Chow Khoon Choong v Loi Hoi Wai (BA-33-244-04/2019)

This matter concerns the Petitioner Husband’s (PH) petition for divorce and a cross-petition by the Respondent Wife (RW) for divorce, monthly child and spousal maintenance, equal division of all matrimonial assets and damages from the Party Cited.

The PH’s petition for divorce is grounded pursuant to Section 54(1(b), (c) and (d) of the Law Reform (Marriage & Divorce) Act (LRA) 1976 i.e. that the RW has behaved in such a way that the PH cannot reasonably be expected to live with her, that the RW had deserted the PH for a continuous period of at least 2 years immediately preceding the presentation of the petition and/or that the parties had lived apart for a continuous period of 2 years prior to the presentation of the petition.

The RW cross-petitioned claiming that the cause of the breakdown of the marriage was due to the PH’s highly intolerable and unreasonable behavior whereby he was physically violent and extremely aggressive towards her and there were many instances of domestic violence committed against her which caused physical mental and emotional injuries. She further states that she was unlawfully evicted and forced out of the matrimonial home on 22.10.2018.

In addition to the PH’s conduct and behavior, the RW alleged that the PH had committed adultery with the Party Cited and she found it intolerable to live with the PH. She also maintained that due to the emergence and presence of the Party Cited replacing her position as the wife in the PH’s life, the marriage had irretrievably broken down, was destroyed without any possibility of a reconciliation.

The PH’s claim against the RW is as follows :

An order for the Decree Nisi be made absolute immediately;

The RW be given sole custody care and control of the Child of the marriage;

PH be given reasonable weekly overnight access;

PH will pay RM2000 per month as Child maintenance;

PH will continue to pay RM4000 per month as maintenance to RH;

PH will bear all education costs and expenses of the Child until the Child completes her tertiary education;

Both matrimonial properties to be sold at the current market value and the proceeds to be used by the PH to pay all debts incurred by the RW;

The balance of the monies from the sale of the properties to be divided and shared equally between the PH and RW; and

Parties to bear their own costs.

In her Cross-Petition, the RW sought various ancillary reliefs, including spousal and child maintenance, an equal division of all matrimonial assets acquired during the marriage, and an order for damages against the Party Cited.

I allowed the Amended Divorce Petition (ADP) and the Cross-Petition partially, which included the dissolution of the marriage, spousal child maintenance obligations and equitable division of matrimonial assets.

Both the PH and RW are aggrieved with parts of the decision and have filed an appeal and cross appeal.

The following are my reasons for my decision. Brief Background 10. The PH, a medical doctor and the RW registered their marriage on 9.2.2000 at Jabatan Pendaftaran Negara, Petaling Jaya Selangor. They have been blessed with a daughter (MCZ) who was born on 10.4.2006. At the time the trial was underway last year, the Child was 18 years old and very keen to pursue a University degree in medicine.

Throughout the marriage, the RW remained a housewife, dedicating herself to raising the Child and managing the household, while the PH established and operated his own medical practice. The parties resided together at their matrimonial home in Mutiara Damansara until 2016. According to the PH, the RW voluntarily vacated the home in April 2016, a claim he seeks to substantiate by reference to the contents of a police report lodged by the RW on 9.1.2017.

The PH asserted that it was the RW who initiated the move towards divorce when, in December 2017, she engaged her solicitors to prepare a joint petition for divorce. He further alleged that the RW repeatedly urged him to sign the documents, which he eventually did, and that she demanded RM15,000 from him in return for releasing the divorce-related documents. The joint petition was filed in the Shah Alam High Court as BA-33-10- 01/2018. When the matter was called up before the Court on 23.1.2018, the PH, through his counsel raised preliminary objections as to its validity and procedural compliance. Consequently, the Joint Petition was struck out.

Subsequently, the parties appeared before the Reconciliation Tribunal, and upon the conclusion of three sessions, the Tribunal issued a certificate recording the outcome as: “Isteri minta cerai, isteri enggan berdamai.”

Meanwhile the RW had filed an Originating Summons BA24-138- 04/2018 in the Shah Alam High Court seeking custody care and control of the Child with other ancillary reliefs. A consent order was recorded on 22.10.2018 under which the parties were appointed joint guardians of the Child, with full custody care and control vested in the RW. The PH was granted reasonable access to the Child. Pursuant to the same order, the PH also undertook to pay child maintenance of RM2000 and spousal maintenance of RM4000 monthly.

The PH has expressed his firm intention for the marriage to be dissolved, asserting that there is no prospect of reconciliation as he has since established a new family with the Party Cited, with whom he now has two young children.

The PH contends that he is presently burdened with substantial debts, which he attributes in large part to what he describes as the RW’s extravagant lifestyle during the marriage. He alleges that the RW had a penchant for purchasing branded and costly items, together with other luxury goods, frequently utilising his credit cards for such expenditures. According to the PH, this pattern of spending has resulted in the accumulation of debts amounting to RM7,962,896.00.

The PH refutes the RW’s allegation that the breakdown of the marriage was precipitated by the involvement of the Party Cited. He maintains that his relationship with the Party Cited only began after the RW had vacated the matrimonial home. The PH further asserts that the marriage had already deteriorated beyond repair well before April 2016, which was the point at which the RW left the home. In his account, the breakdown of the relationship was not the result of any third party, but rather the culmination of long-standing issues between the parties that had existed prior to the RW’s departure.

Conversely, the RW alleged that the deterioration of the marriage was directly attributable to the intolerable and unreasonable conduct of the PH. She asserted that the PH had been physically violent and extremely aggressive towards her, and that there were repeated instances of domestic violence which inflicted physical, mental, and emotional harm upon her. In support of these allegations, the RW pointed out that she had lodged several police reports documenting the acts of violence committed by the PH. According to her account, the PH’s violence and aggression escalated in both frequency and severity over time, ultimately reaching a point where she felt compelled to leave the matrimonial home for the sake of her own safety and wellbeing. She explained that on many occasions, she sought refuge in her younger sister’s home, only to return to the matrimonial home once the PH had calmed down and it was safe to return, in order to continue caring for the Child. The RW emphasised that her departures from the matrimonial home were not voluntary desertions, but were forced by the PH’s violent and aggressive behaviour, which left her with no alternative but to temporarily remove herself from the danger.

The RW described the PH’s behavior as very arrogant, aggressive, abusive and violent towards her putting her in constant fear, anxiety and stressed throughout the marriage.

The RW testified that the PH would frequently intimidate her and attempt to compel her to sign various documents, and whenever she refused to comply, he would erupt by shouting, screaming, and threatening her with dire consequences. On such occasions, he would shove and push her, as well as hurl objects in her direction. At times, the PH’s rage escalated to the extent that he damaged the furniture in the matrimonial home.

The PW further deposed that her family members were well aware of, and at times directly exposed to, the RH’s conduct and hostile attitude towards her. On numerous occasions, they had to rush over to the matrimonial home to rescue her from his violent outbursts.

The RW has alleged that she was forced to leave the matrimonial home by the PH on 22.10.2018 which is also the same day that the Interim Consent Order in OS-24F-138-04/2018 was granted by the Court. She has not been able to enter and/or reside in any of the matrimonial properties since then.

In response, the PH denied all allegations of violence and unreasonable conduct. He drew the Court’s attention to a police report lodged by the RW on 9.1.2017, in which she expressly stated that she had left the matrimonial home of her own free will (‘rela hati’) sometime earlier in April 2016. The PH argued that this admission is inconsistent with her present claim that she was compelled to leave for reasons of safety. According to the PH, such actions are incompatible with her claim of living in fear, since a person genuinely apprehensive for her safety would not have voluntarily returned to the matrimonial home.

In addition to her complaints regarding the PH’s conduct and behaviour, the RW further alleged that the PH had committed adultery with the Party Cited. According to her, this extramarital relationship marked a decisive turning point in the marriage, as from that time onwards the PH demonstrated no intention whatsoever to pursue reconciliation with her. The RW maintained that, unlike the PH, she was willing to preserve the marriage and had made genuine and concerted efforts towards reconciliation. However, she contends that the presence of the Party Cited in the PH’s life has created an insurmountable barrier, effectively preventing any possibility of restoring the marital relationship.

I find the following are the issues that must be determined by this

Reasons for the breakdown of the marriage - whether the marriage has irretrievably broken down based on the PH’s allegations about the RW’s intolerable behavior or based on the RW’s allegations of physical and emotional abuse by the PH;

(ii) The issue of guardianship, custody care and control over the Child of the marriage and terms of access;

(iii) Maintenance, education, medical and other costs and expenses in relation to the Child of the marriage;

(iv) Maintenance of the RW;

Division of all Matrimonial Assets. Dissolution of the Marriage 26. The PH filed this petition for divorce on the ground that the marriage has irretrievably broken down pursuant to Section 53 LRA and has prayed for the marriage to be dissolved under Section 54(1)(b), (c) and (d) LRA.

The RW in her answer and cross-petition dated 15.7.2019 denied the PH’s grounds for divorce and cross-petitioned for the same.

When a marriage breaks down the primary issue for the court’s determination will be whether it has irretrievably broken down for reasons stated in Section 54 of the Law Reform (Marriage and Divorce) Act 1976 (LRA).

Section 54 provides as follows: Section 54 -Proof of breakdown

In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say-

That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

That the respondent ahs deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.

In considering whether it would be just and reasonable to make a decree the court shall consider all the circumstances, including the conduct of the parties and how the interests of any child or children of the marriage or of either party may be affected if the marriage is dissolved and it may make a decree nisi subject to such terms and conditions as the court may think fit to attach, but if it should appear to the court that in all the circumstances it would be wrong to dissolve the marriage it shall dismiss the petition.

Having viewed and considered the pleadings, evidence both oral and documentary as well as the submissions of the respective parties in the present case, I was satisfied that the marriage had irretrievably broken down due to the fact that the parties have not cohabitated and have lived apart for a continuous period for more than two years prior to the date of the filing of the DP and efforts at reconciliation have proven unsuccessful.

