Cheong Hwee Ling v Leong Pit Tee (WA-24F-313-10/2020)

This was the Plaintiff’s application (“this Application”) for, inter alia, the following interim prayers, namely: a) Prayer 1 - Monthly spousal maintenance of MYR16,500; b) Prayer 3 – For care, custody and control of the children be given to the Plaintiff; c) Prayers 2, 4, 5, 6, 7, 8 - Monthly child maintenance for five children in the amount of MYR26,650; d) Prayer 9 - Accommodation for the Plaintiff and the children at Unit 13.2 Plaza Berjaya and for the Defendant to pay all the bills related to such unit; e) Prayer 10 – For the Defendant to pay the costs and salary of the domestic help whose services would be for the Plaintiff and the children; f) Prayer 11 – For the Defendant to pay all costs and fees and expenses related to the health and education of the children; g) Prayer 12 – For the Plaintiff to have the use of a Porsche Macan (“the Vehicle”) belonging to the Defendant and for the Defendant to continue making payments for the Vehicle; h) Prayer 13 – For the Defendant to file an affidavit of means. 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 3

The Plaintiff and Defendant were married in 1997 and had resided in their matrimonial home in Kuala Terengganu. The first child, who was born in 1994 was the Plaintiff’s child from a previous relationship, whilst the remaining four children were the result of the union between the Plaintiff and Defendant husband.

In October 2020, the Plaintiff, claiming that the marriage had broken down, left the matrimonial home and chose to reside at an apartment in Unit 13.2 Plaza Berjaya (“the Plaza Berjaya Apartment”). In the same month, she filed this Application, which was allowed partially for the following reasons. Contentions, evaluation, and findings [4] At the outset, the Defendant had informed the Court that he had agreed to the following prayers in this Application, namely: a) Prayer 3 – For care, custody and control of the children be given to the Plaintiff; b) Prayer 10 – For the Defendant to pay the costs and salary of the domestic help whose services would be for the Plaintiff and the children; and c) Prayer 11 – For the Defendant to pay all costs and fees and expenses related to the health and education of the children. 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 4 Whether the Plaintiff was entitled to spousal maintenance of MYR16,500 and child maintenance of MYR26,650

With regard to the Plaintiff’s claim for maintenance, it was crucial to note that the Defendant had not resisted it, but merely disputed the amount she was claiming. It was also fundamental to bear in mind that since the filing of this Application, the Defendant had been paying the Plaintiff a monthly amount of MYR7,000 as maintenance for her and the children. In addition, the Defendant had paid for other expenses including utilities bills for the house the Plaintiff is living in, live-in maid for the eldest son, children's tuition fees, petrol, medical expenses and other items as and when requested by the children.

At this juncture, it was important to note that the law on a claim for maintenance is documented in section 78 of the Law Reform (Marriage and Divorce) Act 1976 (“the Law Reform Act”), which reads: Section 78 – Assessment of maintenance In determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage. [Emphasis added.] 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 5

The application of section 78 of the Law Reform Act is seen in numerous cases including Sreedevi Naidu a/p T Sree Ramalu Naidu v Eelasegaran a/l T Nadarajah & Anor [2016] 3 MLJ 26 and Koay Cheng Eng v Linda Herawati Santoso [2008] 4 MLJ 863, where in the latter case, it was stated by Hashim Yusoff JCA, speaking for the Court of Appeal, in the following passages: What is needed to be decided now is the amount of maintenance to be awarded to the wife. It is an established principle that in deciding what amount of maintenance the husband should pay the wife, the court must take into consideration the means and needs of the parties. In assessing the means and needs of the parties the court has always had regard to the duration of the marriage, whether there were any children of the marriage, the age of the parties, whether the husband had financially supported the wife during the duration of their marriage, the parties earning capabilities and whether the divorce would have affected the husband's position financially.

We are of the view that with the standard and cost of living of the respondent, the sum awarded is justifiable. We are in agreement with the learned counsel for the respondent that the respondent is to be placed in a position to enjoy the same standard of living as she had during the existence of the marriage [Emphasis added.] [8] Since the parties’ second child had already attained the age of 23 and had completed his degree and started working, reference was made to section 95 of the Law Reform Act, which reads: 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 6 Section 95 – Duration of orders for custody and maintenance Except where an order for custody or maintenance of a child is expressed to be for any shorter period or where any such order has been rescinded, it shall expire on the attainment by the child of the age of eighteen years or where the child is under physical or mental disability, or is pursuing further or higher education or training, on the ceasing of such disability or completion of such further or higher education or training, whichever is the later. [Emphasis added.]

As such, the Defendant no longer had a duty to maintain the second child, which meant that the monthly amount of MYR7,000 he paid was for meals and groceries for the Plaintiff and four children, which in my view, was sufficient.

