Goh Sue Zian v Sim Chap Hoong (PA-24F-154-09/2019)

This is an application by the defendant to strike out the plaintiff’s Originating Summons dated 13.9.2019 on the ground that the dispute arose within the jurisdiction of the High Court of Sabah and Sarawak and therefore the High Court of Malaya has no jurisdiction to try the matter [Enclosure 13]. The application is premised on s 23(1)(a) and (b) of the Courts of Judicature Act 1964.

The plaintiff and the defendant in the present action are husband and wife. Both are doctors working and living in Kuching at the material time. They were blessed with a child. The plaintiff up and left the matrimonial home at Lot 752, Lorong 5D6, Uni Central, Kota Semarahan, Kuching with the child and came to live in Penang. She obtained a transfer from the Sarawak General Hospital to the Penang General Hospital effective from 25.9.2019. The alleged cause of the plaintiff leaving the matrimonial home were due to quarrels between the parties, intolerable behaviour of and physical abuse at the 3 hands of the defendant. The affidavits show that the main incidents on which the application is premised occurred between 29.10.2016 and 9.8.2019 in Kuching.

It is not disputed that the defendant in the present action had filed an Originating Summons KCH-24F-19/9-2019 dated 11.9.2019 in the High Court of Sabah and Sarawak at Kuching seeking similar prayers to those sought in the present Originating Summons, the principal prayer of which is an order seeking custody, care and control of the child of the marriage and other consequential reliefs. The parties in the present action are the same parties in the Kuching High Court action with their roles reversed. The facts also show that the plaintiff’s notice of application premised on s 23(1)(a) and (b) of the Courts of Judicature Act 1964 to strike out the defendant’s Originating Summons was on 23.10.2019 dismissed by the Kuching High Court. Following the dismissal, the parties therein have been directed to file their respective affidavits by 4.12.2109. 4

The issue before this Court is whether the High Court of Malaya or the High Court of Sabah and Sarawak has jurisdiction over the matter raised in the present Originating Summons.

Article 121 of the Federal Constitution has established two High Courts in Malaysia: the High Court in Malaya and the High Court in Sabah and Sarawak. The article also provides that the High Courts are to have such jurisdiction as may be conferred by or under federal law. Section 3 of the Courts of Judicature Act 1964 sets out the local jurisdiction or territory over which the two High Courts have jurisdiction. The High Court in Malaya is conferred jurisdiction over disputes within the territory comprising of the States of Malaya and the Federal Territories of Kuala Lumpur and Putrajaya while the High Court in Sabah and Sarawak is conferred jurisdiction over disputes within the territory comprising Sabah, Sarawak and the Federal Territory of Labuan. Thus, with such clear demarcation one High Court cannot arrogate to itself jurisdiction to hear disputes which rightly belongs to the other High Court. (see Fung Beng Tiat v 5 Marid Construction Co [1996] 2 MLJ 413 and Hap Seng Plantations (River Estates) Sdn Bhd v Excess Interpoint Sdn Bhd & Anor [2016] 3 MLJ 553).

The issue of which High Court has jurisdiction to try a particular matter or dispute is determined by s 23(1) of the Courts of Judicature Act 1964. There are four criteria provided by the provision. To have jurisdiction any one or more of the following criteria must have occurred or exist within the territorial jurisdiction of the said High Court:

the place where the cause of action arose;

the place where the defendant resides or has his place of business;

the facts on which the proceedings are based exist or are alleged to have occurred; or

the place any land the ownership of which is disputed is situated. 6 [7] The undisputed facts from the affidavits clearly establish that the place where the cause of action arose or the facts on which the proceedings are based exist or are alleged to have occurred is in Kuching. The place where the defendant resides is also in Kuching. Therefore, the criteria provided under s 23(1)(a), (b) or (c) of the Courts of Judicature Act 1964 is within the territory of Sarawak. The criteria under s 23(1)(d) is not relevant on the facts of this case. Following this state of affairs, the appropriate High Court to hear the dispute in the present action can only be the High Court of Sabah and Sarawak. The issue is also not one of forum conveniens but one of pure jurisdiction. [8] For the above reasons Enclosure 13 is allowed. The Originating Summons [Enclosure 1] is struck out and the interim order dated 19.9.2019 is set aside. …………………Sgd……………………… AMARJEET SINGH SERJIT SINGH JUDICIAL COMMISSIONER HIGH COURT OF PENANG Dated: 6thNovember 2019 7 Counsel for the Applicant: Vince Tan Hoo Sek & Mable Lee Chi Mei [ TAN BAN CHENG & ASSOCIATES (PENANG) ] Counsel for the Respondent: Law Le Bin [KH LIM & CO.(KUALA LUMPUR)] Cases referred to:

Fung Beng Tiat v Marid Construction Co [1996] 2 MLJ

413.

Hap Seng Plantations (River Estates) Sdn Bhd v Excess Interpoint Sdn Bhd & Anor [2016] 3 MLJ 553.