Lim Hor Fah v Ng Bon Seng (WA-33-709-12/2017)

This was a divorce petition filed by the Petitioner wife and cross-petition filed by the Respondent husband. The parties had agreed that the only issue that this Court had to address was the division of matrimonial assets.

The Petitioner and Respondent (collectively, “the Parties”), aged 55 and 60 respectively at the time of the hearing, went through a Chinese customary marriage in March 1987, and proceeded to register their marriage in December 1989. There are five children of the marriage, namely, Ng Beng Ming, Ng Meng Kee, Ng Soon Yee, Ng Meng Ying, and Ng Soon Lee, born respectively in 1987, 1989, 1992, 1993, and 1998.

From 1999 to 2014, the Parties had embarked on several ventures, from cultivating vegetables and fruits, to operating several businesses such as a koi fish farming business, a canteen business, a retail store business, and finally a supermarket called Pasaraya La Vin.

Disputes escalated between the Parties, and by the end of 2014, the Petitioner, together with their fourth child, Ng Meng Ying, had set up a new business venture known as La Vin Mart. In March 2015, the Respondent terminated the registration of Pasaraya La Vin with Suruhanjaya Syarikat Malaysia (“SSM”). In the same month, the S/N zsWFa61wT0e7zftpLVATlw **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 3 documents of the SSM indicated that Ng Meng Ying was now registered as the sole proprietor of La Vin Mart.

In December 2017, the Petitioner filed a divorce petition (“the Divorce Petition”), followed by a cross-petition (“the Cross-Petition”) filed by the Respondent in March 2018. Although there were several claims initially made by the Parties, by the time of the hearing of the Divorce Petition and Cross-Petition, Parties had agreed that the only issue to be addressed was the division of matrimonial assets.

The matrimonial assets were divided accordingly for the following reasons. Contentions, evaluation, and findings Division of matrimonial assets [7] The claims that the Parties had against each other, were in relation to the following properties: a) Property at Jalan Ayer Hitam, Dengkil (“the Ayer Hitam Property”); b) Property at Jalan Kenaga, Dengkil (“the Jalan Kenanga Property”); c) Property at Jalan Timah, Dengkil (“the Jalan Timah Property”); d) Property at GM-17B, Jalan Putra Perdana, Puchong (“the GM-17B Property”); e) Property at G-6, Jalan Putra Perdana, Puchong (“the G-6 Property”); and f) La Vin Mart. S/N zsWFa61wT0e7zftpLVATlw **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 [8] The task of dividing matrimonial assets is prescribed by section 76 of the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform (Marriage and Divorce) Act”), which reads: Section 76 – Power of court to order division of matrimonial assets

The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage or the sale of any such assets and the division between the parties of the proceeds of sale.

In exercising the power conferred by subsection (1) the court shall have regard to-

the extent of the contributions made by each party in money, property or work towards the acquiring of the assets or payment of expenses for the benefit of the family; (aa) the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family;

any debts owing by either party which were contracted for their joint benefit;

the needs of the minor children, if any, of the marriage;

the duration of the marriage, and subject to those considerations, the court shall incline towards equality of division. …

For the purposes of this section, references to assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. [Emphasis added] S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 [9] Section 76 of the Law Reform (Marriage and Divorce) Act requires the Court, in ordering the division of matrimonial assets, to consider several factors. Regardless of who acquired the property, the contributions of each party have to be considered, whether monetary or otherwise. The Court also has to consider the debts owed by either party which were contracted for their joint benefit. Division of La Vin Mart [10] In my view, division of La Vin Mart was the most important issue to be addressed in this hearing, as the Respondent’s claim to most of the other matrimonial assets pivoted on his claim to La Vin Mart. [11] The Respondent insisted that he was entitled to the whole of La Vin Mart, or alternatively 50% of its share, whereas the Petitioner claimed that the Court should dismiss entirely the Respondent’s claim to La Vin Mart, on the basis that the Respondent had no involvement whatsoever in La Vin Mart , which was undeniably established after the marriage had already broken down. [12] The Respondent contended that the genesis of La Vin Mart was in fact Pasaraya La Vin, which was established in 2005 with the Respondent as the sole proprietor. He further submitted that the Petitioner had surreptitiously taken over Pasaraya La Vin, and in its place, created La Vin Mart in November 2014. As a result of which, the Respondent submitted that he had no choice but to terminate the S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 registration of Pasaraya La Vin. The Respondent further claimed that although the Petitioner had subsequently changed the ownership of La Vin Mart from the Petitioner to Ng Meng Ying, the Petitioner still maintained significant control of La Vin Mart’s accounts as its signatory. [13] I was unable to accept the Respondent’s submission on the division of La Vin Mart for the main reason that the Respondent had failed to provide a satisfactory explanation regarding the circumstances that led