It is not disputed that the PH is now in a relationship with the co-respondent and has two children with his new family. This marriage has reached its point of no return. The RW has in her written submissions admitted as such and doesn’t deny there can no longer be any reconciliation with the PH. In the premises this Court will pursuant to section 54(1)(d) LRA grant a decree nisi dissolving the marriage.

This Court further finds that the PH has failed to discharge the burden of proving that the RW had conducted herself in such a manner as to render it unreasonable for the PH to be expected to continue living with her. The Court is not persuaded that the allegations raised have been substantiated with credible evidence, nor that they amount to conduct of such gravity as would justify the dissolution of the marital relationship.

Similarly, with regard to the allegation that the RW displayed no interest in managing the household or in caring for the daughter, the PH relied on an alleged incident in which the Child had contemplated committing suicide, which the PH attributed to the RW’s conduct. Having carefully considered the totality of the evidence, the Court finds that there is insufficient proof to establish any causal link between the RW’s behaviour and the said incident. The Court is therefore not persuaded that this allegation, even if taken at its highest, is capable of sustaining the PH’s contention that the RW’s conduct rendered it unreasonable for him to continue residing with her.

Conversely, this Court finds that the RW has, on a balance of probabilities, established that the deterioration of the marital relationship was the result of the highly intolerable and unreasonable conduct of the PH, who was frequently physically abusive and violent towards her. The RW alleged, and the Court accepts, that the PH engaged in conduct which instilled in her immense fear and emotional distress. The evidence reveals a recurring pattern of domestic violence directed at the RW, resulting in both physical injuries and psychological trauma.

Having given due consideration to the evidence in its entirety, I find the RW testimony compelling in respect of her reasons for the irretrievable breakdown of the marriage. Her allegations of domestic violence and mental abuse are corroborated by the numerous police reports lodged by her between 2017 and 2020. Notably, in her police report dated 9 January 2017 (p.166, Encl. 96), the RW recorded that she had left the matrimonial home in April 2016 due to the PH aggressive and violent behaviour towards her.

The RW provided a clear and consistent account of her feelings and reactions to the PH’s violent conduct, and I find her testimony on this issue to be both credible and probable. It is highly improbable that the RW would have fabricated such a narrative had it not been true. Her evidence of being intimidated and subjected to the PH’s aggressive and violent behaviour, which ultimately compelled her to leave the matrimonial home, is further reinforced by the fact that she would not have left the Child behind unless she had been placed in grave fear for her own safety and well-being.

The court accepts her evidence that although she was afraid, the RW still returned to the family home to stay but she kept out of the RW’s way. She was only completely forced out of the matrimonial home by the PW on 22.10.2018, which is also the same day that the Interim Order in BA-24F-138-04/2018 was granted by the Court. Ever since then the RH has not been able to enter and reside in any one of the matrimonial properties.

The fact that the PH was neither summoned by the police nor charged with any offence of domestic violence does not, in my view negate the RW’s averments or undermine the probative value of those police reports lodged.

Having had the benefit of closely observing the demeanour and disposition of the RW, I noted that she was reticent, lacking assertiveness in character and overshadowed by her other siblings in terms of resilience and dominance of personalities. The RW was clearly disadvantaged in this dynamic, as she neither possessed the emotional fortitude nor the physical strength to resist or defend herself against the PH’s force and hostility. This imbalance of power left her vulnerable, unable to assert her will and ultimately subjected to the PH’s dominance.

On the issue concerning the filing of the exemption under Section 106 of the LRA 1976, followed thereafter by the filing of the joint petition for divorce, this Court is of the view that the PH has not accurately represented the sequence of events as they actually transpired.

It is not in dispute that the joint petition for divorce was duly signed and presented by both the PH and the RW. Such a course of action clearly reflects that the decision to dissolve the marriage was a joint one, rather than the unilateral act of either party. Accordingly, it would be inaccurate and misleading to suggest, as the PH has attempted to do, that the RW had “fired the first salvo” in the divorce proceedings or that she was solely responsible for the breakdown of the marriage leading to the filing of the joint divorce petition.

Instead, this Court finds that the circumstances point towards a realization that since the marriage had already irretrievably broken down, it was time for the marriage to be brought to an end. There was no reason to wait around when the PH showed no interest at all to reconcile with the RW.

The RW’s testimony was further corroborated by the evidence of all the witnesses she called. Her brother-in-law (RW1) and her three sisters (RW2, RW3, and RW4) each provided consistent and credible accounts which supported the RW’s version of events. One such incident, to which they all attested, occurred during the Chinese New Year celebrations in 2018 when the RW attempted to retrieve her personal belongings from the matrimonial home. On that occasion, the PH displayed an uncontrollable temper, culminating in his act of chasing out not only the RW but also her entire family from the house. This incident, among others, illustrates the PH’s volatile behaviour and lends weight to the RW’s claims.

On another occasion RWW 3 testified that she personally saw the PH’s violent and aggressive behavior. Her testimony on this particular episode is reproduced below for ease of reference: “Q11 Have you ever seen or experienced the Petitioner Husband’s violent and aggressive behavior? A Around the year 2012/2013, the Petitioner Husband had tried hitting the Petitioner Wife with a big and long metal candle stand and in the midst of a struggle between the Petitioner Husband and the Respondent Wife, the metal candle stand bounced back and accidentally hit the Petitioner Husband’s own forehead and he bled. The Petitioner Wife had called me and terrified whereby she had asked for my urgent help to send the Petitioner husband to the hospital for medical treatment. When I saw the Petitioner Husband, there was a towel over his wound on his forehead with lots of blood. I had then rushed the Petitioner Husband to the hospital for stiches on his wound.”

Although these witnesses were close relatives of the RW, I found that they provided credible and consistent testimonies of events that happened on various occasions. These witnesses were testifying under oath based on their first hand knowledge, their observations and experiences. I have carefully gone over each of their evidence to ensure that their evidence was properly evaluated. I did not find them to be lying. On this issue I refer to the case of Liow Siow Long v PP [1969] CLJU 98 where the Court held: “….It is difficult to accept that suggestion that if a witness is shown to be a relation of the deceased his evidence is tainted. Testimony of close relations is not tainted if it is otherwise reliable in the sense that the witnesses are competent witnesses who were at the scene of the occurrence and could have seen what had happened. But if they are not entirely disinterested witnesses e.g. they are either partisans of the complainant or are in any way inimical to the accused, then their testimony is tainted and requires corroboration if to be acted upon…”

The Court there also held that there is no legal presumption that the testimony of close relatives is not to be believed. The evidence is entitled to credence until cogent reasons for disbelief can be advanced in the light of evidence to the contrary.

Similarly, it is the view of this Court that the evidence of all the witnesses called by the RW though they are her close relatives ought not for that reason alone to be regarded with suspicion or discounted. On the contrary having had the benefit of observing their demeanor in the witness box and assessing their testimonies, I was satisfied that their evidence can be accepted and given due weight and credibility and I found no basis to disbelieve their testimonies, particularly given the consistency of their accounts and the absence of material contradictions.

The Court finds that the PH’s claims of the unreasonable behavior of the part of the RW are untenable and without merit. The PH’s allegations that the RW was lazy, habitually slept until the late afternoon, displayed disinterest in managing the household, or neglected the care of the Child are unsupported by credible evidence. By contrast the Court notes that the PH himself had grudgingly admitted that the RW was indeed a capable and responsible mother who had taken good care of their child. In this regard, reference is made to page 17 of the NOP which is reproduced below: “SK Agree with me that the Respondent Wife is a capable mother, agree? To take care of your daughter.

Contrary to the PH’s allegations, I did not find any evidence of the RW leading an extravagant lifestyle for the duration of their marriage and I saw no proof of her demands for expensive handbags and items having been furnished. That being the case with the burden of proof on the PH to furnish it and having failed to do so and as correctly pointed out by counsel for the RW the WhatsApp messages for the past 14 years has not turned up any messages between the parties that RW had demanded or asked for expensive gifts. I therefore find it appropriate to draw the inference that these gifts were made in the ordinary course of the parties’ married life, given out of love and affection by a financially well-resourced husband to his wife. I find merit in the RW’s averment that such gifts were purchased more for the purpose of projecting an image of prosperity and status, rather than as genuine investments of enduring financial value.

On the other hand, the evidence led by the PH on these matters was not persuasive, and I was not convinced by his attempts to characterise the gifts otherwise. I find the evidence led by the PH on these matters was not convincing. Save for stating all those allegations against the RH no concrete and cogent evidence was adduced to support such contention.

Having conducted a thorough examination of all the evidence adduced before this Court, I am satisfied and find that the marriage had irretrievably broken down. However, this conclusion is not founded on the PH’s allegation that the RW had abandoned the matrimonial home. Instead, the evidence establishes that the breakdown stemmed from the PH’s own conduct. His intolerable behaviour, both in word and deed, created circumstances so unreasonable that the RW could no longer be expected to continue in the marriage. In the Court’s assessment, it was the PH’s actions, and not the RW’s departure, that constituted the root cause of the irretrievable breakdown.

I have taken note, and I must expressly register this Court’s disapproval, of the conduct in locking the RW out of the matrimonial home and further aggravating the situation by the posting of a notice at the front door of the house prohibiting entrance to it. Such behaviour is wholly unbecoming and falls far short of the standard of respect and fairness that ought to prevail in a marriage. The Court is persuaded by the RW’s assertion that these actions were calculated not merely to exclude her from the home but to subject her to humiliation and public embarrassment. This conduct, in the Court’s view, constitutes clear evidence of the PH’s unreasonable behaviour and provides further support for the RW’s claim of ill-treatment. It led this Court to conclude that the PH had no reservations about shutting the RW and their child out without a roof over their heads. The callous conduct of not even providing the child with a home exhibited a troubling lack of regard and indifference to the RW and child. Guardianship, custody care and control of Child/Terms of access 53. There is one child of the marriage (MCZ). She was born on 10.4.2006 and at the time when decision was delivered she was over 18 years old. In regard to MCZ, there is a consent order dated 22.10.2022 recorded in Originating Summons No. BA-24F- 138-04/2018.

