 20 registered in the businesses which she claims to be hers, the RH had 21 perhaps in Freudian slip admitted his ownership of those businesses as 22 can be seen in Paragraph 22 of the Affidavit in Reply (Encl 14) and the 23 RH’s written submissions (Encl 46). There is no evidence adduced to 24 show that she alone financed all of these businesses using her own 25 money. 26 27 [52] In any event I am of the view that the issue of whether the assets 28 held by the co-Respondent actually belong to her or whether she is 29 holding in trust for the RH needs to be fully canvassed and ventilated at 1 trial. This is in itself is a substantial and serious bona fide issue for 2 determination. 3 4 [53] In arriving at my decision after hearing these applications, I had to 5 bear in mind that the RH being a Korean citizen living here on a spousal 6 visa is a flight risk. He has no immovable possessions here in this country 7 to prevent him from leaving. There is nothing except perhaps his children 8 to tie him here to Malaysia. His assets are liquid and susceptible to easy 9 movement out of the jurisdiction. He could at any time, leave Malaysia 10 with or without the children for good, if an interim injunction is not put in 11 place to restrain him. The concerns regarding his flight risk can also be 12 seen from his WhatsApp messages where he has threatened to go into 13 bankruptcy and leave Malaysia. There is therefore a real risk of dissipation 14 or of him transferring his assets abroad. 15 16 [54] I have been very much influenced by the fact that the PW has 17 uncovered and shown compelling evidence that the RH has been 18 disposing huge sums of money from his personal and companies’ bank 19 accounts after coming to know that the PW had filed the JS Petition. The 20 PW learned that he was diverting and transferring money into the Co- 21 Respondent’s business account. To compound matters he gradually 22 starting to transfer his business overseas. The RH’s frequent travel 23 abroad and reluctance to give the details of his trip has made the PW 24 anxious that he will flee the country and leave the PW and the children 25 without any means to support themselves. Quite crucially he resorted to 26 halting paying the PW her monthly allowance and blocked the 27 supplementary HSBS credit card provided to her. He also deprived the 28 PW and the children of the use of the Range Rover and driver. The timing 29 of the above actions so soon after being served with the Petition for 1 Judicial Separation would reasonably lead to the inference that the RH 2 was having the intention to conceal his means to pay maintenance to the 3 PW and/or to deprive her of seeking rights to those assets. 4 5 [55] It is therefore my considered view that premised on the position of 6 the law as set out earlier and the facts presented to this court, the granting 7 of an interim injunction is validly needed. I am satisfied that the PW has 8 met the threshold for an injunction to restrain the RH from further 9 disposing or dissipating the assets remaining. The events which have 10 happened and the conduct of the RH was of such a degree that requires 11 an injunction to be put in place until the matter can be disposed of at the 12 trial. There is compelling evidence to show that there is a concerted effort 13 by the RH to reduce his means to pay the PW and the children 14 maintenance. There are good grounds to conclude from the evidence that 15 there is a real risk of dissipation and/or disposition of the assets by the 16 RH. Ultimately, I am of the view that the PW has demonstrated that she 17 has a bona fide serious arguable case. 18 19 Where does the balance of convenience lie? 20 [56] The balance of convenience lies in favour of the grant of the 21 injunctive relief sought for by the PW pending the disposal of the divorce 22 proceedings. 23 24 [57] If an interim injunction is not granted then the RH will continue to 25 dissipate his business assets and move it out of the country. What is 26 troubling is the fact that the RH has absolute and unfettered power to deal 27 with the business assets as he wishes as the PW has no ownership over 28 them. The sequence of events set out earlier suggests strongly that the 29 RH has the intention to evade and stealthily dissipate the assets since the 1 matrimonial difficulty has commenced. 2 3 [58] I am inclined to agree that if not injuncted the RH can deal with the 4 assets in such a manner that may render the PW’s claim for a share of 5 those assets to become academic or nugatory. 6 7 [59] The allegation of impropriety and surreptitious transfer of monies as 8 alleged are serious charges. There is already evidence that the RH has 9 withdrawn large sums of money and transferred them to other third parties 10 and/or the Co-Respondent. Undoubtedly from the denials coming from the 11 RH and co-Respondent these need to be appropriately determined 12 through viva voce evidence of all parties. 13 14 [60] The RH has argued that the injunction if put in place would cause 15 grave hardship on him. To my mind this is merely an excuse. The PW has 16 shown credible evidence of the RH dissipating funds. Furthermore the RH 17 has been given ample time and opportunity to resolve the matrimonial 18 difficulty facing the couple. In the instant case the actions of the RH are 19 not isolated acts but somehow tied to the pending Judicial Separation 20 Petition proceedings. 