to the termination of Pasaraya La Vin. [14] This lack of clarification regarding the motivation and timing of these events raised significant doubts and left room for further inquiry. Understanding the underlying reasons behind the termination of Pasaraya La Vin was crucial in assessing the legitimacy of the division and making a fair judgment in this matter. It was, therefore, imperative that the Respondent provided a comprehensive and satisfactory explanation for these circumstances to ensure transparency and enable a thorough evaluation of the case. [15] The Respondent submitted that he had terminated the business of Pasaraya La Vin to enable him to assist the Parties’ first and third children, Ng Beng Ming and Ng Soon Yee, in other business ventures known as Yee One Mart and BM Mart, and that this was corroborated by Ng Beng Ming and Ng Soon Yee themselves, who testified on behalf of the Respondent, respectively as SR2 and SR3. S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 [16] I had perused the notes of proceedings and even checked it against my own notes, and whilst it was true that both SR2 and SR3 testified that the Respondent had proceeded to help them in their business ventures, there was nothing in their evidence to indicate that the reason for the termination of the business of Pasaraya La Vin by the Respondent was to assist them in their respective business ventures. [17] The Respondent further contended that the child who was the registered proprietor of La Vin Mart, Ng Meng Yi, who testified as SP2, was not a credible witness as she had a vested interest in not wanting to part with La Vin Mart, and was testifying in Court on behalf of the Petitioner, solely to bolster the Petitioner’s case. In support thereof, Counsel for the Respondent referred to the answer given by SP2 in cross-examination: SS: Setuju dengan saya, Ms Ng datang bagi keterangan di Mahkamah bagi membantu kes ibu kamu, iaitu Ms Lim Hor Fah? SP2: Ya. [18] In my view, Counsel for the Respondent had misconstrued the statement made by SP2 by taking it out of context. It was apparent that SP2 testified in favour of the Petitioner. However, this fact alone did not diminish the credibility of her evidence. In my view, there was no hidden or suspicious motive behind SP2’s testimony. She responded honestly to the questions and did not overly push to convince this Court S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 regarding the details and events that led to the establishment of La Vin Mart. [19] In fact, the Respondent had used the same contention against the Petitioner’s mother, Lee Saw Yee (“SP1”) who had testified on behalf the Petitioner to corroborate the averment that the Petitioner had borrowed money from SP1 to begin operations of the business of La Vin Mart. [20] In my view, the argument presented by the Respondent in his endeavour to undermine the credibility of both SP1 and SP2 is implausible. It was imperative, at this juncture, to explicitly state that the mere fact that a witness shares a familial relationship with the litigant and testifies on his or her behalf does not inherently compromise his or her credibility. There exists no legal presumption that a witness who is related to the litigant ought to be doubted. In fact, such a witness is entitled to be regarded as credible, unless compelling reasons for scepticism can be substantiated based on contradicting evidence and the overall circumstances at hand. [21] In relation to this matter, the case of Liow Siow Long v Public Prosecutor [1969] 1 LNS 98, was referred to, where Raja Azlan Shah J (as he then was), made a significant statement in the following passage: S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 It is difficult to accept that suggestion that if a witness is shown to be a relation of the deceased his evidence is tainted. Testimony of close relations is not tainted if it is otherwise reliable in the sense that the witnesses are competent witnesses who were at the scene of the occurrence and could have seen what had happened. But if it is proved that they are not entirely disinterested witnesses, e.g. they are either partisans of the complainant or are in any way inimical to the accused, then their testimony is tainted and requires corroboration if to be acted upon. In my view the circumstance relied upon by Counsel is not sufficient to cast any doubt on the evidence of PW1, who is not proved to be inimical to the appellant. [Emphasis added] [22] The endorsement of this principle by the Court of Appeal was observed in the case of Thenegaran Murugan v Public Prosecutor [2013] 5 CLJ 850. [23] The Respondent continued in his argument to say that the Petitioner was not a credible witness as she was evasive, contradicted herself, and had a motive to deprive and deny the Respondent of his rights. [24] At this particular juncture, it bore significant importance to acknowledge that, for the purpose of this hearing, primary reliance was placed upon the oral testimony presented by the Parties, given the scarcity of documentary evidence adduced. Consequently, I found myself obliged to carefully observe and consider the demeanour and conduct exhibited by witnesses. [25] It is trite law that while adhering to the standard of proof mandated by law, a trier of fact must also engage in a judicial appreciation of the S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 evidence adduced to render a decision in accordance with the law. A decision made without such judicial appreciation of the evidence is susceptible to be corrected on appeal. The significance of this principle cannot be overstated, as it underscores the importance of