With regard to the Plaintiff’s claim for maintenance, although she had listed all the items that she claimed were necessary, in my view, the amount of MYR43,150 for herself and four children was not only exorbitant, it could not be justified, and there were overlapping claims. It was, therefore, not equitable for these claims to be made as the Defendant had already agreed to pay for other items that would be required by the children, which meant that the MYR7,000 was sufficient, bearing in mind that it was mainly for meals and groceries.

Reference was made also to the case of Ananda Dharmalingam v Chantella Honeybee Sargon [2006] 6 MLJ 179, where I drew guidance 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 7 from the enlightening comments made by Faiza Thamby Chik in the following passage:

Having dealt with the above facts, I will reiterate the two separate tests set out in the LRA (one for the wife and another for the children) that must be considered in considering maintenance for the wife and children herein. By virtue of s 78 of the LRA set out aforesaid, the only test that this court needs to adopt in deciding if (interim) maintenance should be awarded to the wife in these proceedings is the means and needs of the parties. The wife in the application herein contends that she needs RM6,800 in maintenance. However, the wife has not satisfied or discharged her duty to evidence that she does indeed need this sum of money. Indeed, the breakdown put forward by the wife at para 8 of her affidavit affirmed on 21 June 2004 does not add up to the amount of RM6,800. Further, the matters detailed in the said breakdown have not been evidenced by any receipts or bills or any form of documentation or other evidence whatsoever. It is therefore my finding that the wife has not adequately and/or properly evidenced her needs and that the figure of RM6,800 claimed by the wife in the application herein is an excessive and unjustified amount. the husband in this case had been working in government service until recently. He left government practice at the end of last year. He only began working as a doctor in private practice from March 2004. In the circumstances, this is a husband who had only just started out in his career in private practice. [Emphasis added.]

In a similar vein, in the present case, the Plaintiff had failed to justify the amount claimed for, as not only were the claims overlapping, her breakdown of the items put forward by the Plaintiff had not added up.

The Plaintiff averred that the Defendant was extremely wealthy, having accumulated his wealth in the form of properties and companies, and 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 8 that the sum of MYR43,150, therefore, was a modest sum for him, and hence, within his means.

The Plaintiff further contended that with regard to the companies, the Defendant held directorships and shares and as such, the Plaintiff averred that he had earned a salary and also received dividends.

In my view, this contention was untenable as the Defendant had adduced evidence to prove that there was a reduction in his salary, as exhibited in his income tax returns filed with the Lembaga Hasil Dalam Negeri (LHDN). The Defendant had averred that the Covid-19 pandemic had resulted in the deterioration of his income. In this regard, pursuant to section 57 of the Evidence Act 1950, I took judicial notice of the toll that the Covid-19 had on everyone, especially on businesses in general. As such, the reduction of the Defendant’s income was a factor that the Court had considered in arriving at the conclusion that a monthly amount of MYR7,000 was sufficient to maintain the Plaintiff and four children for meals and groceries.

As far as the Defendant’s earning of dividends was concerned, his explanation, which I had accepted, was that the uncertainty of the financial standing of these companies made it difficult for the Defendant to commit to any sum of money that he earned from his dividends as some of these companies were running at a loss. 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 9

Furthermore, based on the details of her claim, the amount that the Plaintiff prayed for was to support a lifestyle that was extravagant and lavish, unlike the lifestyle that the family was accustomed to during the marriage, regardless of the Defendant’s wealth. In accordance with trite principles of law expounded in Koay Cheng Eng v Linda Herawati Santoso, the Defendant is only obliged to provide the same standard of living for the Plaintiff and the children before and after the separation.

The Plaintiff had also alluded to several properties that the Defendant had owned, and that an amount of MYR43,150 should not be difficult for the Defendant to pay. In my view, regardless of the number of properties that the Defendant may own, a scrutiny of the evidence revealed that the Defendant’s earnings are invested in these properties, and that he was still servicing the loans for numerous of these properties.

In fact, this Court should be cautious of ordering litigants to dispose of their properties to pay maintenance, especially where the application for maintenance is an interim one only. I drew guidance from the case of Susila a/p S Sankaran v Subramaniam a/l P Govindasamy [2012] 9 MLJ 779, where it was stated by Yeoh Wee Siam J in the following passage: In my opinion, all matrimonial assets should be left intact, and should not be disposed of at this interim stage until a final order is made by the court for division of the assets under s 76 of the LRA, upon the decree of judicial separation being made after the hearing of the petition 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 10 [Emphasis added.]

Since no final order has been made by this Court, it would inequitable for this Court to order the Defendant, at this stage, to dispose his assets just to provide a lavish lifestyle to the Plaintiff and the children which he could not afford, which was also not a lifestyle they were accustomed to.

