HENG SIEW YUET v 1. ) Wong Siew Boon (KA-33-33-04/2022)

(b)(c) and 106 (1)(iv) of Law Reform (Marriage and Divorce) Act 1976; And In the Matter of Rule 8 of Rules of Divorce and Marriage 1980 BETWEEN HENG SIEW YUET (NRIC NO. : 571205-02-5156) --- PETITIONER AND WONG SIEW BOON (NRIC NO. : 570429-02-6129) LAW KWAI FUN (NRIC NO. : 640620-08-6868) --- DEFENDANTS GROUNDS OF JUDGMENT [Respondents Application pursuant to Order 55 r16 – Enclosure 53]

This is the Respondents’ interlocutory application for stay of execution (‘this Application’) against the execution of judgment in favour of the Petitioner dated 25 June 2024 (‘the Judgment’)

Facts of the case 2. The Petitioner applied for the dissolution of marriage and the petition was duly granted in the judgment dated 25 June 2024 (“the Judgement”). After the three (3) months deadline of the Order in the Judgment expired, the Respondents’ filed an application to seek a stay of execution pending appeal of the divorce order.

The Respondents vide Enclosure 53, sought a stay of execution of the Judgment pursuant to Order 55 r. 16 and/or Order 92 r. of the Rules of Court 2012.

The affidavits that were filed for the purposes of this Application are as follows:

Respondents’ affidavit in support affirmed by Wong Siew

(ii) Petitioner’s affidavit in reply affirmed by Heng Siew Yuet (Encl. 55); and

(iii) Respondents’ affidavit in reply affirmed by Wong Siew Boon & Law Kwai Fun on Woon (Encl. 56).

Having read all the affidavits and the written submissions filed by the parties and oral submissions thereafter, I dismiss this Application with cost. I furnish below my grounds thereto. Findings and Decision of the Court 6. This Application is made pursuant to Order 55 Rule 16 of the Rules of Court 2012 for stay of execution:

Stay of execution (O. 55 r. 16)

An appeal shall not operate as a stay of execution under the decision appealed against except in so far as the court appeal from or the High court may order, and any application for stay shall be made in the first instance to the court appealed from.

the court appealed from or the High court may grant an order of stay of execution on such terms as it thinks fit. The Principles on Stay of Execution 7. In exercising my duty, this Court shall consider whether this Applicaties has fulfilled the requirements of Order 55 r. 16 of the Rules of Court 2012.

In this Applicaties, the Respondents’ submited that the stay application is made pending their appeal of the Judgment.

In essense, the Respondent premised that they are unable and/or financially constraint to comply with the divorce order.

The grant of a stay of execution or stay of proceedings is an exercise of judicial discretion dependent on the specific case adduced in court. It was held in the case of Structural Concrete Sdn Bhd v Wing Tiek Holdings Bhd & Ors [1997] 1 CLJ 300 that:- “….exercises of judicial discretion are not judicial precedent because they are not only authority for the facts of the particular case…”

It is trite law that the burden and onus is on the applicants to prove the special circumstances to justify the grant of stay of execution. It must be explained and/or shown in the affidavit filed in support of the application. Augustine Paul JCA (as he then was) in Kosma Palm Oil Mill Sdb Bhd & Ors v Koperasi Serbausaha Makmur Bhs [2004] 3 CLJ 97 held (at Page 17 Para f – g) that:- “…. the onus is on the applicants to demonstrate the existence of special circumstances to justify the grant of a stay of execution. The reasons must relate to the enforcement of the judgment. They must be deposed in the affidavit filed in support of the application.” [Emphasis added]

The Respondents in support of this Application referred to the case of Sigur Ros Sdn Bhd & Anor v Maybank Islamic Berhad & Anor [2018] MLRHU 1090 where the Court in para [4] quoted the following ratio of Augustine Paul JCA (as he then was) in Kosma (Supra): “There are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if stay was refused is the most common one; it is an example of special circumstances. As nugatoriness is a species of special circumstances, a mere reference to it is sufficient to convey the correct legal impression, and any attempt to restrict the grant of stay to nugatoriness, quite apart from it impropriety, will severely restrict the grounds upon which an applicant may rely.”