21 22 [61] The interim interlocutory injunction should not cause the 23 Respondent or the Co-Respondent to suffer any losses because the 24 granting of the interlocutory injunction would allow the status quo to be 25 maintained while the rights of the respective parties can be adjudicated at 26 the trial. 27 28 [62] The RH is not left desolate without funds. The court acknowledges 1 that the RH will need to use monies in his personal accounts for his own 2 expenses and for payment of maintenance for the PW and the children as 3 well as other reasonable expenses incurred. The injunctive reliefs are not 4 intended to freeze all the day to day management, operations and 5 business activities of the RH and the Co-Respondent in toto to the extent 6 of shutting down and crippling them. Regrettably the RH has spurned 7 these overtures until todate. 8 9 [63] I am of the view that the Court must take a serious view of any 10 impending threat in any manner to dispose of the assets. That in itself will 11 be a sufficient reason for the status quo to be maintained. The issue of 12 whether the assets that are registered in the co-Respondent’s name also 13 needs to be fully canvassed and ventilated at trial. 14 15 [64] In my respectful view maintaining the status quo to preserve the 16 rights and obligations of both parties is just and fair and it is only for the 17 period between now and the trial. 18 19 [65] On that note the Court had directed both counsels to consult and 20 come to an agreement with regard to a limit of the sum of monies to be 21 left at the disposal of the RH with the rest to be injuncted. This was only 22 to achieve the preservation of the assets save and except for the 23 continuance of the business activities and for the purpose of payment of 24 the maintenance of the PW and the children. The RH and the Co- 25 Respondent are not prejudiced as they are at liberty to apply to loosen the 26 terms of the interlocutory injunction. 27 28 29 Whether damages is an adequate remedy 1 [66] I accept the PW’s assertion that damages would not be an adequate 2 remedy. I have been very much influenced by the fact that the RH does 3 not own any tangible assets that could be realized by the PW if in the 4 event the outcome of the trial is in her favour. The RH has not offered an 5 assurance that he has the resources and means to compensate the PW. 6 There is no assurance that the RH will be able to provide for the PW and 7 children in the matrimonial proceedings. The fact that the RH has refused 8 to furnish the PW with discovery of the various financial documents further 9 strengthened this court’s view that there is an intention to prevent the PW 10 from knowing the RH’s true financial ability. Without the injunction in place, 11 there is a probability that the RH may abscond with the money in the bank 12 accounts leaving the PW and the children to be left with nothing. There is 13 a very real risk that the assets were being disposed off/dissipated 14 intentionally and this will have the effect of stultifying the division of 15 matrimonial assets later. I agree with the PW that irreparable damage will 16 be suffered by the PW and the children if injunctive relief is not granted 17 and they cannot be adequately compensated. 18 19 Letter of Undertaking? 20 [67] It was argued that the RH had for good measure given a letter of 21 undertaking that he will not deal, transfer or do anything with matrimonial 22 assets and the status quo of the said matrimonial assets shall be 23 preserved until the disposal of this application. 24 25 [68] There are very strong indications that the RH’s undertaking is very 26 nearly worthless. From my examination of the letter of undertaking dated 27 14.12.2022 shown in Encl 15 it is germane to note that it was prepared 28 and signed by the solicitors for the RH. The letter of undertaking does not 29 bear the RH’s own signature and it is not directed to the PW. I am unable 1 to see how PW can rely on this letter of undertaking when there is no 2 privity of contract between her and the RH. The letter of undertaking 3 therefore cannot amount to any security to the PW should a breach of the 4 terms occur. It is doubtful whether it can be legally enforced to bind the 5 RH should a breach of its terms occur. More pertinently there is nothing 6 therein requiring the RH to compensate the PW should he not honour the 7 terms of the undertaking. From the facts of the case the actions of the RH 8 are deliberate and/or calculated and such as to disentitle the PW from 9 having her day at the trial for an equitable relief. I would reiterate that there 10 is imminent danger that the RH would dispose of the assets to deny the 11 PW’s rights and interest and those transgressions cannot be adequately 12 compensated with damages unless he is restrained by an injunction. The 13 risk of loss of those assets, the harm, inconvenience and monetary loss 14 suffered may not be adequately compensated with costs. 15 16 [69] To conclude and with regard to Encl 8, I am satisfied and it is my 17 finding that the facts, the cause papers, written and oral submissions of 18 respective counsel have shown that the PW’s application for an interim 19 injunction has satisfied the proverbial test explained in Keet Gerald 20 Francis test. The application is hereby allowed. 21 22 Encl 20 – Ancillary Reliefs Application 23 [70] By Notice of Application for Ancillary relief in Encl 20 the PW applied 24 for the following interim orders:- 25

