Law May Hui@Juliet v Tee Ken Ping (BA-24F-257-09/2023)

27 28 [3] At the time of writing this judgement Encl 1 has been heard and 29 disposed off in favour of the Plaintiff. 30 Background of the Case 1 [4] The Plaintiff and the Defendant were married on 17.3.2000. By all 2 accounts they seemed to live an idyllic and opulent life together with their 3 two children. While the Defendant was the sole breadwinner providing for 4 all the family’s needs, the Plaintiff played her role as a housewife 5 dedicating herself to the welfare of the family and managing the 6 household. 7 8 [5] Sometime in 2015 the marriage became rocky after the Plaintiff 9 discovered that the Defendant was having an adulterous relationship with 10 another woman with whom he fathered 5 other children. No marriage 11 could take that betrayal and theirs was no different. The marriage 12 crumbled and the Defendant left the matrimonial home and has not 13 returned. 14 15 [6] On 20.1.2020 the Plaintiff commenced a winding up proceeding in 16 the Shah Alam High Court against Eastern Healthcare (M) Sdn Bhd, a 17 company owned by the Defendant. The petition for winding up was 18 dismissed on 24.5.2021. It is worthwhile to note that no appeal was filed 19 against the said decision. 20 21 [7] Meanwhile the Plaintiff commenced divorce proceedings against the 22 Defendant at the Kuala Lumpur High Court but withdrew it just short of a 23 few days before the full trial was set to begin. 24 25 [8] Then in March 2023 the Plaintiff filed an application at the Kuala 26 Lumpur Sessions Court to seek for interim maintenance against the 27 Defendant. Filing of all affidavits and written submissions had been 28 exhausted and completed. However, the Plaintiff withdrew the 29 proceedings on the day the hearing was scheduled to be heard. 30 [9] Some 2 months later, in June 2023, the Plaintiff filed an Originating 1 Summons (OS) No. BA59-2-06/2023 in the Shah Alam Sessions Court 2 against the Defendant seeking for an order that the Defendant pay a sum 3 of RM38,984.20 being monthly maintenance for herself and the 2 children. 4 5 [10] That OS was subsequently transferred to the Shah Alam High Court 6 by order of court dated 14.8.2023 and is now registered before this Court 7 under BA-24F-257-09/2023. 8 9 Enclosure 7 10 [11] The cause papers in respect of this application are as follows :

Encl 1 : OS dated 4.6.2023 12

Encl 2 : Affidavit in Support by the Plaintiff affirmed on 13 2.7.2023 14

Encl 4 : Affidavit in Reply affirmed by the Defendant on 15 3.7.2023 16

Encl 5 : Affidavit in Response affirmed by the Plaintiff on 17 9.3.2023 18

Encl 7 : Notice of Application dated 6.11.2023 19

Encl 8 : Affidavit in Support affirmed by the Plaintiff on 20 2.11.2023 21

Encl 14 : Affidavit in reply affirmed by the Defendant on 22 14.12.2023 23

Encl 15 : Affidavit in Response by the Plaintiff affirmed on 24 27.12.2023. 25 26 Leave to Cross-examine 27 [12] The Plaintiff’s application in Encl 7 in short is to seek an order from 28 this Court for the Defendant to be cross-examined through counsel for the 29 Plaintiff of the facts allegedly in dispute identified in Paragraphs 9.1(a), 30

9.2(a), (b), (c), 10, 10.2, 10.3, 10.4, 10.6, 10.7(a), (b), (c), (d), (e), (f), (g), 1