At this juncture the PH has no objections to sharing guardianship with the RW and that she be given sole custody care and control of MCZ with reasonable access be given to him. I agree with this arrangement as it is in the best interest and welfare of MCZ to have a continuing meaningful relationship with both her parents. Therefore Paragraph 1, 2 and 3 of the Consent Order dated 22.10.2022 shall remain and this judgment reaffirms that joint guardianship shall be given to both parents with custody care and control be solely with the RW with reasonable access to the PH.

It is pertinent to note that although MCZ has attained the age of 18 years she has yet to begin her first university degree and therefore section 95 of the LRA applies in her case: “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.”

As such the duty on the PH to support and maintain MCZ still remains in all aspects.

In spite of the tumultuous nature of her parents’ marriage, MCZ’s academic performance has been excellent throughout her school life with her most recent one in the IGCSE exams where she has scored distinctions. She is now ready to move on to the next step which is to enter university to pursue a degree. She has expressed her wish to study medicine and eventually become a medical doctor in the future.

MCZ has requested to be allowed to attend a private university with a twinning program as it is a program that is most suitable to overcome her difficulties in gaining admission into any local university and assimilating into the culture and environment there. There is no argument that MCZ has attended private international schools in all her school life where the medium of learning is the English language. Her handicap in the national language is an added deterrent.

59.

However, quite inexplicably, the PH has since resiled from that clear commitment. In his witness statement, he now attempts to qualify and restrict his obligation by asserting that he is only prepared to bear the entirety of MCZ’s educational expenses if she is enrolled in a local government medical university. He further asserts that he lacks the financial capacity to fund an overseas degree. In the event that MCZ elects to pursue a twinning programme, the PH has stated that he is willing to contribute only 50% of the tuition fees, leaving the remaining 50% to be shouldered by the RW.

This shift in position reflects a stark departure from the unqualified undertaking previously embodied in both the Consent Order and the DP, raising serious concerns as to the PH’s credibility, reliability, and sincerity in fulfilling his obligations towards his child’s education.

This abrupt and contradictory reversal by the PH has created a painful reality and an undoubtedly bitter pill to swallow for the child, MCZ, who has consistently applied herself diligently to her studies in the hope of one day realising her ambition of becoming a doctor, inspired by her father’s own profession. It is clear to this Court that the child has endured bewilderment and profound disappointment as a result of this shift, which has only compounded the considerable mental, emotional, and even physical distress she has suffered over the past six years. Throughout this period, she has been the innocent victim of her parents’ acrimonious separation, forced to shoulder the burdens and uncertainties that flow from it.

The child has had to adapt to a far more difficult life than she would otherwise have known: uprooted from the comfort and stability of her family home, she has since resided with her mother in a modest apartment, sharing a room with her, and navigating the challenges of adolescence without the steady and constant presence of her father in her daily life. Such circumstances have inevitably taken a toll on her well-being and sense of security, yet they also highlight the resilience she has had to muster at a very young age in the face of adversity not of her own making.

MCZ requested to see me. I agreed despite learned counsel for the PH’s objections. It was my opinion that the doors of this Family Court will never turn away the voice of a child who seeks to be heard in matters that so profoundly affect her welfare and her future.

She was well mannered and polite which is a testament to her upbringing. She told me of her thoughts and feelings and her dreams of her future. She told me she really wanted to become a doctor and expressed the hope that her father would relent and agree to bear the expenses of her education at a private university.

The court will consider the child’s opinion as she is of the age of prudence to express an independent opinion regarding her own best interest and her wishes. At the end of my interview with her I told her that the challenges she faces today though heavy and perhaps seemed hopeless only served to breed resilience, strengthen her character and prepare her to withstand the trials of what lies ahead in her future.

I took note of the difficulties MCZ has to face if she enrolled into a local government medical university but I did not think that these were insurmountable. I took guidance from the decision of HLC v PTL & Anor [2024] 5 CLJ 117 where the Learned Judge held as follows: “[131] At this point, it was important to emphasis that no parent should be obligated to fund his or her child’s education aboard solely at the child’s behest. It was noteworthy that the respondent was open to supporting SP3’s education within local institutions, a gesture that underscored a commitment to SP 3’s academic pursuits, albeit within reasonable limits. However, SP 3’s response to this offer revealed a perspective that seemingly regarded overseas study not as a privilege, but as an entitlement. The lack of appreciation for the stepfather’s willingness to finance local studies painted SP 3 as somewhat demanding and entitled.”

Premised on the above I have ordered that the PH shall pay all educational costs which includes all other related costs for education if she is enrolled at a local government medical university. If she decides to enroll in a private overseas university then both the PH and the RW shall bear the costs of her education equally. Paragraph 6 of the Consent Order dated 22.10.2022 is varied accordingly. Child Maintenance 69. The duty of parents to financially maintain their children is provided in Section 92 LRA. Section 93 LRA imposes the primary legal duty of maintaining any child of the marriage on the father while the mother is assigned a secondary obligation to contribute towards the maintenance of the children where the court is satisfied having regard to her means and it is reasonable to do so.

70.

I am, however, unable to agree with the PH’s position. In my considered view, there has been a material change in circumstances pertaining to the child’s needs and welfare. At the time the Consent Order was recorded, MCZ was only 12 years old and pursuing her studies at the secondary school level. The financial requirements associated with her upbringing were then relatively limited. However, as the child has since grown older, her needs—both academic and personal—have expanded significantly, giving rise to greater and more pressing financial obligations.

MCZ is 18 years old now and I am of the view that the sum of RM2000 is insufficient to meet her needs as an undergraduate. There has been a material change in circumstances in particular to her station in life. Her needs have changed and evolved from the time the consent order was entered to now. Where once she was a school going child, she will now be required to live a semi-independent life as an undergraduate. Her needs as an undergraduate are poles apart from her needs as a school going student. There will certainly be many adjustments to be made in proportion to the changes that are going to take place in her life. I find that the changes and adjustments are sufficiently material making it such that there is a need to revise the status quo. To expect the status quo to remain would in my judgment be not justified in the circumstances.

In my view the PH’s offer to continue paying RM2000 as child maintenance is insufficient and it does not address her current and future needs. To my mind it has to be revised taking into account that MCZ will be attending university and most likely will be living away from the comforts of home. She will need to spend money for her daily needs, food and groceries and transportation.

Her present circumstances stand in stark contrast to her former lifestyle. Where she was once chauffeur-driven to school, dined at fine restaurants, and travelled abroad, she is now compelled to rely on public transport, live in modest accommodation, and gets by frugally.

I accept the view that maintenance should not mean mere subsistence. It means more than that. In GCC v HMY [2016] 1 LNS 885 the Court of Appeal approved of the decision in Sivajothi a/p K Suppiah v Kunathasan a/l Chelliah [2000] 6 MLJ 48 and explained as follows : “Maintenance signify any form of material provision that will enable an adult to live a normal life and a child to be brought up properly. Thus maintenance cannot mean only mere subsistence, i.e., the food she puts in her mouth but also means the clothes on her back, the house in which she lives and the money which she has to have in her pocket, all of which vary according to the means of the man who leaves a wife behind. Moreover, it is settled law that it is the duty of the father to maintain the standard of living the children had enjoyed in the past, i.e., during the existence of the marriage”.

I am of the view that the sum of RM4000 is reasonable and not at all excessive. With that amount MCZ will be in a position to maintain a reasonable lifestyle, have enough to eat and pocket money to buy food, stationary, personal and healthcare necessities which girls of her age will inevitably need to have. I venture to say that there should be some money left over too for entertainment, selfcare and enrichment.

She must have the financial support that she was accustomed to enable her to lead a healthy life and to ensure that all her reasonable needs are taken care of.

I take judicial notice of the fact that the cost of living in the city has been steadily increasing. In such circumstances, it is incumbent upon the PH to ensure that MCZ is provided with sufficient maintenance to meet her reasonable needs. It is not merely a question of subsistence; rather, it is about ensuring that the child enjoys the security and peace of mind necessary to focus on her education and to pursue her aspiration of becoming a medical doctor.

The PH, as her father, bears the responsibility of ensuring that MCZ is adequately supported so that her attention may remain directed towards her studies, without being burdened by anxieties over whether her daily needs; including something as basic as her next meal or a simple cup of tea; can be met. Financial stability, in this regard, plays a pivotal role in creating an environment of security and positivity, which in turn is essential to the child’s emotional well-being and academic development. It is only within such a stable and supportive atmosphere that MCZ can thrive and be given a fair opportunity to reach her full potential.

The PH will not be adversely impacted financially if he were to increase the maintenance provision for MCZ from RM2000 to RM4000 as he has the means to do so. I am of the view that the PH has the ability to provide this sum as maintenance for the Child as he is running a number of successful chain of clinics and has a stable income. Furthermore, I have taken into consideration the fact that he is not required to fully support her educational studies overseas and hence he has saved himself a lot of money.

In my considered view, a monthly sum of RM4,000 for the maintenance of MCZ cannot be regarded as excessive. This figure is reasonable when measured against the child’s needs, which necessarily encompass basic necessities such as food, clothing, healthcare, wellness, educational resources, and other essential living expenses. It must also be borne in mind that MCZ has endured a stressful and challenging period, having had to cope with and adapt to a way of life markedly different from the stability and comfort she once enjoyed when the family lived together under one roof.