thoroughly evaluating and understanding the evidence in order to make an informed and just decision. The trier of fact has the responsibility to assess the credibility, relevance and weight of the evidence adduced by both Parties before arriving at a conclusion. Failure to conduct a proper judicial appreciation of the evidence undermines the integrity of the decision-making process and may lead to erroneous judgments. Appellate courts play a crucial role in reviewing such cases and rectifying any errors resulting from a lack of proper judicial appreciation. By emphasising the necessity of judicially appreciating the evidence, this principle serves as a safeguard to ensure fairness and justice in legal proceedings, allowing for a more reliable and accurate resolution of the issues at hand. [26] 'Judicial appreciation is concerned with the process of evaluating evidence for the purpose of discovering where the truth lies in a particular case. It includes, but is not limited to, identifying the nature and quality of the evidence, assigning such weight to it as the trier of fact deems appropriate, testing the credibility of oral evidence against contemporaneous documents as well as the probabilities of the case, and assessing the demeanour of witnesses': per Gopal Sri Ram JCA (as he then was) in Boonsom Boonyanit v. Adorna Properties Sdn Bhd [1997] 2 MLJ 62; [1997] 3 CLJ 17. S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 [27] Credibility concerns the opportunities for power of observation of the witness, his accuracy for recollection, and capacity to explain what he remembers: Kwang Boon Keong Peter v. PP [1998] 2 SLR 211. It embraces not only the concept of his truthfulness, that is, whether the evidence of the witness is to be believed, but also the objective reliability of the witness, that is, his ability to observe or remember facts and events about which the witness is giving evidence. [28] The Respondent, in commenting on the demeanour of the Petitioner, brought this Court’s attention to the case of Ch'ng Kheng Phong v Chung Keng Huat & Ors [2011] 8 MLJ 32, where it was stated by Chew Soo Ho JC, in the following passage: I have also observed the demeanour of DW2 when he gave evidence. More than often, he took time to answer questions posed, evasive and at time gave no answer. Questions had also sometimes to be explained several times before he could answer them. He does not appear to be a truthful witness. From the whole evidence of DW2 coupled with numerous material inconsistencies and his demeanour, I find that DW2 is not a credible and reliable witness but a witness who has an axe to grind as he was prepared to lie and gave conflicting evidence. It is most unsafe to rely on evidence that is full of inconsistencies and uncertainties. The defence had failed to advance any reasonable explanation nor lead any evidence to clear all lingering doubts and all the inconsistencies which remained at the end of the trial. Therefore, this court finds that no weight ought to be accorded to DW2's evidence and his evidence that he had witnessed the deceased affixing his signature on the second will which this court finds grave doubt is consequently rejected on a balance of probabilities upon positive finding of facts above. [Emphasis added] S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 [29] I found myself in disagreement with the Respondent regarding the comportment and demeanour of the Petitioner for the following reasons. Primarily, it was crucial to highlight that the Petitioner testified with the assistance of an interpreter. This circumstance inherently presented significant challenges, as the interpreter, had to repeatedly rephrase certain terminologies. This was necessitated by the Petitioner’s limited education, which posed challenges in comprehending the words and phrases employed, even after it had been translated by the interpreter into the Petitioner’s own mother tongue. [30] It was my view, therefore, that the Respondent’s Counsel had taken some of the Petitioner’s statements out of context. As I had alluded to earlier, much of what was communicated to her was lost in translation. Allowances, therefore, had to be made for her pauses and requests for repetition of the questions posed. [31] Another notable observation I made was in relation to the Respondent’s Counsel, during cross-examination. He had repeatedly posed questions to the Petitioner concerning facts that were uncontested. Furthermore, on multiple occasions, the same question was posed in varying forms, eliciting different responses from the Petitioner. This prompted objections from the Petitioner’s Counsel, who argued that such questioning by the Respondent’s Counsel S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 was not only redundant, but had also consumed valuable judicial time. [32] I, therefore, found myself in agreement with the Petitioner’s Counsel, as the actions of the Respondent’s Counsel resulted in a significant waste of time, by repetitively posing the same questions to the Petitioner, despite her having already provided answers to those inquiries. [33] At this juncture, I am compelled to express that while the art and technique of cross-examination may allow for certain flexibility, it is imperative for any legal practitioner involved in litigation to adhere to fundamental principles of cross-examination. Bearing in mind that witnesses’ statements are filed before the trial itself, engaging in the practice of presenting agreed-upon facts to the witness or repeatedly seeking confirmation of undisputed facts during cross - examination amounts to nothing but a sheer squandering of the court’s