(h), (i), (j), (k), (n) and (o), 11.2, 11.3, 11.4, 11.5 and 11.6, 14, 15.2, 16.1, 2 16.2, and 16.3 (hereinafter referred to collectively as the impugned 3 paragraphs) in the Defendant’s AIR dated 3.7.2023 (Encl 4). 4 5 The Contentions of the Parties 6 [13] It was submitted on behalf of the Plaintiff that the facts and 7 statements deposed by the Defendant in the Defendant’s AIR dated 8 3.7.2023 and in particular the impugned paragraphs are relevant to the 9 maintenance application and are seriously disputed mainly on the ground 10 that there are no contemporaneous corroborative documents provided by 11 the Defendant to support those averments. On account of that the Plaintiff 12 has contended that only through cross-examination can the Court 13 ascertain whether any relevant facts had been suppressed by the 14 Defendant and what those facts are. 15 16 [14] The Plaintiff has denied all the averments made by the Defendant 17 in the impugned paragraphs, arguing that the statements made are either 18 bald statements devoid of any documentary evidence to support them or 19 outright untruths. The Plaintiff has contended that the issues of the living 20 expenses and maintenance of the children, the matrimonial home and the 21 other properties are pertinent to the current maintenance claim by the 22 Plaintiff. Furthermore, the earning capacity and actual income of the 23 Defendant are relevant and pertinent to the issues to be decided in the 24 maintenance proceedings against the Defendant. 25 26 [15] It was further pointed out that the Plaintiff had raised several serious 27 issues regarding the income of the Defendant and its sources and the 28 Plaintiff had gone so far as to lodge complaints to the Suruhanjaya 29 Syarikat Malaysia (SSM) and LHDN yet the Defendant had in his AIR 30 merely brushed aside these averments and responded instead with bare 1 denials. Therefore, the learned counsel for the Plaintiff forcefully asserted 2 the Defendant must be made to explain orally through cross-examination 3 to resolve the outstanding issues. 4 5 [16] The Plaintiff argued that the application was made in good faith with 6 no intention whatsoever to delay the proceedings or intimidate the 7 Defendant contending that the Plaintiff’s burden of proof would be 8 severely prejudiced if not allowed to cross-examine the Defendant. 9 10 [17] The Defendant strongly opposed the application on the ground that 11 the Plaintiff had failed to meet the necessary threshold for the granting of 12 leave. It was submitted that the Plaintiff’s reasons to support the 13 Application were based merely on suspicions and conjecture and the 14 statements deposed to by the Plaintiff in her affidavits were false and 15 fraudulently made. 16 17 [18] In addition to the above it was the contention of the Defendant that 18 the Plaintiff’s intention to cross-examine the Defendant on various issues 19 concerning a number of companies are not relevant or pertinent to the 20 present application for spousal and child maintenance. 21 22 [19] In further response to the Plaintiff’s submissions the Defendant has 23 contended that the Plaintiff is estopped by per rem judicatum as these 24 issues raised by the Plaintiff in the Affidavit in Support had been 25 determined in the Winding Up Proceedings and the Plaintiff did not file 26 any appeal against the said decision. 27 28 [20] In any event it was contended that the Plaintiff had more than 29 sufficient documents obtained through the previous proceedings filed 30 such as the Winding-Up Proceeding, the interim maintenance applications 1 in the Shah Alam Sessions Court and the KL High Court to conduct her 2 claim. 3 4 Findings of the Court 5 [21] The instant application is made pursuant to Order 38 rule 2(2) of the 6 ROC 2012 which states as follows : 7 8 “(2) In any cause or matter begun by originating summons and on any 9 application made by notice of application, evidence shall be given by 10 affidavit unless in the case of any such cause, matter or application any 11 provision of these Rules otherwise provides or the Court otherwise 12 directs, but the Court may, on the application of any party, order the 13 attendance for cross-examination of the person making any such 14 affidavit, and where, after such an order has been made, the person in 15 question does not attend, his affidavit shall not be used as evidence 16 without the leave of the Court.” 17 18 [22] The court is thus conferred an absolute discretion whether to allow 19 or refuse cross-examination of a deponent to an affidavit. That discretion 20 is to be exercised in accordance with well settled judicial principles. The 21 application must be made bona fide and the applicant bears the legal 22 burden to persuade the Court to exercise its discretion whether or not to 23 allow it. 24 25 [23] I accept the correctness of the 3 criterias for cross-examination as 26 set out well in a number of cases. See Tetuan Kumar Jaspal Quah & 27 Aishah v The Co-Operative Central Bank Ltd [2007] 4 CLJ 487, 28 Petrochemical Commercial Company International Ltd & Ors v 29 Nexus Management Group Sdn Bhd & Ors [2022] MLRHU 2240, Ng 30 Pik Lian v United Eastern Resources Sdn Bhd [2022 CLJU 388. 31 [24] From these cases, the applicable principles can be summarized as 1 follows : 2 3

