In the present case, there is no indication that the case is bound to fail on the merits. The parties and their children are Malaysian citizens, and the Husband is domiciled in Malaysia. He is fully within his rights to file for divorce in Malaysia. [Emphasis added.] [47] Accordingly, it is this Court, not the Singapore court, that has jurisdiction over the divorce proceedings, as both parties are Malaysian citizens, domiciled in Malaysia, with their marriage registered in Malaysia. Whether Singapore was the proper forum to hear the divorce proceedings [48] I was mindful that while this Court undoubtedly has jurisdiction over the matter, the issue did not end there. The Court retains the discretion to S/N dDmQnup5z0SuQnfPp2hEWQ 25 October 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 19 determine whether it should exercise that jurisdiction, particularly under the doctrine of forum non conveniens. This principle allows the Court to refrain from hearing a case if it deems that another jurisdiction would be more appropriate and convenient for the resolution of the dispute. [49] In this light, the Respondent has alternatively sought a stay of these divorce proceedings, contending that Malaysia is not the proper forum to adjudicate the dispute. She argued that the case would be more appropriately handled by the Singapore court, citing reasons including the residency of the Parties and the Children and the ongoing concerns regarding the welfare of the Children, which the Respondent have been central to her divorce petition in Singapore. [50] The first point that must be clarified is that the doctrine of forum non conveniens, as explained by Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd (1987) AC 460, does not refer to a jurisdiction that is merely convenient for the parties, but rather to the suitability or appropriateness of the chosen forum for resolving the dispute. The focus is on identifying the forum that has the closest connection to the issues at hand, thereby ensuring that justice can be served most effectively and fairly. This interpretation of forum non conveniens has been adopted in Malaysia as well, having been endorsed by the Federal Court in American Express Berhad Ltd v Mohamed Taufic Al-Ozeir & Anor [1995] 1 MLJ 160, where the court similarly emphasised that the doctrine is about selecting the proper forum, not merely one that offers convenience to any party. S/N dDmQnup5z0SuQnfPp2hEWQ 25 October 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 20 [51] In the same case, it was established that a stay of proceedings on the ground of forum non conveniens will only be granted if the court is convinced that "there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice." This principle ensures that a stay is not granted lightly and only in situations where another forum is clearly more appropriate for resolving the dispute. [52] In this context, the burden of proof fell squarely on the Respondent to demonstrate to the Court that Singapore is indeed a more appropriate forum than Malaysia. The Respondent must not only establish that the Singapore court has jurisdiction but also prove that the interests of justice and the interests of the Parties are better served by having the case heard there. [53] To bolster her argument, the Respondent placed significant emphasis on the fact that both she and the Children have been residing in Singapore for the past 16 years. This longstanding residency, according to her, established a strong connection to Singapore and made it the more appropriate forum for addressing the divorce and related matters, particularly those concerning the welfare of the Children, which she had already raised in her divorce petition filed in Singapore. These issues, in her view, aligned more closely with Singapore jurisdiction, where the Children’s interests and well-being could be more effectively addressed. [54] In making its determination, the Court had to weigh two key considerations: S/N dDmQnup5z0SuQnfPp2hEWQ 25 October 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 21 a) Whether it would be unjust to the Petitioner to limit him to pursuing remedies in a different jurisdiction, such as Singapore; and b) Which forum has the most real and substantial connection to the proceedings. [55] I was guided by the cases of Sino Pac Development (Thailand) Ltd v Patrick Yap Huan Ju [1998] 5 MLJ 52 and Herbert Thomas Small v Elizabeth Mary Small (Kerajaan Malaysia & Anor – Interveners) [2006] 6 MLJ 372 where in the latter case, the High Court applied the two-stage test and held as follows: Malaysian cases have recognised that where courts of different jurisdiction have the right to hear a case, nevertheless one court may be a more appropriate or natural forum for the hearing of the case. This doctrine is known as the doctrine of forum non conveniens (‘the said doctrine’), acknowledged and accepted in the Malaysian courts in the case of Sino Pac Development (Thailand) Ltd v Patrick Yap Huan Ju [1998] 5 MLJ 52 where I stated at p 61 that: The doctrine of forum non conveniens has received judicial acceptance in our courts and it is accepted that a defendant to a suit may apply to a court to stay the action on the ground that this court is not the appropriate forum and there exists another more appropriate