Subparagraph
(viii) the learned JC failed to consider that the allegations of sexual abuse was for RW to gain an upper hand in the divorce proceedings. [23] On maintenance, it was highlighted by learned counsel for PH that RW did not tender any evidence to support her claim that the children should receive RM2,000.00 per child per month. In this regard, it was further submitted that the learned JC had put the cart before the horse, i.e. she made a finding of fact that since PH’s earning was approximately RM22,000.00 per month, the children should receive RM2,000.00 per month each for maintenance without any proof as to their monthly expenses. [24] On the matrimonial home, it was argued for PH that the learned JC erred in law in taking into account the evidence of the alleged contributions of the matrimonial home by RW when it was not put to PH in cross examination that RW paid RM40,000.00 as renovation costs; when PH during cross-examination admitted that RW did lend him some money and Civil Appeal No. B-02(A)-988-05/2018 10 that he had re-paid every single part of it with his Public Mutual Funds; when the evidence of PH on the repayment to the RW was not challenged by RW. [25] In urging us to dismiss the appeal, in essence, learned counsel for RW submitted that if custody, care and control of the children be given to PH, it will affect the morality of the children; that PH will delegate the task to the domestic worker; that the incident of RW’s violence was due to the provocation by PH and that the learned JC was correct on the order made in respect of the matrimonial home as RW had contributed towards the substantial improvement of the asset. Our Decision [26] The principle of law on appellate intervention is settled. In Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453, the Federal Court reiterated the principle as follows at pg. 476: “[60] It is now established that the principle on which an appellate court could interfere with findings of fact by the trial court is “the plainly wrong test” principle; see the Federal Court in Gan Yook Chin & Anor (P) v Lee Ing Chin @ Lee Teck Seng & Anor [2004] 4 CLJ 309; [2005] 1 MLJ 1 (at p.10) per Steve Shim CJ SS. More recently, this principle of appellate intervention was affirmed by the Federal Court in UEM Group Berhad v Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785 where it was held at p. 800: It is well settled law that an appellate court will not generally speaking intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of the evidence. (See Chow Yee Wah & Anor v Choo Ah Pat [1978] 1 LNS 32; Civil Appeal No. B-02(A)-988-05/2018 11 Watt v Thomas [1947] AC 484; and Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309). [27] At the outset we wish to state that, applying the above principles, we found no compelling reason to disturb the order of the learned JC on maintenance of the children. It was in evidence that PH earned RM22,000.00 per month. Section 92(1) of the LRA provides: “Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost himself.”. [28] Having regard to PH’s means, we were of the view that the amount awarded per child per month was reasonable in the circumstances of the case. More so when it was not submitted before us that the amount ordered to be paid by PH should be varied. What was submitted and prayed for by PH was for RW to contribute 30% of the maintenance for the children, which prayer we had dismissed. [29] On the division of the matrimonial assets, the grievance of PH was on the order of the learned JC granting 50% of the current market value of the matrimonial home, which was acquired solely by PH prior to the marriage. In this regard, while we agree with the learned JC that there was evidence led on the contributions made by RW for the improvement of the matrimonial home, we were of the view that her Ladyship erred in granting 50% of the current market value to RW. By section 76(2)(a) of the LRA, in exercising the Civil Appeal No. B-02(A)-988-05/2018 12 power of the court to order division of matrimonial assets, the court shall have regard to the extent of the contributions made by each party. In our judgment, taking into account the extent of RW’s contribution, what is reasonable would be for RW to be granted 25% of the current market value of the matrimonial home. [30] The key point of the appeal was on the issue of custody, where the learned JC made the following finding: “[32] In the present case, both PH and RW hurled allegations of unsuitability and have provided reasons why sole guardianship, custody, care and control of the children be given to them which allows me to conclude that both parties deem the other unfit to parent the said children of the marriage. However, those allegations remain merely that, since both parties could not and/or did not adduce any sufficient materials of probative value to support such allegations. That notwithstanding, I had observed the unrebutted facts that RW took care of the family since 2006 when they were married and until 2012 when they decided to have a maid to assist RW when she delivered the said boy in 2012. At present, RW is not working and is a stay home mother whereas PH is working and is taking care of two companies with income of RM22,000.00 a month not including dividends, which to my mind shows that his companies are doing well and I can safely assume that he might need more time to run his companies as compared to RW who is not working full time.”