Choi Hui Yan [No. K/P: 720322-10-5450] v Lim Kean Tin [No. K/P: 741218-08-5405] (BA-33-408-08/2020)

This is an application by the petitioner wife to amend the divorce petition to add one Tee Kim Leng as a co respondent for the purpose of claiming damages from the latter on the ground that she was in an adulterous relationship with the respondent husband. The application is made pursuant to Order 15 rule 6(1) and rule 6(2)(b) of the Rules of Court 2012 (“ROC”).

The respondent husband has filed two affidavits to resist the application.

The petitioner and respondent have been married for some 25 years. In August 2020, the petitioner commenced divorce proceedings against the 2 respondent. By paragraph 10 of the divorce petition she pleads adultery as one of the causes that led to the irretrievable breakdown of the marriage. The petitioner has deposed in her affidavit in reply that the respondent has surreptiously travelled to various countries and also attended numerous weddings and/or parties with the said Tee Kim Leng. In this connection, she has exhibited eight photographs to her affidavit. In further support of the allegation of adultery, the petitioner relies on an affidavit affirmed by her daughter-in-law Huh Suji, who is married to the petitioner and respondent’s son, Lim Zhen Yi.

On 6 August 2021, the petitioner filed the present application to cite Tee Kim Leng as a co respondent. The respondent strenuously objects to the application. Parties’ submissions

The respondent contends that there is delay in the filing of this application. He points out that the divorce petition was filed in August 2020, but the application to bring in a co respondent was filed in only August 2021. The delay of one year, he contends, shows that it is an afterthought and discloses mala fides on the part of the petitioner to use the application as a tool of extortion rather than based on credible evidence. The respondent submits that the delay here precludes the petitioner from seeking to bring a co respondent at this late stage. 3

The respondent further contends that the application must be dismissed as the petitioner has failed to substantiate her allegations of adultery though the law requires adultery to be proven beyond reasonable doubt. He says that Tee Lim Leng is the sales executive cum personal assistant and the modelling face of his of his group of companies and it is usual for a company to employ good looking employees. Their relationship, he maintains, is purely platonic.

In response, the petitioner denies there is inordinate delay or that she is actuated by mala fides. She says the application is made bona fide and is intended to give details of the adultery and name the individual who has been identified in the petition as having an adulterous relationship with the respondent. She argues that delay here is not fatal.

The petitioner next contends that there is no merit in the respondent’s contention that she has failed to provide sufficient proof of adultery. She says that adultery maybe proven based on direct or circumstantial evidence. She argues that the photographs and the affidavit by her daughter-in-law Huh Suji are sufficient to prove that the respondent has committed adultery. Preliminary objections 9. Before I deal with the arguments of the parties, I need to address two preliminary objections which the respondent has raised: 4 a. That in the application the petitioner has not named Tee Lim Leng as the individual whom she seeks to add as a co respondent; b. That the affidavit in support affirmed by the petitioner is defective.

I start with complaint (a). It is common ground that the petitioner has alleged in the petition that the responded has committed adultery and filed a bundle of documents and included photos of Tee Kim Leng for the purposes of the trial. In these circumstances, I agree with the petitioner that it would have been obvious and apparent to the respondent that the party to be added as co respondent is Tee Kim Leng. As such, I find no merit in the objection taken.

The second preliminary objection has to do with the petitioner’s affidavit. The respondent says that the affidavit is defective as the jurat of the affidavit begins after the end of the deposition but ends on a fresh page. The respondent relies on the case of Voon Mew Chen v Menteri Dalam Negeri & Anor and Five Other Cases [1993] 4 CLJ 195 to support his contention.