The truth of an averment of fact in the affidavit must be 4 challenged or the issues of fact identified by the party seeking 5 leave. Merely believing that there are material discrepancies 6 between facts deposed in the said affidavits and what actually 7 happened does not challenge the truth of any fact stated 8 therein nor does it identify any dispute that could be resolved 9 by cross-examination. 10 11

(ii) Cross-examination would only be allowed if the disputed fact 12 is relevant to the issue to be decided and must be limited to 13 that issue only. If it has little relevance or little weight to the 14 issue which the court has to decide, then cross-examination 15 should not be permitted. 16 17

(iii) Cross-examination would not advance the cause of justice 18 and should be refused if there is insufficient affidavit evidence 19 or contemporaneous documents to enable the application 20 based on affidavit evidence to be heard. 21 22 [25] I am further mindful of the fact that while this court has discretionary 23 powers, it must be exercised judiciously and that this court should be slow 24 in granting leave for cross-examination of a deponent in any interlocutory 25 matter as it would allow parties to have an unfair advantage before a trial. 26 While I take note the application here is filed pursuant to Section 3 of the 27 Woman & Children (Maintenance) Act, 1950, the reliefs prayed for are 28 interim ones, i.e. for maintenance in the interim period pending divorce 29 proceedings that has yet to be filed. 30 [26] To my mind the Plaintiff’s application is premised primarily on her 1 dissatisfaction with the Defendant’s responses to her AIS dated 2.7.2023 2 and thus she has resorted to alleging that the Defendant is telling untruths 3 and giving bald statements. The Plaintiff believes that the Defendant is 4 deliberately being vague in his averments and/or withholding information 5 from the Plaintiff in regard to the issues at hand. It is with respect the 6 distinct impression of the Court that the Plaintiff realizes that the evidence 7 currently available to her is insufficient to prove the case against the 8 Defendant. The Plaintiff ought not to use the application in order to shore 9 up her case or to fill up the gaps in her narrative. This attempt by the 10 Plaintiff to bolster the OS that was filed can be seen as an act of mala fide 11 and an abuse of process. 12 13 [27] The Plaintiff has the responsibility to discharge the burden of proof 14 to convince this Court on a balance of probabilities of the Plaintiff’s case. 15 She cannot take a short cut route nor can she shift the burden onto the 16 Defendant by fishing for proof or looking for loopholes in the Defendant’s 17 averments in his affidavit to enhance and gain unfair advantage over the 18 Defendant. 19 20 [28] I am of the view that the Plaintiff has failed to demonstrate to this 21 Court how the Defendant has been untruthful and how he has suppressed 22 relevant facts in his affidavit in reply. Unless the Plaintiff can demonstrate 23 with clear evidence to contradict and challenge the Defendant’s 24 averments, the cross-examination will only be an exercise in fishing for 25 information. 26 27 [29] In this current case it is worthy to note that merely believing that 28 there are material discrepancies between the facts deposed in the said 29 affidavit and what actually happened is insufficient to sway the Court into 30 allowing the application. In paragraphs 6.1 up to 6.21 of the Plaintiff’s AIS 1 of the application the Plaintiff repeated and reiterated the respective 2 paragraphs complained of and contended that the averments by the 3 Defendant were fraudulently made and were false. Nothing further was 4 stated leaving the Court to agree with the Defendant that the reasons to 5 support the said application are founded on mere suspicions. I find that 6 the Plaintiff failed to particularize in what manner the statements deposed 7 by the Defendant in the AIR dated 3.7.2023 was fraudulently made. In this 8 connection I further find the Plaintiff also failed to adduce any evidence to 9 show otherwise, save and except bare denials, to the matters deposed by 10 the Defendant. 11 12 [30] I find guidance and support for this view in the decision of Tetuan 13 Kumar Jaspal Quah & Aishah wherein the learned JCA stated : 14 15 “Merely believing that there are material discrepancies between facts 16 deposed in the said affidavit and what actually happened does not 17 challenge the truth of any fact therein stated nor does it identify any 18 dispute that could be resolved by cross-examination. As such there is 19 nothing to necessitate cross-examination.” 