valuable time. Once a question has been posed and adequately addressed, it is incumbent upon Counsel to proceed to the subsequent line of inquiry, rather than persistently rephrasing the same question in the hopes of eliciting a different response. [34] In fact, my observation was that it was the Respondent who was ambiguous, vague, and as a whole, unconvincing. His whole case pivoted on his averment surrounding the establishment of La Vin Mart. S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 [35] The evidence adduced had indicated that the Respondent had voluntarily terminated the operations of Pasaraya La Vin on his own accord. However, the actual reason for this termination remained ambiguous, although the Respondent had provided answers consistent with what the Petitioner had previously stated regarding the business’ closure of Pasaraya La Vin. Even the Respondent’s Counsel, when questioned during submission, offered vague and ambiguous explanations, attributing it to a supposed misunderstanding without providing any supporting evidence. [36] When pressed for further clarification, the Respondent resorted to a recurring response, claiming an inability to remember specific details due to the passage of time. In my assessment, it appeared that the Respondent’s memory was selective, as he chose which questions to address. In this regard, I drew guidance from the precedent set by Kwang Boon Keong Peter v. PP [1998] 2 SLR 211, which emphasised the Court’s obligation to consider the litigant’s capacity (or the lack thereof) to recall pertinent information. [37] In my estimation, the ‘misunderstanding’ alluded to by the Respondent’s Counsel during oral submissions was, in fact, the catalyst that led to the unravelling of the marital relationship. It transcended a mere misunderstanding and served as the final straw that precipitated the breakdown of S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 15 the marriage and the Respondent’s decision to terminate the operations of Pasaraya La Vin. [38] The Respondent proceeded to argue that the Petitioner had lied about the source of the stock of La Vin Mart. The Petitioner insisted that she had purchased the stock worth MYR100,000 from one Yap Lai Teck, whilst the Respondent argued that the stock in question was sourced from Pasaraya La Vin. The Respondent had urged the Court to draw an adverse inference against the Petitioner for failing to call Yap Lai Teck and the youngest child of the Parties, Ng Soon Lee, to support her averments. [39] This brought to the forefront, illustration (g) of section 114 of the Evidence Act 1950 (“the Evidence Act”), which reads: Section 114 – Court may presume existence of certain fact The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume: …

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it; [Emphasis added] S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 16 [40] An important aspect of illustration (g) of section 114 of the Evidence Act is that an adverse inference is drawn only if there was deliberate withholding of such evidence. Deliberate withholding of the evidence is inferred from the lack of a reasonable explanation for the failure to produce the witness: Adel Muhd El-Dabbah v AG of Palestine [1944] AC 156, Murugan v Lew Chu Cheong [1980] 2 MLJ 139, and Marappan a/l Muthusamy v R Sivam a/l Ramasamy [2014] 4 MLJ 428. [41] In the present case, Counsel for the Petitioner clarified that Yap Leck Tai and Ng Soon Lee were both duly served with subpoenas by the Court, but that they had obstinately declined to attend the proceedings. It is worth noting that subpoenas were indeed issued, but due to the pressing need for efficiency, the hearing of the Divorce Petition had to proceed without the presence of such witnesses. It was also important to acknowledge that the Divorce Petition was filed back in 2017, making it an undeniably protracted case. Considering these circumstances, the Petitioner had provided a valid and acceptable explanation for the non-appearance of Yap Leck Tai and Ng Soon Lee as witnesses. [42] Moreover, it was worth noting that there was nothing to prevent the Respondent from issuing subpoenas to both Yap Leck Tai and Ng Soon Lee. In fact, it was the Respondent who had the burden of proof to convince this Court that he had indeed made contributions towards La Vin Mart, and not for the Petitioner to disprove the Respondent’s alleged contributions. After all, it was the Respondent who had made the claim for La Vin Mart. Consequently, the burden lay squarely on the Respondent to adduce the requisite and pertinent evidence to S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 17 substantiate his claim, pursuant to section 103 of the Evidence Act, which reads: Section 103 – Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. [Emphasis added] [43] As such, there was absolutely no basis for this Court to draw an adverse inference against the Petitioner for the failure to call Yap Leck Tai and Ng Soon Lee. [44] Upon careful examination, I arrived at the conclusion that the Respondent had willfully ceased operations of Pasaraya La Vin, leading the Petitioner to make the decision to start a business under the name of La Vin Mart alongside with SP2. It is worth noting that the Petitioner had openly acknowledged that she had not informed the Respondent prior to establishing La Vin Mart. In my assessment, if the Respondent had voluntarily and willingly terminated the registration of the business of Pasaraya La Vin, it was then unnecessary for the Petitioner to seek his consent in establishing La Vin Mart, especially considering the deteriorated state of their marriage at that