interim maintenance of RM15,000 per month to the PW;

(ii) all costs for petrol and a sum of RM2000.00 per month for the 27 Touch & Go for the Range Rover VGW 1882 for the benefit of 28 the PW and the children of the marriage; 29

(iii) all the financing of the vehicle including but not limited to the 1 maintenance of the vehicle, cost of repair road tax and 2 insurance;

(iv) RM2,700.00 and overtime salary to the PW as the driver’s 4 salary;

save money for the children in the sum of RM500 for each 6 child of the marriage;

(vi) all schooling and education fees, and expenses related to the 8 education of the children;

(vii) all medical costs for the children including but not limited to 10 health insurance premiums, medicine and medical 11 consultations; and 12

(viii) RM4000 being the rental of the house where the PW and the 13 children currently reside. 14 15 PW’s Case 16 [71] To support the application for ancillary reliefs the PW explained that 17 at the time of the marriage she worked as a Sales and Marketing 18 Executive in Kuala Lumpur while the RH works as an Executive Brand at 19 Maxxium Singapore Fine Wine & Spirit in Petaling Jaya. 20 21 [72] In 2007 the family relocated to Mongolia when the RH found a job 22 as a Managing Director there with a Singapore company. The PW left her 23 job and became a full time housewife. In 2012 the RH resigned and 24 established his own company that focused on selling liquor and juice. 25 When the business didn’t succeed the family returned to Malaysia in 2018. 26 The RH turned his sight to Singapore and simultaneously established 27 Elquor International Pte Ltd in Singapore and Elquor International Sdn 28 Bhd in Malaysia. The PW and their son were named directors. 29 [73] The PW asserted that overtime the business improved and the RH 1 took to indulging in his hobbies of owning luxury cars and participating in 2 extreme endure motor cross racing. 3 4 [74] Sometime after this the PW discovered that the RH had rented a 5 doubt-storey house for the Co-Respondent, a new office in Plaza Arkadia, 6 Desa Park City. The PW claimed that the RH involved the co-Respondent 7 in the renovation process of the new office and prevented the PW from 8 visiting it for various reasons. 9 10 [75] Unable to withstand the distress and emotional turmoil the PW filed 11 for a judicial separation, maintenance for herself and the children and a 12 fair division of the matrimonial assets. The RH used to give her RM5000 13 in cash and a credit card with RM10,000 limit to spend for herself and for 14 the family’s needs. The RH also provided the family with a car and a driver 15 to drive them for all their appointments. 16 17 [76] After she filed for the judicial separation the RH has reduced and 18 ceased the monthly allowance for the PW and the children. He has 19 terminated the services of the driver and taken away the Range Rover car 20 which was their only means of transportation. The PW and the children 21 were reduced to using Grab transportation as the PW has never had a 22 license and have had to greatly reduce all the amenities they were used 23 to having prior to the matrimonial difficulty. The PW and the children are 24 solely reliant on the RH to survive more so after she had been diagnosed 25 with cancer. 26 27 [77] Given her medical condition and lack of financial independence in 28 sharp contrast with the financial standing and ability to lead an 29 independent and comfortable life by the RH together with the co- 1 Respondent, the PW argues that the RH has the means to maintain the 2 family as he used to do in the past. 3 4 RH’s Response 5 [78] The RH agrees with the prayers related to schooling and all 6 expenses related to education and medical costs for the children of the 7 marriage. The RH also agrees that he will pay the monthly rental of the 8 house where the PW and the children live. 9 10 [79] The RH opposes all the other claims. He states that at the material 11 time he ahs been paying the PW and the children a sum of money to 12 attend to their respective needs and he provides additional sums to them 13 as and when there is a need. 14 15 [80] The RH contends that the PW is claiming an absurd sum, that he is 16 being forced to pay an exaggerated amount of money as maintenance to 17 the PW and that she is selfishly looking to maintain only her wants and 18 interests. The truth of the matter according to the RH is that he pays her 19 RM5000 per month and did give a credit card with a cap limit of RM10,000 20 but she used it recklessly on unnecessary purchases such as expensive 21 handbags and other items that she does not need. He complained that 22 her expenditure on her lavish lifestyle spiralled out of control to the point 23 it landed the RH in debts and liabilities which he cannot afford to pay. 