Furthermore, this Application is for interim maintenance only. In my view, the Plaintiff should be not asking for such an exorbitant sum just because she is of the view that she is entitled to the wealth that the Defendant has accumulated. It must also be borne in mind that an award for maintenance be must be made based on the ‘means and needs’ and not on ‘means and wants’. The requirement of ‘means and needs’ is conjunctive, which means that it is not only the Plaintiff’s needs that have to be considered, it is also the Defendant’s means that need to be addressed. This requirement is regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be. I am mindful that the Plaintiff’s needs must be maintained according to the lifestyle that she was accustomed to when living with the Defendant, but as alluded to earlier, the lifestyle she led with the Defendant, was not an extravagant and lavish one.

Bearing in mind that the Defendant had paid for other expenses, such as utilities, the live-in maid, the children's tuition fees, petrol, medical expenses and other items requested by the children, the Plaintiff had 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 11 failed to justify the exorbitant maintenance bill that she had claimed for. As such, the monthly amount of MYR7,000 which the Defendant was already paying, which was mainly for meals and groceries, will be maintained, as it is just and reasonable.

In this Application, the Plaintiff had also prayed for the payment of maintenance from the date of filing of this Application. In my view, since the Defendant had been paying a monthly sum of MYR7,000 for the Plaintiff and children and also other additional expenses from the date Plaintiff and the children had left the matrimonial home, this prayer was unnecessary.

Furthermore, it was averred by the Defendant that he had parted with MYR300,000 to the Plaintiff just before she had left the matrimonial home. This fortified the reason for disallowing the Plaintiff’s prayer for arrears of maintenance since the filing of this Application.

An argument put forward by the Plaintiff to justify the amount she was asking for was her allegation that the Defendant had contributed to the breakdown of the marriage due to his extra-marital affairs. On this note, I had to remind parties that the issue of the Defendant’s adultery was an issue to be ventilated and proved at the full trial of the divorce petition. At this stage, that averment remained unsubstantiated, and as such, it was not established that the Defendant had in fact committed adultery. 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 12

I was guided by the case of Shireen Chelliah Thiruchelvam v Kanagasingam Kandiah [2010] 2 CLJ 736, where it was stated by Suraya Othman J (as she then was)

Therefore before this court can decide whether the wife is entitled to any maintenance, the issue of whether the alleged adulterous relationship between the wife and Dr Suresh Marcandan led to the breakdown of the marriage has to be decided first. The defendant has to file a petition for divorce and cite the alleged adulterer as a co respondent or if the wife filed for divorce, then the defendant has to cite the alleged adulterer in his answer to the divorce petition as required by s. 58 of the LRA. Until the divorce petition is filed and the allegation of adultery is ventilated the issue of apportionment of responsibility for the breakdown of the marriage cannot be decided upon by this court and as such the issue of maintenance to the wife too, had to be postponed till that date. [Emphasis added.]

Furthermore, according to section 78 of the Law Reform Act, although ‘the court shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.’, this means that if the spouse claiming maintenance has contributed to the breakdown of the marriage, that party's claim to maintenance may be affected to the degree of his or her culpability. ‘It does not mean that an 'innocent' spouse gets much more than the ordinary measure, as if to punish the other spouse, for there is no punitive element in the grant of maintenance:’ per Faiza Thamby Chik J in Chee Kok Choon v Sern Kuang Eng [2005] 4 MLJ 461. 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 13

In the present case, the exorbitant amount demanded by the Plaintiff was partly to penalise the Defendant for the alleged adultery. In my view not only was the adultery not proved, the purpose of awarding maintenance to the Plaintiff should not be to penalise the Defendant. As such, there was no basis to award more maintenance to the Plaintiff simply because there were allegations by her that the Defendant had committed adultery. Whether the Plaintiff was entitled to reside at Plaza Berjaya Apartment

The Plaintiff had also prayed that she and the children to be allowed to reside at the Plaza Berjaya Apartment.

It was undisputed that this property is co-owned by the Defendant and his business partner, one Lim Bee Suan (“Lim”), who had both paid for it in equal shares. Although the co-owner had sworn an affidavit, stating that she was not agreeable for the Plaintiff and the children to live at the property, the Plaintiff disputed the averment in such affidavit claiming that it was not true, as she adduced a sound recording of a conversation purportedly between herself and Lim indicating that Lim was in fact agreeable for the Plaintiff to stay at the Plaza Berjaya Apartment.