The assurance of consistent and adequate financial support will undoubtedly provide her with peace of mind, sparing her the anxiety of having to worry about matters of subsistence and enabling her to focus her energy on her education and personal growth. In light of these considerations, I have determined that the PH shall contribute a monthly sum of RM4,000 towards the maintenance of the child. This obligation shall continue until she completes her first degree, in accordance with Section 95 of the LRA 1976. Wife Maintenance 83. The Consent Order dated 22.10.2022, at Paragraph 5, records the PH agreement to pay the RW a sum of RM4,000 per month as spousal maintenance. Further, Paragraph 33(e) of the DP reflects the PH’s express offer to continue providing the RW with spousal support in the same amount of RM4,000 per month.

However, in his written submissions, the PH has now proposed to reduce the said sum to RM3,000 per month. This position is plainly inconsistent with his own pleadings and contradicts the obligations he had voluntarily undertaken. Such inconsistency casts doubt on the PH’s credibility and reflects an attempt to resile from a commitment that has already been embodied in a consent order.

It is well settled that this Court is empowered, under Section 77(1) of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”), to make such order as it considers reasonable for the maintenance of a spouse. Section 77(1) provides as follows: Section 77 - Power of court to order maintenance of spouse

The court may order a man to pay maintenance to his wife or former wife:

during the course of any matrimonial proceedings;

when granting or subsequent to the grant of a decree of divorce or judicial separation;

if, after a decree declaring her presumed to be dead, she is found to be alive. ... (emphasis added)

It is equally well established that pursuant to Section 78 of the LRA 1976, the Court is required to base its assessment of spousal maintenance on the respective means and needs of the parties. This assessment is to be undertaken irrespective of the proportion that such maintenance may bear to the income of either the husband or the wife, as the case may be. In addition, Section 78 directs the Court to take into account the degree of responsibility which it attributes to each party for the breakdown of the marriage when determining the appropriate quantum of maintenance.

For ease of reference, I set out the full text of Section 78 of the LRA as follows: “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. In reading the express wordings of section 78 above, this Court in exercising its discretion to determine the amount of maintenance on a wife is entitled to spousal maintenance on the following factors:

the means and needs of the parties;

the degree of responsibility which the Court apportions to each party for the breakdown of the marriage.” Means and Needs of the Parties 88. In Koay Cheng Eng v Linda Herawati Santoso [2008] 4 CLJ 105 the Court of appeal explained that the phrase ‘means and needs’ is to be understood as follows: “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”. Means of the PH

With respect to the means of the PH, this Court has placed reliance on the testimony of the court-appointed independent expert witness, PW2, who confirmed that as at 30.9.2023, the PH’s net worth stood at RM11,043,118. This evidence stands in stark contrast to the PH’s assertions of financial limitation. Indeed, the manner in which the PH has chosen to conduct his lifestyle is wholly inconsistent with any suggestion that he lacks the means to meet his obligations.

As rightly pointed out by learned counsel for the RW, it is an undisputed fact that the PH resides in a three-storey bungalow while simultaneously servicing instalments for a luxury duplex unit at Armanee Terrace. He maintains not one but two high-end vehicles—a Porsche Panamera and a BMW 5 Series GT. On the domestic front, he employs the services of two maids and a personal driver, which is indicative of a household accustomed to privilege and affluence.

It was further highlighted that the PH pays monthly premiums of RM7,643 for seven insurance policies, and by his own admission, his monthly expenditures; excluding basic utilities such as food, electricity, and water—amount to RM105,455. These figures expose the implausibility of the PH’s claims of financial strain. The Court finds it untenable that a man who maintains such a lavish lifestyle could in the same breath plead inability to discharge his legal and moral duty to provide adequate maintenance. His attempt to portray himself as financially constrained is disingenuous and lacks credibility.

More crucially, when pressed during cross-examination, the PH conceded that he is in fact solvent, able to service his loans, financially sound, and enjoys a healthy cash flow. He further admitted that the payment of seven insurance policies at a total premium of RM7,634 per month does not constitute a heavy financial burden for him. As observed earlier these admissions alone undermine the credibility of his repeated attempts to present himself as financially constrained.

An accurate assessment of the PH’s financial standing may be drawn from the totality of the evidence adduced before this Court, which collectively provides a sufficient foundation upon which a fair conclusion may be reached. Of particular note is the PH’s own acknowledgment, recorded at page 46 of the Ikatan Dokumen Pempetisyen, where he declared an income of RM40,000. This averment was not merely a passing statement; it was reaffirmed by the PH himself under oath during cross-examination.

That testimony is clearly reflected in the Notes of Proceedings dated 18.7.2024. For ease of reference, I reproduce the relevant portion below: “SK Now look at your bundle, page 46. Agree with me that you declared that your monthly income is RM40,000? Take your time and read the document. Its your document. Page 46, My Lady, of the Respondent’s bundle. Sorry, the Petitioners bundle, My Lady. It’s the line there, Mr Chow, “my monthly income of RM40,000.” Do you see that? My Lady –

Furthermore, I have taken note of the income declared by the Plaintiff Husband (PH) to the Inland Revenue Board (LHDN), namely: • Year 2020 – RM15,000 per month • Year 2021 – RM15,000 per month • Year 2022 – RM16,375 per month

However, these figures stand in stark contrast to his own personal journal of revenue for Susunan MAC, which reveals a substantially higher income as follows: • Year 2018 – RM2,795,047 (equivalent to RM232,920.65 per month) • Year 2019 – RM2,975,800 (equivalent to RM247,980.33 per month) • Year 2020 – RM2,602,118.43 (equivalent to RM216,843.17 per month)

The discrepancy between the PH’s statutory declarations to the LHDN and his private records is both glaring and troubling. On the evidence, this Court accepts the RW contention that the latter figures more accurately reflect the PH’s true income. Indeed, such figures are entirely consistent with, and capable of sustaining, the lavish lifestyle that has been clearly demonstrated before this Court. The only reasonable conclusion is that the PH’s income is not confined to his medical practice alone but is supplemented by his position as a successful businessman, as evidenced by his involvement in several clinics under the Mediviron chain.

The PH’s claim that his dire financial condition was caused by the RW’s alleged monetary demands during the marriage is without merit. His allegations that the RW led an extravagant lifestyle and constantly demanded expensive items remain wholly unsubstantiated, resting merely on assertions unsupported by credible evidence. This Court is more persuaded by the view that such luxury items as were purchased by the PH were motivated by his desire to project a certain social standing, rather than being genuine expressions of love or indulgence towards the RW.

The PH’s further allegation that he is heavily indebted as a result of the RW’s spending habits suffers from the same fundamental defect as his other assertions. Yet this contention is wholly implausible, given that the parties have lived apart for over nine years since 2016. Despite this long lapse of time, the PH continues to cast blame on the RW, an assertion that strains credulity and significantly undermines his reliability as a witness. The PH has had ample opportunity since the separation to stabilise and recover from any alleged financial difficulties.

It is important to emphasise that mere assertions of financial hardship cannot, without more, justify a downward variation of spousal maintenance. Financial control is a dynamic variable, and the burden lies squarely on the PH to satisfy this Court with cogent reasons to support any reduction. In this respect, I find his claim that a reduction of RM1,000—from RM4,000 to RM3,000—would meaningfully alleviate his alleged financial burden to be wholly unconvincing. In light of the totality of the evidence, I reiterate my finding that the PH has failed to satisfy this Court that there exists any valid basis to reduce the spousal maintenance as previously agreed.

It is, in the Court’s assessment, more probable that the RW’s evidence is truthful when she stated that it was the PH who consistently pursued and indulged in a luxurious and extravagant lifestyle. The Court finds credibility in her assertions that the PH “always wanted to be seen as a socialite ever since the early stages of our marriage, and as such this led to a high-life and expensive lifestyle, during which the PH would from time to time purchase branded and/or limited-edition luxury goods such as Chanel, Louis Vuitton, Cartier, Fendi, DeGem and others. The PH was very willing to acquire such branded goods and items both for himself and for me, so that he could boast and brag about his wealth and high-class social standing to his circle of friends and, more importantly, to be seen publicly as a true socialite.”

In light of the totality of the evidence, the Court is persuaded that this is a more accurate and reliable description of the PH’s motivations and spending patterns. It points not to the RW’s alleged extravagance, but rather to the PH’s own conscious desire to cultivate and display an image of affluence and prestige.

The RW tendered into evidence a document which she described as a personal journal maintained by the PH. This journal contains handwritten entries recording a detailed list of expenses incurred by the PH. For ease of reference, I have extracted pages 27, 28, 34 and 45 of the said journals and reproduced them below: Pg 27 : Lhw Citibank – 800 paid 15 dec 2015 Pg 27 : Mira School fees – paid 24 dec 2013 15k Pg 28 : Mediheal – 610.40 paid 1300 7 march

Pg 34 : Mira fees – 17,193.75 paid 27 April Pg 34 : Mitsouka car loan Affin Bank Bhd – rm2400 – 401230054784 – 22 June 2012 Pg 45 : Car loan – WTS 6111 33183114418 due 12 August paid 8 August

The PH, on the other hand, sought to downplay the significance of this document, contending that it was nothing more than a note which he had copied from a friend, a GP. His explanation was in the following terms: “SK My Lady, it’s the personal journal of this doctor. He prepared this journal. JUDGE Is it? CHOW No. This actually – JUDGE You have to base your foundation on your questions. Is it a personal journal in the first place? CHOW No. Its just a note. SK It is a note, My Lady, from the Petitioner. CHOW I copied this note from a friend of mine who is a GP. He was being offered to buy another clinic. They sent them this particular revenue to ask me whether the amount of price they offer is it feasible to buy over the clinic from them or not since I’m – JUDGE Alright, Dr Chow. Then, Mr Sudesh will ask you the question. Yes, I think you can go back to the witness stand. So Dr Chow, there’s RM2 million over. Which company is this? Its revenue collected from which company? CHOW MY friend sent it to me. Asked for opinion. Ok. Is there any proof of your friend sending this document, this calculation? Is there any document in the bundle to show that your friend sent you this? CHOW No. SK No? So, I put it to you the revenue collected for year 2019 is actually

The PH did not, however, call this alleged “friend” to testify as a witness in support of his explanation. The absence of corroboration further weakens the plausibility of his account and leaves his contention wholly unsubstantiated.