point in time. The Petitioner had provided a rationale for her course of action, explaining that she had ventured into La Vin Mart with the aim of securing a future for SP2, a narrative that I found to be both reasonable and plausible. S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 18 [45] The contention made by the Respondent, suggesting his lack of control and awareness regarding the setting up of La Vin Mart was untenable. From my discerning perspective, the Respondent, driven by his personal motives, deliberately chose to cease the operations of Pasaraya La Vin. Thus, it was both disingenuous and injudicious for him to now contend that he remained oblivious and devoid of any involvement in the incidents preceding the setting up of La Vin Mart. [46] Moreover, it was crucial to note that the Respondent had maintained a complete absence of involvement in the operations and management of La Vin Mart. The responsibility of overseeing and running the establishment rested solely with the Petitioner and SP2. Curiously, the Respondent sought to assert a claim over La Vin Mart only upon filing of the Cross-Petition. During cross-examination, he professed a fear of the Petitioner, using it as justification for his failure to address the matter of La Vin Mart with her. [47] In my view, this assertion lacks credibility. If the Respondent genuinely harboured such fear of the Petitioner, it begs the question of what factors had since transpired to prompt him to assert these claims at present. Furthermore, no evidence was adduced to this Court to substantiate the Respondent’s contentions. Therefore, his demand for the entirety or even 50% ownership of La Vin Mart was unfounded and untenable in light of the circumstances. S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 19 [48] However, it was undeniable that La Vin Mart had not started from scratch, but relied heavily on the goodwill of Pasaraya La Vin. This goodwill reflects the positive perception and confidence that customers, suppliers, employees, and other stakeholders have in the business, which can lead to increased sales, lower costs, and other competitive advantages. Goodwill is frequently taken into account when assessing a company’s overall value. [49] The goodwill of Pasaraya La Vin derived from its reputation, customer loyalty, brand recognition, and other intangible assets that fueled its sustained success and profitability, when it existed. [50] As such, my view was that La Vin Mart should be valued, and the Petitioner is to pay the Respondent 25% of its value, either by disposing of La Vin Mart altogether and paying through the proceeds of its sale, or by purchasing the Respondent’s 25% share of La Vin Mart. In my view, this was a reasonable outcome for the Respondent in light of the fact that he was never involved in the operations of La Vin Mart, and had never contributed, monetarily or otherwise. Division of Ayer Hitam Property [51] In view of the fact that the Ayer Hitam Property was purchased at the beginning of the Parties’ marriage, and had been fully paid off by their joint efforts from the business ventures that they both had embarked on throughout the S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 20 years, my view was that the Ayer Hitam Property should be divided on an equal basis, after it is valued. [52] The Petitioner was, therefore, ordered to pay the Respondent 50% of the value of the Ayer Hitam Property, either by disposing of the Ayer Hitam Property altogether and paying through the proceeds of its sale, or by purchasing the Respondent’s 50% share of the Ayer Hitam Property. [53] Whilst waiting for the Respondent to be paid his 50% share of the Ayer Hitam Property, the rental collected from the same should be divided equally and the Petitioner, with immediate effect, is to deposit 50% of such rental into the Respondent's bank account by the tenth day of every month. All costs, if at all incurred, with regard to the division of the Ayer Hitam Property are to also be shared equally. Division of Jalan Kenanga Property [54] The Petitioner had made claims to the Jalan Kenanga Property on the basis that such property was sold to settle the Respondent’s alleged gambling debts. [55] I found the Petitioner’s contention untenable for the main reason that the Jalan Kenanga Property did not exist any longer as it was sold when the marriage was intact. As such, it was not a matrimonial asset that should even be considered in the context of section 76 of the Law Reform (Marriage and Divorce) Act. In this regard, I found valuable guidance from the precedent set by the Court of Appeal in the case of Sivanes Rajaratnam v Usha Rani Subramaniam [2002] 1 MLRA 178, S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 21 where Abdul Hamid Mohamad JCA (as he then was) eloquently expressed the following viewpoint: From the authorities referred to us by both learned counsel and from my research, as far as I can ascertain, I am unable to find any decided case in Malaysia and Singapore to support an accounting of all the assets acquired or improved during the marriage and the income thereof and the determination of who had benefitted more or less and awarding a shortfall to the party who is found to have benefitted less. All the cases simply talk about the "division" of the matrimonial assets, which necessarily means the existing assets at the time of the divorce. Of course, the question of the size and nature of each spouse's contribution and who has enjoyed the property to the exclusion of the other (for example, as in this case, where only one party lived at the Crescent Court Apartment) and the reasons why, are relevant