It is instructive in this regard to refer to the case of Mohd Nazir bin Badar Shair v Timbalan Menteri Dalam Negeri [2002] 2 MLJ 559 where a contrary view was expressed by Augustine Paul J. His Lordship held that the ruling in 5 Voon Mow Chen that the jurat must not be on a new page cannot be sustained and his reasoning was: “The first reason advanced in Voon Mow Chen for the ruling that the jurat must not be on a new page is that it may not be a sufficient indication that the jurat relates directly to the deposition. This, to my mind, cannot be sustained as the whole affidavit including the jurat is stapled together and filed which would be sufficient indication that the jurat does, in fact, relate to the deposition. The second reason advanced in Voon Mow Chen relates to the possible use of pre-executed jurats to subsequent affidavits.If this argument is stretched a bit further then just as there may be a possibility of pre-executed jurats being used for subsequent affidavits it is equally possible that the extra space left in order to ensure that a jurat does not commence on a new page can be subsequently filled up. There will be no end to such possibilities. It is my view that rulings must be made on evidence and not on mere possibilities. Alternatively, a ruling must be based on what is expressly provided or prohibited by the RHC. There is no provision in the RHC on the positioning of the jurat with the result that there is no legal basis for declaring 6 a jurat as being defective if it does not end on the last page of an affidavit. Notwithstanding what I have said the difficulties envisaged in Voon Mow Chen have in fact been resolved by O 41 r 9(2) of the RHC… The signature of a commissioner for oaths in an affidavit showing that it has been sworn before him is an official act and the affidavit must be presumed to have been regularly affirmed even though the jurat is on a completely new page unless the contrary is proved. Thus in Jugraj Singh & Anor v Jaswant Singh & Ors AIR 1971 SC 761, it was held that the endorsement of a notary public that a power of attorney had been subscribed and sworn before him raises the presumption that he must have satisfied himself in the discharge of his official duties that the person executing it is the proper person. Furthermore, the different pages of an affidavit including the jurat, whether it is on a new page or not, are stapled together and usually filed by a solicitor's firm or a government agency as in this case. It amounts to an official act of a solicitor or the government agency concerned. So it must be presumed that the jurat, even though on a new 7 page, relates to the affidavit in question unless the contrary is proved.”

Having considered both the cases, I prefer and wholly agree with the view expressed in Mohd Nazir bin Badar Shair. I thus reject the argument that the petitioner’s affidavit in support is defective by reason of the jurat ending on a new page. In any event, the objection taken is a truly technical one that has not prejudiced the respondent and should not be a reson to invalidate the affidavit in support. It is illuminating in this regard to refer to Jagdis Singh a/l Banta Singh v Outlet Rank (M) Sdn Bhd [2013] 4 MLJ 213, where Zawawi Salleh JCA in delivering his judgment stated at paras 14 and 15: “We were of the considered opinion that in the circumstances of this instant case, the requirement of rr 5(3) and 18(3) of the Rules of the Court of Appeal 1994 should be liberally construed and that mere technicalities should not stand in the way of consideration of a case on the merits. Striking out a notice of appeal where a party inadvertently failed to date and sign it will produce a hash result. Rule of procedure should not be taken as a game of skill in which one oversight by counsel shall be decisive to the 8 outcome of the case. The purpose of procedure is to facilitate a proper decision on the merits.”

Therefore, the preliminary objections taken by the respondent are unsustainable and must fail. Whether joinder should be allowed 15. As noted earlier, the present application is taken out under Order 15 rule 6 of the ROC. The provision sets out the broad principle on which the court would allow the addition of a new party or order that a named party cease to be such a party. It reads:

A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

(ii) Subject to the provisions of this Rule, at any stage of the proceedings in any cause or matter, the Court may, on such terms as it thinks just and either of its own motion or on application 9

(iii) order any of the following persons to be added as a party, namely:

(iv) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in the cause or matter may be effectually and completely determined and adjudicated upon;

any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

It is clear from the provision that in dealing with an application for joinder of party, the Court may add any person who ought to have joined as a party to the proceedings to ensure that all maters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon. 10

In the context of this case, it is essential to examine section 58 of the Law Reform (Marriage And Divorce) Act 1976 (“LRA”) and Rule 11 of the Divorce and Matrimonial Proceedings Rules 1980. Section 58 in so far as material provides: “(1) On a petition for divorce in which adultery is alleged, or in the answer of a party to the marriage praying for divorce and alleging adultery, the party shall make the alleged adulterer or adulteress a co-respondent, unless excused by the court on special grounds from doing so.”