In addition, the Respondents quoted Jaya Harta Realty Sdn Bhd v Koperasi Kemajuan Pekerja-Pekerja Ladang Bhd; Tetuan Isharidah, Ho, Chong & Menon (Garnishee) [2000] 1 MLRH 316 (para 9) concering the balance of convenience:- “[9] The justice of the case on stay is arrived by striking a judicious and equitable balance between the principle that the successful party in the litigation ought to be allowed to reap the fruits of that litigation and not obtain a mere barren success, and the countervailing principle that should the unsuccessful party in litigation be ultimately successful in his appeal, he ought not be deprived of the fruits of his litigation due to the result of his appeal being rendered nugatory. Yet, it must always be borne in mind that the successful party in litigation has acquired a vested interest in the outcome of his case whereas the other party who appeals only has an interest contingent upon a successful outcome on his appeal – obviously, one has to be mindful that such considerations pertaining to the compelling concept of ‘fruits of litigation’ is wholly irrelevant to stay of proceedings applications. And it is primarily for this latter reason and the implied caveat that courts should discourage parties who lose their cases upon merits, from wrenching the fruits of litigation from the successful parties – by keeping the litigation alive through spurious appeals without any real prospect of success and simply in a hope of gaining respite against immediate execution upon the judgment – that the courts have been and are only moved to grant such stay upon a set of certain requirements which, for want of a more appropriate term, the courts have driven to use, quite rightly, the expression ‘special circumstances’. [Emphasis added]

The Petitioner in its rebuttal refered to the same Kosma Palm Oil Mill Sdb Bhd & Ors v Koperasi Serbausaha Makmur Bhs [2004] 3 CLJ 97 case. It averred that the Respondents have failed to relate the reasons of an existence of special circumstances to stay the enforcement of the judgment. Difficulties in honouring the obligations of any payment under a monetary judgment is by default never a justifiable reason for stay.

Additionally, the Petitioner cited the case of Wu Shu Chen (Sole Executrix of The Estate of Goh Keng How, Deceased) Raja Zainal Abidin bin Raja Hussin [1995] 3 MLJ 224 where Abdul Malik Ishak J (as he then was) held that, “Special circumstances is a question of fact in each case. It must be something distinctive and out of the way”.

His Lordship also held that an appeal to the Court of Appeal and the fact that a large amount of money is involved do not constitute special circumstances.

I am guided by principle of special circumstances on whether to grant or dismiss this Application. Except on the Respondents’ inability to agree on Part C of the divorce order, the rest of the divorce order are monetary judgment which the Respondents have failed to obey.

The respondents has failed to produce and/or show to this Courts via its submission on any coherent or tangible special circumstances to support this Application.

Additionally, the fact that this stay of execution application has been filed after the three months deadline of the divorce order give the impression that this Application was done as an after-thought at best or a mala-fide application at worse, to deprive the Petitioner her rights or fruit of litigation under the Judgement.

For the foregoing reasons, I therefore dismiss this Application for stay of execution. Dated: 19th August, 2025 -------------------------------------------------------- DR JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT MALAYA ALOR SETAR For The Petitioner : Noorlaili binti Aziz Messrs. Laili & Co Advocates & Solicitors For The Defendants : Wong Tai Hau Messrs. T.H. Wong & Co Advocates & Solicitors Table of Authorities Cases Structural Concrete Sdn Bhd v Wing Tiek Holdings Bhd & Ors [1997] 1 CLJ 300 Sigur Ros Sdn Bhd & Anor v Maybank Islamic Berhad & Anor [2018] MLRHU 1090 Jaya Harta Realty Sdn Bhd v Koperasi Kemajuan Pekerja-Pekerja Ladang Bhd; Tetuan Isharidah, Ho, Chong & Menon (Garnishee) [2000] 1 MLRH 316 Kosma Palm Oil Mill Sdb Bhd & Ors v Koperasi Serbausaha Makmur Bhs [2004] Wu Shu Chen (Sole Executrix of The Estate of Goh Keng How, Deceased) Raja Zainal Abidin bin Raja Hussin [1995] 3 MLJ 224