in determining the portion that each spouse should get, but not, in my view, for the purpose of calculating either spouse's share of past income. [Emphasis added] [56] In an endeavour to persuade this Court regarding the debts purportedly owed by the Respondent, the Petitioner adduced a paucity of documentary evidence comprising handwritten figures and names. In my view, the burden of proof was on the Petitioner to establish the Respondent’s debts on a balance of probabilities. This was pursuant to section 103 of the Evidence Act which unequivocally places the burden of proof upon the party seeking to convince the Court regarding the existence of a specific fact. In my view, the evidence adduced by the Petitioner to substantiate the Respondent’s debts was characterised by vagueness, ambiguity and inadequacy, which ultimately failed to meet the threshold of proof. S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 22 [57] Furthermore, it was incumbent upon me to firmly state that even if the proceeds derived from the sale of the Jalan Kenanga Property were directed towards settling a form of indebtedness, it was paramount to bear in mind the fundamental principle that within the sacred union of matrimony, financial responsibilities are typically shared, especially when both spouses are gainfully employed. They dutifully contribute to the well-being and prosperity of the household and the familial unit, through various means. In situations where both Parties are employed an actively generating incomes, particularly when they collaborate in the operation of a business or joint venture, it becomes inevitable that each individual will allocate their respective earnings towards the collective betterment of their significant other and the entire family. [58] In the present case, the Parties had been extensively involved in collaborative endeavours since the very inception of their marital union. Consequently, even if the proceeds from the sale of the Jalan Kenanga Property were utilised to alleviate the Respondent’s financial obligations, such a course of action would be intrinsically intertwined with the fabric of their matrimonial commitment. It was crucial to acknowledge that when exchanges occur within the intimate confines of familial relationships, the meticulous bookkeeping practices that are commonplace in other contexts often present themselves as a challenging issue to contend with. In this regard, I gleaned invaluable insights from the illuminating analysis presented by Abdul Hamid Mohamad JCA (as he then was) in the Court of Appeal case of Sivanes Rajaratnam v Usha Rani Subramaniam, where his Lordship had explained, in the following passages, the complexities entailed in S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 23 meticulously documenting all household and familial expenditures within the intricate tapestry of a marriage. From the authorities referred to us by both learned counsel and from my research, as far as I can ascertain, I am unable to find any decided case in Malaysia and Singapore to support an accounting of all the assets acquired or improved during the marriage and the income thereof and the determination of who had benefitted more or less and awarding a shortfall to the party who is found to have benefitted less. All the cases simply talk about the "division" of the matrimonial assets, which necessarily means the existing assets at the time of the divorce. Of course, the question of the size and nature of each spouse's contribution and who has enjoyed the property to the exclusion of the other (for example, as in this case, where only one party lived at the Crescent Court Apartment) and the reasons why, are relevant in determining the portion that each spouse should get, but not, in my view, for the purpose of calculating either spouse's share of past income. This view, in my opinion, is consistent with the wording and spirit of s. 76. That section talks of "division" of assets acquired during the marriage and provides the factors that should be taken into account when making the division. Besides (I am speaking generally here) in a marriage, both spouses share everything, both contribute towards the home and family in one way or another, to a bigger or smaller extent. Where both spouses work and earn income, each of them inevitably spends his or her own income for the family. Similarly, where there is income from an asset purchased during the subsistence of the marriage, say rent, even though it may be paid into the account of one spouse, eventually it will go to the family, may be all and may be part of it. No one keeps an account, indeed no one should, as a marriage is not a business venture. So, if and when the marriage breaks up, it is unreasonable that the court should undertake an accounting of their income and expenditure during the period the marriage subsists. The function of the court is to make a fair and equitable division of the matrimonial assets that exist at the time of the divorce, taking into account the factors provided by s. 76. [Emphasis added] S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 24 [59] Henceforth, it is only reasonable to abstain from placing undue expectations upon spouses to meticulously record and account for every expense incurred in the pursuit of supporting and assisting one another within the sacred bonds of matrimony. It would be impractical and burdensome to require a meticulous account of how matrimonial funds are allocated to aid each other during times of financial turmoil or when grappling with various monetary predicaments. [60] This Petitioner’s claim for the proceeds of sale of the Jalan Kenanga