24 25 [81] He further contended that the PW is putting undue pressure on him 26 and all these acts undertaken by the PW amount to nothing more than her 27 own tactical ruse to make the RH bow to her needs and to spite him by 28 reason of her own personal vendetta against him. 29 [82] The RH has raised the objection that that Encl 20 is as the PW had 1 deliberately and/or wilfully failed and/or neglected to seek leave of this 2 Court under Rule 56 (2) of the Divorce and Matrimonial Proceedings and 3 Rules 1980 (DMPR) pointing out that the PW failed to plead the ancillary 4 reliefs sought in the Notice of Intention and the interim wife and children 5 maintenance application. The RH invokes the principle of “res judicata” as 6 the subject matter in Encl 20 is the same as the interim injunction 7 application in Encl 8. 8 9 Decision of this Court on Encl 20 10 [83] Let me deal with the preliminary objections of the RH first before I 11 turn to the substantive issues before me. I do not, with respect find those 12 objections to have merits. 13 14 [84] First of all, I am on the side of those with the view that a modern 15 approach should be adopted where there are allegations regarding the 16 breach of procedural provisions by a litigant. I am of the opinion that courts 17 should be more concerned with the dispensation of both procedural and 18 substantive justice according to eh merits of a given case. The advice of 19 the Court of Appeal in the case of Chong Keat Realty Sdn Bhd v Ban 20 Hin Lee Bank Bhd [2003] 3 CLJ 532 was for the “judicial arbiter to ask 21 himself this: What injustice has the party complaining suffered by reason 22 of the procedural breach? It is the answer to this Question that will 23 ultimately determine whether the court should uphold or reject a 24 procedural complaint.” It occasions a substantial miscarriage of justice 25 then it would invalidate the action or the proceeding or step taken therein 26 (see Lim Gait Tong v The Development Bank of Singapore Ltd [2010] 27 5 CLJ 644). 28 29 [85] From the cases above it is clear that the Court is at liberty to exercise 1 its wide discretion whether to condone or not to condone the irregularities 2 complained of, after all the intention of the rules is to facilitate, not impede 3 the administration of civil justice (Suffian LP in Tan Chwee Geok &A nor 4 v Khaw Yen Yen & Anor [1975] 1 LNS 178.) 5 6 [86] Looking at the facts of the instant case before me, I am of the opinion 7 that its non-compliance is not fatal in the application nor has it prejudiced 8 the RH in any way. The RH has not demonstrated how he has been 9 prejudiced by the non-compliance. 10 11 [87] The objection is therefore dismissed. 12 13 [88] I will now proceed with the merits of the application in Encl 20. 14 15 [89] As alluded to earlier this application for ancillary relief has been filed 16 by the PW for herself and the children of the marriage while waiting for the 17 full disposal of the divorce petition which is still waiting for full trial. 18 19 [90] It is a settled principle that in deciding the amount of maintenance 20 that the RH should pay the PW, the court must take into consideration the 21 means and needs of the parties. 22 23 [91] Section 78 of the Law Reform (Marriage and Divorce) Act 1976 24 (LRA, 1976) enshrines the abovesaid principle as follows: 25 26 “78 Assessment of Maintenance 27 In determining the amount of any maintenance to be paid by a man to 28 his wife or former wife or by a woman to her husband or former husband, 29 the court shall base its assessment primarily on the means and needs 1 of the parties, regardless of the proportion such maintenance bears to 2 the income of the husband or wife as the case may be, but shall have 3 regard to the degree of responsibility which the court apportions to each 4 party for the breakdown of the marriage.”. 5 6 [92] The means and needs of the parties are of paramount importance. 7 In the case of Koay Cheng Eng v Linda Herawati Santoso [2008] 4 MLJ 8 863 the Court of Appeal explained the meaning of “means and needs of 9 the parties” in this manner: 10 11 “In assessing the means and needs of the parties the court has always 12 had regard to the duration of the marriage, whether there were any 13 children of the marriage, the age of the parties, whether the husband 14 had financially supported the wife during the duration of their marriage, 15 the parties earning capabilities and whether the divorce would have 16 affected the husband’s position financially.” 17 18 [93] In any application for ancillary reliefs the parties ought to adhere to 19 the procedural law pursuant to Rule 61(2) and 65 (4) and (5) of the DMP 20 Rules 1980 which is as follows: 21 22 “61. General provisions as to evidence etc. on application for ancillary 23 relief. 24 … 25