20 21 [31] In this case the Plaintiff has failed to demonstrate with specificity the 22 issues in dispute arising from the affidavit in reply which would resolve the 23 conflict. The Plaintiff did not condescend into particulars. Instead the 24 Plaintiff wants this Court to order cross-examination based on her own 25 belief and to find out whether her suspicions are correct. Thus on this 26 ground alone, the application for cross-examination is doomed to fail. 27 28 [32] It is the further finding of this Court that the Plaintiff had failed to 29 satisfy the second principle in that the Plaintiff had deposed at great length 30 in regard to the various issues concerning Eastern Healthcare (M) Sdn 1 Bhd, Quancheng Holdings Sdn Bhd and BBK Spicy Chicken Sdn Bhd 2 stating that she, the children and the companies in question will be 3 prejudiced if the instant application is refused. The Plaintiff is reminded 4 that the application for maintenance apart from it being interim in nature 5 is filed against the Defendant in his capacity as an individual in nature by 6 the Plaintiff as another individual. Eastern Healthcare and Quancheng 7 Holdings are separate entities and are totally irrelevant to the decision for 8 the disposal of the maintenance application. 9 10 [33] To make things worse, the issues raised by the Plaintiff especially 11 in regard to the account related issues were neither alluded to nor 12 deposed in the AIS nor in the AIR by the Plaintiff. It was raised for the 13 every first time in the AIS in this application. It is the view of this Court that 14 the Plaintiff is estopped form raising the account related issue in the AIS 15 of the OS as well as in the AIS of this application. The reason for this view 16 is ably explained in the case of Kan Fui Man v Nihon Properties Sdn 17 Bhd; Lim Kek Har [2021] MLRHU 42 where the Court held as follows : 18 19 “[24] Having read both the Application and Affidavit in Support, it is my 20 view that there is nothing in the said Application and/or Affidavit in 21 Support which relates to the Applicant applying for leave from the court 22 to proceed or commence legal proceedings against the Company. In 23 Chua Liong v. Lim Soon Industries Sdn Bhd [2001] 5 MLRH 742; [2004] 24 8 CLJ 117, the court had held that: 25 "It is also trite law that parties are bound by affidavit evidence made 26 by it" 27 [25] Thus any reference to any contentions or issues not raised in the 28 Application and/or the Affidavit in Support and which was only 29 subsequently brought up by the Applicant in his submissions is wholly 30 inadmissible and will not be accepted by this Court as “it is a 31 fundamental principle that a party must not take his opponent or the 32 Court by surprise” as stated by Gopal Sri Ram JCA (as he then was) in 1 Cheow Chew Koon T/A Cathay Hotel (supra).” 2 3 [34] I respectfully adopt the aforesaid passage of the judgement as part 4 of my reasons for refusing the Plaintiff’s application. 5 6 [35] In his submissions counsel for the Defendant quite rightly pointed to 7 the fact that the Plaintiff is estopped from raising similar issues in the AIS 8 which had been similarly raised earlier and determined in the Winding Up 9 Proceeding. As mentioned earlier the Plaintiff did not see it fit to file any 10 appeal against that decision. Therefore, the principle of res judicata shall 11 apply against the Plaintiff. 12 13 [36] In the case of Asia Commercial Finance (M) Bhd v Kawal Teliti 14 Sdn Bhd [1995] 3 MLJ 189 the Supreme Court explained the principle as 15 follows : 16 17 “(1) When a matter between two parties has been adjudicated by a court 18 of competent jurisdiction, they and their privies are not permitted to 19 litigate once more the res judicata, as the judgment becomes the truth 20 between such parties. An estoppel per rem judicatum has been created 21 as a result. (2) There are two kinds of estoppel per rem judicatum, i.e. 22 cause of action estoppel and issue estoppel. The cause of action 23 estoppel prevents reassertion of a cause of action which has been 24 determined in a final judgment by the same parties. On the other hand, 25 the issue estoppel prevents contradiction of the correctness of a final 26 judgment by the same parties in a subsequent proceeding. Further, the 27 parties are also prevented from asserting a cause of action or issue 28 which should have been brought forward in the earlier action, but was 29 not, whether deliberately or inadvertently.” 30 31 [37] A detailed examination of all the various proceedings held between 1 the parties, namely the Winding-Up Proceedings, Divorce Proceedings, 2 the earlier interim maintenance application in the KL High Court and the 3 instant OS plainly show that the Plaintiff has managed to retrieve all the 4 relevant documents that she needs for the application in Encl 1. Hence it 5 is my considered opinion there is no dire necessity for the Plaintiff to 6 procure further documents in order to continue with the application. 7 8 [38] It is noted that the Plaintiff had gone on a spree of filing and 9 withdrawing various proceedings and this application is no different. To 10 borrow the words of Tetuan Kumar Jaspal Quah & Aishah, “the law 11 insists on the principle of good faith in making an application to cross- 12 examine”. An application “ought to be dismissed if filed mala fide or with 13 an improper purpose to delay, harass, intimidate or oppress the deponent 14 or the opposing party.” 15 16 The Discovery Application 17 [39] The Plaintiff has in the same application applied for discovery 18