Property, therefore, could not be allowed. Division of Jalan Timah Property [61] The Jalan Timah Property, which was registered in both Parties’ names, was purchased in 2000. It was fully paid off and the Petitioner claimed that she was responsible for settling all outstanding loans on the Jalan Timah Property. [62] In spite of the Respondent’s acknowledgement that the Petitioner had assumed responsibility for settling all outstanding loans associated with the Jalan Timah Property, and had overseen the financial matters pertaining thereto, he persisted in his assertion that the Jalan Timah should be sold and proceeds divided equally. [63] Conversely, the Petitioner contended that the Respondent had agreed to transfer his half share in the Jalan Timah Property to her as compensation for selling the Jalan Kenanga Property to settle the Respondent’s alleged debts. Notably, the Jalan Timah Property was presently being rented out, generating a monthly income of MYR550, S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 25 which the Petitioner claimed was being deposited into Ng Soon Lee’s bank account. [64] In my view, the Petitioner’s contention stands bereft of merit, particularly concerning the intricacies surrounding the sale of the Jalan Kenanga Property. Henceforth, the Petitioner’s assertion of exclusive entitlement to the entirety of the Jalan Timah Property was untenable. [65] Nevertheless, the Respondent’s contention advocating for an equal division of the Jalan Timah Property was likewise unsustainable, considering the unchallenged fact that the Petitioner single-handedly resolved all outstanding loans pertaining to the Jalan Timah Property. The Respondent’s argument echoed the notion that the funds utilised for loan settlements originated from the profits garnered through Pasaraya La Vin and La Vin Mart. In light of these circumstances, I adopted the stance that the Respondent’s entitlement should be limited to 25% of the value of the Jalan Timah Property. [66] Hence, my decision regarding the Jalan Timah Property is that it should be valued and the Petitioner should pay the Respondent 25% of the value of the Jalan Timah Property, either by disposing it altogether and paying the Respondent from the proceeds of its sale, or by purchasing the Respondent’s 25% share of the Jalan Timah Property. All costs incurred with regard to the division of the Jalan Timah Property should be shared on a 25:75 ratio, with the Respondent assuming 25% of such costs. S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 26 [67] Whilst waiting for the Respondent to be paid his 25% share of the Jalan Timah, any rental collected from it, if at all, should also be divided accordingly with immediate effect, with the Petitioner depositing 25% of such rental into the Respondent's account by the tenth day of every month Division of GM-17B Property [68] The acquisition of the GM-17B Property took place in 2012, solely under the name of the Petitioner, with an ongoing assignment to Public Bank, for which the Petitioner has diligently fulfilled monthly instalments of MYR1,470. Presently, SP2 and her family reside in the GM-17B Property. [69] The Petitioner maintained that the purchase of the GM-17B Property was solely her endeavour, asserting that the Respondent had no contribution towards it, whether monetary or otherwise. [70] However, I had to disagree with the Petitioner, as there was no evidence adduced to indicate that she had utilised her own funds for the acquisition of the GM-17B Property. In actuality, during the year of purchase, both Parties were actively engaged in the operations of Pasaraya La Vin. Consequently, the Petitioner’s contention that the Respondent held no entitlement to any portion of the GM-17B Property lacked merit. [71] Although it was acknowledged that the Petitioner had managed the financial responsibilities associated with the GM-17B Property, including monthly loan repayments, the Respondent maintained that S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 27 the GM-17B Property should be sold, and the proceeds divided equally. This proposition was based on the premise that the funds used for the acquisition of the GM-17B Property, as well as the subsequent loan repayments, originated from the profits generated by the business ventures of Pasaraya La Vin and La Vin Mart. [72] As previously addressed, the matter of La Vin Mart has been duly considered. Although the Respondent had no involvement in La Vin Mart, he was entitled to a 25% share of its value due to the goodwill inherited from Pasaraya La Vin, which had been assumed by La Vin Mart. Hence, the sale and division of the GM-17B Property should also follow a 25:75 ratio, with the Respondent being allocated 25% of the proceeds. [73] Consequently, the GM-17B Property should be valued and the Petitioner should pay the Respondent 25% of the equity in the GM-17B Property, either through the complete sale of the GM-17B Property, and disbursement of the proceeds (after the necessary deductions), or by purchasing the Respondent’s 25% share of the equity in the GM- 17B Property. Additionally, all costs associated with the GM-17B Property division should be shared on a 25:75 ratio, with the Respondent assuming 25% of the said costs. [74] To provide clarity within the context of this judgment, equity denotes the difference between the market value of the GM-17B Property and the remaining balance on any secured charges against it. S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 28 Division of G-6 Property [75] With regard to the G-6 Property, I had decided that the Respondent should have no claim to it whatsoever for the