A petitioner or respondent who has applied for ancillary relief in his 26 petition or answer and who intends to proceed with the application 27 before a registrar shall, subject to Rule 84, file a notice in Form 12 and 28 within four days after doing so serve a copy on the other spouse.

Where a respondent or a petitioner is served with a notice in Form 30 11 or 13 in respect of an application for ancillary relief, not being an 31 application to which Rule 62 or 63 applies then, unless the parties are 32 agreed upon the terms of the proposed order, he shall, within 14 days 1 after service of the notice, file an affidavit in answer to the application 2 containing full particulars of his property and income, and if does not do 3 so, the court may order him to file an affidavit containing such 4 particulars… 5 6 65 Investigation by registrar of application for ancillary relief. 7 … 8

Any party to an application for ancillary relief may by letter require 9 any other party to give further information concerning any matter 10 contained in any affidavit filed by or on behalf of that other party or any 11 other relevant matter, or to furnish a list of relevant documents or to allow 12 inspection of any such document, and may, in default of compliance by 13 such other party, apply to the registrar for directions.

At the hearing of an application for ancillary relief the registrar shall, 15 subject to Rules 66, 68 and 69, investigate the allegations made in 16 support of and in answer to the application and may take evidence orally 17 and may order the attendance of any person for the purpose of being 18 examined or cross-examined, and may at any state of the proceedings 19 order the discovery and production of any document or require further 20 affidavit. (Emphasized added)” 21 22 [94] These are mandatory obligations and specific steps that must be 23 taken by the applications and the court. Her Ladyship Yeoh Wee Siam J 24 in Susila a/p S Sankaran v Subramaniam a/l Govindasamy [2012] 9 25 MLJ 779 clearly outline the steps to be undertaken by the respective 26 parties. Her Ladyship held as follows: 27 28 “[18] Upon service of a notice of application by the applicant (in this case, 29 the PW), then under r 61(2) to the DMP Rules, the respondent (in this 30 case, the RH), “shall” file an answer to the application stating full 31 particulars of his income and property. After that, under r 61(3) of the 32 same Rules, the applicant has a corresponding mandatory duty to file 1 an affidavit in reply containing full particulars of her income. 2 [19] After the above steps have been complied with, should the 3 applicant require further information then the applicant may invoke r 4 65(4) of the DMP Rules for that purpose. 5 [20] Rule 65(4) to the DMP Rules provides as follows:

Any party to an application for ancillary relief may by letter require 7 any other party to give further information concerning any matter 8 contained in any affidavit filed by or on behalf of that other party or any 9 other relevant matter, or to furnish a list of relevant documents or to allow 10 inspection of any such document, and may, in default of compliance by 11 such other party, apply tot the registrar for directions. 12 [21] Under r65(4) of the DMP Rules, the applicant may serve a letter of 13 demand for further information or require the other party to furnish a lsit 14 of relevant documents or allow inspection of documents. 15 [22] Should the respondent fail to furnish the information required under 16 r 65(4) of the DMP Rules, then the applicant may apply to the registrar 17 for directions under r 65(5) of the same Rules. The registrar ‘shall’ 18 investigate the allegations made and may order the attendance of any 19 person for the purpose of being examined or cross-examined, and may 20 at any stage of the proceedings order the discovery and production of 21 any document or require further affidavit. 22 [23] Pursuant to r 67 of the DMP Rules, the registrar ‘shall’ after 23 completing his investigation under r 65, report the result thereof to a 24 judge to whom the application shall be adjourned. 25 [24] It is clear from the above rules that there are mandatory obligations 26 and specific steps to be taken by the applicant and the court.”. 27 28 [95] It is significant to note that throughout the exchanges of affidavits 29 between the parties, the PW has complied with the above procedural rules 30 and has filed her affidavit of means. Conversely the RH had every 31 opportunity afforded to him to provide statements of his source of income 32 to assist the Court in determining his earning or income. The RH mulishly 33 failed to do so even after the PW filed the ex parte injunction in Encl 8. It 1 is therefore difficult to disagree with the learned counsel for the PW who 2 described the RH of having chosen to obfuscate the matter by creating a 3 false fallacy that he is in financial distress by mere allegations in his 4 affidavit evidence without providing any supporting evidence to counter 5 the PW’s allegations. This court is of the view that parties must be truthful 6 and make full and frank disclosures in order for the court to come to a fair 7 decision. If indeed the RH is in dire financial straits as he claims he must 8 prove it. It is the view of the court with all due respect that the RH has 9 failed to provide full and frank disclosure of all his assets. The court is 10 compelled to draw an adverse inference with regard to the RH’s income 11 and financial standing. The inference to be drawn is that had the RH given 12 full and frank disclosures of his financial standing it will reveal that the RH 13 is not in any dire straits as he claims to be but rather it will show that he is 14 more than able and competent to fulfil all the ancillary reliefs claimed by 15 the PW. 16 17 [96] At any rate, in coming to this decision I have undertaken full and 18 serious consideration of the means and standard of living enjoyed by the 19 parties during the marriage, the amount of maintenance such that the wife 20 and the children can live not in luxury but in reasonable comfort. I found 21 much guidance from the case of Koay Cheng Eng where the Court of 22 Appeal advised courts to consider the following: 23 24 “[26] We are of the view that with the standard and cost of living of the 25 respondent, the sum awarded is justifiable. We are in agreement with 26 the learned counsel for the respondent that the respondent is to be 27 placed in a position to enjoy the same standard of living as she had 28 during the existence of the marriage. In Lumsden v Lumsden [1963] 5 29 FLR 388, the court held: 30 …in the second place in awarding maintenance the court 1 endeavours, subject to the husband’s financial position, to place the wife 2 in a position to enjoy the same standard of living as she did during the 3 marriage…” 4 5 [97] Just as in that case, the RH in this instant case had failed to provide 6 full and frank disclosure. The learned Judge commenting on this held the 7 view that having failed to provide full and frank disclosure the RH cannot 8 now complain when the court draws an adverse inference on him: 9 10 “The husband has dragged his feet in every aspect in relation to 11 discovery in this case. He had attempted to avoid disclosing information 12 in relation to his means. As such, the husband’s declaration which he 13 finally did, that his gross income as RM10,000 is questionable. This is 14 especially so when the documents clearly shows otherwise. 15 Thus I am unable to accept the husband’s declaration that his income is 16 RM10,000 a month. To me, the means of the husband in this case is 17 more than RM10,000 a month. But it is unfortunate that the amount 18 could not be ascertained because the husband did not make a full and 19 frank disclosure of his income. Thus the husband should not be 20 complaining when this court is drawing inferences against him.” 21 22 [98] It is noted here that the PW is suffering from a serious health issue 23 and this would certainly affect her ability to seek gainful employment. In 24 Rose Fernandez v Anthony John Bosco Pitchay [2023] MLRHU 582 25 the court was of the view that maintenance for a wife and children is even 26 more essential when the wife is suffering from medical issues and has no 27 likelihood to be gainfully employed. The Court held as follows: 28 29 “[13] As far as the petitioner was concerned, it was undeniable that she 30 was in dire need of monthly maintenance for herself, pending the full 31 disposal of the Divorce Petition. She suffered several health 1 complications, and her condition worsened in February 2021 when her 2 pelvic bone broke as a result of a fall she had suffered while walking the 3 Respondent’s dogs. The injury necessitated surgery, which impeded her 4 ability to walk, and hence she was currently wheelchair-bound. To date, 5 she ahs to go to the hospital for regular follow-up treatments and take 6 prescribed medications. It was, therefore, undisputed that she has no 7 ability to support herself nor has the likelihood to be gainfully employed.” 