forum to hear the matter.” This is because the more appropriate forum is the one that has the most real and substantial connection with the action. [Emphasis added.] [56] It was my view that it would be unjust to the Petitioner to confine him to remedies in Singapore, for the following reasons. S/N dDmQnup5z0SuQnfPp2hEWQ 25 October 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 22 [57] The Respondent in this case is a Malaysian national with connections and roots in Malaysia, even though she has spent significant time residing in other countries, including Australia and now Singapore. Despite these changes in residency, her nationality and legal identity remain Malaysian. Given her ties to Malaysia, it would neither be unreasonable nor unfair to treat her as a Malaysian wife, thus applying the rights and legal protections conferred to her under Malaysian law. This approach acknowledged her affiliation with Malaysia, both in terms of nationality and the legal framework she would naturally expect to be governed by. [58] On the other hand, to treat her as a Singaporean wife, merely based on her current residence in Singapore, would place undue burden on the Petitioner. This would involve applying the law of Singapore, which may confer different rights to the Respondent than she would have under Malaysian law. Such an outcome could be seen as unfair to the Petitioner, particularly if the Parties had originally entered into the marriage with the understanding that their marital rights and obligations would be governed by Malaysian legal principles. [59] Additionally, applying the law of Singapore may result in rights and obligations that neither party foresaw when the marriage began, thus placing the Petitioner in a potentially disadvantageous position. The fairness of the legal framework should not shift simply because of a change in residence, particularly when the Respondent’s core legal identity remains tied to Malaysia. The principles of equity would therefore support treating the Respondent as a Malaysian wife, ensuring that both Parties' expectations are aligned with their national S/N dDmQnup5z0SuQnfPp2hEWQ 25 October 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 23 and legal backgrounds, rather than applying a legal system simply because of a more recent change in geography. [60] Regarding the Children, the Petitioner had conceded that the actual care and control will reside with the Respondent. Consequently, the primary issues to be addressed in relation to the Children revolve around the determination of financial matters, specifically concerning maintenance for both Children and the Respondent, as well as the equitable division of matrimonial assets. This framework indicated that while the Respondent will have physical custody, the focus will shift to ensuring that the financial needs of the Children and the Respondent are met, along with resolving how matrimonial assets will be fairly divided between the Parties. [61] The Respondent's argument had also centred on the inconvenience of conducting the proceedings in Malaysia, particularly in terms of distance and travel. However, these logistical challenges could no longer be considered decisive factors, given the advancements in modern technology. The use of remote hearings and online trials, now widely recognised and embraced in legal systems worldwide, offers a practical solution to such issues. Virtual proceedings have proved to be both efficient and effective in bridging geographical gaps, allowing parties to participate fully without the need for physical presence. [62] As such, the inconvenience of distance alone is not a compelling enough reason to justify shifting the forum from Malaysia. The ability to conduct hearings remotely ensures that both Parties may access the judicial process without unnecessary hardship, thus negating the S/N dDmQnup5z0SuQnfPp2hEWQ 25 October 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 24 Respondent's claims of inconvenience. The focus, therefore, remained on the more critical question of which forum has the most substantial and meaningful connection to the case, rather than merely the physical location of the parties. [63] It was also my view that Malaysia is the forum with most real and substantial connection to the Parties, and where justice can be appropriately administered. Such conclusion is based on the following key facts. [64] Both the Petitioner and Respondent are Malaysian citizens by birth, having been born and raised in Malaysia, with their legal domicile firmly rooted in the country. The Petitioner remains a resident of Kuala Lumpur, where he has continued to live throughout, reinforcing his strong connection to Malaysia. He had neither sought nor obtained permanent residency or citizenship in any other country, further emphasising that his ties and legal obligations remain wholly centred in Malaysia. His exclusive residency and nationality underscored that Malaysia is his sole and permanent home, with no foreign affiliations that might suggest any connection to another jurisdiction. [65] Both Parties spent the formative years of their lives in Malaysia, continuing to live in Malaysia well into adulthood. Their deep-rooted connections to Malaysia are further reflected by the fact that the Petitioner’s