And Rule 11 states:

Subject to paragraph (2) where a petition alleges that the respondent has committed adultery, the person with whom the adultery is alleged to have been committed shall be made a co-respondent in the cause unless-

that person is not named in the petition and, the petition contains a 11 statement that his or her identity is not known to the petitioner; or

the Court otherwise directs.

It is to be observed that the provisions make it incumbent on the applicant in matrimonial proceedings to add the alleged adulteress or adulterer as a co respondent where divorce is sought on the ground of adultery. The requirements of section 58 LRA and Rule 11 was examined in two cases. In the first case of Ho Ching Choo v Ng Kian Beng [2011] MLJU 584, Umi Kalthum J allowed the respondent husband’s application to add the alleged adulterer as a co-respondent. She said: [6] Mahkamah seharusnya membenarkan permohonan responden suami memandangkan jika benar dakwaan perzinaan responden suami terhadap pempetisyen isteri yang seharusnya dibuktikan oleh responden suami semasa perbicaraan penuh petisyen itu, responden suami boleh memohon gantirugi daripada pihak ketiga itu di bawah peruntukan seksyen 58 dan 59 yang dibacakan Bersama dengan seksyen 54 dan 60 Akta pembaharuan Undang-Undang (Perkahwinan dan Penceraian) 1976. 12

In the next case, Avtar Singh a/l Sukhdev Singh v Anita Rani a/p Harjit Singh [2012] MLJU 352, Yeoh Wee Siam J also granted a similar application but explaining: “There is no evidence of mala fide by the RW in making this application. The RW is allowed under the law to make this application before the trial. Under s.58 (i)of the LRA, in the Answer of a party to the marriage praying for divorce and alleging adultery, the party is required to make the alleged adulteress a co-respondent (in this case, the Party Cited), unless excused by the Court. Therefore, the RW is doing what she is required by law to do in order to lodge her claim against the third party. I do not think that there is unreasonable delay by the RW in filing this application. The Divorce Petition was filed on 2.12.2011. The RW had already filed her Answer on 19.1.2012. She now only wishes to give further details regarding her allegation of the PH's adultery with the third party to be cited, namely Devinder Kaur. The RW explained that from 15.2.2011 to 20.2.2012 she was in Kuching. On 22.2.2012 she filed this application. In 13 my opinion, there is no inordinate delay by the RW in filing enclosure 20.”

In the circumstances, it behoves the petitioner to cite Tee Kim Leng as a co respondent so as to comply with the statutory direction stipulated in section 58 and Rule 11. In the premises, the respondent’s arguments based on mala fides and delay are untenable and must be rejected.

In any event, there is no gainsaying that the inclusion of Tee Kim Leng as a co-respondent is essential and necessary for the adjudication of the allegation of adultery and compensation in the instant case. I agree with the petitioner that in the circumstances, in the language of Order 15 r 6(2)(b) of the ROC, the matter cannot be effectually and completely determined without the Tee Kim Leng’s participation.

That brings me next to the respondent’s complaint that to allow the application would be an exercise in futility as there is no evidence to support the petitioner’s allegation of adultery. It is settled law that the burden of proof is on the petitioner who has to prove beyond reasonable doubt that the respondent has since the solemnization of the marriage has been guilty of adultery. The petitioner must show that the physical act or sexual intercourse had resulted in the breakdown of the marriage. Thus, flirting or holding of hands does not 14 constitute adultery although such an act may be deemed as unfaithful to the spouse.