. [31] Apparent from the above is that the learned JC assumed that because PH had two companies to manage, he would have lesser time to take care of the children. The assumption arrived at by the learned JC was erroneous and against the weight of evidence. PH had testified that he is the Managing Director of only one company (Core Bundle Vol. 5: pg 766). RW had made reference to Geekhouse Sdn Bhd in her Answer To Petition but a closer look Civil Appeal No. B-02(A)-988-05/2018 13 at that pleading by RW revealed that Geekhouse Sdn Bhd has been wound up (Core Bundle Vol. 5: pg 783). In the circumstances, the learned JC was plainly wrong in her evaluation of the evidence which formed the premise as to why, among others, she had granted guardianship and custody to RW. [32] On domestic violence where RW had caused the PH to suffer injuries by stabbing PH with a fork, the learned JC stated that: “[33] PH argued that RW’s act of domestic violence against PH in the presence of both the children had also amounted to domestic violence against the children and the children were referred to a psychiatrist. I take note that this report is the work of a private practitioner appointed by PH. At this juncture I take this report with caution and tread carefully as it could be self-serving of the party and it is not by a duly court appointed professional for purpose of impartiality. However, I had objectively observed and noted that the marriage between PH and RW lasted for ten (10) years without any evidence to show there was any issue of violence or domestic violence against PH and/or the said children. As can be seen the allegation of domestic violence only (sic) arise when RW decided to leave the marriage. I refer to the issue of domestic violence, the incident at SJMC where the RW was alleged to have injured PH with a fork. … The fact that PH was busy recording the whole incident lead me to infer safely that it was done on purpose and was not to be taken as an impromptu incident as such. It therefore raises the question or put us on inquiry as to whether it was genuine or a staged incident which created doubt in my mind on the veracity of the recording. …”. [33] We found that the learned JC erred in doubting the veracity of the recording when there is overwhelming evidence including that of RW’s own admission under oath that she had stabbed PH with a fork in front of the children. The learned JC had stated that the said altercation between PH and RW was not without provocation from PH. She opined so because PH Civil Appeal No. B-02(A)-988-05/2018 14 seemed to be impatient and seemed to be chasing RW away from the hospital ward when he kept taunting and repeating the words that RW’s time was up. Her Ladyship had also found that PH had failed to accord RW cordiality, understanding and compassion for a mother to spend time with a sick child at that time. [34] In coming to the above conclusion, the learned JC had overlooked the fact that RW and PH had entered into a consent order dated 6.6.2016, where parties had inter alia agreed that the children shall reside with the parties on an alternate basis for a week from 6.00 p.m. on Sunday until 6.00 p.m. the following Sunday. It goes without saying that the consent order must be observed. [35] After spending the whole week with the children, RW had unilaterally admitted LXJ into SJMC on the last day of her time. RW was supposed to hand over the children at 6.00 p.m. on 11.12.2016, i.e. the date when the incident of domestic violence happened. The transcript of the video recording showed that she was with the children at SJMC past 6.45 p.m., which means that PH had in fact allowed RW to be with the children for at least an extra 45 minutes. To say that PH had not accorded RW cordiality, understanding and that he was impatient was, in the circumstances not quite accurate. [36] Even assuming for a moment that PH had not accorded RW such cordiality and understanding for her to be with LXJ, we found no such provocation which could justify RW to consciously and deliberately injure PH in front of the children and in public. Surely there were other ways in which RW may monitor LXJ’s condition. RW however chose to ignore the terms of the order that she had consented to. It must be noted that the existence of Civil Appeal No. B-02(A)-988-05/2018 15 domestic violence, is a relevant consideration in determining whether custody ought to be granted to a parent, as undeniably, the abuse of a spouse in front of the children is harmful to the emotional well-being of the children. We further took into serious consideration that RW had on 11.7.2018, pleaded guilty to the amended charge under section 352A of the Penal Code in relation to the incident at SJMC. She has since been convicted for the same. [37] The learned JC failed to judicially consider the evidence as a whole before concluding as she did on the issue of domestic violence. In our view, what happened at SJMC was the manifestation of the