following reasons. [76] The marriage had broken down in 2014, whereas the acquisition of the G-6 Property took place in 2016, registered under the names of both the Petitioner and the Parties’ third child, Ng Soon Yee. The G-6 Property was assigned to Public Bank and was utilised by Ng Soon Yee for the business operations of Yee One Mart. [77] The Respondent contended that the G-6 Property should be sold and the proceeds divided equally, asserting that the funds utilised for the purchase of the G-6 Property and subsequent monthly loan repayments derived from the profits generated by Pasaraya La Vin and La Vin Mart. Based on his claimed 50% share of La Vin Mart, the Respondent contended that an equal 50% share should also be granted to him in relation to the G-6 Property. [78] However, I found the Respondent’s argument to be untenable, primarily due to my view that the G-6 Property was not even matrimonial asset to begin with. I derive guidance from the pertinent case of Ching Seng Woah v Lim Shook Lin [1997] 1 MLJ 109, wherein Gopal Sri Ram JCA (as he then was), provided a definition of matrimonial asset, as described in the following passage: The Act does not define what matrimonial assets are. We think that during the subsistence of a marriage the expression refers to the matrimonial home and everything which is put into it by either spouse with the intention that their home and chattels should be a continuing resource for the spouses and their children to be used jointly and severally for the benefit of the family S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 29 as a whole. It matters not in this context whether the asset is acquired solely by the one party or the other or by their joint efforts. Whilst the marriage subsists these assets are matrimonial assets. Such assets could be capital assets. The earning power of each spouse is also an asset. [Emphasis added] [79] It was evident that the G-6 Property was never intended as a matrimonial asset, but rather for the exclusive benefit of Ng Soon Yee in operating Yee One Mart. [80] Additionally, considering that Ng Soon Yee is one of the registered proprietors of the G-6 Property, it would be unjust to divide such property that does not belong solely to the Petitioner. The Respondent contended that Ng Soon Yee was merely holding the G-6 Property in trust, as revealed during cross-examination that the Petitioner had purchased the G-6 Property in the names of both the Petitioner rand Ng Soon Yee to secure the loan. Hence, the Respondent argued that Ng Soon Yee was holding his half share in the G-6 Property as trustee for the Petitioner. Thus, the Respondents submitted that this Court should recognise the Petitioner as the actual and sole owner of the G- 6 Property, and hence to divide it accordingly. [81] In my view, the available evidence was inadequate to support the assertion that Ng Soon Yee held the G-6 Property in a trustee capacity. The crux of the matter lay in the utilisation of the G-6 Property in housing the operations of Yee One Mart, a business managed by Ng Soon Yee. Thus, the contention that Ng Soon Yee functioned solely as S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 30 a trustee for the Petitioner regarding his half share was untenable and lacked basis. Conclusion [82] Upon meticulous examination, it was evident that the Respondent’s claim suffered from a dearth of essential and pertinent evidence. In the absence of the necessary documentary substantiation, this Court was compelled to rely on oral testimonies. However, upon careful scrutiny, it was apparent that the Respondent’s oral testimony, when contrasted with that of the Petitioner, proved unconvincing, replete with contradictions, ambiguity, and vagueness. The entirety of his case hinged upon the assertion that the Petitioner was mendacious and lacked credibility as a witness, yet he had failed to furnish the necessary evidence to substantiate his claims pertaining to the matrimonial assets. [83] Contrarily, the Petitioner, had adduced sufficient evidence to support her claim, albeit I had disagreed with her on the division of some of the assets. [84] In conclusion, drawing upon the aforementioned rationales and having undertaken a thorough examination and discerning evaluation of the comprehensive evidence before this Court, in conjunction with the submissions put forth by both Parties, the Petition and Cross-Petition were granted only to the extent of the decree nisi which was made absolute immediately, and division of property, as indicated above. S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 31 Dated: 28 May 2023 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner – Alex Tan Ken Seng and Ling Yi Von; Messrs Suraiya, Arif, Miranda & Tan For the Respondent – Gurdip Singh and Samreet Singh; Messrs Gurdip, Sarjit & Co. Cases referred to: ➢ Adel Muhd El-Dabbah v AG of Palestine [1944] AC 156 ➢ Boonsom Boonyanit v. Adorna Properties Sdn Bhd [1997] 2 MLJ 62; [1997] 3 CLJ 17 ➢ Ching Seng Woah v Lim Shook Lin [1997] 1 MLJ 109 ➢ Ch'ng Kheng Phong v Chung Keng Huat & Ors [2011] 8 MLJ 32 ➢ Kwang Boon Keong Peter v. PP [1998] 2 SLR 211 ➢ Liow Siow Long v Public Prosecutor [1969] 1 LNS 98 ➢ Marappan a/l Muthusamy v R Sivam a/l Ramasamy [2014] 4 MLJ 428 S/N zsWFa61wT0e7zftpLVATlw 28 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 32 ➢ Murugan v Lew Chu Cheong [1980] 2 MLJ 139 ➢ Sivanes Rajaratnam v Usha Rani Subramaniam [2002] 1 MLRA 178 ➢ Thenegaran Murugan v Public Prosecutor [2013] 5 CLJ 850. Legislation referred to: ➢ Evidence Act 1950 – sections 103, 114(g) ➢ Law Reform (Marriage & Divorce) Act 1976 – section 76 S/N zsWFa61wT0e7zftpLVATlw