surviving siblings and extended family continue to reside in the country. Similarly, the Respondent’s parents, one of her siblings, and other extended family members also remain in Malaysia. These strong familial ties emphasised the Parties’ enduring connection to S/N dDmQnup5z0SuQnfPp2hEWQ 25 October 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 25 their homeland, making Malaysia not only a central part of their personal histories but also a focal point of their family lives. [66] The Parties were married in Malaysia, further solidifying their ties to the country at the very foundation of their relationship. The Children, who are the product of this union, also retain their Malaysian citizenship, underscoring the family’s continued legal and national affiliation with Malaysia. This enduring connection to Malaysia is significant, as both the marriage and the Children’s citizenship reflected the family's long-standing legal, cultural, and personal ties to the country. [67] It was also crucial to note that despite residing in Singapore, the Respondent’s efforts to obtain permanent residency there have been unsuccessful, as her multiple applications were rejected by the Immigration & Checkpoints Authority (ICA). Consequently, she remains in Singapore on a temporary basis, residing under an Employment Pass. This situation highlighted the Respondent’s continued and exclusive legal affiliation with Malaysia, as she had not been granted permanent residency or citizenship elsewhere, further reinforcing her primary connection to Malaysia. [68] The Respondent herself acknowledged the strength of her connections to Malaysia, as evidenced by the fact that her ties were significant enough for the Petitioner to attempt to register a tax-free company in her name with the Chief Minister of Sarawak. This admission further illustrated that her legal and personal association with Malaysia is substantial, to the point where it was used as a basis for business S/N dDmQnup5z0SuQnfPp2hEWQ 25 October 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 26 dealings within the country. This reinforced the notion that Malaysia remains central to the Respondent's legal identity and affiliations. [69] The majority of the Petitioner’s business ventures are firmly established in Malaysia, making it the primary operational base for his commercial interests as well as his residence. This centrality to Malaysia is not just a matter of geography; it underscored the Petitioner’s deep investment in the country's economy and business landscape. Furthermore, the Petitioner holds directorship positions in several listed companies that are incorporated in Malaysia, highlighting his active engagement in the Malaysian corporate sector. This strong business presence in Malaysia reinforced the notion that both the Petitioner and the Respondent have significant ties to the country, contributing to the argument that Malaysia is the most appropriate forum for the divorce proceedings, especially since monetary claims were made by the Respondent against the Petitioner in the divorce proceedings. [70] In light of the aforementioned factors, it was evident that Malaysia is the jurisdiction with the most real and substantial connection to the Parties involved. The robust ties to Malaysia highlighted in this context underscored the necessity of conducting the trial in a jurisdiction that is not only relevant but also where the Parties and their circumstances are firmly rooted. It would, therefore, be inappropriate to grant a stay of the Malaysian proceedings on the grounds of forum non conveniens. S/N dDmQnup5z0SuQnfPp2hEWQ 25 October 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 27 Conclusion [71] In conclusion, after a meticulous and judicious consideration of all the evidence presented before this Court, along with the arguments put forth by both Parties, this Application was dismissed with costs. Dated: 25 October 2024 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner-Husband – YN Foo and Kiran Dhaliwal; Messrs YN Foo & Co For the Respondent-Wife – Goh Siu Lin and Cheong Khai Ze; Messrs Kee Sern, Siu & Huey Cases referred to: ➢ American Express Berhad Ltd v Mohamed Taufic Al-Ozeir & Anor [1995] 1 MLJ 160 ➢ Charnley v Charnley & Betty [1960] MLJ 29 S/N dDmQnup5z0SuQnfPp2hEWQ 25 October 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 28 ➢ Herbert Thomas Small v Elizabeth Mary Small (Kerajaan Malaysia & Anor – Interveners) [2006] 6 MLJ 372 ➢ Kekatong Sdn Bhd v. Bank Bumiputra Malaysia Bhd [19981 2 CLJ 266 ➢ Khoo Kay Peng v Pauline Chai Siew Phin [2015] MLJU 158 ➢ Neduncheliyan v Kohila [1997] 4 CLJ 676 ➢ Ramesh a/l Rajaratnam v SL Sharlini a/p Marnickam [2018] MLJU 1454 ➢ Re Coles and Ravenshear [1907] 1 KB 1 ➢ Reebok (M) Sdn Bhd v. CIMB Bank Bhd [2019] 9 CLJ 230 ➢ Sino Pac Development (Thailand) Ltd v Patrick Yap Huan Ju [1998] 5 MLJ 52 ➢ Spiliada Maritime Corporation v Cansulex Ltd (1987) AC 460 Legislation referred to: ➢ Divorce and Matrimonial Proceedings Rules 1980 – rule 87 ➢ Family Justice Courts Practice Directions (Singapore) – paragraph 79 ➢ Family Justice Rules (Singapore) – rules 48, 50, 901 ➢ Law Reform (Marriage and Divorce) Act 1976 – sections 3(2), 48 ➢ Rules of Court 2012 – Order 1A, Order 2, Order 11, Order 12 rule 10 S/N dDmQnup5z0SuQnfPp2hEWQ