uncontrollable temper of RW. She was capable of hurting not only PH physically but the children as can be seen from the injuries suffered by LXJ whose ear was blue black after it was pinched by RW. Having seen the picture of the LXJ’s ear, we were unable to accept that RW was merely trying to discipline LXJ. While it may be RW’s right and duty to discipline LXJ, we failed to see how LXJ has to be subjected to such physical abuse at the tender age of three (3) years old. [38] The learned JC stated that she had on 18.8.2017 met and interviewed the children where they had expressed their wish to stay with their mother and that she had taken due cognizance of this fact. In this regard, we endorsed the words of Edgar Joseph Junior J in Re KO (an infant) [1990] 1 MLJ 494 that: “… how influential an infant’s wishes are will clearly depend upon the extent to which they coincide with his best interests in the opinion of the court. In G v G, Dunn LJ said that it was extremely dangerous to place decisive weight upon the Civil Appeal No. B-02(A)-988-05/2018 16 wishes of the children at the age of twelve who were extremely suggestible and reluctant to upset their parents and are very protective towards them.”. [39] On the allegation of sexual abuse by the domestic worker, we found that the following findings of the learned JC were arrived at without sufficient judicial appreciation of the evidence: “[34] Regarding the alleged sexual abuse by PW14 against the said boy, it is to be noted that sexual offences are offences in secret and I find the evidence of RW to have been corroborated by the evidence of RW2 who saw the incident with her own eyes. It was further corroborated when PH admitted in his evidence when he asked his son about the incident where the said child said “Kakak touched my kuku-bird and I liked it”. … To any informed mind, any sexual allegation from a child should not be simply brushed aside because the child generally do not know how to lie on matters that’s not within their knowledge and all the more so when the said child was not even four (4) years old then, who can described what PW14 did to his private part (which he referred to as kuku-bird) and one wonders how a child of that age knows about the sexual act, i.e. “the doggy style sex position” with the toys at the playground. … RW had acted correctly on the incident between the said boy and the maid by lodging a police report asking for an investigation into the matter. In all the circumstances of the case, I find it improbable for RW to concoct these stories as she is a highly educated woman that would have understood the repercussions of perjury and how it would impact her right for custody care and control of the said children in these proceedings.”. [40] The learned JC accepted the evidence of RW on the allegations of sexual abuse by PW14. The acceptance of the evidence of RW is with respect, erroneous as the learned JC failed to consider and evaluate the evidence adduced by several independent professional witnesses. Civil Appeal No. B-02(A)-988-05/2018 17 [41] The Welfare Officer, Puan Rohaya binti Ramli (PW3) was responsible in investigating the allegations that PW14 had sexually abused LXJ. Her evidence did not support the finding of the learned JC on the sexual abuse of LXJ. PW3 had stated inter alia that “kanak-kanak tiada kesan deraan emosi, fizikal atau perlakuan seksual, .. yang disyaki oleh.. pembantu rumah.”. Her finding was recorded contemporaneously in a letter dated 10.3.2016 to the Pegawai Perubatan Hospital Shah Alam as follows: “2. Hasil perbincangan antara Pelindung JKM Shah Alam (Rohaya binti Ramli dan Pegawai Perubatan (Dr. Nazalul) pada 10/03/2016 mendapati hasil pemeriksaan kejadian tidak seperti yang didakwa oleh ibu kandung kanak-kanak.”. (emphasis added) [42] The child psychiatrist from the Tunku Ampuan Rahimah Hospital, Dr Salinah Akhtar binti Mohd Yusof (PW6) who was part of the Suspected Child Abuse and Neglected (SCAN) Team testified on her assessment of LXJ. It was the evidence of PW6 that children with suspected sexual abuse will have some sexualized behavior. This was how she explained herself: “Sexual behavior in child can be presented in various ways. Sometimes … fondling with themselves, sometimes they start touching inappropriately or asking certain sexual questions to parents, which is .. not appropriate for that age ..”. [43] Apart from stating that during her assessment of LXJ she did not see any sexualizing behavior, the evidence of PW6 also revealed that there was no post traumatic symptom on LXJ. Hence, there was no evidence from PW6 to lend credence to the findings of the learned JC that LXJ had been sexually abused by PW14. Civil Appeal No. B-02(A)-988-05/2018 18 [44] There was also the evidence of the paediatrician, Dr Nazatul Haslina binti Ramly (PW10) who had conducted an examination of LXJ. PW10, another member of the SCAN Team likewise did not support the finding of the learned JC that LXJ had been sexually abused. For ease of reference we reproduce below the relevant part of her evidence (CB Vol. 2: pg. 209- 210): “So, after, after examination, normal. We actually get the surgical team also to examine him and the MO, the medical officer examine him, the finding is also normal. Then, we refer the child to a child psychiatrist … for her to assess the whole behavior , … the patient’s behavior.”