In Ross v Ross [1930] AC 1, Lord Buckmaster said referring to proof of adultery: “… Adultery is essentially an act which can rarely be proved by direct evidence. It is a matter of inference and circumstance. It is easy to suggest conditions which can leave no doubt that adultery has been committed, but the mere fact that people are thrown together in an environment which lends itself to the commission of the offence is not enough unless it can be shown by documents, eg letters and diaries, or antecedent conduct that the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence … And Lord Atkin added, at p 21: “… But from opportunities alone no inference of misconduct can fairly be drawn unless the conduct of the parties prior, contemporaneous, or subsequent 15 justifies the inference that such feelings existed between the parties that opportunities if given would be used for misconduct..”

In Yew Yin Lai V Teo Meng Hai & Anor [2013] 8 MLJ 787, Halijah Abbas J made the following observation: “Adultery has also to be inferred from the circumstances which exclude any presumption of innocence in favour of a person against whom it is alleged. Proof of adultery must be of such character as would lead a reasonable man to conclude no other inference than the misconduct. Mere probability is not enough. No implicit reliance can be placed on the bald statement of the wife for recording a finding of adultery against the husband. In the present case it is not bald statement, but strongest circumstantial evidence with high degree of probability beyond any reasonable doubt. Individually, all the circumstantial evidence may not amount to required proof. But combined, and based on a myriad of cases, I find that they do.” 16

As noted at ([3] above), the petitioner relies on circumstantial evidence, namely, the photographs and the affidavit of Huh Suji to show that the respondent has committed adultery with Tee Kim Leng. In her affidavit, Huh Suji deposes that on 4 November 2018, they had stayed in a hotel whilst on a family trip to Hong Kong. There, she had seen the respondent and Tee Kim Leng enter the same hotel room and exit at the same time and also witnessed them spending nights together in the same hotel room.

The respondent argues that the eight photos do not prove adultery and as such have no value. He argues that Tee Kim Leng is an employee of his company and it is common for him to travel together with his employees and take photographs with them.

As regards Huh Suji’s affidavit, the respondent contends that it should not be given any weight as the same was filed as a result of financial assistance the former has received from the petitioner. He further argues that the affidavits affirmed by his sons, Lim Zhen Yi and Lim Zeng Feng plainly show that the averments Huh Suji makes in her affidavit cannot be true as her room was on a different floor as opposed to the respondent and Tee Kim Leng who had their own personal rooms at the hotel. The respondent also submits that as Lim Zhen Yi and Huh Suji are now is in the process of settling the terms for the filing of a joint divorce petition, it is obvious that the latter is using the respondent’s divorce to extort money. 17

As can be seen the affidavits on the issue of adultery are most contradictory and I am entirely without the means of judging to which side the greater degree of credit ought to be attributed. I do not think it is part of the court’s function at this interlocutory stage to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend. It is unsafe to determine the veracity of the accounts by both sides solely from the affidavits filed. The court is not justified in embarking upon anything resembling a trial of the action upon conflicting affidavits in order to evaluate whether the respondent has committed adultery.

In any event, if the case proceeds to trial and at the close of the petitioner’s case, the court finds that the evidence is insufficient to prove adultery, the respondent can urge the court invoke his power under section 58(3) (a) of the LRA and discharge the co respondent from the proceedings. It will be useful if I set out section 58(3) (a) which provides:

Where damages have been claimed against a co-respondent-

If, after the close of the evidence for the petitioner, the Court is of the opinion that there is not sufficient evidence against the co-respondent to justify requiring him or her to reply, 18 the co-respondent shall be discharged from the proceedings; or

For these reasons, I cannot accept the respondent’s argument that the petitioner has failed to adduce any credible evidence to sustain the allegation of adultery. Accordingly, I allow the petitioner’s application to add Tee Kim Leng as a co respondent. Dated : 4 February 2022 (S.M KOMATHY SUPPIAH) Judge High Court of Malaya Shah Alam Date of Decision : 13 December 2021 Solicitors :- For the Petitioner Wife (PW): Na Mei Kei & Leong See Theng (PDK), [Messrs Y.Y. Ho & Lee] For the Respondent Husband (RH): Simon Yap & Lee Qiao En, [Messrs Simon