Notwithstanding this, and having considered the totality of the evidence, this Court finds no credible basis to conclude that the PH is without the financial means to provide both spousal and child maintenance. On the contrary, the evidence overwhelmingly demonstrates that he possesses substantial resources sufficient to meet these obligations.

At the end of the day, having carefully considered the testimony adduced and in weighing the evidence as to its probability, I am satisfied that the RW has proven her claim on a balance of probabilities. In contrast, the PH’s evidence was fraught with inconsistencies, evasions, and contradictions, rendering it most probably untrue.

The Court observed that the PH was evasive under cross-examination and frequently gave contradictory answers in the course of his testimony. Such conduct undermines his credibility and weakens the reliability of his case. On the totality of the evidence, I find that the PH has failed to act in good faith and did not make full and frank disclosure of his true financial position. This lack of candour strongly suggests that his attempts to minimise his financial capacity were deliberate and calculated.

The content of the note exhibited makes clear reference to the parties themselves. For instance, the initials LHW plainly refer to Loi Hoi Wai, the RW; Mira is the name of the child of the marriage; Mediheal is the pharmacy jointly established by the PH and RW; and Mitsouka, bearing registration number WTS 6111, is a vehicle owned by the RW. These specific references leave little doubt that the note pertains directly to the financial affairs of the parties.

Accordingly, this Court rejects the PH’s testimony that the document was merely a note sent by a friend for his opinion. If the PH’s claim were to be accepted, it would necessarily imply that this so-called “friend” was inexplicably paying for the PH’s wife’s expenses, his daughter’s school fees, and his wife’s car instalments. Such a proposition is wholly unfathomable and illogical.

The only reasonable conclusion, therefore, is that the RW’s version of events is more probable than that of the PH, judged on a balance of probabilities. In light of the foregoing, the Court finds that the RW has successfully proven that the sums recorded in the journal represent the monthly revenue earned and received by the PH.

Needs of the RW The RW is now 51 years old and the Court acknowledges that with her diagnosis of an “anxiety disorder with secondary depression in remission” is a setback in securing employment and in limiting her ability to maintain a permanent job. The Court acknowledges that her age is a limitation to secure good job offers when compared to a younger competitor. It is evident that there are limited opportunities for female persons her age to secure suitable employment. However, it has been noted that she has been holding down odd jobs that provide her a moderate income to cover basic needs for herself and the child.

The RW has demonstrated initiative in seeking to mitigate her financial circumstances by taking on temporary employment to supplement the maintenance provided by the PH. While this Court acknowledges her efforts, I also agree with the PH’s contention that the RW, being able-bodied and capable of employment, ought to take reasonable steps towards securing her own financial independence rather than relying solely on increased maintenance from the PH. In the Court’s view, maintenance is intended to provide necessary support, but it should not be regarded as a substitute for the RW’s own responsibility to mitigate her financial position through gainful employment where feasible.

I have borne in mind the rationale underpinning the provision for spousal maintenance, which is to ensure that the wife and children are not left destitute or without reasonable means of support following the breakdown of the marriage. This principle was clearly articulated in Lee Ying Ying v Tan Khoon Seng [2017] 1 LNS 1598, where the Court emphasised that maintenance is not intended to provide the wife with luxury or indulgence, but rather to safeguard her and the children from financial hardship and to secure for them a standard of living reasonably commensurate with the circumstances of the marriage. Guided by this authority, I approach the question of maintenance with the objective of balancing fairness to both parties while ensuring that the needs of the wife and children are adequately met.

In Lee Ying Ying, the learned Judge quoted the author of “The Law Reform (Marriage and Divorce) Act 1976, Commentary and Cases by Nuraisyah Chua Abdullah, Sweet & Maxwell Asia” in saying: “The rationale behind the provision of maintenance is to prevent the destitution of the wife and children. It is not to penalize one spouse and reward the other. The fact that a wife is being maintained by any relative, would not disentitle her to claim maintenance from the husband. The law under s. 77(1) of the LRA empowers the court to order maintenance payment against the husband for the benefit of the wife…”

I have taken cognisance of the financial position of the PH as well as the needs of the RW, and I am satisfied that the amount agreed upon by the parties pursuant to the Consent Order is reasonable, sufficient, and fair. In my view, the sum strikes an appropriate balance between the PH’s ability to provide and the RW’s financial requirements. I have decided not to disturb the spousal maintenance agreed by the parties pursuant to the Consent Order dated 22.10.2022. I did not think that there existed any special circumstances raised by the PH that would persuade this court to reduce the amount that had been agreed to by both parties. Conversely, I was also of the view that the RW had not shown any proof on a balance of probabilities that she deserved any increase of maintenance. Accordingly, I find no necessity to vary the amount, whether upwards or downwards.

On the issue of what caused the breakdown of the marriage, I had already made my findings in the earlier paragraphs of this judgment. Suffice to say that what caused the breakdown of the marriage, after considering and evaluating the evidence of all the witnesses was not the adultery alleged by the RW, nor was it the unreasonable behavior of the RW as alleged by the PH but it was the unreasonable behavior of the PH which was the reason.

It is not denied that the RW had been married to the PH for the better half of 25 years during which time she had played her role in supporting the PH both professionally and personally. She had assisted and supported him in his career growth, putting hers on the back burner to promote his.

I have formed the distinct conclusion that the PH demonstrated little, if any, appreciation for the RW’s contributions throughout the duration of their marriage. While it is acknowledged that the PH’s successful career may have placed him in a position of financial and professional superiority, such circumstances do not excuse the unkindness and lack of acknowledgment he repeatedly displayed towards her. His conduct reflects a failure to recognise the RW’s role and sacrifices within the marriage, both as a spouse and as a mother.

A particularly obvious point to take note of is his decision to move the Co-Respondent into the matrimonial home, notwithstanding the fact that the RW still retains a legal half share in that very property where she and their child once resided as a family. This act alone demonstrates a blatant disregard for the RW’s legal rights.

To exacerbate matters further, the PH elected to maintain the other matrimonial home as a holiday residence rather than allowing the RW and the child to reside there until the divorce proceedings were concluded.

What is even more telling is the PH’s conduct prior to that, when he unilaterally changed the locks of both matrimonial homes and affixed to the front door a copy of his police report dated 26.10.2018. In that report, he wrote: “Menurut pembantu rumah, isteri saya ingin memasuki rumah mengambil barang. Saya mengarahkan pembantu rumah supaya tidak benarkan (1)(P) Cina tersebut.”

By unjustly and unlawfully excluding the RW and their Child from the two matrimonial properties, they were left without a home, and had it not been for the timely assistance and generosity of her sisters, they would have been rendered homeless.

I consider the PH’s overall conduct to amount to unreasonable behaviour, and it stands as a material factor contributing to the breakdown of the marriage. The commencement of the PH’s relationship with the Co-Respondent in 2018 marked the point of no return, signalling the inevitable end of the marriage and ultimately culminating in the initiation of divorce proceedings.

I have taken into account that the PH had willingly and voluntarily agreed to pay the sum of RM4000 as monthly spousal maintenance to the RW. I find his reasons to reduce that amount to be unjustified and without merit.

I have also taken into consideration that throughout the marriage, the PH assumed full responsibility for meeting all of the RW’s financial needs. He was the sole breadwinner of the family and provided the RW and their child with a life of considerable luxury. They resided in a large bungalow in Damansara, and in due course he purchased a second residence at the Armanee Terrace Condominium. The PH bore the cost of all household and utility expenses.

In light of this, the PH cannot now be heard to say that the RW should accept a reduced level of maintenance lower than she previously received.

In the present case, it must be acknowledged that the RW made substantial contributions in her role as both wife and mother to MCZ, thereby enabling the PH to concentrate on and excel in his professional career. She assumed the greater share of childcare responsibilities and served as the primary caregiver to MCZ. It was the RW who ensured that MCZ was properly cared for, attending diligently to her daily needs and overall welfare, particularly during the times when the PH was occupied with his clinical practice.

The Assets Having already given priority for the determination of proper provisions to the wife and the Child, it is now time for this court to the division of the matrimonial assets.

In relation to the matrimonial assets the RW has laid claims over the following assets listed below:

Mutiara Damansara Bungalow 2. Armanee Terrace Condominium 3. Director’s Fees 4. Susunan MAC Sdn Bhd 5. Klinik Mediviron 6. Susunan Kepong Sdn Bhd, Susunan MAC Sdn Bhd, Susunan Manja Sdn Bhd, Susunan Medi Heal Sdn

It is highly relevant to point out that unlike claims for spousal maintenance, the degree of responsibility for the breakdown of the marriage is not a factor for consideration where division of matrimonial assets under section 76 LRA is concerned.

The division of matrimonial assets upon the dissolution of a marriage is governed by section 76 of the LRA which provides as follows: “Section 76 - Power of court to order division of matrimonial assets

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

In exercising the power conferred by subs. (1) the court shall have regard to:

the extent of the contributions made by each party in money, property or work towards the acquiring of the assets or payment of expenses for the benefit of the family; (aa) the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family;

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

the needs of the minor children, if any, of the marriage;

the duration of the marriage, and subject to those considerations, the court shall incline towards equality of division.

For the purposes of this section, references to assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts.” (emphasis added)

In Annathurai a/l Venkidasalam v Veni a/p Welluven [2022] MLJU 2501 the following principles were set out by the Court of Appeal: “[26] Prior to the amendments to the 1976 Act in 2017, the court is empowered to deal with the division of assets only jointly acquired during the marriage. With the amendments, this has been reversed and the court is now empowered to deal with the division of assets acquired during the marriage irrespective of whose efforts it was to acquire them. The court, amongst others, shall have regard to the contributions of the party, who did not acquire the asset(s), to the welfare of the family. The court will look at overall contributions such as caring for the family and looking after the home. The duration of the marriage is also to be considered. The provision of section 76(2) of the 1976 Act is self explanatory where the court shall incline towards equality of division of assets regardless of whose effort it was to acquire them. This provision remains the same. The key word is therefore "equality of division..."