Semua penyata bank untuk semua akaun-akaun yang dimiliki 23 oleh:- 24

Defendant;

Eastern Healthcare (M) Sdn Bhd (No. Syarikat: 26 199801017458 [473587-P] (Eastern Healthcare) dari 27 tahun 2005 hingga kini; 28

Quancheng Holdings Sdn Bhd (No. Syarikat: 1 21101000451 [928585] (Quancheng) dari tahun 2019 2 hingga kini;

BBK Spicy Chicken Sdn Bhd (No Syarikat : 133318447- 4 D) (BBK Spicy Chicken) dari tahun 2019 hingga kini;

Mo Ka Yuk (Yuki) dan 5 orang anak kandung (yang 6 dinyatakan dalam perenggan 16.3 Afidavit Balasan 7 Defendan yang diikrar pada 3.7.2023.

(ii) Semua penyata dan transaksi kewangan ke akaun Defendant, 9 Yuki, anak-anak Yuki dan nomini Defendan ke mana-mana 10 negara.

(iii) Semua butir-butir pembelian, resit pembelian, invois resit 12 pembayaran Hartanah-hartanah yang didaftarkan di bawah 13 nama:- 14

Eastern Healthcare dari tahun 2005 hingga kini 15

Quancheng dari tahun 2019 hingga kini 16

BBK Spicy Chicken dari tahun 2019 hingga kini 17

Defendan 18

Yuki dan/atau Defendan dan Yuki.

(iv) Penyata Akaun pinjaman perumahan dari CIMB Bank Berhad, 20 HSBC Bank (M) Bhd dan institusi kewangan lain bagi 21 pembelian hartanah-hartanah yang dinyatakan dalam 22 perenggan (iii) dari tahun 2005 hingga kini.

Perjanjian jual beli, perjanjian penyewaan, geran hakmilik, 24 cukai tanah semasa, cukai pintu semasa, penyata akaun 25 penyelengaraan (maintenance statement account) bagi 26 hartanah-hartanah yang dinyatakan dalam perenggan (iii).

(vi) Butir-butir dan bukti-bukti pembelian kereta mewah di bawah 28 nama Eastern Healthcare, Quancheng, Defendant dan/atau di 29 bawah nama pihak ketiga dan Yuki. 30

(vii) Akaun yang diaudit bagi:

Eastern Healthcare dari tahun 2005 hingga kini;

Quancheng dari tahun 2019 hingga kini;

BBK Spicy Chicken dari tahun 2019 hingga kini.

(viii) Bukti pembayaran cukai pendapatan sehingga tahun 2022 5 untuk:- 6

Defendan 7

Eastern Healthcare 8

Quancheng 9

BBK Spicy Chicken 10

(ix) Cek-cek dan invois-invois dari Eastern Healthcare dan 11 Quancheng bagi pengeluaran/pengambilan gaji Defendan 12 setiap bulan dari Januari 2005 hingga September 2023. 13 14 Evaluation and Decision of the Court 15 [41] The Plaintiff has through the same application applied for discovery 16

there must be a document;

(ii) the document must be “relevant”; and 25

(iii) the document must be or have been in the “possession, 26 custody or power of the party against whom the order for 27 discovery is sought. 28 29 30 [43] The Plaintiff has averred that all the documents requested in 1