8 9 [99] The Court observes that the PW is now 50 years of age and has 10 been a housewife for almost all of their married life. She has never had 11 the need to have a permanent job as the RH was more than able to 12 support her and provide for the children. She had devoted herself to taking 13 care of the household and caring for the RH and the children. She is now 14 of an age where gainful employment is close to impossible. The diagnosis 15 of cancer on top of the matrimonial difficulties will be a hard blow to 16 overcome. The follow up treatments and medication is yet but one more 17 reason for her to continue to receive the maintenance that was once 18 provided to her by the RH. It is critical for her to receive financial support 19 from the RH in order to survive. It would be cold and callous if the RH did 20 not empathise with the PW’s cancer diagnosis. Be that as it may as 21 highlighted earlier she and the children are entirely reliant on the RH for 22 sustenance and support. They are entitled under the LRA 1976 to claim 23 for the reliefs prayed for in the instant application. 24 25 [100] The PW has given details of the family’s expenditure through her 26 affidavit of means. Having perused the said affidavit of means I find there 27 is basis and evidence of needs. I do however hold the view that the 28 amount that is proper and reasonable for the PW and the children should 29 be in the region of RM10,000 per month bearing in mind and taking into 1 consideration tinges of exaggerations and vicissitudes. 2 3 [101] I am of the view that the PW and the children must continue to be 4 maintained with the same standard of living as they were used to. This will 5 therefore include the services of a driver and the means of transportation 6 to move around with. Bearing in mind the PW’s lack of license to drive a 7 vehicle it is only reasonable for the RH to bear the expenditures of 8 employing a driver. The RH used to provide a Range Rover for the family 9 and he should continue to do so. Having it as a means of transport would 10 substantially reduce the expenses incurred in hiring costly Grab rides. 11 Having a vehicle and the services of a driver is indispensably necessary 12 and less dangerous for the children when compared to the unreliability 13 and inconvenience of using public transport. 14 15 [102] It is the responsibility of the RH to support the PW during this 16 proceeding especially since she is not able to support herself and the 17 children. I respectfully disagree with the contention that the expenses 18 incurred are to maintain a lavish lifestyle. I am of the view the amount of 19 RM10,000 per month is a very conservative sum bearing in mind there 20 are three children under the PW’s care besides her own expenses. A 21 sizeable portion will be used for the upkeep of the home the PW and 22 children live in. The rest of the money is to be divided and shared between 23 the PW and the 3 growing school going children and to continue to 24 manage the household. 25 26 [103] Given the circumstances I am in agreement with learned counsel for 27 the PW that while the RH has been vehement in claiming that he is making 28 ongoing payments for maintenance to the PW he has only been able to 29 exhibit one occasion of payment made into the PW’s account on 1 10.12.2022 (see Exh KBK-2 of RH’s Affidavit in Reply (Encl 29). In this 2 connection the payment exhibited is for a meagre sum of RM1000 which 3 is unjustified and unreasonable for the PW and 3 children considering that 4 the children are still studying and need reasonable expenses. Neither 5 could he show that he paid for all the utilities and other bills incurred. It is 6 not sufficient for the RH to credit intermittent payment into his daughter’s 7 account as it is the PW who has the obligation and responsibility of paying 8 for all the expenses incurred to maintain the children and herself. 9 10 [104] Lastly but not in the least based on all the reasons stated above and 11 after careful consideration of all the evidence before this Court and 12 submissions of the parties, I am of the view that the PW’s reasons to 13 support Encl 20 is well founded, reasonable and commensurate with the 14 means and needs of the parties. As such I allowed the ancillary reliefs 15 prayed for the PW in Encl 20 with some slight modification. 16 17 Dated 4 February 2024. 18 19 20 21 22 23 (JULIE LACK) 24 Judge 25 High Court of Malaya 26 Shah Alam, Selangor Darul Ehsan 27 28 29 Counsel 1 For the Petitioner : 2 Olivia Chin Su Fung with Norzakiah Binti Zainul 3 (MESSRS. OLIVIA CHIN & CO.) 4 5 For the Respondent : 6 Rasika Dharmasena with Ho Shu Ping 7 (MESSRS. JAZZMINE KHOO & ASSOCIATES) 8 9 For the Co-Respondent : 10 Hong Li May 11 (MESSRS. ALAN KANG & CO.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29