It is therefore an established rule that the Court will be inclined towards equality in the division of matrimonial assets where both parties had contributed jointly to its acquisition.

Mutiara Damansara Bungalow and Armanee Terrace Both these properties were bought by the PH and registered in the joint names of the parties. There is no denial that the PH paid the monthly instalments and the RW did not make any financial contributions to its purchase. Notwithstanding the above the RW maintains that she is entitled to at least half the worth of both these assets.

With regard to the Mutiara Damansara Bungalow the PH has proposed for the house to be sold and the profit (less ancillary costs such as legal fees and agency fees) to be deposited into a trust account for the sole purpose to fund for the Child’s education fees and any balance left over to be used to settle the outstanding loans.

With respect to the Armanee Terrace Condominium, the PH has proposed to relocate there from the bungalow in order to continue with his life and family. He has further offered to purchase the RW’s half share in the property for the sum of RM28,401.59, to be paid within three (3) months from the date of judgment. The PH proposes that this sum be deposited into a trust account, to be utilised solely for the purpose of funding the child’s educational expenses.

S. 76(1) LRA confers a discretion on this Court to divide and/or sell “any assets acquired … during the marriage”.

It is clearly provided in s. 76 that this Court may order division or sale of the two properties that is the subject matter of this matrimonial property before this Court.

The Court is encouraged to adopt a “broad brush” approach in the exercise of the Court’s discretion in deciding the division of the matrimonial properties. What entails a broad brush approach is well explained in the decision of Sivanes a/p Rajaratnam at p.279 to 280 of the judgment which reads as follows: "From the authorities referred to us by both learned counsel and from my research, as far as I can ascertain, I am unable to find any decided case in Malaysia and Singapore to support an accounting of all the assets acquired or improved during the marriage and the income thereof and the determination of who had benefitted more or less and awarding a shortfall to the party who is found to have benefitted less. All the cases simply talk about the "division" of the matrimonial assets, which necessarily means the existing assets at the time of the divorce. Of course, the question of the size and nature of each spouse's contribution and who has enjoyed the property to the exclusion of the other (for example, as in this case, where only one party lived at the Crescent Court Apartment) and the reasons why, are relevant in determining the portion that each spouse should get, but not, in my view, for the purpose of calculating either spouse's share of past income. This view, in my opinion, is consistent with the wording and spirit of s. 76. That section talks of "division" of assets acquired during the marriage and provides the factors that should be taken into account when making the division. Besides (I am speaking generally here) in a marriage, both spouses share everything, both contribute towards the home and family in one way or another, to a bigger or smaller extent. Where both spouses work and earn income, each of them inevitably spends his or her own income for the family. Similarly, where there is income from an asset purchased during the subsistence of the marriage, say rent, even though it may be paid into the account of one spouse, eventually it will go to the family, may be all and may be part of it. No one keeps an account, indeed no one should, as a marriage is not a business venture. So, if and when the marriage breaks up, it is unreasonable that the court should undertake an accounting of their income and expenditure during the period the marriage subsists. The function of the court is to make a fair and equitable division of the matrimonial assets that exist at the time of the divorce, taking into account the factors provided by s. 76 [LRA]." (emphasis added); and

I am in agreement with the RW’s contention that these 2 properties constitute matrimonial assets and she had made significant contribution, both direct and indirect towards its acquisition and improvement.

The parties were married in the year 2000. Given the significant duration of the marriage, it is only just and equitable that the contributions of both parties—whether financial or non-financial—be duly recognised and taken into account in determining the division of matrimonial assets.

I have kept in mind the RW’s efforts and contributions in caring for the family and the home on her own while the PH was away at work growing their fortune. Section 76(2) (aa) of the LRA 1976 specifically directs the court to consider “the extent of contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family.” In my view these contributions, though not financial, are integral to the family unit and warrant this court’s recognition in the division of matrimonial assets.

With RW caring for the family and the home, it freed the PH to devote his energy to run his clinic and opening up other avenues of business. When they lived together the PH provided for the whole family and therefore for these reasons the RW is entitled to an equitable apportionment of the matrimonial properties.

I have taken note that the RW was a stay at home wife during the marriage in order to be close to the PH and to care for the needs of their only child. The RW may not have contributed financially but her non-monetary contribution ought not to be discredited nor trivialized. PH had admitted that his clinic operates 363 days of the year, which underscores the RW’s role almost singlehandedly in taking care of the home and ensuring its smooth operation. Her sacrifice to the family allowed the PH to concentrate on his business without worrying about household duties.

The Court must also give due weight to the RW’s contribution to raising and nurturing the parties’ only child. MCZ has excelled not only academically but also in various extracurricular pursuits. Credit has to go to the RW as it is a clear reflection of the RW’s unwavering support, care and dedicated guidance throughout the Child’s formative years in other extracurricular activities which is a testament to the RW’s support, care and guidance. The Court therefore recognises that the Child’s successes are, in no small measure, directly attributable to the RW’s nurturing, encouragement, and sacrifices as a mother.

Having chosen to remain close to home to be with the family, the RW had put the welfare of the family first as her priority by looking after and caring for the Child. To be fair, it has to be conceded that while contribution must necessarily be measured in monetary terms, there is merit in the RW’s argument that the Court cannot ignore contribution in other forms which could in some cases be more significant and meaningful than monetary means.

In view of the divulging views of the PH and RW in regard to the division of these two properties, this Court is of the view that the most equitable order to make is to order the sale of the property for it to be sold at a price at the current market price. The proceeds of the sale after the mandatory deductions is to be divided equally between the parties.

The Other Assets

The exact terms in the said letter were used and incorporated into the terms of the Joint DP at Paragraph 4(k) which reads as follows: “PETISYEN ISTERI akan meletakkan jawatan sebagai pengarah Syarikat dalam Syarikat Susunan MAC Sdn Bhd dan sebagai balasan PETISYEN SUAMI akan membayar RM15,000 kepada PETISYEN ISTERI pada setiap bulan dengan memasukkan ke dalam akaun PETISYEN ISTERI iaitu Hong Leong Bank (No. Akaun 19500032036) dalam mana bayaran pertama dibayar pada 29 haribulan Disember 2017 dan bayaran kedua serta bayaran-bayaran seterusnya dibayar pada atau sebelum hari yang ke-7 setiap bulan yang akan datang sehingga PETISYEN SUAMI beramalan sebagai seorang Doktor sama ada di Syarikat di atas atau di mana-mana Syarikat.”

The terms of the Joint DP including the above were signed by both the PH and RW. The affidavit attesting those terms was attested to by one Madam Tang Sook Wei, who was also one of the witnesses subpoenaed to give evidence at the trial.

What is important to emphasize based on the evidence adduced is that the PH did not dispute that he signed the Affidavit confirming the Joint DP. Paragraph 2 of the Affidavit was affirmed in the following manner: “2. Kami telah membaca keseluruhan kandungan

Kami mengesahkan bahawa keseluruhan kandungan PETISYEN BERSAMA adalah lengkap dan betul.”

I have formed a clear conclusion that the PH and RW had read the entire Joint DP and confirmed that they understood the terms stated therein was “complete and accurate” before they voluntarily and willingly signed the Affidavit. No one put a gun to their heads before they signed the Affidavit. There is no evidence to suggest they pressured or coerced into agreeing to the terms stated therein. Accordingly, I have no hesitation to believe that the terms and conditions of the Joint DP truly reflected their mutual wishes and intentions at the material time.

In pursuance to the terms agreed the PH paid the first payment of RM15,000 to the RW via Payment Voucher dated 7.1.2018 accompanied by a Cheque of RM15,000. The Payment Voucher states: “BEING PAYMENT OF / FOR: JAN 2018: RM15,000” At the bottom of the payment voucher is written the words: “APPROVED BY : DR CASEY CHOW” “CHECKED BY : signature of PH “RECEIVED BY : LOI HOI WAI”

The PH, in the course of his evidence, did not dispute that the initial payment of RM15,000 was made by him pursuant to a Payment Voucher which bore his signature and was accompanied by a cheque. The said Payment Voucher clearly records the payment as being for the “first month” and is dated 7 January 2018. This necessarily gives rise to the pertinent question of what became of the payments for the subsequent months, namely for February, March, and the months thereafter, if indeed such an arrangement was contemplated.

It is further observed that contemporaneous with this payment, the transfer of shares was effected and the RW tendered her resignation. Thereafter, the RW issued a written reminder to the PH requesting the payment due for February 2018. The PH, however, remained silent and did not furnish any reply or explanation to the RW’s demands.

In light of these circumstances, the Court finds the PH’s contention that the payment of RM15,000 was made in consideration for the Affidavit accompanying the Joint Divorce Petition to be wholly untenable. Such an explanation appears to be an afterthought, lacking in credibility and inconsistent with the contemporaneous documentary evidence. Had the payment genuinely been for the purpose alleged, it would have been clearly stated as such in the Payment Voucher. The fact that no such reference is made therein serves only to reinforce the Court’s conclusion that the PH’s version is unconvincing and not supported by the evidence.

There is a complete absence of evidence to substantiate the PH’s allegation that the RW voluntarily executed the share transfer form solely because the company was allegedly operating at a loss. This assertion stands unsupported by any contemporaneous documentation or corroborative testimony. On the contrary, the RW’s conduct immediately following the execution of the form speaks to the implausibility of the PH’s account. Had it been true that she willingly effected the transfer on the basis that the company was in financial difficulty, there would have been no necessity for her to promptly communicate with the company secretary to halt the transfer process.