In my view, the voice recording was dubious and doubtful. There was no proof as to who were the participants to that conversation. Bearing in mind that this hearing was by way of affidavit evidence, the affidavit, being a sworn statement by Lim, must carry more weight than any other averment. 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 14

Since the Defendant does not have exclusive rights to use the property exclusively, it would be unjust and inequitable for the Plaintiff to demand that she be allowed to stay at the Plaza Berjaya Apartment. It would also be against trite principles of law to make an order compelling Lim to allow the Plaintiff to stay at the Plaza Berjaya Apartment since Lim is not a party to these proceedings. On this note, the Court’s attention was brought to the Court of Appeal case of Re Thien Kon Thai v Su Wee Lip @ Philip Su & Haji Lassim Abdul Rahman [2008] 6 MLJ 278 where it was explained by Gopal Sri Ram CA (as he then was) in the following passage: We accept that it is a general rule that no order may be made against a non-party. However, there are two exceptions to this rule. The first are injunctions. An injunction is not only binding upon the person to whom it is directed. It also binds his agents or servants although they are not parties to the suit. It binds every person who has notice of it. The second exception is where the party complaining of being excluded is really the alter ego of the person already impleaded and before the court. Jones v Lipman (1962) 1 Ch D 442 provides an excellent example. There a defendant who had agreed to sell his land to the plaintiff transferred it to a company of which he and a clerk of his solicitors were sole shareholders and directors. Russell J (later Lord Russell of Killowen) had no hesitation in decreeing specific performance against the limited company. He described the company as a sham or a cloak.

It was undeniable that the Defendant had offered the Plaintiff and the children an alternative accommodation in Setapak (“the Setapak accommodation”), which is wholly owned by the Defendant, and which is walking distance to TAR University College, where two of the children are students of. The Plaintiff claimed that the Setapak 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 15 accommodation was not suitable but failed to satisfy the Court on what basis it was so. Furthermore, since it was the Plaintiff who had moved out of the matrimonial home, it would be injudicious of her to demand which suitable alternative home the Defendant should provide her with, and based on the evidence, I had failed to see what was unsuitable about the Setapak accommodation.

The Plaintiff had also claimed for the use of the Vehicle belonging to the Defendant which the Plaintiff sought for the Defendant to continue making payments.

In my view, the Plaintiff had failed to justify her need for the Vehicle. Furthermore, it was undisputed that the Vehicle was used by the Defendant during the subsistence of the marriage for his business image and frequent long distance travelling. In comparison, the Plaintiff was a stay-home mother, and although she may need a vehicle for her mobility, there was no need for her to have that particular Vehicle. The Plaintiff should bear in mind that her lifestyle was financed by the Defendant and with this separation, although the Court is minded to ensure that such lifestyle, as the one that she was accustomed to, is maintained, the cost of such lifestyle must not be unreasonable, or such as to financially cripple the Defendant. 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 16

I, therefore, was of the view that the Vehicle should be returned to the Defendant and the Defendant should provide an alternative car for the Plaintiff, as long as such car is reasonably fit for purpose.

With regard to the prayer for the Defendant to file an affidavit of means, the Defendant objected on the basis that he had already revealed everything in his affidavits and pleadings. I had to disagree with the Defendant’s contention as in my view, I saw no prejudice in ordering the Defendant to file the most current affidavit of means, to enable this Court to make an Order that is fair, just and reasonable. Conclusion [38] In the upshot, therefore, and based on the aforesaid reasons, and after careful scrutiny and judicious consideration of all the evidence before this Court, and written and oral submissions of both parties, this Application was allowed only for the following prayers: a) Prayer 3 – For care, custody and control of the children be given to the Plaintiff; b) Prayer 10 – For the Defendant to pay the costs and salary of the domestic help whose services would be for the Plaintiff and the children; c) Prayer 11 – For the Defendant to pay all costs and fees and expenses related to the health and education of the children; d) Prayer 13 – For the Defendant to file an affidavit of means. 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 17

Prayers 1, 2, 4, 5, 6, 7. 8. 9, 12 were dismissed with parties to bear their own costs. Dated: 24 June 2022 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Plaintiff – Chris SY Chin and Tan Han Rui; Messrs Shang & So For the Defendant – Andrew Lim and Samuel Lim; Messrs HS Lim and Malik Cases referred to: ➢ Ananda Dharmalingam v Chantella Honeybee Sargon [2006] 6 MLJ 179 ➢ Chee Kok Choon v Sern Kuang Eng [2005] 4 MLJ 461 24 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 18 ➢ Koay Chenq Eng v Linda Herawati Santoso [2008] 4 MLJ 863 ➢ Re Thien Kon Thai v Su Wee Lip @ Philip Su & Haji Lassim Abdul Rahman [2008] 6 MLJ 278 ➢ Shireen Chelliah Thiruchelvam v Kanagasingam Kandiah [2010] 2 CLJ 736 ➢ Sreedevi Naidu a/p T Sree Ramalu Naidu v Eelasegaran a/l T Nadarajah & Anor [2016] 3 MLJ 26 ➢ Susila a/p S Sankaran v Subramaniam a/l P Govindasamy [2012] 9 MLJ 779, Legislation referred to: ➢ Evidence Act 1950 – section 57 ➢ Law Reform (Marriage and Divorce) Act 1976 – sections 78, 95