. [45] On the concerns of RW that LXJ had erection, PW10 stated inter alia that “even foetus, male foetus have erection in the uterus … a man can have an erection when his bladder is full” and that “it is a very normal thing to have erection for a male of 3 years old.”. [46] The investigating officer, Inspector Noraida Hanim binti Ahmad Roslan (PW15), had stated quite categorically that “Puan Aleena (the RW) menegaskan yang report ini dibuat untuk rujuk kepada pihak mahkamah. .. untuk proses perceraian.”. It was also the evidence of PW15 that “… kes ini tidak diteruskan.”. (emphasis added). [47] Given the above testimonies of the independent witnesses of the paediatrician, the child psychiatrist, the welfare officer and the police officer, we found that the learned JC was plainly wrong in concluding that RW (RW1) and her mother, RW2 were witnesses of truth and that there was inappropriate behavior by PW14. Civil Appeal No. B-02(A)-988-05/2018 19 [48] Insofar as the allegation that LXJ claimed that PW14 had inserted a pencil in his anus as found in the notes of Dr Latchana a/p Tangarajo (RW3) was concerned, we noted that this claim came about from the translation/interpretation of a Chinese doctor who did not testify. As such it was our judgment that not much weight could be attached to the notes of RW3. Furthermore this allegation was never put to PW14 herself, which supports the argument of learned counsel for PH that this allegation was an afterthought (see Aik Ming (M) Sdn Bhd & 8 Ors v Chang Ching Chuen & 3 Ors & Another Case [1995] 3 CLJ 639; YK Fung Securities Sdn Bhd v James Capel (Far East) Ltd [1997] 4 CLJ 300; Kedah Cement Sdn Bhd v Masjaya Trading Sdn Bhd [2007] 3 MLJ 597). Likewise the allegation of ‘doggie style sex position’ was only raised by RW’s counsel during the examination in chief of RW2. [49] Further, we found that the learned JC had not fully appreciated the facts in coming to her decision. It was in evidence that LXJ had a medical condition called Hydrocele, i.e. a swelling of the scrotum. PH and RW had begun the traditional treatment of applying betel leaves on LXJ’s scrotum before September 2015 and it was this traditional treatment that was carried out by the maid, PW14 on LXJ before the marriage broke down irretrievably. Thereafter PW14 no longer carried out the traditional treatment. When LXJ referred to “kakak touched my kuku-bird”, on the facts, that was in relation to the incident prior to the break-down of the marriage. The police report lodged by RW in February 2016 on the allegation of sexual abuse by PW14 in relation to the traditional treatment for the medical condition of LXJ, clearly cannot be maintained, in light of the circumstances as revealed in this case. Civil Appeal No. B-02(A)-988-05/2018 20 Conclusion [50] For about two (2) years, each party had the children’s care and control on an alternate weekly basis. The order of the High Court had effectively disrupted the children’s routine. Now that RW has remarried, the children’s lives will be further disrupted and subjected to drastic changes, as they now have a step-father and step siblings. [51] In seeking for the sole custody of the children, we found that RW was putting her own interest above that of the children’s. RW had brought the children to the mosque and she had planned to enrol the children in an Islamic school, although it was agreed in the consent order of the court that the children shall not be influenced into embracing any new religion until they attain the age of majority. Having little regard for the safety of her children, RW had also on 6.6.2018, lost LYR after performing her prayers. LYR, on her own, had walked back to PH’s house from the mosque, arriving at PH’s house around 10.00 p.m., scared and in tears. [52] In light of all the above, we found merits in the appeal. We therefore allowed the appeal and we set aside the orders of the High Court on guardianship, custody care and control of the children save for prayers at paragraphs 53.8, 53.11, 53.13 and 53.14 of the Hujahan Balasan Perayu dated 12.9.2018. PH was granted the sole guardianship, custody, care and control of LYR and LXJ and RW was granted access to the children (the details are as set out at paragraphs 53.2 – 53.7 in the Hujahan Balasan Perayu dated 12.9.2018). We allowed the prayer sought for by PH that the matrimonial home be registered in PH’s sole name and that the said property shall remain with and be retained by PH on condition that PH pays RW 25% Civil Appeal No. B-02(A)-988-05/2018 21 of the current market value of the property as assessed by a licensed valuer, to be appointed by RW, with the costs of the appointment to be borne by PH and RW equally. We made no order as to the costs of the appeal. Liberty to apply. Dated: 21st February 2019 signed (TENGKU MAIMUN BINTI TUAN MAT) Judge Court of Appeal Counsel/Solicitors: For the Appellant: Honey Tan Lay Ean (Wong Chong Ee with him) Messrs. Tan Law Practice For the Respondent: Rohani binti Ibrahim (Khairul Amin bin Abdullah with him) Messrs. Amin, Nizam & Rohani