The Court finds that such action is wholly inconsistent with the PH’s narrative and instead points to the existence of an underlying arrangement between the parties. On a balance of probabilities, it is more credible that the share transfer was not undertaken unilaterally or gratuitously by the RW but was pursuant to agreed terms negotiated in the context of the breakdown of the marriage. This is further fortified by the fact that the parties themselves formalised their respective rights and obligations through the filing of the Joint Petition for Divorce, which reflects the consensus reached between them. Accordingly, the PH’s allegation is rejected as being improbable and lacking in evidential foundation.

Having considered the totality of the evidence and the surrounding circumstances, I find that the evidence is more consistent with the conclusion that the PH had deliberately failed to honour his agreement to make monthly payments of RM15,000 to the RW. These payments constituted the agreed consideration for the transfer of her 50% shareholding in Susunan MAC Sdn Bhd and for her resignation as a director of the said company.

It is undisputed that only the initial payment was made, and thereafter the PH defaulted on his obligations. As at the date of trial, the PH had been in default for a period of 81 months. On the basis of the agreed monthly sum, the outstanding amount due and owing to the RW stands at RM1,215,000.00. The Court is therefore satisfied that the RW is rightly entitled to recover this sum from the PH.

The PH has asserted that Susunan MAC Sdn Bhd was operating at a loss, thereby suggesting that the RW had no reason to resist the transfer of her shares. The RW, however, has refuted this contention and maintained that the company was in fact profitable. She points to the PH’s own conduct and lifestyle as being inconsistent with the claim of financial loss. According to the RW, the PH’s ability to sustain a lavish standard of living was derived primarily from the profits generated by Susunan MAC.

The RW has further alleged that the manner in which the company conducted its business enabled it to project a misleading financial position. In particular, it was contended that the company received a substantial portion of its revenue in the form of cash payments from patients, thereby creating opportunities to understate its actual income in the official accounts.

In considering these competing positions, the Court must assess not only the documentary evidence presented but also the inherent probabilities. The PH’s bare assertion that the company was running at a loss, unsupported by credible or independent financial records, stands weakened when weighed against the RW’s account, which is supported by observable indicators of the PH’s financial capacity and lifestyle.

The PH’s own admission that his monthly expenditure amounts to RM105,455, coupled with his ability to service all loans without default, is wholly inconsistent with his claim that Susunan MAC Sdn Bhd was running at a loss. The evidence points unerringly to the conclusion that the company was funding his lifestyle and expenses, thereby demonstrating that it was generating significant revenue. The Court does not accept that the mere fact of bank borrowings indicates financial weakness. On the contrary, the company was financially sound, a conclusion reinforced by the expert witness’ report which assessed the PH’s net worth in Susunan MAC Sdn Bhd at RM6,230,280.

The PH’s evidence in regard to this issue is reproduced below as follows: “SK Credit sales, ok. Agree with me that for year 2019, the audited account shows a revenue of RM1,887,553? Yes. Agree with me, the total revenue that is reflected there is RM1,887,553? Yes. Agree with me that for revenue of such amount, profit after tax for the entire year is RM120,255? Yes. Agree with me that Susunan MAC operates almost 365 days? Not exactly. We close on Chinese New Year. How many days is that? Two days. Two days. So how many days you operate? 363 days. Ok, so I correct myself. 363 days. You operate 363 days, collected revenue of almost RM1.9 million, but the profit for that particular year is only RM1,255. Do you think this is believable? it works out to RM104 per month. Do you think this is believable? Yes. It is believable? Yes. So you are trying to tell the Court that you make a month RM104 per month. Is that what you are trying to tell the Court? After minus all the operating costs, yes. So you are trying to tell the Court you make RM104 per month? Yes or no? Just agree, yes or no? is that what you make per month? Yes or no? That is the gross profit. Yes, is that what you make per month? Yes or no? Rm104 per month? Yes. Yes? Ok. Do you agree with me that there is a great possibility that tax planning can be done due to the collection of cash in the clinic? Disagree. But you are in control of Susunan MAC? Yes. You are in control of how much cash you make, how much credit you make. You are in control. You have full control. Agree? No. it depends on how many patients are coming. It they are not paid – Listen. Don’t explain. Agree with me that you are in full control of cash collection, credit, whatsoever? You are in full control. Agree? Yes. I put it to you it is very common for business such as clinics or any company for the matter to take loans from banks. Agree? Yes. Agree with me that these loans are taken for multiple reasons including expansion of business, equipment purchases, working capital, agree? Yes. Now agree with me that banks are 1 regulated financial institutions, agree? Yes. Agree with me that as a regulated financial institution, bank do not provide loan unless careful and thorough due diligence has been performed on the borrower, agree? Yes. Agree with me that this principle would apply to individual loans, company loans, credit card applications, agree? Yes. Agree with me that this principle of regulation would equally apply to the company that you run, Susunan MAC, agree? Yes. Agree with me that you have not defaulted any credit card payment? Yes. Agree with me that Susunan MAC and yourself have been servicing the alleged loan from banks without any default? Yes. Agree with me that Susunan MAC and you are solvent till this very day? Don’t understand your question. You are not bankrupt. Yes. Your company is of sound financial standing. Agree with me? Disagree. Disagree. But you are able to service your loans, you are able to pay your credit, you are able to do all that. Agree? Agree. Ok. Agree with me that you are still able to service this loan, make payments because you are financially sound, and you have a healthy cash flow, agree? Yes. Now look at your bundle, page 46. Agree with me that you declared that your monthly income is RM40,000? Take your time and read the document. It’s your document. Page 46, My Lady, of the Respondents bundle. Sorry, the Petitioner’s bundle, My Lady. It’s the line there, Mr Chow, “my monthly income of RM40,000”. Do you see that? My Lady - Yes. Plus my monthly income of RM40,000. So you do see the note there? You declared “my monthly income of RM40,000.” Agree? That is an explanation I give – No. Agree that you declared that your monthly income of RM40,000 in that document, your document? In that page, I write so. Ok. So you agree that you wrote monthly income RM40,000. Agree? I wrote. Ok, you wrote. Ok. Now, in LHDN filing, Borang EB, which is in Mr Chong’s report, the Court-appointed expert, you declared for year 2020 your monthly income is RM15,000. Agree? Yes. In year 2021, you declared your monthly income is RM15,000? Yes. In 2022, you declared your monthly income of RM16, 375. Agree? Yes. These are all declarations made to LHDN. Agree? Yes. You do understand the consequences of making false declaration? This is 2017. You do understand the consequences of making false declaration? Do you understand the consequence, do you understand?

Evaluation of the Expert Evidence In my evaluation of whether the RW was deserving of an apportionment of the PH’s other assets, I was aided by the evidence of Mr Chong Kean Huat (PW2) from KH Chong & Co PLT as Court Expert. Mr Chong Kean Huat was appointed as an independent expert witness pursuant to Order 40 ROC 2012 as a result of the PH’s claim that his financial standing is in the negative, despite evidence suggesting otherwise through his lifestyle.

Hence as per the Court Order dated 25.5.2023, the previous Learned Judge presiding over this matter ordered and both PH and RW agreed to appoint Mr Chong Kean Huat. He was given the daunting task to submit an auditor’s report to this Court regarding the PH’s assets, liabilities and overall financial standing.

Mr Chong Kean Huat reported to the Court that he found considerable difficulty and resistance in obtaining documents and responses from the PH in carrying out his duties. Notwithstanding these obstacles, he nevertheless succeeded in completing his report, which was duly prepared and tendered before the Court.

It bears repetition that Mr. Chong Kean Huat was jointly appointed by both the PH and the RW, with the parties further agreeing to share equally the costs of his appointment. This, in the Court’s view, signifies their mutual acceptance of his independence and reflects a clear agreement that his assessment of the PH’s financial standing would be relied upon.

In spite of that understanding, the PH elected to call his own expert witness, Encik Ahmad Zubir bin Zahid. Encik Ahmad Zubir filed his Expert Witness Statement (DWS-3) together with his affidavit pakar, in which his Expert Opinion Report was incorporated. The Court observes that this course of action was clearly intended to contradict the findings made by the jointly appointed court expert. Given that both parties had earlier agreed to Mr. Chong’s appointment and to bear equally the costs thereof, the Court is of the view that greater reliance ought properly to be placed upon the report of the jointly appointed expert as the more independent and impartial assessment.

Having carefully examined and analysed the contents of Mr. Chong Kean Huat’s report, I find that it provides a comprehensive and well-reasoned assessment of the PH’s financial standing. I have also considered the expert report tendered by Encik Ahmad Zubir; however, in my judgment, it does not succeed in undermining the credibility or reliability of the report prepared by Mr Chong.

Having seen and heard Mr Chong giving his testimony in court I came to the unerring conclusion that he is a neutral, independent and professional witness whose credentials, experience and objectivity are not in dispute. He had nothing to gain from the evidence that he gave. I accept his testimony and agree that his report is the product of an unbiased and comprehensive financial analysis, adhering to the accepted standards of financial evaluation. I am satisfied that his use of the Price-Earnings (PE) Ration in assessing the PH’s financial standing follows widely accepted financial practices. He used the PE Ratio which is a standard financial metric used to evaluate a company’s relative value taking into account both the market value and earnings of a business.

I could not accept the PH’s expert witness’ evidence which I found apart from being submitted inordinately late failed to substantiate why an alternative methodology should be used in the assessment of the PH’s financial standing. I was in agreement with the counsel for the RW who contended that the reliance on different metrics are not commonly used in financial evaluations hence raises doubts about the objectivity and credibility of the PH’s expert witness.

Matters are further compounded by the fact that the PH had selectively engaged his expert witness, and the Court was left in doubt as to the impartiality and independence of his evidence, which appeared aligned with the PH’s version of events."

It will be timely to be reminded of the decision of the Court of Appeal in Batu Kemas Industri Sdn Bhd v Kerajaan Malaysia & Anor [2015] 7 CLJ 849 which laid down the following principles as regards the duties and responsibilities of an expert witness: “(i) it is the preliminary duty of an expert to assist the court in arriving at the right decision;

(ii) the duty overrides any obligation to the party from whom the expert has received instructions or by whom he is paid;

(iii) therefore, the evidence of an expert should not only be independent but should also be seen to be independent; and

(iv) the opinions of experts are relevant only insofar as they can assist the court in forming an opinion upon the issues in the case (s. 45(1) of the Evidence Act 1950 )”.

The emphasis is that an expert’s opinion can be rejected on the ground of the lack of independence of the expert. Experts owe a greater duty to the cause of justice and to the court first and only after that to the party who commissioned the expert’s opinion and report. In this case I have taken into account that the expert witness having been retained by the PH may present his opinion that is favourable to the party that has engaged him. He was paid RM50,000 for his services. That payment does not include costs for his attendance in court to give evidence. I had to remind myself to view with caution the analysis and results of that report. In contrast the court-appointed expert, having been jointly engaged by the parties has no vested interested in the outcome of the case. He is a neutral and disinterested witness bearing in mind he was court appointed. Thus in the case of Public Bank Berhad v Tetuan Kumar Jaspal Quah & Aishah [2016] 3 MLRA 567 the Court of Appeal stated as follows: “[23] The learned Judge gave due weight to the findings of PW 2 and his credibility as an independent and disinterested witness with the following observations: PW 2 was an unhesitant witness and was able to clearly explain his findings under cross-examination. His testimony was entirely consistent with his report and his credibility was unshaken. He remained clam and steady and was steadfast throughout the testimony. He was able to justify and explain his findings coherently despite being challenged under cross-examination…As a court appoint expert, I found PW 2 to be independent of the parties and has no interest in the outcome of the case and is a reliable source of expert opinion (see Pembangunan Yasal Sdn Bhd v Teo Lee Chun @

Having read and examined both the reports I found Mr Chong’s report to be comprehensive and transparent. It is based on verifiable data and is supported by objective financial metrics, including the use of the PE Ratio. It demonstrates a clear understanding of the PH’s overall financial standing. I am satisfied that Mr Chong has prepared a thorough financial report in line with industry standards. I therefore prefer to accept his findings and I hold that it carries more weight than that of the PH’s expert witness’ report.

I hold that the parties are bound by the valuation of all the PH’s assets prepared by Mr Chong. In this regard I relied on for support to the case of Zhao Dongming & Anor v Zhao Kai & Ors [2023] 1 LNS 2372 wherein the Court held as follows: [101] The parties could not agree on the value of work done; the plaintiffs’ QS valued it at about RM6.3 million whereas D4 QS valued it at RM2.2 million in the statement of final accounts. The Court, with the consent of learned counsel for the plaintiffs and the defendants, agreed to have a Court Expert Quantity Surveyor (“QS”) appointed to carry out a valuation of the works done and they further agreed to be bound by this decision. Parties could agree to the appointment of JUBM Sdn Bhd (“JUBM”) for this purpose and to equally share the costs of the expert’s fees and disbursements. This was duly minuted. [106] The parties were allowed to cross-examine the Court-appointed expert as permitted under Order 40 rule 4 ROC. [111] Therefore the Court was prepared to accept and indeed the parties are bound, by the Court expert’s valuation on D2’s works. See the Court of Appeal case of Folin & Brothers Sdn Bhd (in liquidation) & Ors v Folin Food Processing Sdn Bhd & Ors [2011] 10 CLJ 199 where an expert’s decision, whose appointment had been by consent of the parties, could only be challenged for fraud, collusion, partially or lack of independence and here nothing coming near to these iniquities and infirmities had been shown.”

At this juncture, the PH sought to rely on his CCRIS report at pages 66–67 of Ikatan Dokumen Pempetisyen (Encl. 81) to substantiate his contention that he is heavily indebted. Upon close scrutiny, however, I immediately noted that the report is neither dated nor complete. Moreover, it makes reference only to a credit report for the year 2018. The PH has failed to produce or exhibit any current and up-to-date credit report to support his claim of financial hardship.

In the NOP dated 18.7.2024, the PH admitted that his CTOS is for the year 2021 and is irrelevant today. His evidence is reproduced below: SK No, that is a different report altogether. You confirmed its two different reports, CTOS and CCRIS. I put it to you the CTOS report is not complete, you have not disclosed the full set of CTOS report, agree? CHOW Yes Ok, I put it to you that the CTOS report is not relevant or helpful to show your financial standing as of today, 2014, this year, agree?

2024, agree. This one is…let me have a look. This is… Yes, please do. This is, this CTOS is based on 2021. Yes, so, my, I put it to you that it is of no relevance, no help to this Court to show your financial standing of, for this year,

Yes. It’s not relevant at all, agree? Yes.

In my assessment I found the PH to have not made a full and frank disclosure of all the assets in his possession. While he acknowledged holding minority shareholdings in Susunan Kepong Sdn Bhd (7.5%) and Susunan Manja Sdn Bhd (15%), he failed to disclose an additional asset. It was only through the valuation exercise conducted by the Court-appointed expert witness that it came to light that the PH also owns a 10% shareholding in Susunan Rawang Sdn Bhd. The net worth of this undisclosed interest amounts to RM778,230. All these shares were acquired during the subsistence of the marriage between the parties. The Court views this omission with some concern, as full and candid disclosure is the bedrock of matrimonial proceedings and is essential to ensure that the division of assets is carried out fairly and equitably. The deliberate or negligent failure to disclose assets undermines the integrity of the process and places an unnecessary burden on the Court to sieve through the evidence to arrive at a just and equitable decision. In these circumstances, the Court considers that this non-disclosure must be taken into account and weighed against the PH when determining the just and equitable distribution of the matrimonial assets. Such conduct diminishes the PH’s credibility before this Court and justifies the RW to being accorded an equitable higher share of the matrimonial assets than she might otherwise have received.

The Petitioner Wife has argued that she is entitled to an equal apportionment of all the assets acquired during the marriage. I have examined the documentary and oral evidence adduced in this case and find that the RW had made a number of financial contributions to the PH’s business ventures, going so far as to provide cash amounts to support his business expansions. In one incident the RW had contributed a sum of RM96,000 to the PH’s business ventures. The MBB cheque for this amount is made out to “Chow Khoon Choong” and is found at pgs 430 – 432 of Ikatan Dokumen Respondent Jilid 3.

In addition to the above, it was never disputed that the RW helped in running Susunan MAC Sdn Bhd and assisted in running and operating a pharmacy under Susunan Mediheal which she owned 60% shares of.

In assisting the RH’s business ventures, the RW had albeit reluctantly signed two (2) letters of guarantee from Ambank and Bank Simpanan Nasional respectively guaranteeing the total facility amount of RM900,000. The amount borrowed was to fund the PH’s business and personal use. To this day, the RW remains a guarantor for both loan facilities. She derives no benefit from them, yet continues to bear the attendant risks of a guarantor. Thus it cannot be claimed that the RW did not contribute at all to the business expansion of the clinics that PH owns and to Susunan MAC Sdn Bhd.

In light of the RW’s contributions, both financial and non-financial, this Court finds it just and equitable to recognise her significant efforts and sacrifices, and accordingly she ought to be accorded a fair share in the distribution of the value of all assets and clinics owned by the PH.

I was initially inclined to accept the RW’s argument for equal apportionment, however, upon careful consideration of the parties’ respective contributions, I am persuaded that justice is better served by a proportionate rather than an equal division of the assets.

I have quantified her contribution at 10% of the total value of the assets. In arriving at this assessment, I have taken into account that while the RW did make contributions, both directly and indirectly, towards the household and the family, the evidence clearly shows that the establishment of the business, its growth, and the acquisition of the assets were predominantly attributable to the PH’s hard work, entrepreneurial skill, and financial acumen. The PH was the principal driving force behind the expansion of the clinics and the accumulation of wealth, whereas the RW’s role, though supportive and not without significance, did not rise to the same level of contribution. On balance, I am satisfied that an award of 10% appropriately reflects her efforts and sacrifices, while also recognising the PH’s substantially greater role in the creation and acquisition of the assets. The PH is required to pay the RW an amount which is the equivalent to 10% of the value of those shares.

EPF With regard to the question of whether the PH’s EPF funds fall within the meaning of matrimonial property pursuant to s. 76, this Court finds that there is a preponderance of cases which have decided that EPF is a matrimonial asset and subject to distribution, most notable of which is the Court of Appeal case of Koay Cheng Eng v Linda Herawati Santoso where the court held: “It is the contention of the wife that the husband’s Employees Provident Fund (EPF) monies should be made available for division as EPF monies are matrimonial assets liable for division. The case of Ching Seng Woay @ Cheng Song Huat (p) v Lim Shook Lin & Anor [1997] 1 AMR 214 was cited as the authority. I am of the same view that EPF contributions are matrimonial assets when acquired during the marriage.”

It cannot therefore be denied that a spouse’s EPF funds which have been accumulated during the course of the marriage forms a part of the assets mentioned in s. 76 LRA.

Given that EPF funds are not surplus wealth but rather the PH’s financial reserve, built over years of employment, it should be preserved to sustain him through retirement too.

I therefore order that the RW be entitled to 30% of the amount standing to the account of the PH’s EPF account as at the time the Decree Nisi is made absolute and the EPF Board is to give effect to this Order.

Costs Both learned counsel had submitted that the most proper award for costs of this action was for each party to bear their own costs. In the circumstances, I agree. I ordered that between the PH and RW each party should bear their own costs. Dated 2 September 2025. (JULIE LACK) JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN (SELANGOR) Counsel for the Petitioner : Subramaniyan A. Nambiar (Messrs JY Ko) Counsel for the Respondent : Sudesh Kumar A/L Chandra Mohan (Messrs Sudesh Law Chambers)